The Politics of Legal Interpretation by the Subnational Parliament: A Case Study of the “Principle” in Dubio Pro Legislatore in Brazilian Constitutional Hermeneutics

Abstract

In Brazil, the field of legislative studies has developed over the past few decades, particularly within political science. Specifically, in the realm of law, investigations into the political dynamics of institutions, such as the legislative branch, especially concerning public policy formulation, are still relatively recent. Considering this scenario, this article presents the results of an investigation into the politics of normative interpretation by state legislatures, focusing on the “principle” of in dubio pro legislatore . Utilizing the theoretical frameworks of constitutional hermeneutics and comparative constitutional law, and following an extensive literature review of in dubio pro legislatore , we developed a case study analyzing the databases of 27 legislative bodies. The results showed scant use of in dubio pro legislatore by subnational parliaments, prompting a discussion on the theoretical potential of this legal principle to enhance (counter) legislative activism in response to judicial maximalism. The article is organized as follows: Section 1 introduces the discussion within the current Brazilian context. Section 2 delves into the adopted theoretical framework, emphasizing the debates around proceduralism versus substantialism and non-interpretivism versus interpretivism within constitutional hermeneutics. Section 3 provides the initial context for constructing the concept of in dubio pro legislatore , detailing its main theorists and authors on the basis of comparative constitutional law studies and Brazilian theorization developed in the past decade. Section 4 specifies the methodological procedures employed. Section 5 presents the results. Section 6 discusses the results in light of the theoretical framework and contemporary constitutional hermeneutics. Section 7 concludes this article.