ESTADO DE DIREITO IN BRAZIL: SOCIAL INEQUALITY AS A HINDRANCE TO COORDINATION
Brazil has indeed democratised, but it has been a democratisation defined by high levels of social inequality. This is why there is a feeling of being lost in translation when Estado de Direito is associated with rule of law.
Marcelo Neves goes straight to the point when he states that the rule of law without a â€?sensible reassessment of our peculiarities’ is not â€?transposable to the Brazilian legal- political reality’.[113] Oscar Vilhena Vieira, by the same token, argues that â€?extreme and persistent social and economic inequality erodes reciprocity, both in the moral and the mutual advantage sense, thus impairing the integrity of the Rule of Law’.[114] The country’s staggering social inequality and also the authoritarian mindset are features that cannot be overlooked when the rule of law is at stake.The reason for this is quite straightforward. If we adopt the premise that â€?we cannot explain why the rule of law does or does not emerge in a specific historical context by invoking nothing but the strategic calculations of powerful political actors’,[115] an unequal society, with a legacy of authoritarianism, will inevitably lead to more conflicting and less consensual behaviours among those actors. The rule of law, in this context, will be based on a less stable equilibrium since those with larger shares of power will not find sufficient incentives for consensus, whereas the typical coordination devices, such as the legal frameÂwork, will prove less effective than needed.
As seen, the 1988 Constitution was the result of a democratic transition that brought a more inclusive design with incentives for consensus. Preservationist movements were successful in keeping many of their privileges untouched, but the transition to democracy was one such moment when the increasing particiÂpation of organised civil society changed the landscape for greater pluralism, a more robust system of checks and balances, and therefore a stronger compliÂance to the rule of law.
The years that followed also brought an increasing social participation at the institutional level.[116]The difficulty in translating the rule of law into Estado de Direito is that Brazil, despite such progress, has not overcome its most structural shortcoming: the relationships between the state and individuals and also among individuÂals themselves are largely dependent on the levels of wealth and poverty, race and gender. This is obviously not a Brazilian singularity - even in advanced
Social Inequality as a Hindrance to Coordination 27
economies social inequality also leads to shocking outcomes[117] - but the rule of law cannot be correctly translated into Estado de Direito and vice-versa unless inequality is examined as a structural element. In such a context, the rule of law must be interpreted as an egalitarian rule of law. It needs to both provide welfare and regulate behaviours by �[protecting] people with law’.[118]
Brazil has built a rather solid institutional framework, which, in some respects, is comparable to those of some advanced economies,[119] but it visibly lags behind in promoting social mobility and inclusion of underprivileged groups of society.
Normally, the difficulty in translating rule of law into Estado de Direito and vice-versa falls into the conceptual disputes over historical origins, legal tradiÂtions and normative ideals.[120] These differences are relevant, but, if we assume beforehand that the rule of law (or Estado de Direito) is mostly related to the capacity of individuals to â€?[police] the state’ and â€?react in concert to potential transgressions by the state’,[121] inequality is not a secondary element but a crucial one for overcoming potential coordination problems, thereby playing a major - though sometimes neglected - role for such a translation. Inequality also impacts the capacity of individuals to react against other private agents encroaching on their rights, thereby affecting the duty of protection the state should provide in order to preserve the rule of law more broadly.[122] The lack of incentives for incluÂsion and coordination will certainly impair the rule of law by denying the equal protection and enforcement of democratic rights, disrupting the growing need to connect this concept with democratic ideals.[123]
The argument in favour of social justice as part of the core of Estado de Direito is, however, very controversial.
It leads to the disputed field of an evoluÂtionary narrative in history, and, more importantly, it stresses the difficulties in migrating concepts from diverse legal traditions. Furthermore, the impacts on institutional behaviour given the extent and scope of this concept are not 28 The Conceptual Evolution of the Rule of Law in Brazil negligible: political institutions and, notably, the judiciary tend to take a more proactive approach to social welfare in this context. Whether a more formal or substantive conception of the rule of law should be adopted is therefore a topic with practical implications, even though this discussion will surely lead to insurmountable normative disputes. Maravall and Przeworski were possibly excessively harsh when they argued that â€?the normative conception of the rule of law is a figment of the imagination of jurists’, but they might have a point: perhaps it would be more productive to focus, as they say, on the â€?political forces, their goals, their organization, and their conflicts’.[124]V