The constitutionalization of the Public Defender’s Office: disputes over space in the justice system

Abstract The 1988 Constitution inserted the Public Defender’s Office in the Brazilian justice system in order to provide legal aid to people in need. At this time, the institution was a novelty in many parts of the country, and other institutional arrangements for legal aid were available in various places. This paper has analyzed the Constituent Assembly’s debate to identify patterns of conflict concerning the constitutional provision of a Public Defender’s Office. The debates reveal three avenues of objection to the standardization of legal aid through the Public Defender’s Office, which are institutional effects from previous state arrangements and from the centrality that the Public Prosecutor’s Office was acquiring in the justice system. We observe that institutions and public policy, by influencing actors’ aims and strategies, affect processes of institutional development and change. These findings contribute to the literature on Public Defense, which stresses the institution’s potential to promote social justice and the democratization of the justice system in Brazil. In spite of observing the institution’s incapacity to live up to its potential in practice, it isn’t able identify that this limitation is, largely, a consequence of the difficulty of inserting a Public Defender’s Office into an existing justice system.