Major Differences Between the Brazilian and U.S. Legal Systems
February 28, 2014
As many Brazilian attorneys already know, the Brazilian and U.S. legal systems are quite different. The U.S. legal system is a common law system, based on English traditions, where published opinions of judges are viewed as binding legal authority. This is in contrast to the Brazilian civil law system, which is based on European civil codes, especially that of Portugal, and which elevates the importance of codified law over judicial precedent.
Yet despite these differences in fundamental structure, there are still some similarities that attorneys from both countries will find familiar. In this post, we will cover some of these differences and similarities in order to give Brazilian attorneys a clearer understanding of how the American legal system works and to explain the basics regarding the role of lawyers in America.
It is important to first understand case law (published judicial opinions) and codes (laws enacted by legislative bodies). Although the U.S. has a common law system, extensive statutes, rules and codes exist at the federal, state and local levels. Published judicial opinions are by no means the sole source of authority in American jurisprudence. In fact, litigation is frequently driven in large part by codified law.
This mixture of sources of authority will likely come as no surprise to attorneys in Brazil. While Brazilian codes are key sources of law, the practice of súmula vinculante (through which binding opinions and decisions are issued by the nation’s highest courts) provides an analogous frame of reference for understanding how American case law precedent is used.
In Brazil, a legal education is provided in an undergraduate context, and it takes roughly five years to earn the Bacharel em Direito (Bachelor of Laws) that qualifies students to sit for the bar exam. In contrast, in the American educational system, students first obtain a four-year undergraduate degree (a bachelor’s degree), in any non-legal topic of their choosing, from a college or university. Then, they attend three-year programs at law schools, and earn a Juris Doctor (JD) degree. Only at that point may they sit for the bar exam.
Roles of lawyers
In Brazil, a judge takes the lead in litigations, investigating the facts, examining witnesses and appointing experts for questioning. In America, on the other hand, the attorneys for the parties in conflict perform many of these functions. Evidence is brought to light through a process called “discovery,” in which the attorneys for the plaintiff and defendant ask questions and request materials from one another, under the oversight of the judge. Much like in Brazil, however, there are not separate restrictive classifications for attorneys that practice different kinds of law. Passage of the bar and licensure entitles an attorney to represent clients in court, draft contracts and generally provide counsel in all legal areas.
In Brazil, there are state and federal courts. In America, another layer of minor courts called municipal (or local) courts exist to handle small matters or matters pertaining to particular niches (e.g., vehicular traffic offenses). In addition, instead of two high courts divided into constitutional and code interpretation (i.e., the Supreme Court or Supremo Tribunal Federal (STF), and the Superior Court of Justice, the U.S. has a single federal Supreme Court to handle all such matters.
For the most part, the increased importance of attorney participation in court proceedings and the reliance on case law are the main differences for Brazilian attorneys to be aware of regarding the American legal system. Those interested in delving further into the details of U.S. law, or are considering expanding their practices internationally, might want to consider looking into the @WashULaw LL.M. in U.S. law program.