Autocrats and Incomplete Democracies

Raquel Pimenta & Marta Machado

FGV Direito SP

During his inauguration on 1 January 2023, President Luiz Inacio Lula da Silva declared that “democracy was the greatest winner” of the presidential elections that ousted Jair Bolsonaro. Bolsonaro was a threat to the rule of law and to democracy, even if his playbook varied, at times, from that of other rising autocrats. Months after the new government has taken office, one of the most important questions in Brazilian society remains how to understand the previous regime’s attacks on democracy and how to prevent them from taking place again.

In our contribution to the new special issue of VRÜ Verfassung und Recht in Übersee on autocratic legalism, we argue that answering this question requires that we historicize democracy-building in countries affected by the rise of authoritarianism. In other words, we interrogate the ingrained vulnerabilities of Brazil’s democracy that enabled Bolsonaro’s rise to power. While the defining feature of democratically elected autocrats is their use and abuse of legal methods to subvert the liberal content from constitutionalism, the binary distinction between liberal and authoritarian orders is much more complicated and intertwined than the literature usually admits. 

Brazil’s 1988 Federal Constitution created a complex set of institutions and established a democratic vocabulary destined to uphold the rule of law and set the foundations for redemocratization. However, the persistence of authoritarian practices, violence, and extreme inequality made the democratization of Brazil an incomplete endeavor. Democracy, we argue, has coexisted along with persistent zones of authoritarianism embedded in the political and economic domains of the country. 

Zones of Authoritarianism

Zones of authoritarianism are not restricted to one institution or rule, or a single territorial domain; they are an entanglement of informal practices, formal rules, and institutions that, continuously and over time, generate and perpetuate violence, injustice, and impunity, which delegitimize institutions of law and justice.

These zones of authoritarianism have disparate impacts on the different strata of Brazilian society. For the underprivileged and Afro-Brazilians especially, high homicide rates, torture, the abuse of lethal force by state agents, and the perversion of the criminal law apparatus have become normalized. For the powerful, a sense of immunity before the law persists, hindering the idea of state impartiality. These hybrid systems – or situations of “incompleteness” – reinforce exception as normalcy while, at the same time, the fragments of the rule of law are mobilized to advance respect for rights, build impartial institutions of law and justice, and to expand citizenship.

In this sense, the Bolsonaro government was built on and expanded these zones of authoritarianism, using them as opportunities to concentrate power or generate support for Bolsonaro’s political project. We illustrate these dynamics using two examples: corruption and police violence. These phenomena are bound by the shared centrality of impunity, where unchecked power creates zones where the rule of law is challenged. Bolsonaro sought to expand the domains of unchecked power: his government decreased the efficacy of anticorruption policies and explicitly endorsed the abuse of force by the police. 

Corruption and Anticorruption: Discontinuities and Crisis

The 1988 Constitution created the components of a Brazilian web of accountability aiming to hold the powerful (both public and private agents) to account: transparency, independent institutions, and a commitment to democracy and due process. During the next three decades, institutions such as the Federal Police, the Public Prosecution Office, the Judiciary, the Controllerships, and the Audit Courts acquired technical capabilities and political prestige, and new instruments and competences.

The Lava Jato Investigations (known in English as Operation Car Wash) were the result of these new and strengthened institutions. They uncovered the pervasiveness of bribery, money laundering, and illegal campaign financing between the state and private companies by using a combination of new investigative tools (such as plea bargains or corporate non-prosecution agreements) and instruments designed to promote better coordination between enforcement institutions through joint task forces and/or the use of international cooperation. The Lava Jato proceedings unfolded across several fronts, including criminal, anticorruption, and antitrust investigations, as well as through audits by the Federal Court of Accounts, administrative improbity lawsuits, and political sanctions.

Law enforcers perceived this lingering impunity as an existential threat. It was seen as a major barrier to the proper functioning of the political and economic systems in Brazil and so, in their view, justified the deployment of innovative interpretations of criminal law and process, as well as of the questionable (and at times illegal) tools normally used against ordinary crimes. 

Some commentators consider that Lava Jato, throughout the years, evolved into a political project that aimed to control corruption through an over-reliance on criminal law and the Judiciary rather than igniting in the Legislative and Executive a larger discussion on reforms needed to increase access to markets and participation in public decisions.

Bolsonaro rose to power using Lava Jato’s rhetoric to antagonize his opponents and fuel penal populism, and he was supported by key figures in the Lava Jato investigation. His anti-corruption promises were, however, short-lived. Instead, his government strategically used the Executive’s prerogative to weaken the Brazilian web of accountability by reorganizing bureaucratic agencies and key post appointments, and by decreasing the transparency of government actions. While civil society resisted these moves, the skepticism generated by Lava Jato made it a much more complex and politically contested task. 

Police Violence: A Continuum in History

Contemporary impunity for police violence exists along a historical continuum. While the 1988 Constitution brought an explicit commitment to human rights and due process, it did not significantly change the public security apparatus: The Constitution transferred the subordination of the Military Police – which continued to perform “ostensive” functions – from the Army to the civilian state governments, but the police kept its features and practices. After redemocratization, the growing violence experienced by Brazilian society has served to legitimize the unrestricted and abusive use of the police force, a legacy both from colonial times and from the dictatorship (1964-1988). 

The persistence of police violence and impunity represents both a continuation of past abuses and an environment which facilitates future abuses. The acceptance of the practices of abusive stops and frisks, verbal aggressions, torture, and killings is not only part of the police’s militarized and truculent institutional ethos (and training) but is also reinforced by formal institutions: internal administrative controls and the “normal” functioning of criminal justice guarantee that police agents who use violence against citizens will not be held liable for their actions. The cover-up stories of self-defense and the simulacrum of judicial cases that are either easily dismissed or never reach a conviction have been effective as a way to cover up illegal killings and accommodate authoritarian uses of coercive force within the Brazilian constitutional project. It should come as no surprise that the Inter-American Commission of Human Rights describes a pattern of extrajudicial killings of young Brazilians of African descent in peripheral regions of the country.

Opposition to human rights and the legitimation of crimes perpetrated by the State through the police force is a persistent popular narrative and a recurrent discourse in the political arena and electoral cycles. Heavily supported by the militarized police forces, Bolsonaro’s campaign relied on such law-and-order discourses, and galvanized the general public’s fear: approval of executions, torture, and all types of abuses committed during the dictatorship, fierce opposition to the language of human rights, and a deliberate policy of expanding access to guns justified as a crucial tool of self-defense for "good citizens" against "bandits".

In office, Bolsonaro’s aim was to dismantle the already fragile accountability mechanisms governing police violence. This was to be achieved less by creating new policies than by formalizing existing informal norms through public discourse and legal changes. For instance, pardons were offered to public security agents who were charged with excessive use of force, ostensibly on the basis of self-defense. There was also an attempt to expand the legal concept of exculpation for lethal use of force. The “anti-crime package”, a bill proposed by the Bolsonaro government in Congress in 2019, was an attempt to expand the legal concept of self-defense through a two-pronged strategy. First, it sought to include within its general definition actions based on an "excusable fear, surprise or violent emotion". Second, it proposed the creation of a specific category of self-defense for police officers, which contemplated the potential use of lethal force in situations of "imminent risk of armed confrontation" or to "prevent unjust and imminent aggression”. Due to the resistance of civil society, the bill was struck down in Congress.

Yet, this strategy produced considerable results by enabling violence, both in discourse and in practice. Time and again, Bolsonaro or members of his government labeled the victims of police killings as “bandits” or “outlaws”, even when such killings were the result of operations undertaken in blatant disobedience of courts’ rulings, showing the resilience of the informal norm that authorizes executions.

Zones of Authoritarianism as a Broader Research Agenda

In this blog post and in our article, we have argued that understanding the resilience of zones of authoritarianism, as a mix of formal and informal rules and organizations that reproduce unchecked powers in imperfect democracies, is crucial to understanding the rise of new autocrats. In these democracies, the coexistence - and the embeddedness - of the formal and the informal, the legal and the illegal, the liberal and the illiberal, and the rule of law and authoritarianism, complicates discussions on binary terms.

We have shown how the existence of zones of authoritarianism in the areas of corruption and police violence, which are areas affected by populist dynamics that create polarized divisions between good citizens and enemies (“corrupts”, “bandits”), mobilizes anti-pluralist sentiments and generates impatience towards the rule of law. 

While these areas provide illustrations of the functioning of these zones of authoritarianism and how they can be instrumentalized by rising autocrats, this framing may also apply to other countries struggling to uphold the rule of law.

Raquel Pimenta and Marta Machado are Professors in Law at FGV Direito SP

Suggested Citation: Raquel Pimenta and Marta Machado, ‘Autocrats and Incomplete Democracies’, IACL-AIDC Blog (01 June 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/6/1/autocrats-and-incomplete-democracies.