Constitutional Erosion in Brazil (Constitutionalism in Latin America and the Caribbean)

This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the Constitution of 1988. It sets out the following aspects of the constitutional development and erosion: - the different phases of the promised transition from military rule to a 'social-democratic constitutionalism'; - the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil-military relationship; - the legal and social practices which maintained a structure that obstructed the emergence of an effective social-democracy, such as the neoliberal pattern, the acceptance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming the formation of democratic sovereignty. Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors. By exploring the ideas of constitutional erosion and collapse, as well as democratic, social and digital constitutionalism, the book presents a comparative analysis of Brazil and other jurisdictions, including the United States, South Africa, and Peru. Introduction: Defining Brazil's Constitutional Erosion -- 1. Brazil Under Bolsonaro -- 2. Military and Politics -- 3. What is a Constitutional Crisis? -- 4. Crises and Constitutional Identity -- 5. Constitutional Erosion -- 6. The Structure of this Book -- 1. Transitional Constitutionalism: Attempts at Controlling a Transition -- 1. The Brazilian Dictatorship of 1964-1985 Juridical Apparatus -- 2. Transitional Justice Processes Shaping Constitutionalism -- 3. Amnesty and the Brazilian Supreme Federal Tribunal -- 4. The Dictatorship of 1964-1985 On Trial -- 5. Brazilian Institutions Coping with the Inter-American Court of Human Rights -- 6. Militaries in Brazil: From Impunity to Politics -- 2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights -- 1. Authoritarianism and Neoliberalism -- 2. Constitutions and Economic Power -- 3. Transformative Constitutionalism and Transformative Justice -- 4. Socioeconomic Rights, Constitutionalism and Transition in South Africa -- 5. Socioeconomic Rights, Constitutionalism and Transition in Brazil -- 6. Neoliberalism and Transitional Constitutionalism -- 3. Institutional and Personal Guarantees: Judges, Inequality and Politics -- 1. Against the Transition: The Lack of Efficient Judicial Institutional Reforms -- 2. Corporativist Guarantees -- 3. Operation Carwash: Taming Politics Through Judicial Discourse -- 4. Operation Carwash Personification -- 5. From the Bench to Mega-Politics -- 6. Individualities vs Institutional Behaviour -- 4. Judges and Courts Destabilising Constitutionalism -- 1. Deputies and Senators in the Brazilian Supreme Federal Tribunal -- 2. The Judicial Oversight of an Impeachment -- 3. Ruling on Presumption of Innocence: Balancing and Unbalancing Constitutional Rights -- 4. Imprisoning the Ex-President -- 5. Constitutional Courts and Political Instability -- 6. Unstable Constitutionalism in Brazil -- 5. Subverting the Rule of Law: The Military and the Milícias -- 1. The Military in Brazilian Post 1988 Democracy "This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the Constitution of 1988. It sets out the following aspects of the constitutional development and erosion: - the different phases of the promised transition from military rule to a 'social-democratic constitutionalism'; - the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil-military relationship; - the legal and social practices which maintained a structure that obstructed the emergence of an effective social-democracy, such as the neoliberal pattern, the acceptance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming the formation of democratic sovereignty. Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors. By exploring the ideas of constitutional erosion and collapse, as well as democratic, social and digital constitutionalism, the book presents a comparative analysis of Brazil and other jurisdictions, including the United States, South Africa, and Peru"-- Provided by publisher "This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the Constitution of 1988. It sets out the following aspects of the constitutional development and erosion: - the different phases of the promised transition from military rule to a 'social-democratic constitutionalism'; - the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil-military relationship; - the legal and social practices which maintained a structure that obstructed the emergence of an effective social-democracy, such as the neoliberal pattern, the acceptance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming the formation of democratic sovereignty. Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors. By exploring the idea of 'social-democratic constitutionalism' the book presents a comparative look at jurisdictions which share a similar sharp inequality including Thailand, Argentina and South Africa."-- Dedication Acknowledgements Table of Contents Introduction: Defining Brazil’s Constitutional Erosion 1. Transitional Constitutionalism: Judicial and Military Attempts at Controlling a Transition 2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights 3. Institutional and Personal Judicial Guarantees: Judges, Inequality and Politics 4. Judges and Courts Destabilising Constitutionalism 5. Subverting the Rule of Law: The Military vs the Milícias – Eroding Brazilian Constitutionalism 6. Moderating Powers? Military and Judges in Brazilian Constitutionalism 7. Digital Constitutionalism: WhatsApp Elections and Fake News 8. Constitutional Resilience against Erosion: Responses Provided for by the 1988 Constitution Epilogue Index