Fabio, you work on the role of lawyers in building illiberalism. We tend to see lawyers as the victims of illiberal governance. Yet in one of your latest articles, “From Car Wash to Bolsonaro: Law and Lawyers in Brazil’s Illiberal Turn (2014–2018),” you show that lawyers in Brazil have produced a legal culture that is closer to illiberalism than we imagine and therefore played a role in the election of Bolsonaro. Could you tell us more about your findings?
Sure. My study focused specifically on lava jato, an anticorruption initiative led by a prosecutorial taskforce and a lower-level judge that unveiled a large corruption scheme at the Brazilian oil company Petrobras and had deep impacts on Brazilian politics.
Many in the media and even in academia saw lava jato as a triumph of political liberalism and the rule of law, since it was “ending impunity” in the country. But what I have demonstrated in that article and in other forthcoming ones is that lava jato produced and disseminated a “political grammar” that is at fundamental odds with political liberalism and the “rule of law.” In particular, those prosecutors painted corruption as an existential threat to the nation, argued for the need to change law and concentrate power to fight that threat, and claimed that the legal rights of defendants could be bent or broken for the greater good of fighting the threat.
Bolsonaro adopted a remarkably similar discourse, though in his case the threat came not just from “the corrupt,” but also from young Black males from urban areas, LGBTQ people, and other minorities. Sergio Moro, the judge in lava jato who convicted and arrested former president Lula da Silva (the conviction was later overturned and Moro was deemed “partial” by the Supreme Court) represented the line of continuity between lava jato and Bolsonaro. He became Bolsonaro’s Justice Minister and was behind some of Bolsonaro’s illiberal initiatives in the government. An example is a draft bill Bolsonaro sent to Congress that would give police officers in the country the equivalent of “qualified immunity,” which many considered the “right to kill.”
These findings, as you said, cut against conventional wisdom in studies of law and political change—and, perhaps more importantly, in the “legal development industry” that took shape in the 20th century—which tend to see lawyers as promoters of political liberalism and victims of political illiberalism. My ultimate argument is that this relationship needs to be investigated more deeply and is contingent upon the history of the profession in each country. If the profession does not share liberal values, it will not promote political liberalism, even if it employs instruments associated with political liberalism, like anticorruption campaigns. In other words, I argue that we need to be less idealistic about law and lawyers and avoid thinking that they will unequivocally serve as bulwarks against illiberalism.
I think the literature on populist/illiberal or autocratic leaders tends to forget about the role of mid-level institutions and civil society in building an illiberal culture. Could you tell us more about how the literature on legal culture(s) has handled the rise of populism/illiberalism/the far right? Do we see interesting synergies in terms of research approaches?
First of all, let me both agree with and emphasize the importance of your premise. We usually think of illiberalism as a product of high-level institutions, namely the presidency, if not of an autocrat’s individual will. As such, we tend to ignore how it can be generated and legitimized in other domains and, just as importantly, in everyday life. We tend to situate illiberalism in studies of political institutions and practices, rather than thinking of it as a manifestation of culture, which can grow outside of political institutions and practices and enable them. Maybe this is so because discussions of the “illiberal turn” began in political science and studies of regime change, and they took a while to reach other areas and traditions of inquiry like cultural sociology and anthropology.
That being said, let me address your question: I may be exaggerating, but I think the literature on legal culture(s) has not yet offered a satisfactory response to the problematique of illiberalism.
I think this is due in part to the idealism I mentioned before. Among many, many academics, there is an assumption—though this is not always overt—that lawyers will be intrinsic agents of political liberalism. This is not completely unfounded; we can hypothesize, for example, that processes of professional socialization and even the profession’s interest in a “rule of law” order turn lawyers into supporters of political liberalism. But there is also plenty of evidence that lawyers can, and do accommodate illiberal orders—think, for example, of the lawyers who supported the United States war on terror or who operationalized political repression in the Brazilian civil/military dictatorship. So, in general, I think there is a great need for us to study the structure and the forces behind illiberal legal culture—and to overcome these epistemological obstacles along the way.
Then there is popular culture as well. In Brazil, where I come from, there is a tradition of thinking about the role of an illiberal political culture in shaping political institutions and practices. This goes back to studies of authoritarianism and what scholars at the University of Sao Paulo, led by Paulo Sergio Pinheiro, called “socially implanted authoritarianism.” I think we need to explore this issue in contemporary studies of liberal/illiberal legality as well. We may want to think that people aspire to a political/legal order that ensures freedom and equality, but that may not always be the case—either because they think the promises of freedom and equality are a façade for arbitrariness or because they actually prefer a political/legal order based on domination, especially if they are on top.
Are there legal activists who try to oppose Bolsonaro’s attack on the judiciary? How does this “resistance” work and how does it materialize in terms of legal practices and activism?
Yes, although the story is more complicated. There is a tradition in Brazil of the opposition bringing claims to court. This continues under Bolsonaro, and—thankfully—litigants have had some success. The best example comes from the COVID-19 crisis, when Bolsonaro was trying to centralize the “response” to the pandemic. (“Response” should be placed in quotes; he just wanted to ensure that the country would continue “normal life”). The Supreme Court was called upon to act and frustrated his plans, recognizing the authority of state and local governments to adopt restrictive measures.
Yet as we know, there is only so much that courts can do to stop autocrats—judges have a limited amount of political capital to spend in these high-profile cases. Indeed, instead of bowing to the Court, what Bolsonaro has done is simply deepen his use of unconstitutional and illegal measures (during COVID-19 and beyond), making it costly for the Court to keep him in check.
Besides the domain of judicial review, there are also important criminal investigations underway that pose threats to Bolsonaro. One of these investigations focuses on attacks carried out against the Supreme Court and Congress. These attacks were allegedly organized/paid for by Bolsonaro’s sons, his supporters in Congress, and his affiliates in the business sector. However, it is also true that, in this case, investigators sometimes use unorthodox methods and violate due process rights, which eventually weakens their position—here, again, you cannot speak in the name of law while violating the law.
In the meantime, Bolsonaro has managed to coopt sectors of the Federal Police and the Public Prosecutor’s Office and has recently appointed a loyal attorney to the Supreme Court. Through these measures, he has severely undermined the conditions for effective legal accountability of the presidency—just as autocrats do to rule unconstrained. And there is evidence that a conservative/libertarian subset of the bar is growing and providing Bolsonaro with technical support and symbolic legitimacy.
In sum, the picture is mixed. Those trying to resist Bolsonaro are seeking protection under the law, with some success, while Bolsonaro tries to both constrain and coopt courts and other legal institutions, sometimes drawing voluntary support from sectors of the bar that self-identify with his policy agenda.
You now help run a collective project, the Project of Autocratic Legalism (PAL), that looks at how law is affected by and affects autocrats. This is a fascinating topic, and calls to mind the research done by Tímea Drinóczi and Agnieszka Bień-Kacała on Illiberal Constitutionalism (in their case applied to Poland and Hungary). What are the main takeaways emerging from the comparison of Brazil, India, and South Africa?
I like to see the PAL project as part of the larger camp of scholars who study the entanglements between law, democracy, and political liberalism—although I believe there are some original contributions we can offer as a diverse group that is looking at a unique set of countries (Brazil, India, and South Africa).
Our comparative studies are at a very early stage, but there is something that has caught my attention and that I believe can be shared as an insight. Autocrats use law to consolidate power and sideline opponents, but they build on opportunities that are unique to each context. For example, our team is showing that in South Africa, Zuma tapped into a system of tribal courts that has existed since pre-colonial times; he gave more power to these courts to avoid being held accountable in civil courts. In Brazil, Bolsonaro is using and abusing national security laws enacted during the civil/military dictatorship (1964-1985) to intimidate his critics. In India, Modi is using informal practices and ties, like post-retirement appointments for justices, to coopt courts. I hope we can deepen our conversation going forward and better elaborate what these findings mean theoretically for the study of law, democracy, and political liberalism.
I invite your readers to follow our website and podcast to keep up with the news!
I do! Last question: Our program is called the Illiberalism Studies Program. In your research, you use the term “autocrat/autocratic,” which is more about practices of power than about ideology. Could you tell us if and how the notion of illiberalism makes sense in the Brazilian context? Which liberalism is targeted as the enemy by Bolsonaro’s rhetoric and how does that ideological frame articulate with autocratic practices?
First of all, I think it is important to address the relationship between illiberalism and autocratization. I see illiberalism as a building block of autocratization. Not all contestations over political liberalism result in autocratic rule (see, for example, how social democracy grew in the 20th century), but every instance of autocratic rule depends on the suppression of individual freedoms and accountability mechanisms—that is, of some sort of illiberal politics.
There are at least two important ways in which Bolsonaro plays such politics. One of them involves his “reaction” to what he alleges to be the left’s turn to “cultural Marxism”—the role that progressive forces have given to race, gender, environmental concerns, etc., in policy and political debates. This leads him to attack minority groups (women, indigenous groups, Afro Brazilians, etc.) and minority rights, as well as media outlets and academic institutions, which he accuses of promoting “political correctness.” These attacks do not always translate into policy, but they often enable violence at the societal level—and that is sufficient to institute an illiberal political order.
Another expression of his illiberalism involves direct attacks on the opposition and accountability institutions, often based on fake news and conspiracy theories. For example, he likes to blame the Supreme Court and Congress for his incompetent, genocidal handling of the pandemic. Perhaps more seriously, he is now fiercely engaged in undermining popular confidence in the electoral system, alleging that elections have been defrauded and threatening that he will not allow elections to be held in 2022 if the system is not changed. We know very well where this leads, and it is not pretty!
Fabio de Sa e Silva is Assistant Professor of International Studies and the Wick Cary Professor of Brazil Studies at the University of Oklahoma, where he co-Directs the OU Center for Brazil Studies. He studies the social organization and political impact of law and the legal profession in Brazil and comparatively. Most recently (with Scott Cummings and Louise Trubek), he edited Global Pro Bono: Causes, Context, and Contestation (Cambridge University Press, 2021). He is one of the coordinators of the Project on Autocratic Legalism (PAL), which looks at how law is used to further and resist autocratic forces in Brazil, India, and South Africa. In this capacity, he also hosts the Podcast on Autocratic Legalism (PALcast).