Introduction

I. WHAT HAPPENED TO THE BRAZIL THAT WAS �TAKING OFF’?

In November 2009, a cover of The Economist portraying the Christ the Redeemer in Rio de Janeiro taking off announced that Brazil was rapidly heading towards becoming the fifth biggest economy in the world and that the country �suddenly [seemed] to have made an entrance onto the world stage’.^[1] A special report was dedicated to this rise of Brazil as a world power and a country that, instead of �[being] all promise’, was finally �beginning to deliver’.^[2] Brazil already had some political stability, with a regular turnover of power between two major political parties - the Brazilian Social Democracy Party (PSDB) and the Worker’s Party (PT) - and elections were well-organised and peaceful.

In 2013, a new cover of the same magazine again portrayed the Christ the Redeemer, but now, instead of taking off, it appeared to be falling onto the wonderful mountains that surround the stunning landscape of Guanabara Bay. The cover also had a very provocative title - �Has Brazil Blown It?’^[5] - and argued that the optimism of the 2009 cover was already showing signs of wear.

Fall: Dilma Rousseff and the disastrous year ahead’.^[6] The Economist would support her removal on two other covers. The first one came with the heading �Time to Go’ and suggested her resignation as a less traumatic solution than her impeachment.^[7] One month later, when the impeachment bid had already been approved in the Chamber of Deputies, the cover �The Betrayal of Brazil’ extended criticism to the whole political class, which, it was suggested, had also betrayed the country.^[8] Now the cover had the Christ the Redeemer holding a SOS sign.

That SOS sign, now looking back, is indicative of how that year - 2016 - was a portent of a future that would remind Brazilians of their past. It is when Pandora’s box was opened and released some of the country’s past evils that until then had seemed to be under control. It is also when the country, as never before since the transition to democracy in 1985, could see the pillars of its democ­racy beginning to tremble. A sequence of developments at that time laid the groundwork for the rise of Jair Bolsonaro as President two years later, a shock­ing and unexpected outcome for many. The country that around a decade ago was �beginning to deliver’ would now feature the �Latin America latest menace’,^[9] a statement that has since proven true as the country has rapidly backslid in vari­ous markers of democracy and the rule of law. The Economist could not better depict such a rapid transformation: the Christ the Redeemer would now breathe through an oxygen mask^[10] - and not only because Brazil had one of the world’s worst responses against the COVID-19 pandemic.^[11]

It is a strange feeling to follow the chronology of those covers: it seemed that Brazil was finally crossing the threshold where the ladder to development could no longer be kicked away,^[12] where democracy was �the only game in town’,^[13] and where the commitment to the rule of law had found an �institu­tional equilibrium’^[14] that could stabilise the political forces and society at large.

However, the question is whether such a downfall is just a deviation, even if a radical one, from that path towards the �entrance onto the world stage’^[17] or, on the contrary, an eternal return journey to where Brazil has long belonged. Short­term history, especially such an intense one, has a powerful capacity of blurring our analytical eyes in relation to events that have lingered, to processes that have reinforced themselves throughout history, even if they have also changed based on current events. For a multifaceted concept such as the rule of law, short-term history naturally matters, but it is how the country incrementally and consist­ently evolves in its institutional capacities and in its markers of democracy over long stretches of time that it can more accurately reflect what the country has achieved, what it is currently enduring and what may happen next.

That said, the rise of a figure like President Bolsonaro, more than the phenomenon itself, reveals the deep wounds of Brazilian democracy that have not been properly treated over the years of democratic life and which are now bleeding fast.

Brazil’s present has, however, embraced that past, with its long-term history now radicalised in all its disruptive force within a short period of time. This explains why Brazil, which could until recently enhance its institutional capacities and the rule of law, fell into a slump. This is also the reason why understanding Bolsonaro as a culmination of both the country’s structural flaws and the misfortunes of the time may better explain where Brazil currently stands and where it may go from now on. The country was already struggling with its longstanding democratic shortcomings, but contingencies also matter: unfortunately it featured an opportunistic politician who had been strategically planning for a long time to become president through a far-right agenda that could easily gather the support of a resentful people and satisfy the interests of wealthy segments of society.

Brazil is naturally not alone. In various countries, to a greater or lesser extent, recent developments have raised serious concerns about the quality of their democracies as the symptoms of their decay have become more pronounced.^[19] Adam Przeworski points out some typical signs in this direction: the erosion of traditional party systems, the rise of right-wing populism and the decline of support for democracy. Moreover, potential causes for such a phenomenon may be found in a stagnant economy, rising inequality, lower social mobility and growing polarisation in society.^[20] Zachary Elkins stresses this last point by argu­ing that �divided publics [is] the single most important factor that threatens and undermines democracy, at least in modern presidential systems’,^[21] and, when extended to politics, this polarisation is indeed dangerous: �party polarization threatens the most basic objectives of governance’,^[22] so �understanding polariza­tion comparatively should be at the top of the agenda for comparative political scientists’.^[23]

These symptoms are strongly felt in Brazilian democracy. However, two key developments may help explain why Brazil resorted to such a strong example of an extreme-right movement as a way out of a political crisis that had been brewing since the popular protests of 2013, or earlier.^[24] The first is the typical

What Happened to the Brazil that was "Taking OffT 5 argument that has historically proven strong enough to destabilise governments: the anti-corruption rhetoric, but now boosted by a judiciary heading at a rapid pace toward politicisation and even partisanship.^[25] The second is the erosion of the political system through increased party fragmentation and decreased insti- tutionalisation,^[26]6 which creates incentives for corruption.^[27] Bolsonaro surfed on the wave of the anti-corruption crusade prompted by �Operation Car Wash', a massive anti-corruption probe,^[28] which positioned the judiciary as an instiga­tor of the crisis by disregarding basic constitutional principles in favour of an alleged public outcry.

However, Bolsonaro has proven to be too heavy a burden for a country that, despite its flaws, has learned to live with democracy and whose institutional framework, even if weakened, still has some capacity to react to such a crisis. Particularly in view of the disastrous handing of the COVID-19 pandemic, but also the mismanagement of all sectors of governance and economy, Bolsonaro increasingly looks like a transitory phenomenon, though bolsonarismo will not be. The radicality of such a short-term event will impact future developments in the country in a way that obviously remains to be seen. Despite their serious dysfunctionalities and disruption under Bolsonaro, the country's democratic

institutions as well as organised civil society have shown a reasonable degree of resilience and capacity for reaction. Therefore, for a concept such as the rule of law, it is what has led to such a phenomenon and what will possibly linger for a long time thereafter that deserve further attention and reflection. This may better explain the quality and functioning of the rule of the law in the country, which is marked by several layers of self-reinforcing processes^[31] that transcend this very specific moment and that have impacted various other critical moments in Brazilian history.

All such historical clashes, in recent and past history, imply methodologi­cal dilemmas that should be announced in advance. Discussions of the rule of law in such a radical and intense political moment are certainly under continu­ous threat of falling into analytical pitfalls. The history of our own time is always a risky endeavour, but even more so when short-term history tends to transcend its time and greatly affect our interpretation of the �actors and factors [that are] relevant to the (declining) health of the democratic system’.^[32] It has a powerful capacity of distorting the interpretation not only of this very moment, but also of what happened previously, and what may happen next. Bolsonarismo is a phenomenon that certainly reveals much of Brazil’s wounds, but it is also one that overshadows what is beyond the radicality of its very presence.

We thus need to go far beyond the spectre of bolsonarismo. This book focuses on some key �actors and factors’^[33] that have moulded the rule of law in Brazil over time. Its main thesis is that the rule of law in Brazil has greatly improved over the years of democratic life but still pays the high price for simply �normalising’ longstanding tensions and not challenging them. By �normalising’ such tensions, the rule of law has been strategically identified with legal mechanisms to maintain, justify and even construct inequality. This also reveals how a certain authoritarian mindset clashing with democracy is still pervasive in the country. The alarming levels of social inequality and the still widespread authoritarian mindset, when combined as deeply as they currently are, cause the country’s mechanisms of democratic protection to be placed under severe stress, thus exacerbating their structural dysfunctionali­ties. Social inequality and an authoritarian mindset are therefore not only the central guidelines for understanding the functioning and quality of the rule of law in Brazil, but also the long-term features that create incentives for short­term junctures to resound for a long period of time. Despite that, this book has hope that Brazil’s democracy will survive the radicality of present times and prove itself stronger, even if the path toward its consolidation now looks bumpier and more distant.

II. THE STRUCTURE OF THIS BOOK

The rule of law is not a simple concept when it comes to defining the political, economic and legal developments of a country like Brazil. Similar to many other Latin American countries, Brazil is a young democracy struggling with its long­standing extractive institutions^[34] and entrenched interests. The very concept of rule of law in such a scenario is thereby both unstable, because of its recur­ring connections with a past that does whatever it takes to keep itself virtually untouched, and promising, because of the legitimising forces of a democracy that has become part of Brazilian life, even if it is a flawed one. Brazil features one of the most interesting democratic transitions that also turned out to be a constitutional transition marked by the great involvement of organised civil society^[35] and the promise of a new era.^[36] If this new constitutional moment laid the groundwork for positively transforming Brazilian institutions and strengthening the rule of law, it has nonetheless suffered from the memory of much of that authoritarian era. As Anthony Pereira points out, �the legacy of authoritarian legality has cast its shadow over democracy’.^[37] This clash between instability and promise, on the one hand, and authoritarianism and democracy, on the other, is what makes the investigation of the rule of law in Brazil such a fascinating subject.

This book aims to discuss the functioning, evolution and dynamics of the rule of law in Brazil from different perspectives. It stresses not only how the rule of law has developed in the legal system, but also how the political institutions and extra-legal organisations have transformed the foundations of the rule of law in Brazil. Moreover, in a context of a crisis of liberal principles and �democratic decay’^[38] in global constitutionalism, the book explores the visible threats to the rule of law in a young democracy like Brazil. Past history provides a rich background to show how the transition to democracy has fostered a greater commitment to the rule of law while, at the same time, raising new dilemmas that democracies, and especially young ones, often face. The central question of the book is how Brazilian democracy has dealt with the high levels of social inequality and the authoritarian mindset that still play a big role in its fate, and whether the country’s democratic achievements and institutional framework are sufficiently strong to enforce the rule of law as an imperative for Brazil’s development, especially in times when the country is most in need of them.

The first chapter - �The Conceptual Evolution of the Rule of Law in Brazil’ - will examine the doctrinal debate over the rule of law in Brazil, the evolution of its meaning in important moments of Brazilian history and the way legal institutions have dealt with it over time. The investigation is, therefore, both doctrinal and historical and focuses on a diachronic analysis of the concept of rule of law. More importantly, it explores the various subtle ways in which the rule of law can be lost in translation. A necessary discussion is found in the confusions and misconceptions that occur when the rule of law is simply translated into Estado de Direito,^[39] as normally employed in Portuguese. The legal doctrine, statutes and precedents refer to the concept of Estado de Direito when they aim to express a similar understanding to what is internationally called the rule of law. The evolution of such a concept is also an interesting topic, because the Brazilian legal doctrine and institutions, even under authori­tarian rule, used a deviating concept of Estado de Direito to justify some of the major atrocities of those regimes, in a clear case of abuse of such a concept. Brazil, more than many of its Latin American neighbours, is rich in experiences of abuses of legal concepts, with a number of legal documents mentioning them as a way to promote the goals of dictatorial regimes, as took place during Getulio Vargas’s Estado Novo (1937-45) and the civilian-military dictator­ship (1964-85). On the other hand, the concept of Estado de Direito has itself evolved with the transition to democracy in 1985, and, particularly, with the 1988 Constitution, whose democratic quality is very visible by calling it Estado Democratico de Direito.

In this regard, Estado de Direito is a compelling concept to observe the clash between preservation and democratisation in Brazil, and also how it has been subverted by the country’s high social inequality and deep-rooted authoritarian mindset. This chapter acknowledges and briefly examines some normative assumptions that are usually connected to the concept of rule of law as well as its traditional conceptual distinctions with, in particular, the German Rechtsstaat and the French etat de droit. It assumes, in any case, that, for an adequate assessment of the rule of law, it needs to address the constraints that inequality and authoritarian legacies constitute for such a concept. For this purpose, this chapter will adopt a game theoretic modelling for the rule of law by focusing on concepts such as equilibrium, coordination, behaviours and incentives, but tempered with those normative debates as well as historiographic concerns of temporal processes over long stretches of time in political and legal institutions.^[40]

The second chapter - �The Local Lived Experiences of the Rule of Law in Brazil: The Impacts of Social Inequality’ - introduces the first fundamental element for understanding the rule of law in Brazil: the country’s structural social inequality. The main argument is that Brazil is marked by a history of strategically keeping inequality virtually unchanged despite the various politi­cal and social transformations in the country. Brazil has certainly become more democratic and has improved as regards social welfare, but inequality is a seri­ous hindrance to the political, economic and legal development as well as to the consolidation of the rule of law. It also helps explain why the country still suffers from moments of serious democratic crises, such as under the Bolsonaro government, by arguing that inequality negatively impacts the capacity of the democratic institutional and legal framework to function as a self-enforcing coordination device,^[41] while creating incentives for formal and informal institu­tions to preserve a strategy of exclusion of those most in need. This chapter will also discuss whether and how the rule of law, in the years since democratisa- tion, has fostered greater inclusion of minorities in Brazil (such as women, the Black community and Indigenous people) and lessened regional differences. It ends by examining some comparable empirical markers of the quality of Brazil’s democracy and rule of law according to international surveys and indexes. By contextualising those empirical data and connecting them with the previ­ous discussions, the chapter ends by arguing that those surveys and indexes do matter but should be taken with a pinch of salt, especially in a country with such high social contrasts.

The third chapter - �The Authoritarian Mindset and the Rule of Law in Brazil’ - introduces the second fundamental element that has largely impacted the rule of law in the country: the persistence of an authoritarian mindset, which has been manifested not only in simple behaviours that are usually entan­gled with inequality, but also in the most critical moments of Brazilian history. This chapter aims to show how such an authoritarian mindset has reinvented itself as democratic in both explicit authoritarian periods and moments where democracy seemed to be heading to a point of no return. Brazil features one of the most compelling constitutional transitions in Latin America, when distinct sectors of organised civil society could effectively influence the drafting of the 1988 Constitution. Yet, as usually happens in democratic transitions,^[42] this same Constitution also preserves various legacies of the previous authoritarian years. This is the paradox that is beneath many of Brazil’s recent developments: on the one hand, there is a visible institutional improvement, so the commitment to the rule of law has indeed become more effective; on the other hand, that authoritarian mindset, which expresses itself through distinct practices (clien- telism, corruption, attacks on minorities and a rather unstable civilian control over the military) keeps causing serious damage to the country. A clash of narra­tives between authoritarianism and democratisation has played a relevant role in Brazilian history and is a fundamental subject for grasping the main nuances of the rule of law in Brazil.

The fourth chapter - �The Rule of Law and Brazilian Political Institutions: A Reshaped “Coalition Presidentialism”’ - delves into the functioning and dysfunctionalities of Brazil’s political system. This chapter will show how parliament and the executive have managed to comply with the rule of law and how they have also overlooked it in order to keep entrenched mutual benefits virtually untouched. The goal is to discuss some of the core institutional politi­cal improvements the country has visibly achieved over the democratic years as well as some forms of abuse of constitutional tools to jeopardise the rule of law.^[43] This chapter will examine the main features of Brazil’s Congress and Executive, notably by focusing on the functioning of its so-called �coalition presidentialism’.^[44] The analysis will revolve around the fascinating debates over whether �coalition presidentialism’ is suitable for governance or, on the contrary, is so dysfunctional that political deadlocks^[45] have raised the stakes of power and destabilised the constitutional system.^[46] It also explores the significant party fragmentation and the still-oligarchical National Congress, two key defects that tend to foster clientelism and corruption. The chapter also raises the question of whether clientelism and �coalition presidentialism’ are a necessary correlation.

The fifth chapter - �The Rule of Law and Brazil’s Politicised Judicial System’ - examines the judiciary in Brazil, a major player in Brazilian democ­racy. The judiciary has become significantly stronger over the democratic years, but notably the Supreme Court has transformed itself into a central political player, in a way that is not easily translatable into the language normally adopted by constitutional courts elsewhere. The main consti­tutional and political matters are now decided by that Court, sparking a fierce debate over whether it has, or has not, overstepped the principle of separation of powers, no matter how this principle has been normatively inter­preted. It has behaved as an important player in protecting democracy and enforcing the rule of law, but it does not follow that, by acting as such, it has left behind the authoritarian mindset that has long pervaded Brazilian insti­tutions. It has defended the rule of law and constitutionalism, but it has also transgressed them by other means, through either a preservationist behaviour or sheer politics - not to say partisanship in some cases. It has become more accessible, but it still lacks accountability. The judiciary is one of the most independent in Latin America^[47] but is also a very successful corporation that institutionally embodies and constructs inequality. This chapter also delves into Brazil’s judicial criminal system and police forces, which have proven highly inefficient and caused the levels of violence to increase (eg, the shock­ing numbers of police killings), thereby fostering inequality even further.

The sixth chapter - �The Extra-Legal Influences on the Rule of Law and Mechanisms of Accountability in Brazil’ - investigates other actors, organisa­tions and institutions that have played an important role in fostering the rule of law in Brazil, such as accountability institutions, movements of organised civil society and other public interest groups. Corporations and economic sectors have cooperated with the state on several fronts, though some such relationships have been plagued by clientelism and corruption. For this purpose, it reviews some empirical data on corruption according to inter­national indicators and delves into some mechanisms Brazil has adopted to combat corruption, particularly by focusing on the effects of path dependence, inequality and institutional design flaws. It also shows the challenges of chang­ing such a reality even by means of incremental improvements, since political and social backlashes have become commonplace. On the other hand, there is a growing movement of organised civil society in favour of new policies aimed at democratising the institutional framework and designing strategies to tackle the longstanding inequalities in the country. This chapter looks into how civil society has coordinated conflicting interests in its quest for fairness through a series of actions and mobilisations that have resulted in important public poli­cies. It ends by discussing the role, structure and dynamics of the media, which, though seemingly free and independent, is very concentrated and influential in Brazil. The power of social media (Facebook, Twitter, WhatsApp, etc) is also an important factor in understanding their impact on the enforcement of the rule of law and the challenges they bring to Brazilian democracy.

The seventh chapter - �The Rule of Law in Brazil and the Challenges of International Law’ - is aimed at discussing how international law and institu­tions have impacted the development of the rule of law in Brazil. Previously seen as a �global development power’,^[48] Brazil has more recently been in the spotlight as a growing antagonist of international relations and regional inte­gration. This is a radical deviation from its previous path, when Brazil aimed at strengthening the rule of law by projecting its rising power through regional asso­ciations such as MERCOSUR and UNASUR as well as other partnerships with poor and middle-income countries. The participation of Brazil in other inter­national associations, such as the Organisation of the American States (OAS), and its commitment to international law and rulings by international courts, in particular the Inter-American Court of Human Rights, is also addressed in this chapter. It ends by discussing how the international community has interpreted Brazil’s compliance with the rule of law, especially in view of the recent critical developments that have undermined its appeal as a world’s soft power in the promotion of democracy and the rule of law.

The eighth and final chapter - �The Future of the Rule of Law in Brazil’ - provides a deeper analytical approach by summarising the main conclusions of the previous chapters and connecting them to some debates over the current context in Brazil. This chapter links long-term history to short-term events, thus assessing their impact on possible future developments for the rule of law in Brazil. The goal is to foresee potential scenarios for the rule of law amid the challenges of the political crisis that the country has been enduring. The main question is whether Brazil has achieved a mature institutional framework and a cohesive civil society that are strong enough to cope with the recurring risks of democratic backsliding. This chapter delves into the factors that have destabi­lised the rule of law in the country, such as the growing polarisation in society and politics and the dysfunctionalities of the political and judicial systems. It begs the question of whether Brazil will find a new �equilibrium’ to stabilise its democratic and constitutional system and how the country will overcome Bolsonaro’s disruptive years.

This book ends by arguing that Brazil has had ups and down throughout its democratisation process, but, overall, it has achieved significant institutional progress, fostered mechanisms of social inclusion, and enhanced its culture of democracy. It is still a country marked by significant social inequality, where extractive institutions have managed to keep their influence and power untouched, and where the authoritarian mindset, through distinct forms, has found a way to disrupt democracy whenever the opportunity arises. Brazil needs to learn from its past and address the wrongs that have long plagued its capac­ity to face the challenges of a young democracy. This book reveals its profound concern about Brazil’s democracy, especially given recent critical events, but it is confident that Brazilian democracy is here to stay, even if its path to consoli­dation now demands more energy and vigilance. The rule of law in Brazil has

The Structure of this Book 13 been built upon the legal construction of inequality and this has handicapped the country’s capacity to overcome its longstanding evils, frequently reappear­ing in different forms. This book aims to show that Brazil, despite its setbacks, has made some progress in its commitment to the rule of law, but unless it chal­lenges its deep-rooted inequality, it will always be the country where the Christ the Redeemer will keep falling onto the wonderful landscape of Guanabara Bay.