Brazil's "Moderated" Liberty

On September 7, 1822, the son of the Portuguese king, the prince regent of Brazil, declared Brazilian independence and became Brazilian Emperor, taking the name of Dom Pedro I. The occasion may not have been as glamorous as later depicted in the canvas “Independence or Death,” but it was the formal birth of the nation. Since then, Brazil has achieved significant, but limited, constitutional liberty.

Independence or Death

The roots of Brazilian national identity and political independence may or may not be traced deep into colonial times. Certainly, however, the events of the early nineteenth century decisively shaped the idea of Brazil as a distinct political entity. In 1808, the Portuguese court arrived in Rio de Janeiro, escaping from Napoleon’s invasion. King Joao VI (at that time still prince regent) abolished the colonial condition by opening Brazil to direct trade with all “friendly nations,” and later, in 1815, Brazil was made an integral part of the “United Kingdom of Portugal, Brazil, and Algarve.”

The end of colonial status of Brazil implied that the commercial interests in Portugal, which had benefited from a draconian monopoly of Brazilian trade before 1808, lost their monopolistic rents. At the same time, the Portuguese bureaucrats also lost the rents that used to come along with political power over Brazil when Joao VI decided to remain in Rio de Janeiro instead of returning to Lisbon upon Napoleon’s defeat. Brazil was by then already a bigger, wealthier, and more populated territory than Portugal proper. The reaction of Portuguese elites was the “Porto Revolution of 1820,” a botched attempt to reinstate the colonial statute, which inadvertently triggered Brazilian independence.

The situation in Brazil was dire at that time. Of about 4.5 million inhabitants, 1 million were white Portuguese, 800,000 were Native Americans, 1.2 million were slaves brought from Africa, and about 1.5 million were free decedents of white, black, and native people. Slavery was at the same time the cornerstone of the economy and the major impediment to economic growth.

Though local governance, the Portuguese language, and the Catholic religion had been well established in colonial times, almost every other major institution was introduced in the country after 1808, including the first institution of higher education, the first press, the first bank, a rudimentary centralized bureaucracy, and a national army.

Imagine the United States becoming independent with King’s College being the only institution of higher education and less than 15 years old, without a press, without industries, and without state governments.

Considering the circumstances, the constitution given to Brazil by Dom Pedro I was remarkably liberal, its virtues evidenced by the fact that it lasted from 1824 to 1891, the longest of any other constitutions of the country since.

Yet that constitution arguably planted the seeds of some of the most intractable problems haunting Brazil to this day. Most importantly, it did not recognize a single source of legitimate political power. Both the Emperor and the People were recognized as sources of sovereignty. That was not an arcane and inconsequential feature, as I hope to demonstrate.

The Moderating Power

The traditional division of power, since Montesquieu’s The Spirit of the Laws, has been one of three branches of power, the executive, the legislative, and the judiciary, all of them having popular sovereignty as the sole source of their legitimacy.

Benjamin Constant later proposed a different separation of power. It was based on the recognition that in England, the quintessential constitutional monarchy at his time, in the words of Adolphe Thiers: “the king rules but does not govern.” Based on that observation, Constant proposed that the king had a “moderating” power, with the executive power vested in the cabinet of ministers, and the king acting as an impartial “judge” of the political game. Constant is mostly understood as describing, in more detail, a liberal conception of constitutional monarchy with popular sovereignty exercised by a parliament, and not as challenging such conception.

However, that was not what was institutionalized in Brazil.   

The charter Dom Pedro I gave the country concentrated power in his hands to intervene in the political process whenever he deemed it necessary. To that end, he institutionalized a power of “tutelage” of the exercise of popular sovereignty for himself. The emperor at his sole discretion could fire the cabinet, dissolve the parliament, call new elections, command the armed forces, and enjoy legal immunities, among other prerogatives. Soon he abused that power. A crisis ensued and, for all practical purposes, he was forced to resign in 1831. His son, Dom Pedro II, exercised that power more prudently, if not more sparingly, until the monarchy was abolished by a military coup in 1889.

Although Brazil, once it became a republic, has never again explicitly acknowledged the right of someone to exercise “tutelage” over the political process in its formal constitutions, first the army and more recently the Supreme Court have claimed such powers time and again.

Aside from other minor and not-so-minor incidents, Brazil had military coups in 1889, 1930, 1945, and 1964. More recently, the Supreme Court has claimed to have powers not considered by most legal scholars to be authorized by the current Brazilian constitution of 1988.

With more or less acknowledgment, all those instances of tutelage over the political process are manifestations of the “moderating power.” It is part of the real, unwritten Brazilian Constitution.

If the Army yesterday or the Supreme Court today may decide that the institutions of limited and representative government in the country are not sufficient . . . then the real sovereign is not the people.

The problem is that the principle of legality, a cornerstone of the rule of law, means not only that private individuals are free to do whatever is not forbidden by law, but also that public agents are authorized to do only what is mandated by law.  If the political constitution recognizes that the sole source of legitimacy is the sovereignty of the people and determines how the different branches of government will exercise such sovereignty on behalf of the people, then any infringement of the constitution is an infringement on popular sovereignty, and therefore, illegitimate—period.

Throughout Brazilian history, defenders of such arrangements have argued that extreme circumstances require extreme measures, and therefore, the exercise of such “tutelage” is warranted every time that the integrity of the country is at risk. However, other societies have institutionalized emergency powers subject to popular sovereignty rather than above it.

If the Army yesterday or the Supreme Court today may decide that the institutions of limited and representative government in the country are not sufficient, for example, to check the power of a political maverick and therefore they are entitled to intervene “for the good of the country,” then the real sovereign is not the people but whoever exercises the ultimate power in emergency cases. That is the Hobbesian lesson of Carl Schmitt, like it or not.

In other words, the rule of law in the country is conditioned to the goodwill of whoever is perceived as having such “moderating power.”

Another argument presented by the supporters of such usurpation of popular sovereignty is that Dom Pedro II used it with prudence. That seems to me a non-sequitur. Because that man happened to be a prudent man, it does not follow that any other man or group of men will act similarly.

“Jabuticaba” is a fruit that grows only in Brazil. Everything that exists only in Brazil such as the acceptance of a “moderating power” limiting popular sovereignty is also called a “jabuticaba.” Very well, what are the consequences of this particular “jabuticaba”?

In order to answer that, let us consider in what way slavery was a deadweight preventing the country from developing. The answer is that about a fifth of the population of the country was denied basic individual rights. Slavery, aside from being a moral monstrosity, denied to the slaves the necessary conditions to engage in mutually beneficial exchanges, and to benefit from the use of whatever knowledge of particular circumstances they might have come across.

Think now about the fact that, for all practical purposes, the rule of law was and according to some still is conditional. Do you think your property is secure? It is better to think twice. Do you think you know what the rules are for whatever endeavor you have chosen for yourself? Again, it is better to think twice.

That capital formation and wealth accumulation are still happening in the country is a wonder of wonders. Considering that Brazil is one of the world’s biggest economies, defenders of Brazilian political practices may argue that Brazil did not fare so badly after all, and we cannot know what would have happened if the frequent infringements of constitutional order were not so easily tolerated. Even if it is impossible to measure, we may nevertheless affirm beyond doubt that ceteris paribus, whatever security of possession and personal autonomy does exist, it is less than what it could exist if encroachments on popular sovereignty were not tolerated as they are to this day in the country. By the same token, if we accept that the rule of law is the foundation of individual incentives for wealth creation, the country would be, by definition, potentially wealthier if the rule of law were stronger than it actually is.

American Brazilianization?

Are we experiencing a process of “Brazilianization” of the United States? That question would require more detailed consideration. However, the lessons from two hundred years of Brazilian independence without being able to clearly establish the principle of popular sovereignty may serve as a cautionary note to whoever takes it for granted anywhere.

We might analyze events of American history using the framework of the “moderating” power we see in Brazil, one that “for the good of the country,” can infringe the principles of legality and put itself above the constitutional order, even if only in spirit: What were the instances in which such episodes could be identified; who are the ones most likely to believe that they are above the law?

Changing circumstances may require changes in the institutional setting for the very survival of the polity. This fact does not do away with the importance of constitutional procedures in making those changes.

When substantive institutional changes are made not by constitutionally acceptable methods, but by abusing forms and disregarding traditional interpretations, they amount to infringements on popular sovereignty, and the legitimacy of the entire political system is called into question.

What unites the American people is not a common ethnic origin, is not a common religion, is not a common history, is not a common language, but an acceptance of some ideas which informed the American founding documents. That has been proved by the number of people from different parts of the globe who dream to become Americans regardless of their religious beliefs or the color of their skin.

That the United States is no longer the kind of polity thought by the framers is obvious. Again stating the obvious, many institutional changes since the founding were for the better. Still, we may argue that everything good that changed in the United States since its founding was inspired and made possible by the ideals behind the political arrangements established at the founding.

Chief among those ideals is the ideal of popular sovereignty exercised through a limited and representative government as established by the American Constitution. That is the positive expression in the laws of the country of the somewhat metaphysical concept of the Rule of Law.

The United States became the most powerful political society in the world thanks to the allegiance that so many productive, innovative, brave individuals were and still are willing to give to its flag.

Weakening respect for the laws and political practices in the country also weakens the country as a political entity, even if there is a long way to go until “tutelage” by any self-proclaimed elite becomes an acceptable part of the actual political norms, as they still seem to be back in Brazil.

Gordon Brown, a former Prime minister of the UK, once humorously remarked that “in establishing the rule of law, the first five hundred years are always the hardest.” Perhaps, about three hundred years from now, we will all be laughing at that in Brazil and in the United States.