The Forgotten People in Brazilian

THE FORGOTTEN PEOPLE IN BRAZILIAN
CONSTITUTIONALISM: REVISITING STRATEGIC BEHAVIOR

ANALYSES OF REGIME TRANSITIONS
Juliano Zaiden Benvindo
Working Paper
International Journal of Constitutional Law (ICON), forthcoming 2017

(peer-reviewed)
Electronic copy available at: https://ssrn.com/abstract=2857987

2 T HE FORGOTTEN PEOPLE IN BRAZILIAN CONSTITUTIONALISM: REVISITING STRATEGIC BEHAVIOR

ABSTRACT
Strategic behavior and game theory models of regime transitions have

long dominated the constitutional and political science landscape. Even so,
disagreements, controversies, and dilemmas over the causes and
consequences of the process of democratization are a common ground
among those distinct theories, bringing about a great deal of inconsistency.
Particularly intriguing, however, is that, while normally focusing on the
strategic behavior of political and economic elites, little attention has been
given to the distinct groups of civil society which, through different means,
have undertaken a fundamental role during those transitions in building a
new constitutional and democratic order. This paper challenges those
theories by diachronically revisiting the literature about the Brazilian
Constituent Assembly of 1987/1988, a paradigmatic example of a
constitutional moment marked by such conflicting interpretations. By
bringing the “forgotten people” to the forefront, it concludes that perhaps
those theories’ pessimistic stress on the behavior of the ruling elites might
not be enough to cope with the uncontrollable power of popular masses and
the paradoxical nature of constitutional democracy.
Keywords: Regime Transitions; Behavior Analysis; Democracy;

Legitimacy; Brazil; Citizenship.
Electronic copy available at: https://ssrn.com/abstract=2857987

TABLE OF CONTENTS
INTRODUCTION...................................................................................................................... 4
I - STRATEGIC BEHAVIOR AND GAME THEORETICAL ANALYZES OF REGIME
TRANSITIONS ................................................................................................................................. 8
II.THE BRAZILIAN C ASE IN A STRATEGIC BEHAVIORAL P ERSPECTIVE ....................13
III. THE ECHOES OF THE ARGUMENT OF CONTROLLED TRANSITION IN BRAZIL ...17
IV. THE FORGOTTEN P EOPLE IN THE BRAZILIAN TRANSITION TO DEMOCRACY: A
NEW APPROACH TO TRANSITOLOGY? ....................................................................................21
CONCLUSION ........................................................................................................................32

Juliano Zaiden Benvindo*
INTRODUCTION
The confluence of the past, which insists on making part of the new
order, and the expectations of breaking with this past transforms every
investigation of regime transitions to democracy into a scenario of
controversies and dilemmas. First, because every context is a different
context and every process of democratization evolves differently depending
on the characteristics of the previous regimes and on how the different
social actors therein involved will coordinate their interactions within the
new order. For this reason, any attempt to provide normative criteria that
could properly explain these transitions and give meaning to what could be
qualified as such are naturally not consensual. The vast literature examining
regime transitions to democracy are indeed characterized by a high level of
inconsistency.
Similarly, there is a huge disagreement over the causes and maintenance
of the process of democratization. Four viewpoints prevail, each one
placing greater accent on one or other aspect. They can: a) concentrate on
the objective determinist factors of transition;1 b) claim that there is no
necessary and sufficient cause or condition determining how democracy
emerges and consolidates;2 c) stress the popular mobilization or the political
* Professor of Constitutional Law at the University of Brasília, Brazil. For helpful

coments, I am grateful to Rosalind Dixon, Richard Albert, Carlos Bernal, Thiago Reis e
Souza, Mariana Pargendler, Marcelo Neves, Marcos Faro de Castro, Loussia Felix,
Leonardo Barbosa, Cristiano Paixão, Rafael Estorilio, Jose Nunes de Cerqueira Neto,
Sebastian Eickenjäger, Andreas Fischer-Lescano, and Fábio Almeida. I have also
benefitted from comments and conversations while presenting an earlier version of this
draft at ICON-S Conference at New York University, at the Workshop on Comparative
Constitutional Amendments at the University of New South Wales, and at the Getúlivo
Vargas Foundation Law School (FGV) roundtable in São Paulo. Portions of this Article are
also the result of a position as a post-doctoral visiting researcher at the University of
Bremen, in Germany
1 See, e.g., BARRINGT ON JR M OORE , SOCIAL ORIGINS OF DICT AT ORSHIP AND
DEMOCRACY: LORD AND PEASANT IN T HE M AKING OF T HE M ODERN W ORLD (1993).

2 See, e.g., A LFRED ST EPAN ET AL ., TRANSIT IONS FROM A UT HORIT ARIAN RULE :
experience, placing the legitimacy of those transitions as a central focal

point to the success of the new regime;3 or d) draw attention to the
cooperative interactions among the elites,4 or to use another term, “conflicts
among competing interests.”5 Especially for this last group, the individuals’
strategic behavior during those transitions plays evidently a relevant role, as
long as they identify the human natural tendency towards keeping and
expanding his or her comfort zone. But, while stressing the ruling elites’
strategic relationships, little attention has been given to the popular
involvements and commitments during such moments. Democracy appears
then as a “second-best solution,” in which “democratic political
arrangements are painted in neutral colors, characterized at best by the
COMPARAT IVE PERSPECTIVES (1986).

3 See, e.g., Geoffrey Evans & Stephen Whitefield, The Politics and Economics of
Democratic Commitment: Support for Democracy in Transition Societies, 25 BRIT . J. POL.

SCI. 485 (1995).
4 See, e.g., how Guillermo O’Donnell and Philippe Schmitter examine these
interactions as a chess game:

Our analogy of the multilayered chess game entails two further
implications. First, the players must be compelled by the circumstances of the
transition to compete for spaces and pieces, rather than struggling for the
elimination of the opposing players; second, those players do not have to have
attained a prior consensus on democratic values before muscling their way into
the game. They can be made to respect the rules that emerge from the game
itself. This is another way of saying that political democracy is produced by
stalemate and dissensus rather than by prior unity and consensus. It emerges
from the interdependence of conflictual interests and the diversity of discordant
ideals, in a context which encourages strategic interaction amo ng wary and
weary actors. Transition towards democracy is by no means a linear or rational
process. There is simply too much uncertainty about capabilities and too much
suspicion about intentions for that. Only once the transition has passed and
citizens have learned to tolerate its contingent compromises can one expect
political democracy to induce a more reliable awareness of convergent interests
and to create a less suspicious attitude toward each other’s purposes, ideas, and
ideals.
GUILLERMO A. O'DONNELL & PHILIPPE C. SCHMIT T ER., TRANSIT IONS FROM
A UT HORIT ARIAN RULE 71-72 (1986). For an analysis of the varying modes of transition
and the distinct relationships between the elites and popular masses, see SCOT T
M AINWARING & GUILLERMO A. O'DONNELL , ISSUES IN DEMOCRAT IC CONSOLIDATION: THE
NEW SOUT H A MERICAN DEMOCRACIES IN COMPARATIVE PERSPECTIVE (1992).
5 For Przeworski, instead of using what he calls “the peculiar fiction of ‘elite’ in
singular,” common among neo-institutionalists, we should use the idea of conflicts among
competing interests. In his words, “assuming conflicts among competing interests is not
only historically more accurate, but it points to the potential mechanisms of institutional
change” Adam Przeworski, The Last Instance: Are Institutions the Primary Cause of
Economic Development?, 45 EUR. J. SOC. 165, 176 (2004).
absence of negatives, with few positive virtues of their own.”6

Therefore, the primary assumption here goes in another direction,
i.e., even though strategic behavior is a natural human quality, as far as
every individual is inclined to keep and expand his or her comfort zone,
other distinctive aspects play a special role during those transitions. The
stalwarts of the old regime, notwithstanding their efforts to preserve their
privileges and benefits, will have to compete with an inevitable presence of
popular masses in different sectors of society, such as the government
(through the electoral system, for instance), the mobilization of the
Judiciary (through creation and facilitation of public access as well the
expansion of individual and class actions), popular associations and alike.
Indeed, how those people will behave and negotiate their interests, passions,
and reasons7 during those periods is a key element of the transition.
Therefore, although this assumption does not deny that those studies
focusing more directly on the strategic behavior of human beings bring out
some relevant insights in many aspects related to regime transitions, we
should go further and examine how the real people behave in such
moments.
Instead of limiting the analysis to an abstract and general concept of
“civil society” or “people,” how the real people collectively manage to
interact with the distinct political actors and institutions is of great
relevance. Regime transitions theories, therefore, while basing their
assumptions upon concepts such as bargains, transactions, agreements
among the elites and the government, may lose sight of the structural
interactions that occur from below and which strongly impact how political
actors and institutions will coordinate their activities before, during and
after that transition. It is a similar perception to those derived from theories
that examine authoritarian regimes basically placing side by side the
oppressor and the oppressed, as if the people were the victim and not a
serious actor and even supporter, in distinct circumstances, of those
regimes. As Denise Rollemberg and Samantha Vaz Quadrat argue, those
theories are usually built on the “memory according to which
authoritarianism was only possible due to coercive and manipulative
institutions and practices.”8 The people are forgotten, their real interactions
6 Daniel Levine, Paradigm Lost: Dependence to Democracy, 40 W ORLD POL. 377,

385 (1988).
7 See JON ELST ER, ULYSSES UNBOUND: ST UDIES IN RAT IONALITY, PRECOM M IT ME NT ,
AND CONST RAINT S (2000).
8 Denise Rollemberg & Samantha Viz Quadrat, Apresentação: Memória, História e
Autoritarismos [Foreword: Memory, History and Authoritarianisms], in A CONST RUÇÃO

SOCIAL DOS REGIMES A UT ORIT ÁRIOS: LEGIT IMIDADE , CONSENSO E CONSENT IMENT O NO
SÉCULO XX [THE SOCIAL CONST RUCT ION OF A UT HORIT ARIAN REGIMES: LEGIT IMACY,
and practices with those regimes are thereby overlooked, which, obviously,
gives rise to serious distortions in social analysis.9 The same assumption
applies to regime transitions theories: the people did not “simply remain in
the wings, waiting for the transition to be complete.”10 They were not only
passive actors expecting the results of transactions, bargains and
negotiations from above. Rather, they were key actors during those
processes, linking their claims to political leaders and institutions, directly
involving themselves in distinct procedures and practices to pave the way
for democracy.
This article has the purpose of unfolding some aspects of how real
people got effectively involved in the procedures and practices that led to
the transition from dictatorship to democracy. Accordingly, it aims to bring
those forgotten people to the forefront, centering on how their interactions
have structurally changed the play towards democracy. For this purpose, it
will first examine how some very influential regime transition theories
establish their premises focusing, first, on the uncertainty of those
transitions, and, second, on the agreements, bargains, and negotiations to
appease “conflicts among competing interests.”11 (Section I). The purpose
here is to introduce how game theory and strategic behavior approaches
examine the path towards democracy, and how they interpret the
interactions, coordinations, and competitions among the distinct players
during regime transitions. Once the central aspects of these approaches have
been discussed, the following section will examine the Brazilian example as
a case study, stressing thereby how some of those theories apply those
concepts to interpret the transition from the civil-military dictatorship
(1964-1985) to democracy, particularly when the Brazilian Constitution was
being drafted in 1987 and 1988 (Section II).
Subsequently, this Article will introduce another interpretation of
that regime transition in Brazil, which goes further in bringing those
forgotten people to the forefront. In this section, instead of stressing the
controlled transition towards democracy without real rupture, as usually
some of those aforementioned theories sustain, the argument here defends
that, when those forgotten people are interpreted as key players, we might
be able to say that there was a rupture with that past, even though marked
by some concessions and difficulties. Therefore, rather than arguing that
CONSENSUS, AND CONSENT IN XX. CENT URY] 11, 11 (Denise Rollemberg & Samantha Viz
Quadrat eds., 2010).
9 See id.
10 Levine, supra note 6, at 385.
11 Przeworski, supra note 5, at 176.
“the Brazilian military government was able to manage the regime

transition until the very end,”12 it will contend that the Brazilian transition
to democracy was not a “product of a compromise or the isolated result of
an agreement among the elites: It was an achievement of the legal
opposition and the organized society.”13 (Section III). By placing the real
people as key players in this process, the article ends by suggesting how the
pluralism of that moment created an institutional environment that provided
some stability over time.
In a country where historically many antagonisms have not resulted in
real conflicts but rather have been pacified through different means, the
stress on that rupture and the growing pluralism will provide another view
of why, unlike its turbulent past, from 1988 onwards Brazil has somehow
evolved in creating inclusive political institutions.14 By placing emphasis on
the forgotten people, therefore, institutional stability is not explained mostly
as the outcome of successful agreements and bargains among different elite
groups. Instead, it results, above all, from the capacity of the real people,
the forgotten people, to be institutionally included. In the end, this might
explain why the pessimism of some of those theories, especially those
written during or right after the transition to democracy,15 might have
proven inflated over the years (Section IV). The article concludes by
bringing a more optimistic scneario, although naturally acknowledging the
paradoxes and dilemmas of the quite recent Brazilian democracy.
I - STRATEGIC BEHAVIOR AND GAME THEORY ANALYZES OF REGIME

TRANSITIONS
12 Frances Hagopian & Scott Mainwaring, Democracy in Brazil: Problems and

Prospects, 4 W ORLD POL'Y J. 485, 487 (1987).
13 LEONARDO A UGUST O DE A NDRADE BARBOSA, HIST ÓRIA CONST IT UCIONAL
BRASILEIRA: M UDANÇA CONST IT UCIONAL , A UT ORIT ARISMO E DEMOCRACIA NO BRASIL

PÓS-1964 [BRAZILIAN CONST IT UT IONAL HIST ORY: CONST IT UT IONAL CHANGE ,
A UT HORITARIANISM AND DEMOCRACY IN BRAZIL A FTER 1964] 355 (2012).
14 See DARON A CEMOGLU & JAMES A. ROBINSON, W HY NAT IONS FAIL : THE ORIGINS
OF POWER, PROSPERIT Y, AND POVERT Y 457 (2012).

15 See, e.g., Hagopian and Mainwaring:
Thus, even though democratic procedures have been established, they have
not ensured that democracy will be consolidated or extended, or that popular
participation in the political system will increase. And without greater political
competition and participation, democracy’s potential for effecting significant
change in Brazilian society is limited. Whether Brazil will develop a more
democratic political system - one that could help advance the cause of economic
justice - is still an open question.
Hagopian & Mainwaring, supra note 12, at 486.
There are some common grounds in the strategic behavior and game
theory analyzes of regime transitions. First of all, they usually assume that
all processes toward democratization are marked by a high degree of
uncertainty, for, during those periods, the rules of the game are not working
properly yet, and the interests at stake are still developping strategies for
best fulfilling their goals.16 Guillhermo O’Donnell and Philippe Schmitter,
for instance, argue that, during those transitional moments, “there is simply
too much uncertainty about capabilities and too much suspicion about
intentions for that.”17 Adam Przeworski, in his turn, argues that “the process
of establishing democracy is a process of institutionalizing uncertainty, of
subjecting all interests to uncertainty.”18 Therefore, the underlying question
is how those actors or players will interact with each other within the
context of uncertainty. This is where game theory appears as a feasible
response. O’Donnel and Schmitter associate the players’ behavior with a
“multilayered chess game,”19 in which each player will be compelled to
“compete for spaces and pieces, rather than struggling for the elimination of
the opposing players.”20 Moreover, in this game, every player will
coordinate his or her interests not by achieving a prior consensus, but
instead by respecting the rules of the game in the midst of widespread
disagreements. Political democracy “emerges from the interdependence of
conflictual interests and the diversity of discordant ideals, in a context
which encourages strategic interaction among wary and weary actors.”21
Przeworski, for his part, stresses a little further the institutional
characteristic of this process, which derives from the very inability of
predicting what the future holds. In his words, “it is the very act of
alienation of control over outcomes of conflicts that constitutes the decisive
step toward democracy.”22 There is no guarantee about what will happen in
the coming times. For this reason, “democratic compromise cannot be a
substantive compromise; it can be only a contingent institutional
16 See O'DONNELL & SCHMIT T ER, supra note 4, at 6.

17 ST EPAN ET AL ., supra note 2, at 72.
18 Adam Przeworski, Some Problems in the Study of the Transition to Democracy, in
TRANSIT IONS FROM AUT HORITARIAN RULE: COMPARATIVE PERSPECTIVES 47, 58 (Gu iller mo
A. O'Donnell et al., 1986). See also A DAM PRZEWORSKI , DEMOCRACY AND T HE M ARKET :
POLIT ICAL AND ECONOMIC REFORMS IN EAST ERN EUROPE AND LAT IN A MERICA 13 (1991).
19 ST EPAN ET AL ., supra note 2, at 72.
20 Id.
21 Id.
22 Przeworski, supra note 18, at 58 (1986).
compromise.”23
By focusing on collective actors, who will coordinate their behavior
in a way able to provide them with a virtuous circle of mutual benefits and
incentives, Przeworski, like O’Donnel and Schmitter, applies game theory24
to explain how democracy consolidates. Democratic institutions 25 are as
such organized in a way that all political forces, regardless of their values,
can coordinate and protect their interests within the democratic framework,
even when, in a conflictive scenario, one interest is left aside in favor of the
other. Therefore, in coordinating strategies, we should interpret that those
institutions “are so designed as to provide fair access and protect the
losers.”26 Besides, those collective actors will abide by the rules and
principles of a democratic framework, even when they cannot immediately
achieve their goals, if they realize that waiting for a while can give them
greater benefits in the future or that changing the rules of the game is costly
and counterproductive.27 Similarly, democracy, insofar as it is characterized
by uncertainty, provides the different collective actors with a sort of
equilibrium28 which will enhance their cooperative interactions in the long
run, and consequently enforce democracy itself. Democratic institutions,
following the premise that institutions as well as development are
endogenous,29 i.e., they are a “contingent outcome of conflicts that occur
under given historical conditions and are more or less likely to persist given
these conditions,”30 will last long to the extent that the political, economic
and social forces accept to play the rules of the game, thus coordinating and
limiting their conflicts.
This game theoretic model of strategic behavior is applied, during
transitions, to four main actors: Hardliners and Reformers, within the
authoritarian bloc, and the Moderates and Radicals, in the opposing side.
How the first group keeps track of the process of transition and how the
23 Id., at 59.
24 Przeworski makes use of game theory not by focusing on individual behavior, but
rather on collective actors. See PRZEWORSKI , supra note 18, at 38 (1991).
25 See Przeworski, supra note 18, at 26 (1986).
26 A DAM PRZEWORSKI , SUST AINABLE DEMOCRACY 42 (1995).
27 See, e.g., Adam Przeworski, Democracy as an Equilibrium, 123 PUB. CHOICE 253,
266 (2005).
28 As José María Maravall and Adam Przeworski argues, “in any institutional
equilibrium, actions are predictable, understandable, stable over time, and limited. Hence,
individuals can anticipate the consequences of their own behavior; everyone can
autonomously plan one’s life” José Maria Maravall & Adam Przeworski, Introduction, in
DEMOCRACY AND T HE RULE OF LAW 1, 4 (José Maria Marvavall & Adam Przeworski eds.,
2003).
29 See Przeworski, supra note 5, at 185.
30 Id. at 183.
opposing group articulates its participation during this period is central for
understanding how democracy evolves. As Przeworski says, “the strategic
problem of transition is how to get to democracy without either being
starved by those who control productive resources or killed by those who
have arms. As this very formulation suggests, the path to democracy is
mined. And the final destination depends on the path.”31 That equilibrium
for the distinct collective actors described above and the subsequent
consolidation of democracy depends on, first, setting up a fair institutional
framework where interaction among them can take place; second, creating a
system of representative competition among the distinct players; third,
channeling economic conflicts into the very process of transition; and
fourth, having civilians taking control over the political power.32
But, to reach this point, the transition to democracy undergoes first a
process of liberalization, i.e., “an opening that results in the broadening of
the social base of the regime without changing its structure.”33 According to
Przeworski, it can only do so as long as the authoritarian regime allows the
existence of some autonomous organizations34 that can envision collective
projects and an alternative future.35 This liberalization happens due to
divisions within the authoritarian bloc or to popular mobilizations that start
to oppose the regime. If the actors of the authoritarian regime succeed in
channeling those organizations interests into the institutional framework,
liberalization occurs. They can thereby maintain political exclusion and the
status quo while relaxing social tensions and broadening the social base of
the regime.36 If they fail, streets can be thronged with people challenging
the regime. In this case, “liberalization is not, or at least no longer, a viable
project.”37 The consequences can be: 1) an increase of repression; 2) the
incorporation of some of these collective actors into the regime; 3)
institutional rearrangement towards democracy.38
When the process towards democratization launches, the extrication
(disconnection) of the previous regime, on the one hand, and the negotiated
constitution of the new democracy, on the other, materialize. 39 The strategic
31 PRZEWORSKI , supra note 18, at 51 (1991).

32 See id. at 51-54.
33 See id. at 66
34 According to Przeworski, “as long as no collective alternatives are available,
individual attitudes toward the regime matter little for its stability”, Id. at. 54.
35 See id.
36 See id. at 54-66.
37 Id. at 60.
38 See id. at 62.
39 See id. at 62-74.
behavior of collective actors will then focus their efforts on obtaining the
better outcomes under democracy. It will not be, however, a unidimensional
phenomenon, as if the conflict were merely between the authoritarian forces
and the masses. On the contrary, in a democracy, competition under
uncertainty among the different actors is the motto.40 Extrication occurs
more prominently “wherever the military remains cohesive in defense of the
regime.”41 In its turn, extrication is not that dominant when this military
cohesion disintegrates or is subjected to civilian control.42 In any case,
extrication requires that Reformers reach consensus with the Hardliners or
neutralize them; Moderates, for their part, control the Radicals’ behavior;
and, finally, Reformers and Moderates come to an agreement defining how
their interests can be channeled into the institutional framework.43 If they
succeed, democracy with guarantees is the outcome.44 If not, either because
Reformers remain in alliance with Hardliners or the Moderates in agreement
with the Radicals, the consequence is a mutual struggle.
In this interplay of strategies, two conclusions are central for the
purposes of this Article: 1) Reformers will be better off defending the
authoritarian regime: “they will do very badly under democracy, and even
with guarantees they are still better off under the protection of their
authoritarian allies;”45 2) Moderates will prefer a democracy that protects
the interests of some of the allied forces of the authoritarian regime over a
democracy that promotes Radicals’ interests.46 However, an equilibrium is
possible insofar as Reformers realize that those guarantees from Moderates
will give them some benefits under democracy, and the Moderates conclude
that, by negotiating with the Reformers, they can have some protection of
their status quo against some Radicals’ interests. Furthermore, Radicals can
invision that democracy provides some benefits, thus leading them to abide
by the rules of the game. The constitution of the new democracy will
demand a serious negotiation of all those groups involved in order to build
democratic institutions and to define how the government will function,
how the relationship between state institutions and the civil societies will be
nurtured, how the rules of the game will be played, and so on.47 In the end,
what we have is a regime marked by compromise where every actor
attempts to accommodate his or her interests in the best way possible in
40 See id.
41 Id.
42 See id.
43 See id.
44 See id.
45 Id. at 70.
46 See id. at 69.
47 See id. at 123-125.
order to obtain greater benefits, which is done by channeling those interests

into the institutional framework.
II. THE BRAZILIAN CASE ACCORDING TO A STRATEGIC BEHAVIOR

PERSPECTIVE
O’Donnell and Przeworski’s game theoretic models are fascinating

and indeed add many relevant insights to understand how the transition
from authoritarian regimes to democracy occurs. But, particularly
examining the Brazilian reality, Frances Hagopian is certainly one of the
scholars who has devoted relevant investigations to discussing how the
alliances among those collective actors took place. Her premises are
connected to Przeworski’s and O’Donnell’s models, but she offers new
perspectives on how those players negotiate and accommodate their
interests in a reality where, despite the democratic breakthroughs, still
undergoes a frail democratic institutional framework.48 Her thesis is that
“patterns of politics established in periods of transition have a very real and
strong potential to become semipermanent features of the political
landscape.”49 This viewpoint shows thereby how the collective actors’
strategic behavior during that period is a key element to understanding how
reality evolves after the new regime is established.
In Brazil, according to Hagopian, the transition happened as a
“negotiated settlement on the part of political elites.”50 On the one hand, the
authoritarian bloc, with its reformist and hardliner factions, came into a
conflict with each other; on the other, society lived with an increasing
popular mobilization and pluralism. This circumstance propelled a
transition process which could not be easily controlled as a liberalization
through some concessions to those civil autonomous groups, as first
planned. On the other hand, it was not a completely breakdown of the old
regime, either. What happened, in her words, is that “the actual regime
change was affected by party politicians who through political bargaining
arranged the terms of the military departure,”51 which can be visualized in a
“series of political pacts.”52 These pacts were central for how democracy
evolved from that moment onwards, keeping many of those old groups’
48 See Frances Hagopian, “Democracy by Undemocratic Means”?: Elites, Political
Pacts, and Regime Transition in Brazil, 23 COMP . POL. ST UD. 147, 148 (1990).
49 Id.
50 Id. at 149.
51 Id.
52 Id.
privileges in the new institutional framework virtually untouched.53 They

protected, on the one hand, the economic elites’ privileges over property
rights, and, on the other, the militaries’ autonomy in their institutional
affairs.54
In a country with that institutional frailness, especially after more
than two decades of military rule in an already vulnerable institutional
framework, those pacts were root causes to “jeopardize democratization,”55
because, “by restoring to the defenders of the old regime commanding
positions at the helm of the central institutions of political life in the new
order, these bargains compromised the democratization of the state, the
parties, and political representation.”56 A good example is the amnesty
presented in 197957 as if it were a two-way amnesty: militaries who
perpetrated acts of torture and violated human rights were in the same
position as the opponents of the authoritarian regime. This also happened
due to some guarantees the Moderates - to use Przeworski’s words -
obtained for keeping their privileges untouched especially against the
Radicals’ claims.
The negotiation among those collective actors, militaries, and
reformers left aside many possible breakthroughs during transition,
particularly in the first years of democracy.58 Clientelism continued to be a
characteristic during the democratization period, which both “prevented the
democratization of the state by inhibiting its responsiveness to its citizens”
and “[perverted] the nature of political representation.”59 Political parties
also kept representing the elites’ interests by reason of those pact-makings
during transition60 and were characterized by particularism and oligarchical
factionalism,61 while the executive branch was kept rather powerful.62 The
transition, even though having occurred smoothly and easily, led, however,
not to a “vibrant democracy, but a perverted one skewed toward the
representation of elite interests.”63 The social collective actors, the civil
53 See id.
54 See id.
55 Id. at 151.
56 Id. at 154.
57 Lei No. 6.683, de 28 de Agosto de 1979, Diário Oficial Law [D.O.U] de 28.08.1979
(Braz.).
58 Hagopian posits that the right to strike took some time before being allowed (and
then when it was, it was under corporatist control) and that the agrarian reform was
scuttled. See Hagopian, supra note 48, at 156.
59 Id. at 159.
60 See id. See also Hagopian & Mainwaring, supra note 12, at 485.
61 See Hagopian, supra note 48, at 162
62 See id.
63 Id. at 164.
society in general, according to her view, could not consolidate democracy

as expected. Her pessimistic view, clearly manifested in her words - “it is
more likely that the features limiting democracy in Brazil will outlive the
political pacts that produced or reinforce them”64 - shows how central the
idea of those pacts are for denying the possibility of achieving a stable
democracy. Pacts alone, especially in fragile democracies, accordingly,
cannot consolidate and extend democracy.65
It is clear that Hagopian’s account places greater emphasis on the
“negotiated settlement on the part of political elites”66 than on the effective
capacity of distinct social actors to influence and change how those rules of
the game would be played in Brazil. She saw little future in the strength of
those actors to provide an institutional design able to further democratic
stability.67 Were there any future in Brazilian democracy - she said - “it
[would] do so despite the political pacts of which the civilian regime was
born, not because of them.”68 With Scott Mainwaring, in a text written
during that transition, she already foresaw this conclusion, when both
argued that “these political arrangements have impeded the institutional
development necessary for a consolidated democracy, discouraged popular
participation in politics, and thwarted policy changes that might upset an
extremely inegalitarian social order.”69 The lack of political competition and
participation would thereby deeply limit Brazilian democracy,70 marked by
an “ambiguous authoritarian legacy,”71 and lead to an “uncertain future.”72
As she and Mainwaring concluded, at least from the perspective of that
time, “there [seemed] to be only slim chances that Brazilian democracy
[would] be able to overcome these limitations.” 73
Hagopian’s and Mainwaring’s articles were written during (1987) or
right after (1990) the transition to democracy in Brazil. Naturally, especially
in this environment of great uncertainty74 when democracy is been
established, pessimism might be a common side effect. Yet, some years
64 Id. at 166.
65 Id.
66 Id. at 149.
67 According to Hagopian, “out-migration from rural areas, the rise of what might be
termed a newly reunionized working class, and the growth of an independent middle class
will not, in my view, stabilize Brazilian democracy,” Id. at 166.
68 Id.
69 Hagopian & Mainwaring, supra note 12, at 486.
70 See id.
71 Id.
72 Id. at 511.
73 Id. at 512.
74 See Przeworski, supra note 18, at 58 (1986).
later (1996), Hagopian devoted herself to digging deeper into the causes
that could explain the elites’ behavior and their role in the “traditional
politics” in her book Traditional Politics and Regime Change in Brazil. 75 In
this book, she states that she “became convinced that the past, present, and
at least the immediate future of Brazilian politics could not be understood
without reference to clientelism, regionalism, and other elements of
traditional politics.”76 These features of Brazilian reality would explain the
strength, role, and persistence of traditional elites in power, and prove that
they have been key actors for “[blocking] the transformation of political
institutions and arrangements in ways that perpetuated a less than
democratic traditional politics.”77
The central argument here is that the elites act to brake any
development in popular participation and creation of inclusive institutions.
Her extensive historical study of the Brazilian oligarchies, especially in the
state of Minas Gerais, is a rich source for understanding how clientelism
intertwined with traditional politics. This is the reason why, even though the
traditional political elites have fragmented in the transition to democracy, it
as a class remained strong,78 and maneuvered to force a controlled transition
and a controlled liberalization,79 which ultimately “[compromised] the
foundations of democratic politics in Brazil.”80 In fact, through distinct
means of bargaining, as Hagopian argues, those elite groups, during the
transition, “secured policies beneficial to their constituents but, more
important, preserved the resources and institutions that permit them to
continue to practice traditional politics.”81
This scenario marked by clientelism, bargains and consolidated
traditional politics, obviously, could not be overcome right after the
transition to democracy. The vestiges of the past certainly play a special
role in any transition. But the way Hagopian depicts this process seems
strongly based on the elites’ conservative power rather than on the capacity
of individuals - the forgotten people - to gain momentum and promote the
change. At least in the beginning of the civilian government, she could not
see any compelling reason to present a more optimistic view of Brazilian
rising democracy, and no grounds to defend the capacity of those people to
bring about structural changes that could make Brazilian democracy less
75 FRANCES HAGOPIAN, TRADIT IONAL POLIT ICS AND REGIME CHANGE IN BRAZIL
(1996).
76 Id. at xii.
77 Id. at 6.
78 See id.
79 See id.
80 Id.
81 Id. at 249.
dependent upon traditional politics. Instead, Brazil suffered from three

structurally damaging characteristics for any democracy: strong executives,
weak parties, and pervasive clientelism.82 As she says, “when these three
are combined as they are in Brazil, moreover, their perverse effects on
democracy are multiplied.”83 Therefore, in order to consolidate democracy
in Brazil, Hagopian’s diagnose is straightforward: transforming and
democratizing Brazilian politics84 is a necessity.
Hagopian’s analysis is dense and brilliant. She delves into the
Brazilian social and historical grounds to provide relevant insights about
how traditional politics has evolved in Brazil, and how it has been kept
alive even after the transition to democracy. Nevertheless, most of her
analysis is pervaded by this stress on the interplay among distinct sectors of
elite groups, which have an essential responsibility for maintaining much of
their status quo in the new democratic regime. The pacts, bargains and
negotiated settlements among those elite groups during the constituent
assembly in 1987/1988 have been then translated into practices that, despite
the greater opportunity ever to build up a democracy in Brazil,85 blocked
many of the long expected breakthroughs in this new reality. However,
whereas her conclusions make a lot of sense, they might have failed to
correctly observe that, beneath or outside those agreements, something
really unprecedented was happening at the grassroots of society, as it will
be discussed in the Section IV.
III. THE ECHOES OF THE ARGUMENT OF CONTROLLED TRANSITION IN

BRAZIL
The argument of controlled transition and liberalization is also

portrayed in relevant discussions in Brazil. The discourse of pacific
transition without rupture has echoed as a motto by distinct scholars,
politicians and jurists during and after that transition. No wonder that the
Constituent Assembly of 1987/1988 was launched by the then Brazilian
Supreme Court’s Chief Justice Moreira Alves, who opened the proceedings,
still calling the military regime as the “revolution of March 1964.”86 Not
satisfied, in his following words, he clearly stressed that Brazil was living a
transition without rupture: “by installing this National Constituent
82 See id.
83 Id.
84 See id.
85 See id.
86 DIÁRIO DA A SSEMBLEIA NACIONAL CONST IT UINTE [D.A.N.C], Feb. 2, 1987, at 5.
Assembly, the final term of the period of transition is reached, whereby,

without constitutional rupture and via conciliation, the revolutionary cycle
comes to an end.”87 It is strongly symptomatic that the Constituent
Assembly of 1987/1988 launched its works still emphasizing the word
“revolution,” as the military government used it to name the coup of 1964,
while indicating that it came to an end “without constitutional rupture and
via conciliation.” Reactions, naturally, occurred. The Jornal do Brasil, a
major daily newspaper in Brazil, published that “the discourse did not
please the majority of politicians attending the ceremony.”88 According to
the newspaper, the then Vice-Governor of the state of São Paulo, Almino
Afonso, disappointedly mentioned how sad the opening session was,
arguing that Chief Justice Moreira Alves “praised all the time the
Constitution of 1967, granted by the dictatorship (…)”89 Other politicians,
such as the then Congressman Bocayuva Cunha, commented: “that was a
right-wing discourse.”90
The opening session was marked by boos and demonstrations, even
though the people were kept away from the activities that were taking place
inside Congress.91 It was a turbulent moment, when many voices and
contradictions transpired. This environment marked by a high level of
uncertainty92 is thereby a perfect example to observe whether the negotiated
settlements on the part of elites were powerful enough to control all the
process of transition to democracy. If the words of the dictatorship still
resonate so clearly in the opening session of the Constituent Assembly, the
underlying question is: were they capable of blocking the democratic step
forward to the point that, in the end, instead of a vibrant democracy, there
was a “perverted one skewed toward the representation of elite interests,”93
incapable then of overcoming its very limitations?94
Bernardo Kucinski agrees with this diagnosis, because this “slow,
gradual, and safe” transition in Brazil took more than fifteen years - “the
slowest of all 1960s Latin-American dictatorships transitions”95 -, wherein
the “dominant elites and their military allies have never lost control over the
87 Id.
88 Informe JB, JORNAL DO BRASIL, Feb. 2, 1987, at 6.
89 Id.
90 Id.
91 See O Povo se Manifesta por Trás dos Cordões de Isolamento [The People Manifest
Themselves Behind the Cordons] , JORNAL DO BRASIL, Feb. 2, 1987, at 4.

92 Przeworski, supra note 18, at 58 (1986).
93 Hagopian, supra note 48, at 164. See also Hagopian & Mainwaring, supra note 12.
94 See Hagopian & Mainwaring, supra note 12, at 512.
95 BERNARDO KUCINSKI , O FIM DA DIT ADURA M ILIT AR [THE END OF T HE M ILIT ARY
DICT AT ORSHIP] 139 (2001).

opening process.”96 Indeed, as it was already portrayed during the opening

session of the Constituent Assembly of 1987/1988, “the opening reaffirmed
the Brazilian political tradition of conciliation among the elites.”97 Here
again is the emphasis on bargains and negotiations, now reinforced by the
argument of the very pace of the democratic transition. Kucinski reaffirms
Linz and Stepan’s thesis that the “uncommon duration of the Brazilian
transition” indicates that the military government had “enough power to
control the pace of transition and to exact a high price for its withdrawal
from power.”98
Francisco Weffort brings a similar reasoning. According to him, the
Brazilian transition to democracy was indeed not only “an imposition by the
military groups leaving power, but also a political choice by many
democratic forces that were taking it.”99 Hence, such as those
aforementioned strategic relationships, the moderates on both sides agreed
to build a “new Republic” that would conserve much of the status quo, or,
as he says, a combination of “conversion” and “continuity.”100 Another
relevant analysis is presented by Adriano Nervo Codato, who holds that
“the conservative nature of the process of political transition in Brazil” is
thereby the main feature of this “new Republic,” which, in the end, suffered
“no real substitution of the groups linked to the dictatorship, but rather a re-
accomodation within the realm of the elites.”101 As seen, there are many
interesting studies on Brazilian transition to democracy stressing exactly
this controlled process of liberalization and democratization, and most of
them arguing how this feature substantially impaired the future of the rising
democracy in Brazil.102
96 Id.
97 Id.
98 JUAN LINZ & A LFRED ST EPAN, A TRANSIÇÃO E CONSOLIDAÇÃO DA DEMOCRACIA: A
EXPERIÊNCIA DO SUL DA EUROPA E DA A MÉRICA LAT INA [THE TRANSIT ION AND
CONSOLIDAT ION OF DEMOCRACY: THE EXPERIENCE OF SOUT HERN EUROPE AND LAT IN
A MERICA] 205 (1999).
99 Francisco Weffort, Novas democracias: Que Democracias? [New Democracies:
Which Democracies?], 27 LUA NOVA 5, 20 (1992).

100 Id.
101 Adriano Nervo Codato, Political Transition and Democratic Consolidation in
Brazil: A Historical Perspective, in POLIT ICAL TRANSIT ION AND DEMOCRAT IC

CONSOLIDAT ION: ST UDIES ON CONT EMPORARY BRAZIL 1, 18-19 (Adriano Nervo Codato
ed. 2006).
102 See, e.g., Aloysio Carvalho, who holds that “the weakness of the forces
compromised with democracy contributed to a transition which lasted very long, was under
relative control of the military command, and led to a conservative political compromise,
guaranteeing the presence of the dissident elites of the authoritarian regime in the
command of the first civil government after the armed forces had been withdrawn from
These distinct analyzes, while emphasizing the controlled process of

transition towards democracy, also seem to express a certain pessimism
over the Brazilian future. A connection could therefore be made between
their interpretation of that period and the difficulties Brazil would face to
overcome the elites’ interests in keeping untouched their comfort zone. The
literature about Brazilian transition towards democracy, especially those
written during or quite after that moment, commonly raises the argument of
a remaining authoritarianism in the new regime that would jeopardize the
widening of popular participation, as an outcome of those bargains. The
agreements and this spirit of conciliation that prevailed during that moment
caused the side effect of leaving behind the very strengthening of
citizenship. Hagopian’s prognosis that Brazil would live a “perverted
[democracy] skewed toward the representation of elite interests,”103
incapable then of overcoming its very limitations,104 would then prove true.
Cordato, already examining this future - Fernando Henrique Cardoso’s
government (1994-2002), for example - argues that the authoritarian
heritage was still strongly evident in his politics: his “neo-liberal reforms
had as their pre-condition the authoritarian arrangements of processes and a
lack of accountability on the part of those who governed.”105 Weffort, in
turn, claims that Brazil, especially because of this authoritarian legacy and
the rampant social inequality, is not possible as a consolidated
democracy.106 Gerardo Munck and Carol Skaldic Leff argue that “though
the new regime was clearly democratic, the most authentic proponents of
change lost momentum, and the outgoing rulers controlled the transition
process, thereby ensuring the adoption of far from optimal institutional rules
for democracy.”107
The Brazilian transition is thereby a very common source of
consensus on how the elites, through different means, strategically acted to
keep their status quo virtually untouched. The bargains, the agreements
power, when the New Republic began. Aloysio Carvalho, Geisel, Figueiredo e a
Liberalização do Regime Autoritário (1974-1985) [Geisel, Figueiredo and the
Liberalization of the Authoritarian Rule (1974 -1985], 48 DADOS 115, 138 (2005). See also
Luciano Martins, to whom the the authoritarian regime continued somehow in the new
republic. Luciano Martins, THE 'LIBERALIZAT ON' OF T HE A UTHORITARIAN RULE IN BRAZIL,
IN TRANSIT IONS FROM A UT HORIT ARIAN RULE , PART 2: LAT IN A MERICA (Guillermo A
O'Donell et al., 1986).
103 Hagopian, supra note 48, at 164.
104 See Hagopian & Mainwaring, supra note 12, at 512.
105 Codato, supra note 101, at 21.
106 See Weffort, supra note 99, at 30.
107 Gerardo L. Munck & Carol Skalnik Leff, Modes of Transition and
Democratization: South America and Eastern Europe in Comparative Perspective , 29
COMP . POL. 343, 349 (1997).
became the evident feature of a process which deeply impaired the then
rising democracy. The authoritarian legacy would be kept alive in the
following years, affecting how Brazilian society and institutions would
interact with each other. The elites, through their strategic behavior, would
have played well their cards in the game. Although Brazil would face a new
regime, it would institutionally be not that different from the past.
Still, this prognosis directly contradicts other interpretations of that
transition. James Robinson and Daron Acemoglu, for example, point out the
“empowerment at the grassroots level”108 as a structural cause for the
“move toward inclusive political institutions109 ” in the Brazilian rising
democracy. Leonardo Barbosa, in turn, argues that the constituent process
with the greater popular participation might be a relevant reason for the
longest period of institutional stability Brazil has undergone since
republic.110 These and other interpretations, unlike the previous ones, draw
attention not to those strategic movements from above, but rather to the
forgotten people. Naturally acknowledging how those elites played a
fundamental role, they bring new perspectives by placing at the forefront
such social actors. The question is: which interpretation seems more
accurate?
IV. THE FORGOTTEN PEOPLE IN THE BRAZILIAN TRANSITION TO

DEMOCRACY: A N EW APPROACH TO TRANSITOLOGY?
Frances Hagopian, in 2011, while reviewing distinct books about

Brazilian democratic reality, held that Brazilian democracy is “solid and
mature, with several presidential successions and no extraconstitutional
threats to the regime.”111 If this could be construed as a concession to her
previous analyses, her following words indicate that her pessimism is still
there to some extent: “yet nettlesome questions about the quality of Brazil’s
democracy remain,”112 especially because it seems that Brazil has an
“apparent inability to escape the weighty legacy of unequal citizenship.”113
Her central argument now, more than the elites’ strategic behavior of those
previous works, revolves around the quality of Brazilian citizenship. By
108 A CEMOGLU & ROBINSON, supra note 14, at 460.

109 Id.
110 See BARBOSA, supra note 13, at 368.
111 Frances Hagopian, Paradoxes of Democracy and Citizenship in Brazil, 46 LAT .
A M. RES. REV. 216, 216 (2011).

112 Id.
113 Id.
centering on the society’s grassroots level and the “daily struggles of

ordinary people,”114 it seems that she takes a distinct approach to examining
Brazilian democracy. The question is how far this citizenship has indeed
become real and provided the impetus for change, how far this citizenship
has gained strength to consolidate Brazilian democracy. As she says, “if
citizenship in Brazil is a recurring problem, a glaring manifestation of an
imperfect and incomplete democracy, it is also the equally permanent hope
of a solution.”115 Accordingly, the forgotten people turn out to be a central
source for understanding the potentiality of Brazil to turn the page on the
past and to look to the so-expected future.
The strengthening of the Brazilian citizenship, albeit its still
remaining imperfections, however, is not only the consequence of the
process of democratization, but also one of the main reasons for making
democracy a real possibility after years of military rule. The emphasis on
the elites’ strategic behavior during that transition to democracy may have
failed to observe this structural ability of the forgotten people to make, step
by step, the change, although the pace and the “timing” of this change was,
until the very limit, controlled by many of those elite groups. In most of the
aforesaid analyses, the argument placed on the uncertainty of the transition
as well as on the accommodations of those strategic interests through
bargains and agreements naturally tended to depict a very difficult future
(the entrenched social positions are not affected, after all) with significant
social costs in the rising democracy in Brazil. How the chess pieces were
played gained a structural reverence for analysis, while the debate over
citizenship and legitimacy became secondary, not necessarily interfering
with those conclusions. The attention was given to how those interests were
protected and preserved in the new agreements so that the new regime
would pose no danger or threat to the elites’ positions, and the consequence
was a certain degree of stability (there was no effective rupture, after all) at
the price of keeping untouched some extractive institutions 116 and unequal
distribution of resources. As Hagopian named it, the regime transition in
Brazil would configure a “democracy by undemocratic means.”117
However, whereas many of those theories attempted to examine
how those pact-makings could shape and strongly constrain the new
political regime, some recent historiographic studies have stressed instead
how the strengthening of citizenship took place in the midst of those pacts
in Brazil. Therefore, rather than practically relegating to the background the
114 Id.
115 Id. at 217.
116 See, e.g., A CEMOGLU & ROBINSON, supra note 14, at 79.
cultural and social aspects that could affect the very transition, these
historiographic studies have placed greater emphasis on how those aspects
played a special role for making democracy possible. The argument does
not center on rational actors who will strategically calculate how to move
their pieces in the game. On the contrary, those actors are interpreted in less
abstract terms and the movements led by other social actors - not simply the
elites - gain particular relevance for understanding the transition itself and
the new political regime. Again, as Hagopian’s more recent approach to this
subject seems to point out, the accent is on how citizenship, while still
problematic, can be the “permanent hope of a solution.”118
A visible antagonism is notable when, instead of emphasizing those
elites’ strategic moves and pact-makings, the argument reinforces the role
distinct social actors played in the drafting of the new Brazilian
Constitution. This means not only the groups normally associated with the
elites, but also those grassroots movements that somehow contributed to
temper those elites’ strategic moves with actions designed to foster
pluralism. When these new historiographic studies revisit the Brazilian past,
and particularly the drafting of the Federal Constitution of 1988 - the
milestone of the Brazilian transition to democracy -, that pessimism found
in those researches on the elites’ strategic behavior is put in doubt. In
revisiting that past, while naturally acknowledging the paradoxes and
dilemmas of the new democratic scenario, a sort of careful optimism for
Brazil’s future materializes instead.
Cristiano Paixão is one of the Brazilian constitutional scholars who
brings this new historiographic viewpoint. In an article entitled Autonomia,
Democracia e Poder Constituinte: Disputas Conceitiuais na Experiência
Constitucional Brasileira (1964-2014) (Autonomy, Democracy and
Constituent Power: Conceptual Disputes in the Brazilian Constitutional
Experience (1964-2014)),119 he contends that, since the end of the seventies,
two distinct discourses have surfaced about the future of the Constitution: a)
one denying the military regime and calling for a rupture with its legal
order; and b) one stressing the word “conciliation” and arguing in favor of a
new constitution that would institutionalize the “revolution” of the
dictatorship initiated in 1964.120 These two discourses have coexisted with
each other during the manifold stages of the transition and, possibly, helped

119 Cristiano Paixão, Autonomia, Democracia e Poder Constituinte: Disputas
Conceitiuais na Experiência Constitucional Brasileira (1964-2014) [Autonomy,
Democracy and Constituent Power: Conceptual Disputes in the Brazilian Constitutional
Experience (1964-2014)], 43 QUADERNI FIORENTINI 415, 439-448 (2014).
120 Id.
create this context of contradictory interpretations of that very moment. The

way history has evolved has also been marked by many antagonisms and
disagreements - as normally those moments are -, bringing about some
confusion over what the future could hold for Brazilian democracy.
One of these antagonisms and paradoxes lies in the particular way
the military regime planned the controlled transition, on the one hand, and
how this transition, especially during and right after the Constituent
Assembly of 1987/1988, became, in the end, quite uncontrolled in many
aspects, on the other. The military regime had already taken control of most
of the process of transition, especially before the Constituent Assembly
began its works. For example, the idea of an exclusive Constituent
Assembly elected for drafting the new constitution, as many of the social
movements claimed for, failed in the end. Instead, the Constituent
Assembly was the result of a constitutional amendment121 to the
authoritarian Constitution of 1967/1969, which regulated its proceedings
and established that the National Congress elected in 1986 would be
responsible for drafting the new constitutional text. It is no wonder that, in
this scenario, the majority in Congress adopted the conciliatory discourse.
Therefore, the social claims for a constitutional moment that would
represent the break with that past were defeated by the discourse of
conciliatory transition. This is why Cristiano Paixão argues that, “until that
moment, between March 1985 and February 1987, it does need to be
acknowledged that the military regime was successful in its strategy of
‘safe, slow and gradual’ opening’.”122 The examples for this conclusion are
many: the Amnesty Law of 1979,123 which granted amnesty to all those who
perpetrated serious human rights violations; the strong popular mobilization
for direct elections was frustrated by Congress in 1984; the ruling party had
the majority in Congress until the last moments of the military regime; the
first civilian president was indirectly elected in 1985 by an electoral college
created by the dictatorship; and, finally, the conciliatory discourse was
clearly adopted by the new civilian government.124
This conciliatory discourse plays a special role in the definition of
those pact-makings, as seen in many of those strategic behavior analyses. If
121 Emenda Constitucional No. 26, de 27 de Novembro de 1985, Diário Oficial da

União [D.O.U] de 28.11.1985 (Braz.).
122 Cristiano Paixão, A Constituição em Disputa: Transição ou Ruptura? [The
Constitution in Dispute: Transition or Rupture?] , in História do Direito e Construção do

Estado [Legal History and State Building] (Airton Seerlaender ed., forthcoming 2016) (on
file with the author).
123 Lei No. 6.683, de 28 de Agosto de 1979, Diário Oficial Law [D.O.U] de 28.08.1979
(Braz.).
124 See Paixão, supra note 119, at 439.
there is no rupture, no break with the past, bargains and agreements will be
needed to harmonize interests and pacify the inherent conflicts of the very
transition. This conciliatory discourse will be then used as a motto with
incredible success and effectiveness, directly interfering with the central
characteristics of the Constituent Assembly whose works were just starting.
This would not represent an effective “new beginning” in which the fellow
citizens support a radical change and institutions provide the means for
making it happen, but rather a conciliatory transition in which Congress
would harmonize interests, “when there are no winners or losers,”125
thereby avoiding the threats and risks of a traumatic future. In other words,
the plot to interpret that transition as a “negotiated settlement on the part of
the political elites”126 was created.
By shifting focus to other political and social movements,
nevertheless, this conciliatory discourse, which notably influenced how
those strategic behavior analyses interpreted the Brazilian transition,
becomes less appealing. In the political arena, although the conciliatory
discourse remained evident, there was also a countermovement that claimed
that the new constitution would not be the final term of that “revolutionary
cycle” initiated in 1964, but instead a real rupture with that past. Some
lucky contingencies helped make this contrasting perspective an effective
barrier to many of those pact-makings, leading to relevant proposals that
would provide the enhancement of inclusive policies and institutions in the
constitutional text. The fact that the President of the Constituent Assembly,
Congressman Ulysses Guimarães, as well as the leader of the majority party
(PMDB), Senator Mario Covas, did not follow the conciliatory discourse
naturally played a relevant role. In addition, the then President of Brazil,
José Sarney - a conservative politician who, despite his filiation to PMDB at
that time, acted, for many years, in the party that supported the dictatorship
(ARENA) - had little political strength,127 which also helped configure a
more conflictive scenario than those strategic behavior theories depict.
There were many political disputes among the congressional leaders,
distinct conflictive discourses (conciliation or rupture, for instance), and all
of them affected by a sort of “disruptive effect” originated from an evident
and impactful process of social mobilization.128
125 As one of the then Congressmen said: “I believe in this Constituent Assembly,
because it is the result of a political transition. It is not the result of a rupture, in which the
country comes out traumatized. It comes in times of peace, when there are no winners or
losers”. Diário do Congresso Nacional [D.C.N.], Nov. 28, 1985, at 2506.
127 See BARBOSA, supra note 13, at 209.
128 See id.
The impact of those social movements on the works of the

Constituent Assembly, if not obviously able to avoid many political
bargains among distinct elite groups, is visible in a variety of events. For
example, the proposal of a preliminary draft of the Constitution prepared by
a Commission of Experts (Comissão Provisória de Estudos
Constitucionais) to be used as source by the Constituent Assembly,
notwithstanding its rejection in the end, already suffered this “disruptive
effect”: it counted more than four hundred articles and many suggestions
originated from society.129 Moreover, there were many public debates and
hearings during the activities in the Assembly, with effective interventions
in the decision-making process, creating thereby an unprecedented
constitutional culture and practice in Brazil.130 According to these new
historiographic analyses, the internal works of the Constituent Assembly
were characterized by a continuous effort to dialogue with society.131 It
even set some institutional constraints to lessen the risks of a hegemonic
bloc controlling its results,132 paving the way for the minority center-left
coalition to achieve relevant victories.133 As Leonardo Barbosa argues, “this
new practice built its space in the elaboration process of the Constitution of
1988 by intervening in the proceedings that enabled an intensive
mobilization of the public sphere over the main constituent debates.”134
The proceedings and the organization of these proceedings that took
place during the Constituent Assembly were assumed as a public issue, with
noticeable participation of civil society, 135 which could even submit some
129 See id. at 210.

130 See id. at 212.
131 See id. at 218, 221, 235.
132 See, e.g., Jefferson O. Goulart, Processo Constituinte e Arranjo Federativo
[Constituent Process and Federative Arrangement] , 88 LUA NOVA 185 (2013); JÚLIO
A URÉLIO VIANNA, A CART A DA DEMOCRACIA: O PROCESSO CONST IT UINT E DA ORDEM
PÚBLICA DE 1988 [THE DEMOCRAT IC CHART ER: THE CONST IT UENT PROCESS OF T HE
PUBLIC ORDER OF 1988] (2008); Marcos Nobre, Indeterminação e Estabilidade: Os 20
Anos da Constituição Federal e as Tarefas da Pesquisa em Direito [Indeterminacy and
Stability: The 20 Years of the Federal Constitution and the Research Tasks in Law] , 82
NOVOS EST UDOS CEBRAP 97 (2008); Sandra Gomes, O Impacto das Regras de
Organização do Processo Legislativo no Comportamento dos Parlamenta res: Um Estudo
de Caso da Assembléia Nacional Constituinte (1987 -1988) [The Impact of the
Organization Rules of the Legislative Process on Congressmen' Behavior: A Case Study of
the National Constituent Assembly (1987-1988)], 49 DADOS 202 (2006).
133 See, e.g., A DRIANO PILAT T I , A CONST IT UINT E DE 1987-1988: PROGRESSIST AS,
CONSERVADORES, ORDEM ECONÔMICA E REGRAS DO JOGO [THE CONST IT UENT A SSEM BL Y

OF 1987-1988: PROGRESSIVES, CONSERVAT IVES AND T HE RULES OF T HE GAME ] (2008).
134 BARBOSA, supra note 13, at 212.
135 Id. at 218-219.
proposals for the Constitution (popular amendments).136 Moreover, there

was no previous draft of the constitutional text from where the Constituent
Assembly could work on. Instead, the Constitution was drafted in several
stages and in distinct and decentralized committees and subcommittees 137
where some dialogue with society and civil society organizations came
about, and where many contradictions and disagreements were exposed.
These proceedings allowed the debates over a wide variety of values,
interests and grievances coming from distinct sectors of society, creating an
environment that ultimately would not cohere with the so-called “slow, safe
and gradual” transition. Uncertainty about the outcomes of those debates
would be a better description of that set of political events, in which the
elites and many groups of organized civil society collaborated with the
project of drafting a new democratic Constitution.
It was not, for this reason, a Constitution that was there to be simply
drafted by congressmen and distinct elite groups, while the forgotten people
passively watched their actions.138 Although many of those elites’ bargains
prevailed in several ways, a certain pluralism was evident and this feature
did influence constitution-making. This is why the Constituent Assembly
could be called “an authentic polyphony.”139 Many organized groups of
civil society, which have mobilized energies to change the Brazilian reality
especially since the end of seventies, saw in that moment the perfect
scenario to articulate relevant social demands, some of them with relative
success.140 In this new environment where this dialogue with society could
give rise to a new “meaning of the Constitution”141 and a new “meaning of
the representative democracy and the basic rights that support it,”142 Brazil
was living a moment in which many years of struggles for democracy, as a
self-learning process, could yield positive results. For this reason, it is quite
inaccurate when this rich moment is reduced to an interplay of elites’
strategic behavior. Current historiographic studies clearly point out that the
Constituent Assembly of 1987/1988 furthered a new constitutional culture
136 See, e.g, CARLOS M ICHILES ET AL ., CIDADÃO CONST IT UINT E : A SAGA DAS
EMENDAS POPULARES [CONST IT UENT CITIZEN: THE POPULAR A MENDMENTS SAGA] (1989).
137 See., e.g., Gomes, supra note 132, at 195.
138 See, e.g., Cristiano Paixão, Direito, Política, Autoritarismo e Democracia no
Brasil: Da Revolução de 30 à Promulgação da Constituição da República de 1988 [Law,

Politics, Authoritarianism and Democracy in Brazil: From Revolution of 30 to the
Promulgation of the Constitution of the Republic of 1988] , 26 A RAUCÁRIA 164 (2011).
140 For instance, the extensive bill of individual and social rights in the constitutional
text.
142 Id.
of popular participation and interference with the constitution-making, even

though many authoritarian practices and elites’ privileges remained
relatively untouched in the new democratic regime.
Naturally, the authoritarian legacy and elites’ privileges could not be
overcome by the simple fact that the Constitution was pluralistically drafted
to a certain extent. It is well known Raymond Faoro’s brilliant analyses of
how Brazilian institutions have historically been designed to exclude
society at large from decision-making, for example. His book Os Donos do
Poder (The Owners of Power) is an essential source for whoever aims to
understand how the elites managed to “privatize” the state according to their
interests, bringing serious consequences for disrupting the exercise of
Brazilian citizenship. In this book, he calls “estamentos” these political
elites responsible for “privatizing” the public sphere, as a “social stratum
with effective political authority in an order of aristocratic content.”143 If his
viewpoint is taken as a fundamental source for interpreting the Brazilian
transition to democracy - as it should be -, there seems to be little hope of
any structural change in this new rising regime. Still, even Faoro, with his
profound comprehension of Brazilian society, was not that pessimist to the
point of sustaining the argument that that moment did not bring an impetus
for change and that there was no consistent social participation in the works
of the Constituent Assembly of 1987/1988. Although its results, for him,
were disappointing and kept untouched several of these “estamentos” in
the years to come,144 the Constituent Assembly resulted from a certain
transformation of citizenship and its ability, through distinct movements
(strikes in distinct regions of Brazil, especially in the region of ABC on the
outskirts of São Paulo; the campaign for a wide, general, and unrestricted
143 RAYMUNDO FAORO, OS DONOS DO PODER: A FORMAÇÃO DO PAT RONATO POLÍTICO

BRASILEIRO [THE OWNERS OF POWER: THE FORMAT ION OF T HE BRAZILIAN POLIT ICAL
PAT RONAGE ] 830 (2001).
144 Raymundo Faoro saw, even after the transition to democracy, the continuity of this
authoritarian legacy in many aspects of social and political life (the following elections of
the Presidents Fernando Collor de Mello and Fernando Henrique Cardoso , for instance)
and also in the constitutional text. For a great analysis of the distinct works of Raymundo
Faoro in the various moments of the Brazilian transition to democracy, see, e.g., Maria José
de Rezende, Raymundo Faoro e os Enigmas da Transição Política no Início da Década de
1980 no Brasil [Raymundo Faoro and the Enigmas of the Political Transition in the
Beginning of the 1980s in Brazil] , 42 REVIST A DE CIÊNCIAS HUMANAS 165 (2008); Maria
José de Rezende, A Lógica Autoritária do Regime Militar e os Cálculos para Controlar a
Democratização [The Authoritarian Rationale of the Military Rule and the Calculations
for Controlling the Democratization] , 5 REVIST A BRASILEIRA DE CIÊNCIA POLÍT ICA 167
(2011); Maria José de Rezende, As Reflexões de Raymundo Faoro sobre a Transição
Política Brasileira nos Anos 1989 e 1990 [Raymundo Faoro's Reflections upon the
Brazilian Political Transition in 1989 and 1990] , 9 POLÍT ICA SOCIEDADE 91 (2006).
amnesty in 1979;145 the so-called Diretas Já (Direct Elections Now)

campaign in 1984146 , etc.) to push for a constitutional moment.147
As many serious interpretations of that period, Faoro acknowledged
that the military regime attempted by every means to control the political
opening, determining the pace of the transition and the “timing” for the
change. When many social movements gained momentum, this control
became a strategy to appease the conflicts and set the conditions to prevent
civil society from actively participating in the configuration of the new
reigme. The way the military rule repressed distinct forms of social
manifestations in the seventies and eighties, such as the strikes in several
cities in Brazil, is a notorious example of how that regime, even though
taking the first steps towards the political opening, could not effectively
dialogue with civil society. They were unable to accept that these working
classes could organize themselves in such a way that would politically
affect the authoritarian and elitist practices the military rule furthered. They
could not consent to any institutionalization of social participation
whatsoever.148 Accordingly, when the political transition became a
constitutional transition, there was no reasonable argument to conclude
against the premise that, as the military regime had done so far, that
moment would be different. The configuration of a controlled transition was
nothing other than the direct consequence of this environment where the
“slow, safe and gradual” opening would also mean repression against any
institutionalization of social participation. Transition would mean,
ultimately, a game in which whoever decides would not deeply contradict
the essence of the military rule and the elites’ privileges.
145 The campaign for a wide, general, and unrestricted amnesty in 1979 resulted in the
Law 6.683 (see supra note 55). See also Paixão, supra note 119; BARBOSA, supra note 13.
146 The Diretas Já (Direct Elections Now) campaign took place in 1983-1984, when
more than one and a half million people thronged the streets all over the country. Its
purposes nonetheless were frustrated by Congress. See, e.g., DOMINGOS LEONELLI &
DANT E DE OLIVEIRA, DIRET AS JÁ: 15 M ESES QUE A BALARAM A DIT ADURA [DIRECT
ELECT IONS NOW : 15 M ONT HS T HAT SHAKED T HE DICT AT ORSHIP ] (2004); A LBERT O TOSI
RODRIGUES, DIRET AS JÁ: O GRIT O PRESO NA GARGANT A [DIRECT ELECT IONS NOW : THE
SCREAM CAUGHT IN T HE THROAT ] (2003); FLAMARION M AUÉS & ZILAH W ENDEL
A BRAMO, PELA DEMOCRACIA, CONT RA O ARBÍTRIO: A OPOSIÇÃO DEMOCRÁTICA, DO GOLPE
DE 1964 À CAMPANHA DAS DIRET AS JÁ [FOR DEMOCRACY, A GAINST A RBIT RARINESS,
FROM T HE COUP OF 1964 T O T HE DIRECT ELECT IONS NOW CAMPAIGN] (2006).
147 As Cristiano Paixão holds, many Brazilian prominent jurists, such as Goffredo
Telles Junior and Raymundo Faoro, saw in that political context of the end of the 1970s
and 1980s a rising movement for transformation and a constitutional moment. See, e.g.,
Paixão, supra note 119, at 435-439.
148 See, e.g., Rezende, supra note 144, at 184-185 (2008).
However, despite this historical feature of Brazilian society, that

very moment of constitution-making, according to Faoro, brought
something new in Brazilian reality. Already foreseeing the constitutional
moment that was to become reality, he interpreted the Constitutional
Assembly - still as a an “idea, claim and movement”149 - as the result of a
social pressure that gained ground from 1974 onwards and aimed to
“reconquer democracy by initiating popular sovereignty.”150 As he says, the
Constituent Assembly “was born, except for some isolated manifestations,
as a consequence of the 1974 elections, the first to demonstrate the
repudiation of the military rule in a clear and sharp way.”151 The fact that
the elites and the military regime designed various mechanisms to control
the transition would not mean that that very moment was not, in a way, a
rupture with the past, even though a paradoxical coexistence with that past
was also one of its peculiarities.152
Instead, those forgotten people, whose dissatisfaction with the
military rule became strongly conspicuous from the seventies onwards,
played a relevant role in the transitional process and this yielded an
impactful pressure on the negotiations and debates that were taking place in
that constitutional moment. As Cristiano Paixão holds, “the Brazilian
society, just out of the traumatic experience of the dictatorial regime, had a
creative and participatory potential that was dammed, and the Constituent
Assembly, in an unpredictable way by the leaderships of that time, was the
place and the moment to rewrite history.”153 Therefore, when this dammed
potential was released, that so-called “slow, gradual and safe” transition
could not handle that pressure and lost much of its so-expected ability to
control the process. This is why, despite the contradictory discourses during
the Constituent Assembly and afterwards, in the end, the “thesis that the
constitution that was being drafted (…) did not belong to the project of
transition and opening initiated by the military regime in 1974”154
prevailed. In fact, that Constituent Assembly could only understand itself as
149 Raymundo Faoro, Constuinte: A Verdade e o Sofisma [Constituent Assembly: The
Truth and the Sophistry] , in CONST IT UINT E E DEMOCRACIA NO BRASIL HOJE

[CONST IT UENT A SSEMBLY AND T HE BRAZILIAN DEMOCRACY TODAY] 7, 10 (Emir Sader
ed., 1985).
150 Id.
151 Id.
152 According to Rezende’s interpretation of Raymundo Faoro’s texts, the Constituent
Assembly provided “a change without rupture,” which was sharply visible in the
Presidency of Fernando Collor de Mello. As she says, “the continuities, the persistencies
were then clear political articulations that were, little by little, building the New Republic
and the period immediately after it.” Rezende, supra note 144, at 107 (2006).
153 Paixão, supra note 138, at 164.
154 Cristiano Paixão, supra note 122.
a rupture with that past,155 notwithstanding the remaining elites’ privileges

and some authoritarian practices in many aspects.
The advent of the democratic Constitution of 1988 exposed how this
confusion of discourses and uncertainty reflected in its very text. On the one
hand, there are many positive outcomes indicating that democracy and the
guarantee of individual and social rights have come to stay.156 On the other,
many privileges and the status quo remained untouched.157 It is no wonder
that the Constitution of 1988 is very comprehensive and detail oriented 158
and has many norms that seem half-finished or even in opposing sides.159
As a planned controlled transition that became quite uncontrolled in the
end, the result could not be much different. Especially because the forgotten
people started to have their voice heard and, after years combating the
dictatorship, were prepared to intervene in the constituent process with great
efficacy, moral authority and prestige, 160 controlling the transitional process
became an unfeasible task. The outcome, uncertain as it should be, although
having started in a controlled way, became, in the end, not only distinct, but
also opposed to a certain degree to the original purpose. As Cícero Araújo
argues, “the change from determination to indetermination of the process is
what makes the country to march towards its democratization”161 and this
created the condition that prevented any single actor or group in dispute
from determining alone the outcomes of that process.162 The Constitution of
1988 is, for this reason, an outcome of “intensive popular participation,”163
“intensive popular pressure,”164 “intensive and influential participation of
organized civil society.”165 It might not be coincidence that the adjective
“intensive” appears highlighted by distinct interpreters of that moment. As
Leonardo Barbosa stresses: “only a fake-oblivion [oubli-faussaire] (to use a
François Ost’s expression) could omit that, for the first time in Brazilian
155 Id.
156 See, e.g., the extensive bill of individual and social rights of the Brazilian
Constitution.
157 See, e.g., the political and judicial systems, whose changes were rather frustrating.
158 Nobre, supra note 132, at 98.
159 See, e.g., Constituição Federal [C.F.] art. 9 (Braz.). (right to strike). See also
Rezende, supra note 142, at 100 (2006).

160 Cícero Araújo, O Processo Constituinte Brasileiro, a Transição eo Poder
Constituinte [The Brazilian Constituent Process, the Transition and the Constituent
Power], 88 LUA NOVA 327, 367-368 (2013).
161 Id. at 357.
162 Id. at 358.
163 Id.
165 Nobre, supra note 132, at 98.
history, the protagonists of the constitutional change were not confined to

the institutional circles.” There might not be better antagonism to those
strategic behavior analyses of the Brazilian transition to democracy. The
question is: wouldn’t be this focus on citizenship and on its ability to
change the game quite overstated?
CONCLUSION
There is no straight answer when these distinct approaches are

placed side by side. No one could easily and immediately conclude whether
the strategic behavior and game theory analyses of regime transitions or the
new historiographic studies on Brazilian transition give a more or less
accurate assessment of that moment. On the one hand, the people might be
forgotten; on the other, the power of these very people might be overstated.
Moreover, pessimism and optimism may be a common ground when the
outcomes of that moment are the central focus of analysis. For this reason,
the dispute in this matter is, to a great extent, insurmountable. Possibly the
best description might be that the Brazilian transition to democracy was a
zigzag, not reducible to schematic assessments.166 Was it a transition where
the elites controlled most of the process, and where no effective rupture
took place, or an effective rupture stemming from a new configuration of
citizenship and intensive popular participation, perhaps a little of both
would best portray that reality. Still, when those forgotten people are simply
overlooked, as if their roles in the Constituent Assembly were minimal and
ineffective and the elites controlled practically alone the transition, history
might have proven differently. Although the elites certainly could keep
untouched many of their privileges and benefits through pact-makings and
bargains, there was a certain pluralism, “a contradictory plurality of
actors,”167 a set of fragmented political and ideological projects 168 from
various sectors of society, from the militaries, politicians, corporations to
the organized civil society at large. Hence, an uncontrolled pluralism
coexisted with the historically exclusionary reality of extractive
institutions169 the elites furthered. The Constitution of 1988 is thereby the
result of this paradoxical, but rising democracy.
In any case, Brazilian future has proven not so pessimistic as those
strategic behavior analyses depicted. Even Hagopian’s pessimism, as
shown, has weakened. In fact, she even now says that, in the nature of
166 Araújo, supra note 160, at 334.

167 Id. at 378.
168 See, e.g., BARBOSA, supra note 13, 365.
169 See A CEMOGLU & ROBINSON, supra note 14, at 460.
change in Brazil, “there is cause for optimism,”170 and this is due to the
evident political, economic and social change Brazil has gone through. 171
As she says, “if we look deeply at the burst of democratic innovation at the
grass roots, at citizens fighting swindlers and landlords in court and
asserting themselves in meetings about public policy (…) then we may
conclude that Brazil is gaining on its past.”172 An empowerment of
citizenship and pluralism at the grassroots level with an increase of
inclusive institutions have brought about a new meaning for Brazilian
democracy, with an increasing learning curve that has engendered some
institutional stability over the years. Certainly, those pacts and bargains
have led to many exclusionary and authoritarian practices; certainly they
have blocked many of the so-expected achievements of a democratic nation;
certainly they have jeopardized, in several ways, the full exercise of
citizenship. Still, those forgotten people must be always remembered as the
source of this new Brazil that, step by step, is building this much-desired
future.

171 Id. at 226-227.
172 Id. at 227.

The Forgotten People in Brazilian

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Forgotten People in Brazilian

Uploaded by

Copyright:

Available Formats

THE FORGOTTEN PEOPLE IN BRAZILIAN

CONSTITUTIONALISM: REVISITING STRATEGIC BEHAVIOR

Juliano Zaiden Benvindo

International Journal of Constitutional Law (ICON), forthcoming 2017

Electronic copy available at: https://ssrn.com/abstract=2857987