Brazil’s 1988 Constitution enshrined a broad catalog of social rights—including rights to health, education, social assistance, and social security—marking a milestone in democratization after two decades of military dictatorship. As a foundational charter for Brazil’s return to democratic governance, it represented a historic break with an authoritarian past and affirmed the nation’s commitment to building a just, free, and solidarity-based society. But more than three decades later, the promise of these rights remains elusive for millions.
Over the past decade, more than 20 million individual lawsuits related to social security have been filed in Brazil. This staggering figure has led many observers to praise the judiciary as a vehicle of inclusion that enables vulnerable populations to demand their rights. However, a closer look reveals a lack of collective engagement. The widespread reliance on individualized litigation has created a deeper dysfunction: a form of legal dualism in which the rule of law is unevenly distributed, structurally selective, and unpredictable. The Brazilian state, paradoxically, is both a guarantor and a primary violator of these rights—appearing as the main defendant in litigation in recent decades.
Legal fetishism and the disguise of structural injustice
The Brazilian welfare system, particularly its public social security apparatus, was designed to provide protection against income loss due to aging, illness, or disability. Envisioned by the 1988 Constitution as a crucial instrument for eradicating extreme poverty, social security rights were meant to guarantee income protection and promote social inclusion for vulnerable groups. Workers contribute from their paychecks every month to access these benefits. However, the system is plagued by complex regulations, frequent legal changes, and fiscal constraints, resulting in widespread errors that lead to the denial or delay of entitlements that ought to be disbursed by the executive branch.
In response, individuals turn to the courts en masse. While this may simulate a form of rights empowerment, it masks a troubling reality. Individual claims prompt judicial decisions that focus narrowly on individual relief, abstracted from the collective harms and systemic failures that generate the disputes.
The massive scale of litigation also makes it difficult to effectively enforce precedents. There are more than 1,000 precedents issued by courts on social security issues, but the executive branch does not apply them to workers’ requests for these benefits. Thus, litigation becomes a form of legal fetishism, where court outcomes symbolize justice but do not produce lasting structural change.
Paradoxes in access to justice for social security rights
Despite the existence of class action mechanisms and binding precedents, most collective rulings are subject to legal constraints and lack effective enforcement. For example, beneficiaries are often required to file new individual suits to claim the rights already recognized collectively, creating delays that disproportionately hurt the most vulnerable.
This dynamic discourages strategic litigation and collective mobilization. While individual lawsuits may yield short-term wins, they fail to trigger broader policy shifts or ensure institutional accountability. Worse, they may legitimize a selective enforcement regime where access to justice depends on the ability to navigate a complex legal system, thus deepening inequality.
The language of human rights, curiously, has played only a marginal role in these struggles. Although social security rights are recognized as human rights under international law, as seen in the Inter-American Court’s decision in “Five Pensioners” v. Peru, Brazilian human rights movements have seldom prioritized these issues.
Within the Brazilian judiciary, even in class actions, the state, represented by prosecutors or public defenders, has been the most prominent litigant. Thus, civil society organizations, such as NGOs, associations, and unions, have mobilized in less than 25% of collective lawsuits.
In this context, the judiciary operates less as a transformative institution and more as a fragmented emergency mechanism—granting relief in isolated cases while failing to address the systemic injustices that generate these claims. This trend ultimately distances social rights litigation from the broader human rights agenda, weakening its transformative potential.
Portaria Conjunta No. 4/2024: A first step to link court precedents with workers’ lives
In 2024, an innovative agreement involving the chief justice of the Brazilian Supreme Court and high-ranking officials from the executive branch established the “Desjudicializa Prev” program, issued by the National Council of Justice (CNJ) through Portaria Conjunta 4/2024.
Using the judiciary’s data on ongoing lawsuits, the program aims to significantly reduce pension litigation by identifying cases in ten key areas where jurisprudence is already well-established. These cases are automatically flagged in the court system, obliging the state to withdraw appeals, decline to litigate, or propose administrative settlements.
Advocates view the Desjudicializa Prev initiative as a landmark effort—but because it is limited to only ten issues, most types of litigation remain unaddressed. The main innovation centers on the promise of continually adding new topics to the program and orienting enforcement toward collective resolutions, which can reduce repeat litigation, ease the burden on the courts, lower transaction costs, and ensure predictability.
Seen through a human rights lens, this initiative marks a rare and hopeful convergence of efforts from the judicial and executive branches to effect a first step toward access to justice. Rather than treating litigation as an end in itself, Desjudicializa Prev reveals the potential of Brazilian judicial big data to convert large-scale litigation into effective wins for vulnerable populations by enforcing court precedents.
Emphasizing collective action
However, the larger lack of collective synergy remains a primary weakness in framing social rights litigation within a broader human rights agenda. The fragmentation of claims obscures the underlying social relations and collective dimensions of inequality. Individual successes, though important, do not equate to sustained public policy reform.
To fully reclaim the human rights promise of Brazil’s constitution, a robust shift is needed. Strategic approaches anchored in collective advocacy, enhanced participation by affected communities, and stronger integration with international human rights mechanisms are essential. Access to justice should not merely plug institutional gaps but serve as a driver of structural accountability.