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Legislative Policy in Brazil: limits and possibilities

‘It became very clear that Brazilian legislative policy was frail, obsolete and unreliable,’ says Felipe de Paula. He will defend his dissertation on the limits and possibilities of legislative policy in Brazil on Tuesday 27 March 2018.

Felipe de Paula.
Felipe de Paula

What was the reason to carry out research on the topic of your doctoral thesis? 

Before starting this doctoral research, I had been working for years within the Brazilian government and was particularly involved in legal drafting, lawmaking and rulemaking. Having  experienced this process, my impression was reinforced that by and large legislation was chiefly drafted in the dark, with no inkling of where to start or even where to go, and no clear diagnoses or objectives,. So, I decided to study how it could be possible to produce better laws and statutes in Brazil, particularly taking account of experiences in the United States and Europe, and always having in mind that local contexts do matter.

Can you briefly explain what you have researched and how you did this?

I followed four main steps. First, I defended that contemporary legislative production has an increasingly goal-oriented and instrumental nature (the legal act, conceived as an instrument, usually operates towards a specific pre-established goal where the results are assessed). Second, I performed an in-depth study of Brazilian legislation, lawmaking and legislative-regulatory policy. The legal and institutional set-up, as well as the actual relationship between the Executive and Legislative branches were also assessed.

To lend empirical support to the thesis, I chose ordinary laws from 2007-2012 as the object of study, to see (i) how they were actually drafted, (ii) whether a gap exists between the legislative policy in force and the governmental drafting practice, and (iii) whether they had instrumental and goal-oriented features. Semi-structured interviews with high-level governmental actors were carried out as well in order to detect flaws and problems.

Third, legislative-regulatory policies over the past 20 years were reviewed, providing an analysis of currently existing tools, methods and alternatives, particularly in Europe and US. The research focused on the instruments, results and reasons of these policies, without avoiding an understanding of the contexts for adoption and implementation. Criticisms of practical and theoretical aspects were also investigated. Finally, using the output from the previous steps, a proposal for a legislative-institutional modification that could help the enhancement of the Brazilian discussion was established.

What are the most important conclusions and recommendations of the research?

It became very clear that Brazilian legislative policy was frail, obsolete and unreliable. Moreover, it undoubtedly failed to produce satisfactory results, especially in connection with substantive aspects of regulation. So, a first important conclusion is that there is room for a new Brazilian legislative-regulatory policy.

A new Brazilian legislative policy can certainly learn from North-American and European experiences and initiatives. However, as I detected during my research, these are not magical or infallible - on the contrary, there are a lot of inner limitations and particular hindrances related to their implementation. So, a new proposal should observe these and adapt them to the current Brazilian scenario. 

Five suggestions for a new legislative policy in Brazil were drawn up: a strong shift in the procedure and in the content of current ex ante regulatory impact analysis; the gradual adoption of ex ante evaluation; the employment of legislative tests and experiments; the use of proposals arising from behavioural approaches; and, finally, the use of secondary components such as legislative roadmaps.

What will be done with the outcomes of your research?

The thesis puts forward a lot of practical suggestions, and I’ve been applying these outcomes in debates, public hearings and texts related to the issue. The Brazilian government is, at this very moment, amending our legislative policy. Some ideas from the thesis are being debated in the process. I hope they can help in some way to achieve a better drafting process, leading to better lawmaking.

Professor Wim Voermans on Felipe de Paula

'Brazil, as a country and polity, faces many challenges, but is equally a country with tremendous (economic) potential. As a young and dynamic democracy, good legislation is of the essence to harvest the possible yield of the vibrant but also vulnerable market economy. Felipe de Paula has had hands on experience as a senior civil servant in the legislation offices of the Presidential Palace in Brasilia and the metropole of São Paolo. He has used his experiences as the backdrop for his thorough and wonderful study into the possibilities of a legislative policy in Brazil that would benefit the quality and performance of Brazilian legislation. The study is academically sound as well as of real practical importance. A must-read, for both domestic and foreign readers.'