Instituições de garantia da política urbana brasileira pós-1988: propostas do constitucionalismo garantista para a efetivação dos direitos fundamentais urbanísticos à luz da Constituição e do Estatuto da Cidade

Abstract

This dissertation critically examines the role of guarantee institutions – namely the Public Prosecutor’s Office, the Public Defender’s Office, and the Judiciary – in enforcing the fundamental urban rights enshrined in Brazil’s 1988 Constitution and regulated by the City Statute (Law No. 10.257/2001). Grounded in Luigi Ferrajoli’s theory of constitutional guarantees, the research assumes that these institutions should not be conceived as discretionary political actors, but rather as bound bodies tasked with ensuring compliance with constitutional rights. The central issue lies in the persistent mismatch between the normative density of Brazil’s urban legal framework and the empirical reality of its cities, which remain characterized by structural inequality, entrenched informality, and systemic deficits in urban justice. The methodology combines theoretical-documentary analysis with a systematic literature review, guided by the PRISMA 2020 protocol adapted to legal sciences. This methodological design made it possible to identify gaps in existing scholarship and to map analytical categories that highlight the fragmentation, selectivity, and reactivity of guarantee institutions’ performance in the field of urban policy. In addition, landmark judicial decisions, legislative instruments, and institutional practices were analyzed in order to provide a critical evaluation of both the limitations and the potential of the Brazilian justice system in advancing urban rights. Findings reveal that the persistent ineffectiveness of the Urban Law does not stem from a lack of legal provisions, but primarily from structural deficiencies in institutional enforcement. Judicial hermeneutics often remain overly deferential to property rights, reproducing a patrimonialist bias that undermines the constitutional mandate for spatial justice and human dignity. To address these shortcomings, the dissertation proposes an institutional redesign inspired by the guarantee paradigm, centered on three axes: (i) strengthening accountability for state omissions in urban policy implementation; (ii) promoting inter-institutional coordination among guarantee bodies; and (iii) consolidating a binding hermeneutics that recognizes the full enforceability of fundamental urban rights. The conclusion underscores that the realization of the right to the city in Brazil requires stronger guarantee institutions acting as counterbalances to the limitations of political governance. By articulating the constitutionalist theory of guarantees with urban policy, the research offers an original contribution both theoretically – by expanding the scope of Ferrajoli’s framework – and practically – by proposing concrete institutional measures. Ultimately, the dissertation advances a normative vision of urban policy as a constitutional obligation subject to judicial enforceability, seeking to bridge the gap between normative promises and the lived realities of Brazilian urban territories.