The crisis of Brazilian democracy has been attributed by many analysts, exclusively, to the government of Jair Bolsonaro and his anachronistic desire to impose a dictatorship in the style of the regime that began in 1964. In fact, Bolsonaro never hid his aversion to the democratic regime despite having made a career in it since 1988. However, despite his efforts to weaken democracy from the Presidency of the Republic, this is not the only destabilizing factor. Other factors are acting in the same direction, but the most significant is the corrosion of Brazilian democracy itself, so that even a politically weak president is seen as a serious threat.

Understanding the causes of this corrosion, therefore, is fundamental if we are to avoid the regression that lies not only in the authoritarian culture of our economic modernization, but also, and above all, in the neopatrimonialist culture that inspired our last redemocratization.

I am not referring only to the “slow, gradual and safe opening” project of the military regime itself, which presupposed the annihilation of even its unarmed socialist adversaries. Nor do I refer to the reformists of various hues gathered in the Brazilian Democratic Movement (MDB). I deal here with the classical liberal perspective, the democratic manifesto of 1977, written in the portals of the Law School of the University of São Paulo (USP) and signed by the jurist Goffredo da Silva Telles Junior, a document used today as the basis and inspiration for a new letter in defense of democracy threatened by Bolsonaro.

Telles Jr.’s letter, actually a manifesto, clearly expressed the point of view that nuanced the conception of the New Republic and is at the origin of its crisis. His cry against the “oppression of all dictatorships”, although uttered in a totally different environment, resounded in the name of the old tradition of the “powerful Family (…)” formed during a century and a half in “the great Law Faculties” of the country, from which 17 presidents of the Republic emerged, most of them in the Old Republic (1889-1930).

The illegitimate order inaugurated by the military was condemned in the 1977 Charter for the use of “force” in disagreement with the “power” emanating from the “people”. Legitimate “force,” Telles Jr. said, could only be an instrument subordinated to legitimate “power,” derived from the laws of the Legislative Branch and granted by the “people,” and not “brought down from above,” as was the case under the military regime.

This implied that laws were “natural products of the exigencies of life,” reflecting “the dominant desires of the people,” not of their elites. However, as Oliveira Vianna criticized, the juridical-political thinking of “the great law schools” of the country was more inclined to the “utopian idealism of the elites” than to the needs of the people, as seen in the dogmatic defense of private property, even that stolen from the State by institutionalized land usurpation. This myopia, despite the humanist rhetoric, is maintained to this day in favor of laws that are “legally perfect” but incapable of effectively achieving their objectives.

The idyllic world of our juridical thinkers has not changed much since 1977, instituting the ideal “people”, to whom it would correspond to “decide on their political regime” and “on the structure of their Government”, but without making further considerations on their real, material and instrumental conditions for this. At this point, it is worth recalling the illustrious Brazilian jurist Victor Nunes Leal, who, 30 years earlier, had warned about the ineffectiveness of “measures for the moralization of national public life” without an effective fight against poverty.

If one applies the criterion that “the legitimacy of the Constitution is evaluated by its adequacy to the socio-cultural realities of the community”, as proposed in the 1977 Charter, it would be necessary to admit the separation between nation and State throughout the history of Brazil, even during the democratic Constitutions. In the past, this differentiation was based mainly on legal restrictions to the free organization of workers, but since 1985 it has become viable through institutionalized corruption (including vote buying), progressively operated by political parties, from the right to the left. Surprisingly, not a word is said about this in the new 2022 charter.

Looking at Brazil’s trajectory so far, it seems that we are still prisoners of the “round trip” alluded to by another renowned Brazilian jurist, Raymundo Faoro, where the conciliation of businessmen and workers with parasitic groups of the political class and the financial market, perpetuates the underdevelopment of almost a century and a half and its unequal and unjust human geography.

The Brazilian democratic transition of 1970 and 1980, led by the Brazilian Democratic Movement (MDB) and inspired by juridical-political abstractionism, proved incapable of changing this reality, which returned us to political instability. This was possible because our institutions, in the words of Oliveira Vianna, made “imprudent concessions to corrupt practices”, which not only allowed the oligarchies to survive, but also gave rise to the deterioration of democratic forces of all shades.

This is the main cause of the current crisis, as the sociologist Seymour Lipset said, along with economic development and political legitimacy (free and fair elections), the stability of any democracy depends on the extent to which the system fulfills its basic functions of governance. Unfortunately, and not only today, we are doing badly in all these areas, and the “great law schools” have not yet offered the necessary and urgent remedies to overcome the crisis.

Translated from Spanish by Janaína Ruviaro da Silva