Public Law and the Puzzle of Democratic Decay in Brazil Law and Society Association (LSA)/RCSL 2017 Mexico City, 20-23 June 2017 Panel: Law and Policy in Latin America TOM GERALD DALY MLS Fellow, Melbourne Law School Associate Director, Edinburgh Centre for Constitutional Law
[email protected] Abstract Democratic decay, which may be loosely defined as the incremental degradation of the structures and substance of liberal constitutional democracy, has gathered pace in recent years. Decay in the democratic systems of states worldwide, such as Hungary, Poland, Venezuela, and South Africa, forms a sub-set of what Larry Diamond calls a global ‘democratic recession’. Public law is at the heart of this decay. Partly this is because various contemporary regimes have ‘weaponised’ public law to hollow out democratic rule, through increasingly sophisticated use of constitutional law to remove institutional constraints on political power. Partly it is because public law is also inevitably seen as an essential tool in the pushback against democratic decay, given that law has assumed an ever greater role in governance since the 1970s. Focusing on the impeachment of President Dilma Rousseff in August 2016 and its aftermath, this paper uses the Brazilian context as a way to explore three interrelated questions: (i) how might we define democratic decay?; (ii) can we say that Brazil is suffering democratic decay, and why?; and (iii) how does the Brazilian impeachment crisis add to, or complicate, our understanding of democratic decay, and the role of public law in such decay? Acknowledgments I am greatly indebted to three scholars who assisted with the preparation of this paper, including discussion of the Brazilian context, commentary and insights, and providing me with relevant materials by Brazilian scholars: Fabia Fernandes Carvalho Veçoso, Luís Bogliolo Piancastelli, and Juliano Zaiden Benvindo.