How did Brazil get here?
The conditions for personal liberties and rule of law deterioration have been in place for decades
The current state of affairs in Brazil is well known. For some time now, it has ceased to make sense to speak of “rule of law,” since violations of this principle have become too frequent and commonplace to be regarded as exceptions. We shall not attempt here to list all the transgressions of fundamental legal principles—such as due process, individualized conduct, parliamentary immunity, the non-transferability of criminal penalties, and freedom of expression—which have taken place in recent years.
Our reflection, rather, points elsewhere: how did Brazil get to this point?
How did we allow a single figure to simultaneously act as judge, prosecutor, and alleged victim in dozens of cases? How have we reached the stage where a hairdresser with no criminal record is sentenced to fourteen years in prison—a penalty harsher than that imposed on many murderers and drug traffickers—for having defaced a statue with lipstick? How can an individual be held in custody for months on the claim that they undertook a journey for which extensive evidence suggests never occurred? How did we permit a newspaper and a journalist to be ordered to compensate a judge for publishing publicly available data on her compensation, or another journalist to be fined for having employed “excessive irony” in a report on the sale of a property owned by a public authority? Why must we witness an entrepreneur become a criminal defendant for criticizing a government policy—specifically, one that grants tax exemptions on vehicle sales to persons with disabilities—and a comedian be sentenced to eight years in prison for a joke made in a private venue, before a paying audience?
At the immediate level, the principal enabler of this situation is clearly the inaction of the Senate, the only institutional power with the legitimacy to curb excesses of the Supreme Court. This paralysis is explained by various factors, the most important of which is the so-called “privileged forum”. It mandates trial of the political elite by the top court, rendering them hostage to the judiciary. This mechanism – absent in any other modern nation - has existed in Brazilian law since colonial times and has survived every constitution, both imperial and republican.
While the privileged forum may hinder the Senate’s constitutional role in containing excesses by the top court, it does not make it impossible. Were there sufficient pressure from society, the balance of powers could be restored. Yet such pressure is absent. Brazil’s business elite is, with few exceptions, hostage to the State, upon which it depends in multiple ways, most significantly economically.
Tax expenditures—fiscal waivers via special taxation regimes—amount to roughly 5% of GDP, or 15% of the nation’s tax burden. According to a 2022 study by Insper (a major private university), the stock of disputed tax debt in Brazil—amounts challenged by companies—reached R$ 5.7 trillion in 2020 (US$ 1.1bn), or more than 70% of GDP. This astronomical figure is hundreds of times larger than the OECD average (0.3% of GDP), and dozens of times higher than that found in other emerging markets, where such disputes rarely exceed a few percentage points of GDP. Many of these cases are decided in the higher courts, which helps explain the elite’s passivity—being, in a sense, also captive to the judiciary.
Yet economic dependency is not the sole explanation. In Brazil, the culture of defending individual liberties is extraordinarily weak. The values of local community, the need to restrain centralized authority, and the strengthening of local governance—along with support for entrepreneurship and free enterprise, all closely tied to the defense of individual rights and forming the core of the English and American revolutions—have never held a meaningful place in our political culture.
Brazil’s business class was raised and nourished under the protective arm of the State. The most prominent businessman of the imperial era, Irineu Evangelista de Souza, Viscount of Mauá, owed much of his professional success to his close ties with the imperial government, which guaranteed the purchase of his water pipes under a concessionary regime. He obtained subsidized, long-term loans approved by law for some of his ventures. His shipyard went bankrupt when customs protection for foreign vessels was lifted by a decree in 1860.
In England, the aristocracy fought on battlefields since the Middle Ages and, beginning in 1215 with the Magna Carta, their armies defended not merely monarchy, but a way of life premised on the limitation of royal power. In World War I, a considerable portion of UK’s combat deaths came from the traditional nobility and graduates of elite schools.
Meanwhile, the English colonies in North America—formed independently from one another—united during the War of Independence against the excessive centralization and taxation imposed by the Crown. Five years later, they voluntarily approved a single constitution instituting federalism, freedom of expression, the right to bear arms, and limitations on governmental power, among other mechanisms. Broad participation by the general population and local elites in the emancipation process and in pivotal moments of American history—such as the Civil War—was always considerable.
In Brazil, federalism has never existed in practice. The provinces of the Empire, and later the states, never held, for example, a penal code of their own. The absence of district voting has kept legislators perpetually detached from the needs of their constituencies. The limited fiscal autonomy still retained by the states wis set to be eliminated over time, after the recent tax reform.
Unlike in the United States, our business elite played virtually no role in Brazil’s decisive political moments. Rarely did its members represent the country in warfare (few as these conflicts were), and with rare exceptions, it has never, in an organized fashion, advocated any set of values beyond its own financial interests. It has orbited power for centuries, dependent upon it, as part of what Raymundo Faoro, Brazil´s greatest interpreter, aptly called the “stand” – the layer of employees, business contractors and other beneficiaries of government resources that orbits power since colonial times.
Even compared to neighboring nations, the contrast is stark. Argentina, a country which had a late colonization due to vast distances, sparse indigenous populations, lack of mineral wealth, and an inhospitable climate for then-valuable crops like sugar, only gained Spain’s attention belatedly. Its economy developed from the late 19th century onwards through the individual initiative of ranchers producing meat, leather, and wool. This decentralization and the weak colonial grip of the Spanish crown fostered an elite and populace that took active part in the nation’s many political turning points over the last 150 years. Even after a prolonged phase of populism and impoverishment, the country has managed to pivot back toward economic liberalism, without judicial interference in elections or undue oversight of other powers.
Our weak tradition of defending individual liberties is also reflected in our educational system, which has long been captured by Marxist ideologues. In modern history classes, the French Revolution is invariably presented as a wholly positive event, supposedly marking the triumph of citizens’ rights over class tyranny. Little is taught about its influence on the totalitarian regimes of the 20th century, or the extreme repression and societal silencing carried out by the Jacobins. The Glorious Revolution and the founding of the United States are relegated to footnotes in high school curricula and, predictably, are absent from university humanities courses, which are largely monopolized by a socialist apparatus.
The final blow to our feeble tradition of defending liberties came after the military dictatorship, which ended in 1985. The few right-of-center politicians of stature had either died or were too closely associated with the military regime to participate in post-1984 politics. As a result, the 1988 Constitution was drafted entirely by leftist politicians, including the future president Fernando Henrique Cardoso, who played a major role in the deliberations. The result, predictably, was a disaster: Brazil’s seventh constitution retained the privileged forum for the political elite, preserved proportional voting for federal deputies (as opposite to district voting), elevated the sparsely-populated federal territories of Tocantins, Roraima, and Amapá to statehood—allowing politicians from northern regions, which represent 20% of the country´s GDP and 35% of its population, to seize control of the Senate. It also established mandatory minimum spending on health and education - thus continuously bloating public expenditures in the decades ahead - and enshrined dozens of “rights” that have justified other ever-growing public outlays. Inspired by socialist doctrine, the 1988 Charter was born practically fossilized; the following year, the Berlin Wall would fall, heralding the collapse of the Soviet Union. Tragically for Brazil, the fossil remains—and if replaced, it would likely be by something worse.
Besides the elites’ apathy in defending principles and engaging in politics, the press must also be considered in explaining today’s deterioration of liberty and legality. Media groups once played a significant role in safeguarding legal guarantees, most notably the Estado Group, which publishes newspaper O Estado de São Paulo. While the paper still occasionally comments on the abuses enumerated earlier in this article, it is far from constituting a consistent counterweight to today’s prevailing conditions. Most other traditional media outlets are either active supporters of the current state of affairs or maintain a complicit silence.
Several factors explain this situation. First, the recent passing of the patriarchs of media families and their replacement by a generation lacking journalism’s classical ethos—the pursuit of truth—concerned instead with business returns or capturing government advertising funds. Second, the active co-optation of media outlets by the government through increased public spending on aligned platforms. Third, and crucially, the leftist hegemony in newsrooms, where most professionals are trained in Marxist thought and have little regard for the rule of law, much less for individual freedoms. Many openly support the criminalization of political dissent and the imposition of strict limits on free expression. As a result, the public defense of liberty and legality is now confined to niche outlets, a handful of columnists, and the social media sphere.
The conditions that led to our current state of eroded freedoms and legal uncertainty have long been in place, though their advance has accelerated only in recent years under the pretext of suppressing 'anti-democratic acts'. The turning point was the opening of Inquiry No. 4781, the so-called “Fake News Inquiry,” launched ex officio by the Supreme Court in 2019, without a request from the Public Prosecutor’s Office, without random assignment, and with no clear scope or timeline. Also part of this trajectory was the release and electoral rehabilitation of Luiz Inácio Lula, convicted by nine judges across three judicial levels for money laundering and corruption—convictions that were not overturned on the merits.
In 2026, Brazil will face another election. The outlook for freedom of expression, media pluralism, and electoral fairness is bleak—worse than in 2022—especially after the Supreme Court’s recent decision to hold digital platforms liable for user content, in defiance of the Civil Internet Bill, a 2014 law duly approved by both congress chambers after broad public debate. The judicially imposed self-censorship of platforms has no precedent in mature democracies.
The current government's detachment from society’s expectations is such that an executive power turnover seems increasingly likely—a scenario that would, no doubt, improve the outlook for the economy and asset prices. Sadly, the same cannot be said for individual liberties, constitutional order, or the equal application of laws to all citizens. The path out of this labyrinth—if it exists—is not in sight.