ESTADO DE DIREITO IN BRAZIL: BETWEEN PRESERVATION and Democratisation

�The new Constitution would present itself as the consolidation of the commit­ment of the military regime to the Estado de Direito, even if it had originated from a practice that denies each of its premises.’^[94] Leonardo Barbosa’s words, which correctly portray a key feature of the Brazilian civilian-military dicta­torship (1964-85), are a good description of what Estado de Direito has come to mean in Brazil.

This narrative exposes how legal concepts can be strategically manipulated and abused. Estado de Direito, in both cases, could not embrace the formal version of a state limited and determined by law, whose acts preserve at least the negative individual freedoms, let alone those versions stressing substantive values in their core.^[97] Instead, Estado de Direito could mean a generic exonerating concept for an increasingly authoritarian government and a barrier to changes that would affect those who supported it. In the first case, the Constitution - and an authoritarian one such as the 1967 Constitution - would be the central document expressing the regime’s commitment to the Estado de Direito. As a typical dictatorship, the authoritarian Constitution was used as a democratic symbol of that regime.

However, the Constitution was not the hierarchically superior document of the legal framework.

During the transition to democracy, such a �revolutionary’ Estado de Direito would be profoundly preservationist: no change should be made to the point of destroying the bedrock of the �Revolution’. Democracy was knocking on the door and the political forces were devising the best strategy to cope with the inevitable transition to a new political regime. People were thronging the streets and Brazil would experience the powerful impact of the popular masses, which gained strength in the last dictatorial years and would greatly impact the 1987/1988 Constituent Assembly.^[103] On the one hand, there were those aiming to keep the past virtually untouched - and this is where Estado de Direito was employed as a preservationist concept. On the other hand, there was an increas­ingly powerful and influential organised civil society. As Barbosa points out, �for the first time in Brazilian history, the protagonists of the constitutional change were not confined to the institutional circles’.^[104] That pluralist document made Brazil an important example of academic disputes regarding the impacts of both preservationist and popular movements on constitution-making.^[105]

The conceptual transition of Estado de Direito is visible in those contexts.

The democratic value added to the concept of Estado de Direito is a common outcome of democratic transitions. It sets a new standard that should guide the relationship between the state and individuals. In addition to this norma­tive standpoint, there is the reconfiguration of institutional incentives that foster coordinated forms of inclusion of new players in the political arena, distribut­ing thereby larger shares of power. As Maraval and Przeworski point out, the relationship between democracy and the rule of law is �no more than that: a world of populated institutions in which actors may have conflicting interests and different powers behind them’.^[108] The Brazilian constitutional project sought to be more inclusive and pluralist. As a consequence, the institutional frame­work was designed to strengthen checks and balances, improve transparency and accountability and include new actors in the political arena.

Disputes over this new constitutional project have since changed. Like most democratic transitions, what was then preservation would turn itself into

strategies to hinder or even block policies aimed at distributing shares of politi­cal and economic benefits to new actors. These strategies would also manage to roll back some gains already made via the new constitutional document.^[109] In such an unequal country, with a legacy of authoritarianism that has favoured specific sectors of society,^[110] it is no wonder that the backlash against such a constitutional project would be particularly consistent. The concept Estado de Direito, now Estado Democratico de Direito, would be again reshaped to embrace the argument that there is only Estado de Direito where governability is feasible and sustainable. This argument was already raised by preservationist movements during the Constituent Assembly, but now, instead of identifying themselves with authoritarianism, the word �modernisation’ would become the new slogan. A modern Estado de Direito (and a modern Estado Democratico de Direito) is one that, while seemingly including new social groups, is, in real­ity, much more interested in devising policies to preserve the privileges of those already benefitting during the dictatorship. Other sectors and social groups that could largely benefit from the new Constitution would also find new ways to preserve their privileges.

This is to be expected: preservation, in its old and new forms, is a natural phenomenon of disputes among conflicting interests. In a democratic regime, however, what matters is how such conflicting interests are internalised in insti­tutional practices, and how new behavioural incentives provided by the new constitutional order can lead to greater levels of inclusion, even if imperfectly and insufficiently.

IV.