Populism, Public Law, and Democratic Decay in Brazil: Understanding the Rise of Jair Bolsonaro

Abstract

On 28 October 2018 Jair Bolsonaro, a far-right candidate, won the presidential elections in Brazil with 55% of the vote. His election marks, not the beginning of a democratic crisis for Brazil, but the punctuation and intensification of a process of decay that has affected the country’s democratic system for some time. How do we characterise democratic decay in Brazil from a global perspective? In recent years numerous states have fallen to a form of authoritarian populism, which has led public lawyers to analyse how public law is ‘weaponised’ to incrementally hollow out democratic rule, as well as how public law can act as a bulwark against creeping authoritarianism. In states such as Hungary and Poland anti-democratic governments have used law as part of a multi-step ‘masterplan’ to subvert democracy, while in others, such as the USA the picture is more scattered and diffuse, although abuse of law – in the form of extreme gerrymandering and voter suppression, for instance – is also present. Brazil presents an even more complex picture which highlights how democratic decay can arise not simply as an executive-led problem, but as a result of multiple forms of populism, different strains of anti-democratic élitism, a constitutional system suffering significant design and implementation flaws, and the lingering legacy – and re-assertion – of military power in politics. More fundamentally, the Brazilian context underscores the highly contested nature of liberal democracy itself, and how the Constitution can become the battleground for competing – if not irreconcilable – visions of state and society.

Keywords: Brazil, Bolsonaro, democracy, constitutional law, authoritarianism