I. INTRODUCTION: A PROSAIC APPROACH TO THE RULE OF LAW
One of the most difficult challenges for someone exploring the conÂcept of rule of law is to feel lost in translation. Countries not sharing the Anglo-American legal tradition may find, in such a concept, only a very imperfect equivalent.
Most commonly, we see rule of law being transÂlated, for example, into Etat de Droit (French), Estado de Derecho (Spanish), Stato di Diritto (Italian), Estado de Direito (Portuguese), and Rechtsstaat (German) - and vice-versa. If the concept of rule of law is what we could call a â€?multi-faceted ideal’[49] that has become â€?an international hurrah term, on the lips of every development agency, offered as a support for economic growth, democracy, human rights, and much else’,[50] it would be nonetheless wrong to simply assume that such an ideal is unique across the globe. Rechtsstaat, for instance, has evolved in such a way that it can mean the constitutionalisation of politics and the promotion of substantive values of constitutional justice and welfare.[51] Etat de Droit, in turn, is intrinsically connected to the debate over the limits of parliamentary sovereignty.[52] Depending on how we translate rule of law - for example, based on a substantive/axiological approach (Rechtsstaat) or on the institutional limits of popular representation (Etat de Droit) - it looks like we are sailing on troubled waters. Not only is rule of law a highly contentious concept,[53] but the way the literature has assimilated it into distinct political contexts varies significantly.Yet there are points of contact, which have become stronger still as legal traditions have become more intertwined than ever. The concept of rule of law itself, though highly contestable, is based on the â€?deployment and enforceÂment of procedural safeguards’,6 a formal understanding that recalls the Lockean perspective of individuals owning fundamental rights that transcend social contract and civil society.7 It is not easily translatable - such a Lockean perspective would sound rather inconsistent with various legal traditions, after all - but it is common sense that predictability, fairness and determinacy are part of the core of what we usually expect from a legal system and its instiÂtutions.8 Normally, the immediate associations of such premises are found in the separation of powers, the general commitment to the law by all indiÂviduals and the state, and - particularly important for the Anglo-American tradition - the fairness of all trials and procedures.
It could also embrace substantive contents (human dignity,9 or the recognition of multicultural identiÂties,10 for example), though such an appeal to substance rather than procedure (and the several disputes over the scope of each one) transforms the rule of law into a more contestable and dependable concept.If we ask a Brazilian lawyer what the concept of rule of law means, he or she will most likely assume that we are referring to the Portuguese concept of Estado de Direito. A more literal translation of rule of law into regra do direito or regra da lei (or even imperio do direito) sounds odd and, in fact, detached from the country’s legal tradition, even if some scholars have used such literal translaÂtions to express their distinctive features.11 Estado de Direito, like the rule of law, can encompass distinct shades of meanings, but, to put it simply, it embraces the premise that state acts must be determined and limited by law.12 As such,
Press, 2005); GJ Postema, �Law’s Rule: Reflexivity, Mutual Accountability and the Rule of Law’ in X Zhai and M Quinn (eds), Bentham's Theory of Law and Public Opinion (Cambridge University Press, 2013) 7-39; J Waldron, �The Rule of Law as a Theatre of Debate’ in J Burley (ed), Dworkin and His Critics: With Replies by Ronald Dworkin (Blackwell, 2004) 319-36; T Bustamante and TL Decat, Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J. Postema (Hart Publishing, 2020); S Holmes, �Lineages of the Rule of Law’ in A Przeworski and JM Maravall (eds), Democracy and the Rule of Law (Cambridge University Press, 2003) 19-61; M Adams, A Meuwese and EH Ballin, Constitutionalism and the Rule of Law (Cambridge University Press, 2017); M Krygier, �The Rule of Law: Pasts, Presents, and Two Possible Futures’ (2016) 12 Annual Review of Law and Social Science 199-229; J Moller and S Skaaning, The Rule of Law: Definitions, Measures, Patterns and Causes, (Springer.
2014); J Waldron, �The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1; A Przeworski and JM Maravall Democracy and the Rule of Law (Cambridge University Press, 2003). On the future of the rule of law, see Y Roznai, �The Rule of Law in 2030’ in C Bezemek (ed), Constitutionalism 2030 (Hart Publishing, 2022).6 Rosenfeld (n 3) 1335.
7 ibid 1334.
8 See LL Fuller, The Morality of Law (Yale University Press, 1969).
9J Waldron, �The Rule of Law and the Importance of Procedure’ in Fleming (n 2) 16. See also C Brettschneider, �A Substantive Conception of the Rule of Law: Nonarbitrary Treatment and the Limits of Procedure’ in Fleming (n 2).
10 Rosenfeld (n 3) 1351.
11 See JJG Canotilho, Estado de Direito (Gradiva Publicaφoes, 1999).
12 ibid 4.
however, it says little, and it is no wonder that it has evolved to also embrace a myriad of new contents that brought to it a more coloured and nuanced dimenÂsion. Despite its contextual differences, the concept of Estado de Direito would also be significantly affected by the global trend of embracing democratic values as part of its core. Constitutional scholars and the Brazilian Constitution have added the adjective democratico to this concept, thereby distinguishing Estado Democratico de Direito from the emptier Estado de Direito as a means to spotlight that, nowadays, a state determined and limited by law should fundaÂmentally be a democratic state determined and limited by law.
History helps explain this need to stress the democratic value of Estado de Direito: both Brazil and Portugal - just to focus on two Portuguese-speaking countries - have endured years of dictatorships in the twentieth century. Their Constitutions, drafted in the aftermath of the transition to democracy, highÂlight at the beginning that they are Estado Democratico de Direito (Brazil) or Estado de Direito Democratico (Portugal).[54] Such a concept is, therefore, deeply ingrained in a historical narrative of overcoming authoritarianism.
It would be misleading to investigate the rule of law in Brazil - and also in Portugal - without acknowledging that Estado de Direito has evolved to embrace a set of social- democratic values that are embedded in their constitutionalisms. Although the concept of Estado de Direito could simply be narrowed to express that state acts should be determined and constrained by law - and therefore be flexible enough to be employed even by authoritarian governments - it would be contextually wrong to see it detached from the movements toward democratisation that have formed the core of those countries’ current constitutional identities.[55]However, like the debates over the scope and limits of contents and proceÂdures of the rule of law, establishing this intrinsic liaison between Estado de Direito and democratic values is a recipe for endless, though fascinating, discusÂsions. The normative assumptions that underlie such a concept serve as ideals that should be deeply valued and largely sought. Moreover, they help connect those several analogous concepts (rule of law, etat de droit, Rechtsstaat, etc) to more consensual and internationalised standards. Despite the contextual differÂences among such concepts, there are also common values that foster a more translatable dialogue. In some respects, some translators, in order to distinguish the civil law tradition from the common law one, use legal state instead of rule of law in English.[56] However, it is undeniable that rule of law has become the internationally adopted concept, though it could also mean different things for different realities. It could concentrate in itself such diverse core ideals, but it
Introduction: A Prosaic Approach to the Rule of Law 17 could distinctly operate in each reality. Martin Krygier is right when he says that we should be �universalist about the value of it, [but] deeply contextual about how to get there’.[57] Estado de Direito is not rule of law, but it does not follow that Estado de Direito could not be translated into rule of law, as if both were completely different concepts.
The rule of law has achieved such a degree of abstraction from its original Anglo-American tradition that it came to embrace general values that are also intrinsically found in current interpretations of those other analogous concepts. Context obviously matters, but so do the shared values among them.For this reason, this book adopts an unconventional understanding of the rule of law, at least among legal scholars. It acknowledges the value of those normative assumptions - after all, they help connect those analogous concepts with each other - but it is not concerned with exploring much further the variÂous nuances that have led to distinguishable and controversial comprehensions of the rule of law, nor does it aim to pinpoint the potentially untranslatable elements found in Estado de Direito or anywhere else. It obviously recognises the structural differences among those analogous concepts and it will briefly discuss some of its core features and historical connections. Moreover, it will bring some introductory arguments on how Estado de Direito has shaped Brazilian constitutionalism, particularly its longstanding difficult relationship with a certain authoritarian mindset and the pervasive degree of social inequality in the country. The following chapters will explore further such a relationship, which will inevitably lead to the conclusion that Estado de Direito, like those other similar concepts, is indeed contextually dependent. However, for now, the main goal is just to show that, regardless of its distinguishable historical and normaÂtive attributes, there is something that transcends its localised narrative and can be explained in much more prosaic terms.
The main argument is that, if Estado de Direito (like the rule of law) has come to embrace some fundamental values, it is nevertheless intrinsically reliant on an �institutional equilibrium’[58] that will lead political forces to understand that following the law is strategically beneficial to them, and, mostly, that their powers are constrained by the powers of other political forces and dispersed among various organised interests.
Such an understanding clearly acknowledges that the raison d’etre of the rule of law relates to the ability of legal norms to constrain the sovereign power for the benefit of individuals.[59] However, this equilibrium-focused argument hinges less on axiological assumptions and more on behavioural incentives. It finds that the legal framework and institutions are, first and foremost, coordination devices, and that the rule of law is basically a 18 The Conceptual Evolution of the Rule of Law in Brazil consequence of overcoming difficulties in coordinating people’s behaviour.[60] To be sure, it acknowledges the relevance of the values embedded particularly in the last developments of the rule of law and those other analogous concepts. It also recognises their deep contextual differences. Yet, it is exactly by exploring this more prosaic nature of human behaviour that they seem more translatable. Most importantly, by assuming that, in the end, the rule of law and its analogous concepts are part of the coordination dilemmas of societies,[61] it is history and the way the political forces have managed to deal with an increasingly complex society[62] that gain analytical relevance. If we are using the concept of Estado de Direito instead of rule of law - or vice-versa - it is not because they are intrinsiÂcally distinct in the very nature of such a coordination dilemma, but rather in how history, traditions and language have shaped them.This chapter will, therefore, begin by briefly discussing how democratic values and social justice have shaped the normative assumptions usually assoÂciated with the rule of law and its continental counterparts. Despite their differences, they have all been marked by theoretical disputes and evolutionÂary narratives that show the growing presence of substantive conceptions in their core throughout history. The more substantive they have become, the more contentious their normative assumptions have been, which have intensified with several democratisation processes worldwide.
The following section will discuss some elements of how Estado de Direito was shaped by the Brazilian civilian-military dictatorship (1964-85), and how such a concept has been manipulated and abused in favour of preservation instead of democratisation. It will stress, nevertheless, that Estado de Direito should currently be understood as Estado Democratico de Direito, though inequality combined with an authoritarian mindset still greatly impacts Brazilian democracy. This chapter will focus on the premise that Estado de Direito, now interpreted as Estado Democratico de Direito, is seriously concerned with social justice, not because social justice has to be part of the core of Estado de Direito nor because such a concept hinges on normative assumptions to become reality. The claim for social justice is rather prosaic and follows Maravall’s and Przeworski’s argument that people - citizens and public officials alike - obey the law not necessarily due to a moral obligation, but by reason of effective incentives for compliance.[63] In this regard, a society that continuÂously fosters inequality fails to deliver incentives that will enhance coordination among individuals against encroachments on their rights and among public offiÂcials to abide by the rules, thereby impairing the Estado de Direito. The main
argument is that the rule of law (and Estado de Direito) should, according to such a perspective, be an egalitarian rule of law to effectively take root.
This chapter concludes by arguing that Estado de Direito will be henceforth translated into rule of law not only because it has become the internationally standardised concept, but mostly because, when prosaically interpreted, all those analogous concepts will lead to discussions of �institutional equilibrium’,[64] coordination, behaviours and incentives. If such a viewpoint is also disputed, at least it facilitates the analysis of distinct features normally associated with the concepts of rule of law and Estado de Direito. This is the main aim of this book.
II.