How relevant is the empirical method in legal research? Invited for the debate on February 23 titled ‘Transparency of the Judiciary Branch and Empirical Research in Law’ – part of the freshmen welcoming week of the Academic Master’s Program of FGV’s Sao Paulo Law School (Direito SP) –, Brazilian Federal Supreme Court (STF) Justice José Antonio Dias Toffoli shared a practical example.

Toffoli invited participants to take a small poll, asking whether they agreed or disagreed with the enactment of the Saraiva Act in 1881, which extinguished the census vote in Brazil. A total of 45 of 47 respondents said they agreed, while only 2 disagreed, confirming the argument of history textbooks, which typically indicate that this measure was beneficial to democracy in Brazil.

However, when breaking down the data from an empirical standpoint, the justice’s analysis led to the opposite conclusion: the Saraiva Act thinned out Brazil’s democratic density by reducing the percentage of voters in the last election before it (the 1868 vote that elected the Parliament) to the election immediately after (the 1896 elections, already as a Republic, which elected President Prudente de Moraes), from 13% to 3% of Brazil’s population.

According to the justice, this information shows that empirical data must follow the theoretical study.

“What the history books do not show is that, besides abolishing the census vote, the Saraiva Act prohibited illiterate citizens from voting, which excluded the vast majority of slaves who were about to be freed by the Áurea Act. This veto would only be removed after the 1969 Constitutional Amendment, and the illiterate would only be entitled to vote in 1985, after more than 100 years of being unable to exercise this right”, said the justice.

Therefore, the issue of empiricism and the consideration of practical life in legal research are crucial, according to him. “Research efforts must be related to the problems of the country, the nation, the institutions, explaining why some things do not work”.

“And, as the largest think tank of Brazil and one of the largest in the world, FGV’s role is extremely relevant and important to ensure that research projects and studies have a better grasp of reality”, he said.

Eurico de Santi, coordinator of the Nucleus for Fiscal Studies (NEF) and the roundtable, mentioned three dimensions of transparency: the normative dimension, which is expressed by the need of the law to be transparent and also by means of the principle of publicity of public acts; the political dimension; and finally the academic dimension, which is often challenged by obstacles and lack of data.

“These three dimensions come together to strengthen the rule of law and institutions, and they increase the flow of information to change and strengthen knowledge, from a legal standpoint”, said the professor.