Full Description
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.
Contents
Introduction: Defining Brazil's Constitutional Erosion
I. What is a Constitutional Crisis?
II. Constitutional Erosion
III. Constitutional Crisis and Constitutional Erosion: A Comparative Assessment
IV. Brazil under Bolsonaro: Soldiers as Politicians
V. Armed Forces and Politics: Brazil and Beyond
VI. The Structure of this Book
1. Transitional Constitutionalism: Judicial and Military Attempts at Controlling a Transition
I. The Brazilian Dictatorship of 1964-1985 Juridical Apparatus
II. Transitional Justice Processes Shaping Constitutionalism
III. Amnesty and the Federal Supreme Court
IV. The 1964-1985 Dictatorship on Trial
V. Interactions between Brazilian Institutions and the Inter-American Court of Human Rights
VI. The Military in Brazil: From Impunity to Politics
2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights
I. Authoritarianism and Neoliberalism
II. Constitutions and Economic Power
III. Transformative Constitutionalism and Transformative Justice
IV. Socio-economic Rights, Constitutionalism and Transition in South Africa
V. Socio-economic Rights, Constitutionalism and Transition in Brazil
VI. Neoliberalism and Transitional Constitutionalism
3. Institutional and Personal Judicial Guarantees: Judges, Inequality and Politics
I. Against the Transition: The Lack of Efficient Judicial Institutional Reforms
II. Corporativist Guarantees
III. Operation Car Wash: Taming Politics through Judicial Discourse
IV. The Personification of Operation Car Wash
V. From the Bench to Politics
VI. Individualities v Institutional Behaviour
4. Judges and Courts Destabilising Constitutionalism
I. Deputies and Senators in the Federal Supreme Court
II. The Judicial Oversight of an Impeachment
III. Ruling on Presumption of Innocence: Balancing and Unbalancing Constitutional Rights
IV. Imprisoning the Ex-President
V. Constitutional Courts and Political Instability
VI. Unstable Constitutionalism in Brazil
5. Subverting the Rule of Law: The Military vs the Milícias - Eroding Brazilian Constitutionalism
I. The Military in Brazilian Post-1988 Democracy
II. Soldiers Returning to Politics
III. Militarised Public Security
IV. Supporting Elections via Milícias
V. Constitutional Erosion or Blatant Coups? A Comparative Assessment
VI. Fuelling Attacks on Constitutional Democracy
6. Moderating Powers? Military and Judges in Brazilian Constitutionalism
I. An Overview of the Moderating Power
II. Authoritarianism: A Substitute for the Moderating Power
III. The Ghost of the Moderating Power and the Military Elite
IV. 1964-1985 - Suspension and Return of the Moderating Model
V. Moderating Power Transfer: From the Military to the Judiciary and Back again
VI. A Case of Weak Democracy Syndrome
7. Digital Constitutionalism: WhatsApp Elections and Fake News
I. Capitalism, New Technologies and Democracy
II. Surveillance Capitalism and Instrumentarian Power
III. Politics and Network Propaganda
IV. Fake News, Authoritarianism and Political Choices
V. WhatsApp, Elections and Misinformation
VI. Controlling Fake News in Brazil
8. Constitutional Resilience against Erosion: Responses Provided for by the 1988 Constitution
I. Coalitional Presidentialism and its Misuse
II. The Constant Threat of Impeachment
III. Capturing State Institutions and Fighting the Media
IV. Parliamentary Control and the Abuse of Executive Orders
V. On Federalism: The Governors' Reactions
VI. 'I Will Interfere!' The Federal Supreme Court Fights Back
