INVISIBILITY AND SUB-CITIZENSHIP IN BRAZIL: AN EVOLVING CONSTITUTIONAL INTERPRETATION OF THE RESTRICTION OF PRISONERS AND CONVICTED FELONS’ VOTING RIGHTS

Abstract

In Brazil and other countries, constitutions seem to restrict the voting rights of prisoners and convicted felons, temporarily excluding them from the electorate. Building on Axel Honneth’s ‘recognition theory’, our study analyses the social invisibility experienced by people who lose their voting rights due to the conviction of a criminal offense. It sets out to explore how subjective experiences of lack of recognition can psychically motivate a struggle for social change. Taking the constitution of Brazil as an example, we propose an evolving constitutional interpretation, based on Friedrich Müller’s ‘structuring legal theory’ (Strukturierende Rechtslehre). We examine Article 15 of Brazil’s constitution, moving beyond the text (linguistic element), therefore enriching the constitutional interpretation by adding both a systemic reading of other constitutional provisions and some relevant empirical data related to Brazil (factual element), such as a comprehensive social meaning of citizenship, and the growth of the prison population in Brazil over the last decades.