The Rule of Law in Brazil: A Conceptual Challenge

—Juliano Zaiden Benvindo, University of Brasília

 Reinhart Koselleck, one of the most prominent German historians of the twentieth century, once wrote that “conceptual change is generally slower and more gradual than the pace of political events.”[1] Time and experience are required for properly grasping the distinct nuances of a concept. Every concept – he says – both conditions political events and is affected by such extra-linguistic forces.[2] Particularly for constitutional lawyers, this premise means that we should be careful not to jump into general conceptualizations based on a single localized event, but, at the same time, acknowledge that “political and social history … can also be repeated in analogous structures.”[3] This premise has become an even greater challenge in times of rapid information and increasing movements of so-called “democratic decay.” It is no wonder that, in the last years, constitutional scholars have grappled with the difficulty of interpreting phenomena while the available concepts have seemingly not presented themselves enough to capture the complexity and the speed of changing realities. Concepts such as democracy and constitutionalism, multifaceted and controversial as they are, have been associated with various adjectives in order to provide a more direct overview of current events. “Stealth authoritarianism,”[4]  “abusive constitutionalism,”[5] “radical populism,”[6] constitutional dismemberment,”[7] “competitive authoritarianism,”[8] and “symbolic constitutionalization”[9] are just a few examples of this trend.

Amid a general bewilderment in the face of the many challenges to liberal principles and constitutional democracies around the world, Brazilian constitutional scholars, political scientists, and historians have also been struggling to comprehend the meaning of the sequence of events that have struck the country and their connection with some basic concepts. In a period of about five years, Brazil: 1) experienced the largest popular protests in recent history, which, in the end, became an unfocused movement ripe for co-option by traditional sectors of society; 2) elected the most conservative Congress ever since the end of the dictatorship; 3) endured a traumatic impeachment of President Dilma Rousseff; 4) saw the rise of an unelected President who is both highly unpopular and charged with involvement in a set of corruption schemes; 4) had the Speaker of the House and some other influential political figures arrested for corruption charges (many others are still under trial); 5) got used to a powerful, though also dysfunctional, Supreme Court exerting a moralizing role in politics; 6) and, on April 5, had ex-President Lula, the most popular and charismatic political leader in the country and a strong contender in the next national elections, surrender to police to start serving a 12-year prison sentence. For a country which was until recently seen as a success story in Latin America — The Economist, for example, had Brazil on the cover in 2010 with the title “Brazil takes off” — these many developments cause a mixture of perplexity and disillusionment.

Brazilian constitutional scholars have usually acknowledged and praised the democratic achievements the country has endured since the transition to democracy in 1985, and particularly the drafting of the Constitution of 1988, the most popular and inclusive ever in Brazilian history. Although the country continues to suffer from many of the evils and afflictions of a young democracy after years of authoritarianism, the last thirty years have shown effective progress in many areas while a certain enthusiasm for this new constitutional moment became widespread in academic circles. Until recently, the entrenched polarization of Brazilian society, in many respects connected to high levels of social inequality, seemed tamed through satisfaction of interests and stability. Lula’s election as President in 2002 and his government would consecrate this conciliatory model. Lula even wrote a document titled “Letter to the Brazilian People”, where the words “ample national negotiation” and “responsible and courageous changes” appeared to appease both capitalists and their opponents. Lula left office in 2010 with visible achievements in his government,[10] such as the substantial reduction of poverty and a booming economy, reaching an 87 percent approval rating. A pragmatist and a conciliator, some interpreted his government as a typical gradual reform to overcome poverty, though through a conservative pact that would not directly challenge longstanding privileges of various sectors of Brazilian society.[11] Others would stress that one of his main legacies was the stabilization of the Brazilian party system, at least in the Executive Branch, with disputes now being structured between the center-left Worker’s Party (PT) and the center-right Brazilian Social Democrat Party (PSDB), thereby strengthening Brazilian democracy.[12]

It is striking how rapidly this model was dismantled. The sequence of events above showed that, especially during and right after the reelection of President Dilma Rousseff (PT) by a tiny margin in 2014, the longstanding polarization, which appeared until then relatively appeased, exploded as never before since redemocratization. Where there previously seemed to exist a convergence towards two major political coalitions led by the PT and PSDB, there is now serious fragmentation to the point that, with less than six months to the national elections, considerable uncertainty remains regarding the contenders. No one can really bet on a potential winner or even on who will be running in a likely run-off. Where there previously seemed to exist a gradual reformism, though at the expense of not directly touching some entrenched privileges, there are now rising radicalisms and moralizing discourses. Whereas Lula’s election in 2002 was the coronation of a conciliatory moment for change, Lula’s arrest in 2018 is the expression that such conciliation may be too big a price to pay when the cards are off the table. As Vladimir Safatle recently wrote after Lula’s arrest: “Lula was the most well-finished embodiment of the national pacts. His arrest is a way for the traditional players to say that this era is definitely over.”

The clash of opinions on Lula’s arrest was massive. Some, as did Mark Weisbrot in an op-ed for the New York Times, directly pointed out that “Brazil’s democracy [is being] pushed into the abyss,” based, according to him, on the continuous blow to the rule of law since President Dilma Rousseff’s impeachment and also the judiciary’s partisanship with regard to Lula’s trial. In a letter to The Guardian, a group of sixteen mostly British parliamentarians and scholars followed suit arguing that “Lula has been subjected to a political prosecution and conviction, ignoring evidence of his innocence, and triggering a crisis of confidence in the rule of law.” Jessé Souza, a leading sociologist in Brazil, not only called all these set of events a “coup,” but also pointed out that the “Supreme Court, constrained and threatened several times, not only caved to pressure but also participated in the venture.”

On the other side, the argument was that the institutions are working properly and that the decision proved that the rule of law applies to anyone, even former Presidents. For example, President Michel Temer hastened to say that Lula’s conviction proves that Brazilian institutions “are working.” The Financial Times went even further and wrote that “perhaps no other country in the emerging world has gone so far in rooting out the scourge of corruption, and all via the rule of law.” Even the French Le Monde, though contending that the “Car Wash” probe, which implicated Lula, should reach “with the same severity other bigwigs of center or right-wing parties”, sustained that “by sending Lula to prison, the ‘Car Wash’ probe painfully shows that, not even a former President, popular as he is, is above the law. A revolution is underway, but it should not stop there.”

Koselleck’s words make us aware of the risks of drawing from such a rapid sequence of events definite conclusions with respect to a concept. In both sides above, for example, “rule of law” was applied as a basic concept to portray, in different ways, the crisis the Brazil’s young democracy is enduring, reaching its climax with Lula’s surrender to the police. Yet there is something else this sequence of events may teach us, and particularly those who are struggling with such concepts. This is not only how we deal with time and experience, but also how we deal with our expectations of the future that will bring us the real challenges of any concept.

There is always, for us Brazilians, that image of Representative Ulysses Guimarães, who chaired the Constituent Assembly of 1987-1988, showing the new Constitution to his fellow citizens as the symbol of a new era in Brazilian democracy. That was when the very expectations of a democracy were finally being envisaged after years experiencing authoritarianism. That moment made us proud of our transition to democracy and has since pervaded our constitutional mindset. Years have passed and now we are faced with the images of Lula being carried by thousands of supporters in front of the Metal Workers Union headquarters in São Bernardo do Campo moments before going to prison. Such events defy comprehension and are not easily reducible to words. Concepts have to take this into account: they need to cope with a set of experiences, expectations, and – why not? – disappointments that transcend reality.[13] In doing so, they are better fitted to reveal how deep our social divides are and how our political and social history, despite years of democratic living, “can also be repeated in analogous structures”[14] of a never-ending past.  Disputes over whether the rule of law was respected or not or how this and other concepts apply to the current context will remain, but they will not be able to conceal what lies beneath what we hope one day to call democracy – and not one followed by any adjective.

Suggested citation: Juliano Zaiden Benvindo, The Rule of Law in Brazil: A Conceptual Challenge, Int’l J. Const. L. Blog, May 2, 2018, at: http://www.iconnectblog.com/2018/05/the-rule-of-law-in-brazil-a-conceptual-challenge/

[1] Reinhart Koselleck, ‘A Response to Comments’, in H. Lehmann and M. Richter, The Meaning of historical Terms and Concepts: New Studies on Begriffsgeschichte (German Historical Institute 1996) 66-67

[2] Ibid.

[3] Ibid., at 67.

[4] Ozan O. Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673

[5] David Landau, ‘Abusive Constitutionalism’ (2013) 47 U.C.D. L. Rev. 189

[6] Carlos de la Torre, ‘The Resurgence of Radical Populism in Latin America’, (2007) 14 Constellations 384

[7] Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale Journal of International Law 1

[8] S. Levitsky and L. A. Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge University Press 2010)

[9] Marcelo Neves, A Constitucionalização Simbólica (WMF Martins Fontes, 2011).

[10] See Wendy Hunter, ‘Brazil: The PT in Power’, in S. Levitsky and K. M. Roberts, The Resurgence of the Latin American Left (The John Hopkins University Press 2011) 323

[11] See A. Singer, Os Sentidos do Lulismo: Reforma Gradual e Pacto Conservador (Companhia das Letras 2012)

[12] See Fernando Limongi and Rafael Cortez, ‘As Eleições de 2010 e o Quadro Partidário’ (2010) 88 Novos Estudos-CEBRAP 21

[13] See J.-W. Müller, ‘On Conceptual History’ in D. M. M. M. McMahon, Samuel (ed.), Rethinking Modern European Intellectual History (Oxford University Press 2014) 86 (arguing that, though Koselleck “still sought to hold on to some ontological distinction between the history of languages and Sachgeschichte: not all representations are actions, and not all action is somehow linguistic. Here Koselleck insisted on the wisdom of Herodotus: “There are some things which cannot be explained in words, but only in actions. Other things can be explained in words, but no exemplary deed emerges from them.”)

[14] Koselleck (note 1)., at 67.