Invisibility and citizenship

how a democratic interpretation of the Brazilian constitution can help in the struggle for recognition of prisoners and convicted felons’ voting rights

Abstract

In many countries, such as Brazil, constitutions seem to restrict the right to vote for prisoners and convicted felons, excluding them from the electorate, in some cases permanently. 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 and disrespect can psychically motivate a struggle for social change. Taking Brazil’s constitution as an example, we propose an evolving constitutional interpretation, based on Friedrich Müller’s ‘structuring legal theory’ (Strukturierende Rechtslehre). Therefore, we examine the two central components of Article 15 of Brazil’s constitution, according to Müller: the norm-programme and the normative domain. By doing so, we are able to methodologically move from the text (linguistic element) to the norm, enriching the constitutional interpretation by adding both a systemic reading of other constitutional provisions and some relevant empirical data related to the Brazilian society (factual element). A comprehensive social meaning of citizenship, not exclusively a legal one, will be then considered, as well as the vertiginous growth of the prison population in Brazil over the last decades, reflecting in a progressively larger number of people excluded from the exercise of the citizenship by virtue of a criminal conviction. Thus, the study offers a multidisciplinary approach to the issue of prisoners and convicted felons’ citizenship, bringing together inputs from Constitutional Law, Sociology and Criminology.