Paternity Leave, the Brazilian Supreme Federal Court, and the Reinvention of Tradition through Constitutional Interpretation

Abstract

https://doi.org/10.1590/2179-8966/2025/93533

In December 2023, the Brazilian Supreme Federal Court, in adjudicating Direct Action of Unconstitutionality by Omission nº 20, declared the National Congress’s unconstitutional omission in regulating paternity leave and established an eighteen-month deadline for its normative implementation. This article analyzes the Court’s judgment through the lens of Michel Rosenfeld’s theory of the identity of the constitutional subject. It examines, in particular, how the reconstructive instruments of negation, metaphor, and metonymy, as defined by the author, operate in the Justices’ reasoning and promote a constitutional reworking of tradition. From this theoretical-methodological perspective, it is argued that the Court’s decision challenges and redefines, within a democratic-constitutional framework, traditional conceptions of family, motherhood, and fatherhood. The analysis shows that this reconstruction is articulated around two central argumentative axes: the transformations in family configurations and the contemporary demands for the protection of childhood.