Juristocracy and State-of-Exception Democracy: The Case of Brazil

Contemporary democracies are undergoing one of the most significant institutional transformations of our time: the rise of juristocracy and its effects on liberty, political representation, and the separation of powers. The Brazilian case is particularly illustrative. The central question guiding this lecture is straightforward: how did Brazil transition from a constitutional and representative democracy into a juristocracy exercised by unelected Justices of the Supreme Federal Court?

Drawing upon the theoretical contributions of Ran Hirschl, Jeremy Waldron, Claudia Maria Barbosa, André Borges Uliano, Claudio Chequer, Renato Soares de Melo Filho, and other scholars, juristocracy is examined as a process through which the fundamental decisions of national political life — formerly entrusted to Parliament and elected representatives — are progressively transferred to constitutional courts and unelected judges. This phenomenon goes beyond the mere judicialization of politics. It reflects the gradual replacement of democratic deliberation by judicial adjudication, of the ballot by the court ruling, and of politics by constitutional technocracy, without legitimate foundation in the constitutional order.

In the Brazilian context, the political arena itself has increasingly come under the control of the Supreme Federal Court. Its members determine who may run for office and who may exercise an elected mandate; who may speak freely and who may be targeted for their opinions, denunciations, or political positions. In many instances, this has occurred in complete disregard of due process and the rule of law foreseen in the country's constitution.

The lecture presents this Brazilian institutional transfiguration from a recent historical perspective, supported by a solid theoretical framework and illustrated by concrete examples, including the speaker’s own experience. Marcel van Hattem is currently the target of multiple judicial and political actions aimed at silencing him, making him one of the most prominent cases of political persecution in Brazil today. The actions carried out by the Federal Police under President Lula’s socialist administration against the congressman; the initiatives of the Office of the Prosecutor General of the Republic and the Supreme Court against his constitutional parliamentary immunity; and the attempt to suspend van Hattem’s mandate in the Chamber of Deputies because of his firm defense of representative democracy are concrete examples of a broader institutional shift.

Representative democracy in Brazil is being rapidly replaced by a new system: a juristocracy that arrogates to itself the role of guardian over a state-of-exception democracy.