THE RULE OF LAW AND COORDINATION IN UNEQUAL SOCIETIES

The rule of law seems stuck between the very limits of formalist conceptions and the vast margin of appreciation of substantive ones, which are impacted by their own historical origins and institutional developments.

Estado de Direito will thus be translated into rule of law in this book but not without acknowledging its structural differences from its Anglo-American and analogous continental counterparts. Every Brazilian scholar knows, for example, the centrality that the state plays in Brazilian constitutionalism, and, similarly to the German model, it has historically been given precedence over the constitution. However, also like that model, after the transition to democ­racy, the constitution has increasingly shaped the Brazilian reality. Increasingly, it is not the constitution whose legitimacy derives from the state, but it is the state whose legitimacy derives from the constitution.^[126] The transition to democ­racy in 1985 and the drafting of the 1988 Constitution built a set of institutions and coordination devices that have since provided a more resilient, though

The Rule of Law and Coordination in Unequal Societies 29 imperfect, �self-enforcing equilibrium’ for its democracy.^[127] Political forces and private agents have incrementally observed limits on their behaviours,^[128] but the challenges are still significant to convincingly support the claim that Brazil has adopted the rule of law as a standard practice.

On the one hand, Brazil has a set of institutions and practices that follow the guidelines of the rule of law: separation of powers, generality, non-retroactivity and publicity of legal acts and formal equality of all citizens before the law, among others. Brazil’s Constitution also features an extensive bill of individual, social and economic rights. In spite of that, it still lags behind in commitment to the law, very much because inequality is pervasive and the country’s authoritar­ian past has ingeniously reinvented itself in the new democratic environment, thereby reinforcing inequality. As Oscar Vilhena Vieira correctly states, �social and economic exclusion, deriving from extreme and persistent levels of inequal­ity, obliterates legal impartiality, causing the invisibility of the extreme poor, the demonization of those who challenge the system, and the immunity of the privileged, in the eyes of individuals and institutions’.^[129] The rule of law in Brazil should place social justice as a central concern, and for pragmatic reasons: inequality affects the capacity of institutions and the constitution to effectively work as coordination devices.

The following chapters will delve into various dimensions of this debate. While Estado de Direito will be translated into rule of law by pointing out this more prosaic viewpoint, it will nonetheless place social inequality and the deep-rooted authoritarian mindset as powerful hindrances to the rule of law. Although context matters - and this is why inequality and the authoritarian legacy are so central in the case of Brazil - it will also assume that, despite the diverse experiences, there is some conceptual identity among the several transla­tions of the rule of law.^[130] It might come from general principles such as legality, generality, publicity and non-retroactivity of legal precepts. It might also come from the premise that, despite the distinct realities, the central goal is basically to protect individual freedom by limiting state power.

Pragmatically speaking, though, this book will adopt the premise that indi­viduals and public officials will behave according to the rule of law primarily because they have effectively �[constructed] a focal solution that resolves their

coordination dilemmas about limits on the state’.^[132] The constitution, the legal framework and a set of institutions will function as coordination devices as long as they prove themselves �self-enforcing’, that is, individuals and public officials have an interest in abiding by them and will react in concert whenever there is a violation of the limits imposed on them.^[133] Social inequality and an authoritarian legacy hamper such a coordination, fostering thereby the expan­sion of extraconstitutional means and the noncompliance with the law, while transforming potential consensus between social masses and elites into a much more challenging endeavour.^[134] The following chapters will reveal how far Brazil has gone in preserving and enforcing such coordination devices and how strong its institutions and civic culture are in order to effectively place limits on those who must abide by - but also eventually have the power to transgress - the rule of law.