The Brazilian Election and Comparative Constitutional Law
If things go badly, the upcoming elections in Brazil may be the last ones for some time to come. Incumbent president Jair Bolsonaro threatens to use the Trump playbook to dispute a possible election loss, counting on the violent support of his highly mobilized followers and parts of the Brazilian military nostalgic for the military dictatorship. His contender, former president Luiz Inácio Lula da Silva, who initially refused to wear a bullet proof vest, has now taken wear one on his rallies.
On election day (2nd October), voters thus face a stark choice not just between two candidates. They also cast their ballot on two opposing visions of constitutional government that will not disappear on election day. Under president Lula, who was in office from 2003-2011, Brazil became a posterchild for transformative constitutionalism, marked by an increasingly activist supreme court and progressive social programmes aided by a commodity boom. During his tenure, Bolsonaro has drawn on populist anti-establishment sentiments and authoritarian legacies to develop his own, peculiar brand of illiberal rule known as Bolsonarism.
Our symposium discusses Bolsonarism at the ballot box from the perspective of comparative constitutional law. Drawing on discussion between Brazilian and German constitutionalists in the DFG/CAPES-project “Varieties of constitutionalism”, the blog symposium analyses Bolsonarism from a variety of perspectives to understand its meaning and its broader relevance for comparative constitutionalism. While Bolsonarism has been compared to forms of autocratic legalism and constitutional authoritarianism elsewhere, it also has its atypical features and distinctive contexts that caution against rash generalizations from other cases like Hungary, Poland or India.
In their opening post, Diego Werneck and Clara Iglesias Keller analyze how Brazil’s special electoral justice system is struggling with disinformation strategies. Next, Danielle Rached and Cecilia Oliveira argue that Bolsonaro’s environmental policies, especially in the area of climate change, bring new tactics to the playbook of autocratic leaders. Next, Florian Hoffmann suggests that despite his autocratic pretensions, Bolsonaro has remained trapped, to a considerable extent, in the “legal maze” of a thoroughly judicialized Brazilian political system constrained by coalitional presidentialism.
The distinctive legacies of Brazil’s authoritarian history are at the centre of Evandro Sussekind’s contribution on the constitutional role of the military. Rafael Mafei analyzes the importance of religious evangelism for Bolsonarism, while Geraldo Miniuci seeks to understand Bolsonarism through the lens of Kelsen and Freud. Fernando Leal and Thomaz Pereira discuss how the interpretative self-empowerment of the Brazilian Supreme Court has made it an easier target for populist attacks. Jessica Holl’s post shows how preexisting deficits in transitional justice policies in Brazil have been made worse by Bolsonaro.
The two concluding posts look at the wider relevance of Bolsonarism for comparative constitutional law: Philipp Dann’s contribution on “punks and nerds” points out ideal-typical differences between right-wing autocrats and calls for deeper study of comparative authoritarianism. Michael Riegner draws attention to the transregional circulation of illiberal ideas and the role of comparative constitutional law in understanding new forms of globalization on the right.
Taken together, the Symposium posts indicate that the fate of Bolsonarism at the ballot box not only affects the future of constitutional democracy in Brazil, but also has broader relevance for constitutionalism as a global phenomenon. Comparative constitutional law thus needs to understand different varieties of constitutionalism not just for their own sake, but also with respect to their global entanglements, interdependencies and conflicts.
The authors gratefully acknowledge financial support for the project “Varieties of constitutionalism” from the German National Science Foundation – Deutsche Forschungsgemeinschaft DFG – and its Brazilian counterpart CAPES.