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The Brazilian Crisis and the New Authoritarianism

Jair Bolsonaro

In this April 19, 2020 file photo, Brazilian President Jair Bolsonaro coughs as he speaks after joining his supporters who were taking part in a motorcade to protest against quarantine and social distancing measures to combat the new coronavirus outbreak in Brasilia. (SERGIO LIMA / AFP). Image credit: "Top court blocks Bolsonaro move to expel Venezuelan diplomats," China Daily, May 3, 2020.

Lawfare Is the New Authoritarianism

Anthony Robert Pahnke is an assistant professor of international relations at San Francisco State University. Marcelo Milan is an assistant professor of economics and international relations at Federal University of Rio Grande do Sul, Brazil.

The burning of the Amazon mirrors the scorching of Brazilian democracy by neofascism. Three decades after liberal democracy replaced the military dictatorship of 1964–85, the far right in Brazil has made a comeback, most starkly with the electoral victory of Jair Bolsonaro in 2018.1 Bolsonaro, however, is not an isolated individual; rather, his government is characterized by an authoritarian style of neoliberalism built on a series of alliances, a prominent one of which is with the judiciary. This coalition boasts connections with the military and police forces, the evangelical religious right, and agribusiness. Together, their principal target is the organized political left, and more precisely, the center-left Workers’ Party (Partido dos Trabalhadores, or PT) and its allies in trade unions and social movements.

The intersection between the rise of right-wing populism, the judiciary, and neoliberalism is complex given the purported nationalist bias of populist policies and the territorial limits to the law. What ties these themes together is the concept of lawfare. In fact, the new authoritarianism that Brazil represents helps us analyze the nature of lawfare, which reveals the hierarchical, exclusionary potential within liberal democracies in Latin America and elsewhere. Additionally, for the left, Brazil serves as a pivotal case for understanding the ways in which the rule of law can propel right-wing agendas.

The Cross-Fertilization of Neoliberalism, Authoritarianism, and the Judiciary

Latin America today is experiencing a resurgence of right-wing governments and neoliberal policies, showcasing a putative “conservative restoration.”2 From the coup that ousted Evo Morales in Bolivia to the election of Iván Duque Márquez in Colombia, this right-wing turn, with its populist nature and mass support, is rooted in sentiments concerning the need for law and order, and the antipathies toward racial or religious groups that it often accompanies.3 Brazil is no outlier in this trend.

Bolsonaro’s successful bid to the presidency took advantage of the crises gripping the country.4 Following years of economic stagnation and widespread anger at corruption, the PT’s Dilma Rousseff (referred to simply as Dilma) was impeached in 2016 under politically charged allegations of fiscal irresponsibility.5 Then, one of Brazil’s most popular leaders and founders of the PT, Luiz Inácio Lula da Silva, was kept as a political prisoner for 580 days after having been charged with leading a corruption scheme related to the state-owned oil company Petrobras. Far from a clear-cut example of criminal offense, the case against Lula has been decried for its lack of evidence and political undertones.6

Close inspection of Bolsonaro’s rise draws our attention to the judiciary. Others have noted an increased presence of the judiciary in politics, not only in Brazil, but globally. Some have championed the judiciary as integral to safeguarding rights and holding leaders accountable.7 On the one hand, this judicialization of politics allows for claims from below—that is, from historically marginalized groups—to seek redress for past wrongs.8 On the other, appealing to the courts to settle conflicts could be increasingly indicative of democratic backsliding.9 Proponents of this latter position highlight how legal systems have ties to the repressive institutions of state security. As many voters support politicians that speak of law and order, this often means an open embrace of violent methods of dealing with crime and dissent.10

Some in the growing chorus of voices criticizing the place of the rule of law within democratic politics have deployed the concept of lawfare. Certain observers take the term to mean the use of law for political ends, specifically in postulating an enemy.11 In opposition to a process that is neutral and apolitical, others emphasize the strategic element in the use of law rooted in norms such as equity and rights.12 In addition to seeing laws as tools, still others take lawfare to mean how the law structures societies in hierarchical ways. Regarding postcolonial relations, for example, Jean and John L. Comaroff write that “lawfare is the effort to conquer and control Indigenous people by the coercive use of legal means.”13

Furthermore, “lawfare seeks to launder visceral power in a wash of legitimacy as it is deployed to strengthen the sinews of the state or enlarge the capillaries of capital.”14 According to this more expansive understanding, law is not a blunt tool used to violently subjugate so-called others. Legal systems require some kind of legitimacy, or rather, they need some groups in civil society to desire law and order. Moreover, law is constitutive of society—it is involved in everything from labor contracts to citizenship. As it inserts itself into social relations, it holds the capacity to identify and then punish what state officials deem wrongdoing and whom they deem wrongdoers.

The authoritarian element of lawfare appears in what is deemed disorderly. As social relations change over time, what counts as disorderly evolves as well. The spread of democratic institutions and neoliberal reforms into different countries over the last thirty or so years has shaped their respective legal orders to include more actors to control. Whether in promoting fiscal discipline, the privatization of public utilities, or discouraging public spending and progressive taxation, capitalist deregulation requires a state in order to impose or regulate changes toward pure competition.15 Law plays a special role in neoliberal ordering, which leads to economic changes as well as simultaneous legal and social changes.

Studies of lawfare echo Marxist depictions of the capitalist state.16 Building from this research, lawfare draws attention to the necessarily political nature of law, where actors utilize the courts with explicit objectives against opponents. Legal institutions retain the potential to end democratic interactions, featuring the ever-present authoritarian tendency in law. With respect to capitalism, the concept of lawfare does not reduce legal systems to assisting accumulation directly. Instead, unless a legal action challenges some element of capitalism such as private property, the existing relations of production continue to operate. Lawfare also showcases emotional elements, particularly concerning the need to compel legitimacy among different actors in civil society. In this way, the concept of lawfare shows how a popular project that favors capitalist accumulation makes the rule of law serve its development.

Before the Rise of Lawfare: Military Authoritarianism and Distorted Democracy in Brazil

Brazil, unlike Argentina, which saw its military government implode in the 1980s, underwent a “pacted transition” to liberal democracy. The process began in 1974 when the military loosened restrictions on local elections and its censorship of the press. Electoral politics, although managed, were to some degree built into the military regime in its claim to legitimacy. In this way, Brazil was exceptional compared to other dictatorships of the time, “distorting rather than disbanding the basic institutions of political democracy.”17 Over the course of the two decades of distorted democracy, two parties—the Alliance for National Renovation (ARENA) and the Brazilian Democratic Movement (MDB)—were the only ones allowed to compete for votes in the upper and lower houses of the legislature. Executive power, with a president at the national level and governors in each state, remained controlled by the military. Within the legislature, competition was neither free nor fair, as ARENA was a top-down creation of the military and the MDB was a collection of voices from across the Brazilian opposition that had not been arrested, murdered, or exiled. Moreover, congress was closed periodically, leaving actual legislative authority in the hands of the military. The military also appealed to nationalism in its fight against a perceived communist threat to galvanize support from civil society. In the months before the 1964 coup, many upper-middle class white Catholics took to the streets to protest the alleged communist sympathies of the democratically elected president João Goulart.18 Heloisa Maria Murgel Starling notes that business groups, the media, large landowners, and conservative women’s organizations were active supporters of the military.19

Concerning the legal system, the military used laws, but mainly decrees. Their fundamental operations took place outside the legal order by suspending legislation and issuing wide-sweeping proclamations. For instance, right after the coup in 1964, the junta issued Institutional Act 1, leading to the arrest of left-wing leaders.20 The military later issued Institutional Act 5, which granted the government the power to suspend congress, repress whomever it deemed a national security threat, and censure the media. The military’s promulgation of the 1967 Constitution, which was ratified by a congress that had been already purged of dissent, centralized power in the executive and granted decree-making powers to the military. The reality was that decree-making power enabled the military to govern more in an ad hoc manner than according to legal order.

Goodbye Military Authoritarianism, Hello Judiciary Lawfare

In response to the military’s abuse of executive power, those who crafted the 1988 Constitution sought to democratize politics. Civil society actors and representatives from newly formed parties such as the PT were involved.21 The call for direct elections led the Constitution to include decentralized, participatory institutions, which enabled elected officials and members of civil society to deliberate and debate ideas concerning public policy. Equally important were reforms to promote the rule of law. This was considered necessary, as the military Constitution established a formal separation of legislative, judiciary, and executive branches, yet actually fused executive and juridical power under the banner of national security.22

Judicial authority took on forms that defied the equitable separation of branches. As this took shape, the judiciary increased its power due to the character of its personnel and to changes in other institutions. Concerning the latter development, the new Constitution decentralized power not only between the three branches of government, but also to states and municipalities. In part, this was expected and desired, given that executive power was weakened as the military withdrew. Yet, judicial empowerment also resulted as a variety of actors and courts at all levels gained institutional power.23 The 1988 Constitution is contradictory—on the one hand, it has been heralded as highly participatory and democratic, while on the other, it has also been called a straitjacket to governing.24

The judiciary’s unwritten role in Brazilian politics has been to overcome gridlock. Whereas the military would issue decrees in the name of national security to suspend laws, the judiciary uses law to establish order and to discipline those deemed disorderly. This may appear like what a judiciary ought to do in a democracy—make decisions to settle conflicts by reviewing the laws according to a Constitution. The personnel of the Brazilian judiciary, however, militate against such a neutral reading. According to Armando Boito and Alfredo Saad-Filho, three qualities concerning the composition of the judiciary have become politically salient in post-military Brazil: judges’ high pay (the highest in the world), judges’ proclivity to deem leftist social mobilization as unlawful, and their relative autonomy.25 These features entail that one branch of the state is staffed by upper-class actors who oversee and manage society with few checks on their power.

The advance of the judiciary in Brazilian politics is actually a study of the development of lawfare. First, the constitutional reforms, however democratic in their intentions, resulted in a decentralized political system with an empowered judiciary. A weakened executive branch was countered with a judiciary that had a newfound sense of purpose. Moreover, this purpose was guided by upper-class sensibilities and suspicion of left-wing politics in the courts.

The Growth of Lawfare within Neoliberal Reforms and the Politicization of Corruption

Lawfare grew as neoliberalism expanded. The 1988 Constitution weakened the official means to expropriate land and favored concentrated private property rights.26 Under president Fernando Collor de Melo (1990–92), law 8,031/1990 intended to “strategically reposition the Brazilian economy by placing what was once in the public sector into the private.” Such a process included nominally democratic measures, for privatization plans were developed by a council that “deliberated over which business to privatize” prior to submitting their decisions to the president for approval. President Fernando Henrique Cardoso’s government (1995–2002) sought to open Brazil’s oil and natural gas industry to foreign interests, passing a constitutional amendment that ended the state’s monopoly over petroleum exploration, production, refining, imports, and exports.27 The privatization process would change when law 9,491/1997 was passed, which allowed for the sale of Vale SA. Neoliberal reordering was not done by executive fiat; legislation legitimated privatization. Private sector actors took advantage of this, profiting from the sale of those firms and further entrenching economic inequality.28

The dynamics of neoliberal reform and lawfare changed under Lula (2002–10) and Dilma (2011–16). In 2010, Lula’s administration placed restrictions on private land purchases by non-Brazilian capitals.29 Even with the intent to promote national development, Lula’s initiative did not curtail foreign investment; instead, it led multinational interests to adapt their accumulation strategies in the primary sector.30 Moreover, Brazil remained dependent on agribusiness exports for acquiring reserves and paying down its foreign obligations, as well as on oil and mining exports for royalties.31 The discovery of deep-sea oil reserves only added to these developments, prompting the government to pass a variety of laws to guarantee state control. Such efforts are indicative of neoextractivist policies, which entail the promotion of export industries to gain access to royalties to finance policy.32 Initiatives from the PT era, even though they did not favor privatization, contributed to neoliberalism in the promotion of comparative advantage.

Lula and Dilma sought to promote resource nationalism, but their policies backfired. They brought oil and natural gas into the realm of state control, which, under the direction of a different government, enabled their sale. Soon after Dilma was removed in 2016, the oil reserves drew attention from foreign interests. “In a single year, Exxon Mobil Corp. has gone from being a tiny bit player in Brazil to the second-largest holder of oil exploration acreage, trailing only state-controlled Petroleo Brasileiro SA [Petrobras].”33 Shell, Chevron, and British Petroleum also gained access to reserves.

The post-PT years saw a return to a more opportunist use of the law to facilitate privatization. In one of his first actions as president, Michel Temer (2016–18) issued an executive order to facilitate concessions and public-private contracts. Temer also approved a law that had passed the Brazilian legislature to freeze public-sector spending for twenty years.34 He then liberalized Brazil’s labor market, making labor contracts more flexible and weakening unions.35 President Bolsonaro has continued where Temer left off. The destruction of the Amazon, which increased by 84 percent this year when compared to last year, is connected to the rollback of governmental oversight.36 Bolsonaro’s pension reform—which raised the age of retirees and cut benefits—is yet another case of how the expansion of neoliberalism is accompanied by legal authority.37

That Bolsonaro, and Temer before him, even became president was due to the politicization of popular anticorruption sentiment, revealing the visceral element so integral to lawfare. According to Brian Mier, this can be seen throughout Latin America, as many leftist political leaders are under investigation.38 In Brazil, the 2005 Mensalão scandal, a vote-buying scheme through which politicians received cash payments from an undeclared campaign fund in exchange for their votes in favor of specific legislation, is particularly relevant.39 The problem is one of double standards: a similar vote-buying scandal with businessmen and the center-right Brazilian Social Democratic Party (PSDB) was decided in Brazil’s lower courts.40 Yet, according to the Constitution, members of the legislature suspected of involvement in criminal cases should be tried by the Supreme Court. The Supreme Court ended up convicting twenty-five people, leading to three congressmen losing their seats—all from the PT.

The rationale used to connect PT politicians to corruption warrants scrutiny. During the trial, evidence directly connecting the politicians to the vote-buying scheme was lacking. In condemning one PT leader, the judge presiding over the case evoked Claus Roxin’s juridical theory of Täterschaft und Tatherrschaft (Participation and Perpetration of an Offense)—never applied before in Brazil. The reasoning was that the PT’s structure and role in government allowed the judge to impute motives to José Dirceu.41 Roxin’s approach to criminal law distinguishes between principles and agents within hierarchical organizations to illustrate a crime’s supposed objectivity. This means that the intentions of individuals matter little when a prosecutor understands the nature of the organization of which the accused are part.42 In the Mensalão case, PT leaders were sentenced to jail simply because they occupied leadership positions in the party, with judges assuming that, according to Roxin’s doctrine, this was enough to consider them participants in the vote-buying scheme.

After the Mensalão, anticorruption sentiment was further aggravated by the scandal known as Operation Car Wash, which began in March 2014. This case involved politicians of almost all ideological persuasions agreeing to overpriced contracts with Petrobras. Despite no direct links connecting President Dilma to the scandal, her impeachment was the culmination of public sentiment against corruption and the PT, which was considered responsible for the scandal.43 As the proceedings went on, prosecutors noted the judges’ severe anti-PT bias.44

Moreover, Sergio Moro, the judge who sentenced Lula to jail for receiving a beachfront penthouse apartment as bribery, assumed a privileged role. Moro had assisted the Supreme Court judge who invoked Roxin’s doctrine in the Mensalão scandal. According to Moro, judges must be active and partial.45 They do not merely decide on cases, but also take sides. For Moro, his judicial activism involved leaking classified legal information to media outlets, whipping up a proconviction frenzy before the trial to conform to public opinion and obtain plea deals. Moro would later become Minister of Justice and Public Security in Bolsonaro’s government. On April 24, 2020, Moro resigned from the Ministry after criticizing Bolsonaro for discharging the head of the federal police Maurício Valeixo.

The media also proved complicit. A former president of the association of Brazilian newspapers said that since the center right could not defeat the PT in free elections, the media had to become political. In her words, “obviously, the media is being indeed the opposition in this country, since the opposition is deeply weakened.”46 Thus, the media leaked many classified judicial processes against PT politicians, creating a pervasive sense of unabated corruption. With the media repeating the same narratives, public opinion condemned the suspects—a general public discontent with deep historical roots in Brazilian political culture.47

While the media played a critical role in spreading visceral resentment against the PT, the legal system remained consistently silent concerning violence against the poor. Since 2014, the number of homicides has increased, disproportionately affecting poor, black, and young people who reside in the urban periphery.48 An Amnesty International report on violence in favelas (slums) shows that crimes in the urban periphery are rarely investigated.49 There are also many high-profile cases of political violence. Lula’s staff buses were shot during his campaign for president before he was arrested. Later, Socialism and Liberty Party councilwoman Marielle Franco and her driver Anderson Gomes were shot dead.50 Openly gay representative Jean Wyllys and former PT gubernatorial candidate for Rio de Janeiro Marcia Tiburi had to leave the country due to death threats.51 Two leaders of the Landless Workers Movement—which Bolsonaro has routinely threatened to classify as a terrorist organization—were murdered in the state of Paraíba in December 2018. With limited to no investigation, such acts of exclusionary violence receive a de facto okay from the judiciary.

In recent years, Brazil has also witnessed growing inequality through the concentration of income, wealth, privileges, and political power at the very top.52 As Christian Houle argues, concentration of wealth is incompatible with democracy. “Inequality does destabilize already established democracies. This is because in unequal democracies redistribution is more costly to the elites, who are therefore more likely to mount coups.”53 Social welfare and prolabor policies, falling unemployment rates, and rising minimum wages contributed to a brief period of income redistribution during the Lula and Dilma administrations. Yet, the incapacity of the PT to ditch neoliberal policies left the structural causes of inequality untouched.

How the coronavirus pandemic affects this trend in the judicialization of politics is somewhat uncertain. On the one hand, state governors and some judges have successfully blocked Bolsonaro’s efforts to declare religious services and the country’s lotteries as essential services.54 While potentially a check on executive power, Bolsonaro still retains the power to publicly downplay the severity of the public health crisis. He has even fired members of his cabinet, namely the Minister of Health Luiz Henrique Mandetta, who criticized the president’s treatment of the crisis.55 Bolsonaro’s negligent treatment of the pandemic has primarily been due to his intention to keep the Brazilian economy operating at all costs.

The Legislative Politics of Lawfare

Lawfare relies on certain groups in the legislature as well as members of civil society. This sociolegislative alliance is most present in three sectors: agribusiness, evangelical Christians, and the state security forces, particularly the military and the police.56 In Portuguese, respectively and colloquially, these are referred to as the BBBo boi (cattle or beef), a Bíblia (the Bible), and a bala (the bullet). Thus, while adding to João Pedro Stedile’s work, we also grant greater agency to the different voices in the right-wing coalition promoting neoliberal lawfare.57 Despite certain differences, these three groups unify to exclude the PT and the political left broadly speaking.

The bullet faction is composed of legislators representing the military and the police, having seen its numbers double from 2014 to 2018. This group has been influential beyond the legislature, with several important executive appointments into the current government. Bolsonaro himself was an army lieutenant and his vice president is a retired army general. Furthermore, a Supreme Court justice hired army generals twice as his special advisors. In total, 130 high-level positions in the federal government have been filled by military officers.58 The military has articulated a comeback, not as a full-fledged junta, but as elected politicians, appointed ministers, and bureaucrats. Even though the military has always loitered around the federal government, and some high-ranking officials even assumed key positions under Lula and Dilma, under Bolsonaro they decided to unite to maintain the homeland safe and to destroy the PT.59 Besides their opposition to the PT and the humans rights agenda in general, the bullet group made a comeback in part due to a younger generation of right-wing adherents unconcerned with the stigma associated with the dictatorship.60 This newer version of the far right took advantage of the corruption scandals, which generated popular resentment toward the PT.61

Despite Bolsonaro’s social security reform being met with opposition from some police and military allies—a stance apparently contrary to neoliberal orthodoxy—the bullet section of the ruling coalition is tied to the neoliberal agenda. The private-sector arms industry has increasingly funded the campaigns of its members, exposing the influence of business interests in Brazilian politics and a certain form of privatization.62 Moreover, despite initial opposition to the social security reform, the repressive apparatus ultimately cohered around and went along with Bolsonaro’s cuts and restructuring.63

The Bible segment shares certain affinities with that of the bullet in the legislature, while also cultivating emotional connections that favor a neoliberal agenda. Many judges are evangelicals and include references to religion in their rulings. For example, an evangelical and rifle-toting justice cited Ecclesiastes 8:11 in his sentencing of a corrupt politician.64 This judge is not an isolated figure—evangelicals have grown from 6.6 percent of the population in 1980 to 22.2 percent in 2010. Chayenne Polimédio states that “under the dictatorship, Brazil’s evangelical community largely stayed out of politics.… But as the dictatorship crumbled, Brazil’s evangelicals came to recognize their new strength: democracy is a numbers game and their own numbers were growing.”65 The evangelical movement has grown also in terms of organization. Despite the many different churches considered evangelical, as well as the apparent democratic ideology concerning how faith offers a direct relationship to God, the Brazilian evangelical movement is centralized. Under the headquarters’ orders, different churches in various regions chose candidates to run for office and then persuaded parishioners to support them.66

The rise of evangelicals represents an exchange of the theology of liberation for one based on prosperity.67 While the Catholic Church advocates collective, political liberation as the principal way for the poor to improve their condition, evangelicals embrace individualism. Knowledge that someone is blessed is apparent in their material condition, or in other words, their individual efforts and income. Structural economic changes have buoyed the rise of the evangelicals. Specifically, as union density has decreased, evangelical churches rose in the 1990s as the country was also experiencing its first wave of neoliberal restructuring.68 Additionally, the PT, which had been traditionally allied with the progressive branch of the Catholic Church, brought issues of women’s health and abortion, gender, and sexuality to the fore of its programs. These initiatives faced attacks from the religious right, as morals and gender have become sources of conflict in what Amy Erica Smith calls “culture wars.”69 Evangelicals have also become increasingly present in Brazilian society as television channels have been purchased by religious leaders.70

The third group—cattle, or agribusiness—adds economic power to the legislative coalition that helped Bolsonaro assume the presidency. The improved trade balance that agribusiness exports generate puts the government under their power, specifically by providing the Central Bank with reserves to change the value of currency and pacify foreign creditors. This sector, more than the other two, spearheads calls for deregulation and deforestation. While members of the bullet coalition also promote deregulation in terms of gun sales, agribusiness interests have championed removing environmental restrictions and opening indigenous people’s territory for sale and economic exploitation. Such positions were already present in the revisions made to the Forestry Code in 2014. Following this effort, landed elites also succeeded in collapsing the Ministry of Agrarian Development (MDA), a Lula-era institution in charge of working with historically marginalized rural populations, into the Ministry of Agriculture, Livestock, and Supply (MAPA). The merger slashed budgets, placing MDA policies under control of MAPA officials who historically favored agribusiness.

None of these efforts occurred outside of the rule of law. Legal instruments have been used to promote an elite-driven model of agribusiness expansion. This project has a clear class basis, one that is rooted in removing any barriers to capital accumulation that historically marginalized populations could muster. It is not that the PT sought to curtail agribusiness interests. In fact, a series of concessions were made to landed interests, including placing key players in positions of power and limiting efforts to redistribute land. The power of rural elites in no way diminished during this period and, when the opportunity presented itself, many key leaders and representatives doubled down on their support for the political agenda that better served their interests.

The Deepening Crisis in Brazil

Authoritarianism has made a comeback in Brazil. This time it is based on laws enacted by elected politicians and used by the judiciary. The latter has been at the center of the political disputes, taking sides. Judges, usually with enormous privileges, grasped an opportunity to openly influence politics. With the supposed goal of purging Brazilian capitalism of corruption, they launched a targeted campaign against the organized left. Leftist politicians sentenced to jail were linked to their respective parties, mostly the PT, making it appear as an organized plot against the people. The coronavirus pandemic has led judges to break with Bolsonaro, particularly over the issue of public health. Still, judging from the institutional development of the judiciary in the country, it is unlikely that a post-pandemic Brazil will feature a form of the rule of law without a clear upper-class bias.

While at the center of a political alliance devoted to restoring a dictatorship-like era, the judiciary could not accomplish its goals alone. Other members of the alliance include the factions representing the military and police, evangelical Christianity, and agribusiness. The political alliances are complex, involving different agendas and interests, but they are united by neoliberal policies that exclude minority groups and the organized left.

What Brazil shows—particularly since the return to democracy—is that the nature of so-called banana republics in Latin America has changed. Instead of the open military dictatorships of the past, regime change for imposing authoritarianism is forced now by different political coalitions under the banner of the rule of law. This means that the law is neither apolitical nor neutral—it serves as a powerful tool. It creates institutional hierarchies and privileges certain actors over others. The new authoritarianism is not an exclusive military government ruling by exception, outside of the legal system. Rather, judges and their allies, including the military, work together to stifle democracy and repress opponents. Appeals to the rule of law to settle conflicts in favor of exploited people are ignored, especially as the right runs the courts. Ignoring the rule of law, however, is not an option, as the right uses the law for its own purposes. In Brazil, as well as elsewhere, the left must seriously grapple with how to engage the legal system as its bureaucratic tendencies militate against democratic efforts.


  1. Ricardo Antunes, “The Preemptive Counterrevolution and the Rise of the Far Right in Brazil,” Monthly Review 71, no. 3 (July–August 2019): 89–103.
  2. Marc Becker, “Latin America: A Conservative Restoration?,” Against the Current 188 (2017).
  3. Raúl L. Madrid, “The Emergence of Ethno-Populism in Latin America,” in Routledge Handbook of Global Populism, ed. Carlos de la Torre (Abingdon: Routledge, 2019), 177–89.
  4. Perry Anderson, “Crisis in Brazil,” London Review of Books 38, no. 8 (2016); Marcelo Milan, “Oligarchical Restoration and Full Neoliberalism Reloaded,” Austral: Brazilian Journal of Strategy & International Relations 5, no. 9 (2016): 74–112.
  5. Anthony Pahnke, “The Brazilian Crisis,” Monthly Review 68, no. 9 (February 2017): 43–54.
  6. Glenn Greenwald has recently exposed the machinations behind Lula’s trial. See “Secret Brazil Archive,” Intercept.
  7. Guillermo O’Donnell, “Polyarchies and the (Un)Rule of Law in Latin America,” paper presented at the Meeting of the Latin American Studies Association, Chicago, September 1998; Guillermo O’Donnell, “The Quality of Democracy: Why the Rule of Law Matters,” Journal of Democracy 15, no. 4 (2004): 32–46.
  8. Rachel Sieder, Line Schjolden, and Alan Angell, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005).
  9. Nancy Bermeo, “On Democratic Backsliding,” Journal of Democracy 27, no. 1 (2016): 5–19.
  10. Alexander Cooley, “Authoritarianism Goes Global,” Journal of Democracy 26, no. 3 (2015): 49–63; Mollie J. Cohen and Amy Erica Smith, “Do Authoritarians Vote for Authoritarians? Evidence from Latin America,” Research & Politics 3, no. 4 (2016).
  11. Terry Woronov, “Waging Lawfare: Law, Environment and Depoliticization in Neoliberal Australia,” Capitalism Nature Socialism, October 11, 2017; Charles J. Dunlap Jr., “Lawfare Today: A Perspective,” Yale Journal of International Affairs 3 (2008): 146.
  12. Orde F. Kittrie, Lawfare: Law as a Weapon of War (New York: Oxford University Press, 2016); Woronov, “Waging Lawfare.”
  13. Jean Comaroff and John L. Comaroff, eds., Millennial Capitalism and the Culture of Neoliberalism (Durham: Duke University Press, 2001), 306.
  14. Jean Comaroff and John L. Comaroff, “Law and Disorder in the Postcolony,” Social Anthropology 15, no. 2 (2007):133–52.
  15. Pierre Dardot and Christian Laval, La Nouvelle Raison du Monde: Essai sur la Société Néolibérale (Paris: La Découverte, 2009).
  16. Ralph Miliband, The State in Capitalist Society (New York: Basic, 1969); Nicos Poulantzas, State, Power, Socialism (London: Verso, 2014).
  17. Guillermo O’Donnell, Philippe C. Schmitter, and Laurence Whitehead, eds., Transitions from Authoritarian Rule (Baltimore: Johns Hopkins University Press, 1986).
  18. René Armand Dreifuss, 1964: A Conquista do Estado (Petrópolis: Vozes, 1981).
  19. Heloisa Maria Murgel Starling, “Silêncios da Ditadura,” Revista Maracanan 12 (2015): 37–46.
  20. Joseph A. Page, The Revolution That Never Was: Northeast Brazil, 1955–1964 (New York: Grossman, 1972).
  21. Leonardo Avritzer, “New Public Spheres in Brazil,” Revista Direito GV Especial 1 (2005): 55–74.
  22. Keith S. Rosenn, “Separation of Powers in Brazil,” Duquesne Law Review 47 (2009): 839.
  23. Keith S. Rosenn, “Judicial Review in Brazil,” Southwestern Journal of Law & Trade in the Americas 7 (2000): 291; Rodrigo M. Nunes, “Politics without Insurance: Democratic Competition and Judicial Reform in Brazil,” Comparative Politics 42, no. 3 (2010): 313–31.
  24. Manoel Gonçalves Ferreira Filho, “Constituição e Governabilidade,” Revista de Informação Legislativa 31, no. 123 (1994): 219–27.
  25. Armando Boito and Alfredo Saad-Filho, “State, State Institutions, and Political Power in Brazil,” Latin American Perspectives 43, no. 2 (2016): 190–206; Luciano Da Ros, “O Custo da Justiça no Brasil: Uma Análise Comparativa Exploratória,” Observatory of Social and Political Elites of Brazil, Newsletter 2, no. 9 (2015).
  26. José Gomes da Silva, Buraco Negro: A Reforma Agrária na Constituinte de 1987–88 (Rio de Janeiro: Paz e Terra, 1989).
  27. OECD Economic Surveys: Brazil, vol. 2005, no. 2 (Paris: OECD, 2005).
  28. Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso, eds., Routledge Handbook of Law and Society in Latin America (New York: Routledge, 2019).
  29. Lula Assina Decreto Que Proíbe Venda de Terras na Amazônia a Estrangeiros,” Globo, October 28, 2019.
  30. Anthony Pahnke, “Sovereignty and Capitalist Accumulation in Brazil’s Primary Sector,” Latin American Perspectives 46, no. 2 (2019): 10–26.
  31. James Petras, “Brazil: Extractive Capitalism and the Great Leap Backward,” Global Research, July 23, 2013.
  32. Hans-Jürgen Burchardta and Kristina Dietzb, “(Neo-)Extractivism—A New Challenge for Development Theory from Latin America,” Third World Quarterly 35, no. 3 (2014): 468–86.
  33. Sabrina Valle and Kevin Crowley, “Exxon Makes Major Bet on Brazil as Petrobras Eases Its Grip,” Bloomberg, October 18, 2018.
  34. Dom Phillips, “Brazil Senate Approves Austerity Package to Freeze Social Spending for 20 Years,” Guardian, December 13, 2016.
  35. João Renda Leal Fernandes, “Labor Law, CLT and the 2017 Brazilian Labor Reform,” Panorama of Brazilian Law 5, no. 7–8 (2017): 210–42.
  36. Ernesto Londoño and Letícia Casado, “Amazon Deforestation in Brazil Rose Sharply on Bolsonaro’s Watch,” New York Times, November 18, 2019.
  37. Brazil: Bolsonaro’s Neoliberal Pension Reform Expected to Pass,” teleSUR, October 22, 2019.
  38. Brian Mier, “The US and Lawfare: Meet the Latin American Leaders Under Investigation,” Brasil Wire, March 10, 2018.
  39. Antunes, “The Preemptive Counterrevolution and the Rise of the Far Right in Brazil.”
  40. “As Preguntas Não Respondidas Sobre o ‘Mensalão,'” CartaCapital, August 16, 2012.
  41. João Francisco Haas, O Verdadeiro Processo do Mensalão: Ação Penal 470-STF (Brasília: Verbena, 2015).
  42. Lachezar D. Yanev, Theories of Co-perpetration in International Criminal Law (Leiden: Brill, 2018).
  43. Pahnke, “The Brazilian Crisis.”
  44. Lenise Aubrift Klenk, “Procurador Afirma que Lava Jato Teve Mais Apoio Enquanto PT Era o Principal Alvo,” Paraná Portal, September 21, 2018.
  45. Peter Prengaman, “Meet the Quiet Judge Remaking Brazil and Sending Its Wealthiest and Most Powerful to Prison,” Chicago Tribune, April 7, 2016.
  46. Milan, “Oligarchical Restoration and Full Neoliberalism Reloaded.”
  47. James Brooke, “Brazilian Justice and the Culture of Impunity,” New York Times, August 29, 1993.
  48. Daniel Cerqueira et al., Atlas da Violência (Rio de Janeiro: Fórum Brasileiro de Segurança Pública, Instituto de Pesquisa Econômica Aplicada, 2018).
  49. You Killed My Son: Homicides by Military Police in the City of Rio de Janeiro (Rio de Janeiro: Amnesty International, 2015).
  50. In “After the Take-Over: Mobilizing the Political Creativity of Brazil’s Favelas,” New Left Review 110 (2018), Marielle Franco provides an interpretation of the 2016 coup from a feminist and favelada perspective, arguing for the need to fight back. She was murdered by paramilitary forces soon after.
  51. Brazil’s Sole Openly Gay Congressman Leaves Country After Death Threats,” Guardian, January 24, 2019.
  52. Deborah Hardoon, Sophia Ayele, and Ricardo Fuentes-Nieva, An Economy for the 1% (Oxford: Oxfam International, 2016).
  53. Christian Houle, “Inequality and Democracy,” World Politics 61, no. 4 (2009): 589–622.
  54. Decreto de Bolsonaro que Autoriza Atividades Religiosas É Suspenso de Novo,” Exame, April 2, 2020.
  55. Colm Quin, “Bolsonaro Fires Country Health Minister as Infections Grow,” Foreign Policy, April 17, 2020.
  56. Benjamin Arthur Cowan also asserts a connection between evangelicals and neoliberal austerity policies. See Benjamin Arthur Cowan, “A Hemispheric Moral Majority: Brazil and the Transnational Construction of the New Right,” Revista Brasileira de Política Internacional 61 no. 2 (2018): 1–25.
  57. João Pedro Stedile, “Contemporary Challenges for the Working Class and Peasantry in Brazil,” Monthly Review 71, no. 3 (July–August 2019): 104–16.
  58. Stedile, “Contemporary Challenges for the Working Class and Peasantry in Brazil”; Michael Albertus, “The Military Returns to Brazilian Politics,” Foreign Policy, October 8, 2018.
  59. Albertus, “The Military Returns to Brazilian Politics.”
  60. Marcos Paulo dos Reis Quadros and Rafael Machado Madeira, “Fim da Direita Envergonhada?,” Opinião Pública 24, no. 3 (2018): 486–522.
  61. Timothy J. Power and Rodrigo Rodrigues-Silveira, “Mapping Ideological Preferences in Brazilian Elections, 1994–2018,” Brazilian Political Science Review 13, no. 1 (2019).
  62. Fiona Macaulay, “Bancada da Bala,” in In Spite of You: Bolsonaro and the New Brazilian Resistance, ed. Conor Foley (London: OR, 2019).
  63. Veja Como Votaram os Deputados na Reforma da Previdência,” Folha de São Paulo, July 10, 2019.
  64. Fernando Rodrigues, “Juiz Cita Passagem da Bíblia na Decisão Que Prendeu Sérgio Cabral,” UOL Notícias, November 17, 2016.
  65. Chayenne Polimédio, “The Rise of the Brazilian Evangelicals,” Atlantic, January 24, 2018.
  66. Andrea Dip, “Afinal, o Que os Evangélicos Querem da Política?,” Exame, May 29, 2017.
  67. Daniel Hunt, “Thy Will Be Done: Brasil’s Holy War,” Brasil Wire, October 18, 2018.
  68. Ruy Braga, “From the Union Hall to the Church,” Jacobin, April 7, 2019.
  69. Amy Erica Smith, “When Clergy Are Threatened,” Politics and Religion 9, no. 3 (2016): 431–55.
  70. Emerson Giumbelli, “Cultura Pública: Evangélicos y Su Presencia en la Sociedad Brasileña,” Sociedad y Religión 23, no. 40 (2013): 13–43.
2020, Volume 72, Issue 02 (June 2020)
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