The transformation in Brazilian law and the far right

Everyone who loves wisdom loves working with hypotheses. I’m no different, I work with hypotheses and I try to substantiate them. Plato, in his Teeteto dialogue, already stated that knowledge is a true and justified (reasoned) judgment. Thus, I wrote the text The Great Blow, seeking to demonstrate US interference in the world and, in more detail, in Brazil. Obviously, the text is hypothetical, but there are a number of facts and propositions that support this hypothesis.

The current text helps corroborate the statements I made in the first text, addressing the Brazilian legal system. In other words, I intend to establish, in a more informal way, this interference in the field of law. The cornerstone for this text is obviously Operation Lava Jato and the unjustified condemnation of former President Luiz Inacio Lula da Silva.

Brazilian law has its roots in Roman law, German law, and European continental law in general. The Roman-Germanic system or civil law, or civilian law, is the most widely adopted law in the world. To get an idea, practically all of Europe (except the island countries except Scotland), almost all of Latin America, and much of Asia and Africa embrace this legal tradition. It is common to oppose the Roman-Germanic system to common law, for it is the law systems that dominate the West.

In the common law, jurisprudence has a much stronger force than in civil law, that is, the “legal precedent” (decisions of past courts) has a much greater weight in Anglo-Saxon or Anglo-American countries. In countries such as Germany, France and Brazil, the positive and codified laws are much more valuable, and the jurisprudence is only born through a final decision of the Judiciary (Brazilian case) and, even so, should not have weight of a law in the vast majority of cases. Thus we have on one side (civil law) the right based on positive law and codification properly performed (written law positive by a competent authority), on the other side (common law) a right based on the intersection of customs, unwritten laws, case law and the positive law itself.

We are beginning to see a paradigm shift in Brazilian law, much of which is due to Lava Jato. We are currently living in a kind of Frankenstein law, that is, a right with body parts, metaphorically speaking, of other rights. Obviously, it is not fitting in this short text to talk technically and exhaustively about the subject, however, the changes are clear. Stare Decisis Doctrine (doctrine of English origin that judgments of a court body create precedent, jurisprudence), distinguishing and overruling (distinguishing as the practice used to substantiate non-use of jurisprudence, and overruling as overcoming jurisprudence ), plea bargain (contained in Minister Sérgio Moro’s so-called “anti-crime package” and which is a kind of bargain in which the defendant makes a denunciation, in the case of the package, not necessarily of someone else, in exchange for something), the theory of mastery of fact, used in the Lula case and which comes to us from across the US, are examples of this miscellany. But what is the reason for all this confusion in the Brazilian legal world?

The reason is only one: we have to win, as Steve Bannon (Trump’s main ideologue) said about the US, the cultural war. Let us remember that the concept of culture has several definitions, and in this case we can stick with that of Edward Burnett Tylor: culture is the set of ideas, symbols, behaviors and social practices produced by humans and transmitted, or modified and created, socially across generations. Thus, it is evident that the law is part of culture and, in this “cultural war”, it is important for the far right to gain the field of law, since it must be transformed, in Brazil, into a disciplinary device, in the Foucaultian sense.

The change in Brazilian law aims to meet the needs of domination and adaptation to the conservative and extreme right view of the current power. As the great force that acts in the Brazilian political scenario is the American one, nothing more common than the right, part of the culture, to mirror this Brazilian subservience. Therefore, it is not only the Chicago Boys economy that reflects this Brazilian obedience; law is also following this path, perhaps even more deeply.

Alexandre L Silva

Ex-professor de diversas universidades públicas e particulares. Lecionou na Universidade Federal Fluminense e na Universidade do Estado do Rio de Janeiro.