Brazilian autocratic infra-legalism: a response to Kim Lane Scheppele

Abstract

Kim Lane Scheppele claims that “autocratic legalism” is a new form of political authoritarianism, characterized by the use of laws and constitutional engineering. I argue that the Brazilian case provides two counterarguments to this thesis, first refuting the idea that lessons learned from past authoritarianism do not involve the use of law for non-democratic purposes, and then arguing that there are other legal instruments suitable for the implementation of political authoritarianism besides constitutions and laws. To this end, I divide the article into five parts. First, I sketch the theoretical approach and methodology. Second, I consider a broader literature on the significance of law in non-democratic regimes. Next, I report the importance of the use of law in the Brazilian military dictatorship (1964-1985). Fourth, I explain the use of administrative legal tools in contemporary Brazil and how this use evidences the existence of an “autocratic infra-legalism.” Finally, I present some concluding remarks, and a postscript written in the light of the presidential elections of 2022.