INTRODUCTION
Law has played a central role in imperialism. European colonizers used it to legitimate their “civilizing mission” (Reference Shamir and HackerShamir & Hacker, 2001), portray racialized groups as lawless (Reference CohnCohn, 1996), and justify their economic exploitation (Reference MerryMerry, 2003). Contemporary legal globalization also contains aspects of the colonial project, even if disguised in legal and scientific jargon (Reference Davis, Kingsbury, Merry, Kingsbury, Davis and MerryDavis et al., 2015). Through international treaties, enforcement agencies, and non-governmental organizations, global regimes like neoliberalism, human rights, the rule of law, and the War on Drugs have been exported to the South, transforming social and political landscapes (Reference Dezalay and GarthDezalay & Garth, 2010).
These legal regimes are often imposed through economic and political pressure: international trade agreements and financial aid programs from organizations like the World Bank require compliance (Reference de Graaf, Wagenaar, Michel, de Graaf, von Maravić and Wagenaarde Graaf et al., 2010). International NGOs denounce non-complying states, which end up at the bottom of think tanks' rankings (Reference Brown and ClokeBrown & Cloke, 2004). Global regimes also spread through culture: they constitute standards of good practices, rules of conduct, and expertise that socialize professionals across the world (Reference Meyer, Boli, Thomas and RamirezMeyer et al., 1997). As powerful Global North actors, such as states and corporations, are more likely to influence global regimes, legal globalization works as a form of “postmodern colonialism” (Reference SilbeySilbey, 1996: 219).
However, in the last two decades, law and globalization studies have shown that legal globalization is not just the product of imposition or universal cultural convergence. Taking a “process turn,” scholars challenged narratives that see globalization as state-centric, top-down, and solely driven by macro-social forces (Reference Fourcade and SavelsbergFourcade & Savelsberg, 2006). Instead, they frame legal globalization as a process of global-local interactions. To unravel these dynamics, processual studies focus on how local actors adapt global regimes to promote domestic legal change in competition with other local actors. In so doing, they show how these processes of adaptation and resistance often result in “half-failed transplants” and “unintended consequences” (Reference Dezalay and GarthDezalay & Garth, 2010: 246; Reference Halliday and ShafferHalliday & Shaffer, 2015: 35).
But by emphasizing the complexity of globalization processes, processual studies have paid less attention to a fundamental question about globalization outcomes: What discourses about justice, morality, social progress, and economic development emerge from legal actors' disputes, and how do they favor Global North domination? In other words, in focusing on how legal actors' disputes adapt legal prescriptions driven by global regimes (e.g., neoliberalism), they have focused more on the legal norms (e.g., changes in business law) than the discourses they carry (e.g., the supremacy of the market over the state). As processual scholars themselves have suggested, more attention should be paid to how globalization processes produce “epistemological” (Reference Levi, Hagan, Dezalay and GarthLevi & Hagan, 2012: 38) and “distributive consequences” (Reference Halliday and ShafferHalliday & Shaffer, 2015: 482) beyond legal debates.
In this paper, I argue that processual theories' emphasis on adaptation and resistance can illuminate how imperialist ideas are negotiated, reconfigured, and legitimated in local legal contexts. The globalization of anti-corruption in Brazil offers a fertile case for this endeavor. In 2014, a corruption investigation named Car Wash revealed that politicians had intervened in Brazil's state oil company to favor construction firms in procurement bids. Uncovering millionaire bribes, the scandal led to former President Lula's arrest and President Bolsonaro's election on an anti-corruption platform. Car Wash also drew the Brazilian population's attention to law's role in fighting corruption, with arrests and trials appearing on the daily news and judges and prosecutors becoming national heroes (de Sá e Reference de Sá e SilvaSilva, 2017). Enjoying popular support, in 2016, federal prosecutors proposed a bill named Ten Measures Against Corruption to increase corruption sentences and weaken defendants' procedural safeguards, which was met with fierce criticism by the country's most prominent defense attorneys.
Although legal actors became Brazil's main source of anti-corruption discourses, few works have investigated the global ideas involved in their disputes (Reference EngelmannEngelmann, 2020). This is especially important because the global anti-corruption regime has promoted neoliberal ideals, such as economic deregulation and privatization (Reference Williams and BeareWilliams & Beare, 1999); portrayed Global South populations as morally defective (Reference KajsiuKajsiu, 2013); and blamed them for their ‘underdevelopment’ (Reference Gutterman, Kukucha and AndersonGutterman, 2016). However, the “domestic impact” of these norms “remains understudied” (Reference GuttermanGutterman, 2017: 154).
To understand how global discourses about corruption are mobilized by local legal actors, I propose a discourse-centered field analysis. I conceptualize both the law and the state as fields where actors with different interests and resources compete to impose their views (Reference BourdieuBourdieu, 1987). My analysis focuses on the local field's discursive aspects to investigate how opposing actors' local ideas, crystalized in their discursive frameworks, shape the ways they adapt and resist global discourses. To do so, I conduct a discourse analysis of legislative hearings where Brazilian prosecutors and defense lawyers debated the Ten Measures. I also analyze prosecutors' written justification for the bill and a publication by the Brazilian Institute of Criminal Sciences' monthly magazine, in which lawyers criticize the Ten Measures. In addition, I examine these actors' professional trajectories through their résumés to analyze the resources and discourses they have historically mobilized in field disputes.
In what at first sight appears as a legal doctrinal debate, my field analysis reveals three global anti-corruption discourses emerging from the disputes of Brazilian legal actors. Prosecutors mobilize global anti-corruption ideas mainly to discuss the problem of corruption and push for harsher criminal law. In so doing, they portray corruption as (1) responsible for Brazil's social and economic underdevelopment, (2) a sign of the country's inferiority toward the Global North—both ideas mobilized to argue for the urgency of the reform; and (3) as mainly a state problem, to justify the criminalization of public agents.
In contrast, defense lawyers fiercely criticize prosecutors' proposals by mobilizing discourses endogenous to the legal field against prosecutors' “punitivism.” While defense lawyers say little about prosecutors' exogenous (non-legal) discourses on corruption, they often—and always in passing—accept them. Thus, there is a discursive mismatch between prosecutors' exogenous discourses on the problem of corruption and lawyers' endogenous resistance to prosecutors' legal solutions. Consequently, prosecutors' corruption discourses become undisputed in the legal field. I argue that this discursive mismatch leads to a “globalization by stealth” of anti-corruption ideas. I call this outcome globalization by stealth not because prosecutors hide their global discourses but because these discourses go unnoticed in their dispute against defense lawyers.
Beyond globalization, this paper contributes to research on law, ideology, and power. Scholars have long recognized that the law carries worldviews that contribute to social domination (Reference BourdieuBourdieu, 1987; Reference Ewick and SilbeyEwick & Silbey, 1998; Reference Marx and TuckerMarx, 1989). In a way, every idea advanced through the law is legitimated by stealth since it is hidden in legal jargon (Reference Marx and TuckerMarx, 1989), appeals to universal values (Reference BourdieuBourdieu, 1987), and imperceptibly penetrates peoples' consciousness (Reference Ewick and SilbeyEwick & Silbey, 1998). This paper reveals another mechanism whereby this happens: the discursive mismatch between actors debating legal ideas and the consequent legitimation by stealth of such ideas.
In pursuing their own goals in a local dispute, Brazilian prosecutors and lawyers defend accountability for corruption and a fair criminal justice system. Neither group seems interested in reinforcing ideas that legitimate North–South inequality. Yet, the discursive mismatch that incidentally results from their struggle contributes to legitimating imperialist discourses. While social domination is deeply structured by economic and cultural forces, like global regimes, I show how this occurs through a process contingent on how legal actors' disputes unfold.
LAW, GLOBALIZATION, AND DISCOURSE
As argued in the introduction, processual theories of law and globalization should pay closer attention to imperialist ideas beyond the legal debates at stake. I argue that doing so requires emphasizing the relationship between ideational elements (i.e., actors' worldviews and identities) and what I call globalization processes and outcomes. By processes, I mean how local legal actors' competition for power informs their adaptation and resistance to global ideas. By outcomes, I mean the ideas that these professionals externalize in such disputes. As I will show, this reframing is not simply a matter of focus but also theory. To develop my argument, I draw from globalization theories, such as World Society, Transnational Legal Ordering, field, and anthropology of law, expanding their conceptualization of the role of ideas in globalization processes and outcomes.
World Society (WS) scholars were pioneers in considering the role of ideas in globalization. They argue that countries adopt similar legal norms because their professionals are socialized into global cultural models of shared ideas and practices (Reference Boyle and MeyerBoyle & Meyer, 1998; Reference Meyer, Boli, Thomas and RamirezMeyer et al., 1997). Yet, by taking countries' adoption of legal norms as the outcome to be explained, WS theory overlooks the broader ideas these norms carry, including anti-corruption ones (Reference JakobiJakobi, 2013). Also, by focusing on countries, WS theory only presumes that actors' socialization carries global ideas without investigating how this process occurs. These two analytical steps are crucial to understanding the globalization of ideas since, as WS scholars acknowledge, global models are “contradictory” and “abstract” (Reference Meyer, Boli, Thomas and RamirezMeyer et al., 1997: 157), characteristics that also apply to the global anti-corruption regime (Reference GuttermanGutterman, 2017).
Transnational Legal Ordering (TLO) theory, on the other hand, places more emphasis on the ideas involved in globalization outcomes and processes. A TLO is a set of legal norms, organizations, and actors that orders behavior locally, nationally, and transnationally with regard to a particular social issue (Reference Halliday and ShafferHalliday & Shaffer, 2015). In looking at globalization outcomes, TLO scholars have investigated how and why the content of TLOs' ideas varies. For example, an anti-corruption TLO may vary in legal scope (e.g., emphasizing bribery over embezzlement), settlement (e.g., institutions may disagree about how to fight corruption), or geographically (countries may define corruption differently). In examining globalization processes, TLO theory proposes that norm-making occurs through recursive cycles driven by competing actors at the transnational, national, and local levels. For example, studying criminal procedure reforms in China, Reference Liu and HallidayLiu and Halliday (2009) show how actors' diagnostic struggles over the criminal justice system's problems led to the passing of legislation that incorporated contradictory provisions, generating conflicting interpretations from implementing agencies and creating the need for further cycles of legislative reform.
Yet, similarly to WS theory, TLO scholars have focused more on the legal features of globalization outcomes than on how they promote imperialist discourses. As Halliday and Shaffer argue, TLOs' “ideological content” and “distributive consequences … very often remain implicit or unexamined” (Reference Halliday and ShafferHalliday & Shaffer, 2015: 482). To fill this gap, TLO scholars have called for discourse analyses of globalization outcomes (Reference Halliday and ShafferHalliday & Shaffer, 2015; Reference JodoinJodoin, 2019). But to conduct such an analysis and still consider how legal actors affect globalization processes, it is useful to employ theoretical concepts that zoom in on the actor level, emphasizing their identities, beliefs, and practices.
Anthropologists of law and globalization have paid attention to these elements in studying globalization outcomes and processes (Reference EngelEngel, 2005; Reference MerryMerry, 1992). Researching intermediaries between the local and the global, they show that these “vernacularizers” present ideas in ways that resonate with local cultural frameworks (Reference MerryMerry, 2006). For example, Merry found that “vernacularizers” introducing anti-gender violence ideas into Hong Kong presented them as part of local Confucian ideas of marriage (Reference MerryMerry, 2006). Yet, anthropologists' emphasis on ideational aspects could be enriched by considering how actors' historical battles over legal and state power interact with cultural ideas in globalization processes.
I mobilize field theory to carry out this project. This approach conceptualizes the law as a “symbolic system” (Reference BourdieuBourdieu, 1991: 164) or as a “discourse of power” (Reference Dezalay, Madsen, Banakar and TraversDezalay & Madsen, 2013). As such, the law provides lawyers and the broad population with ways of thinking and acting (Reference BourdieuBourdieu, 1987). Consequently, the law is a source of identity, beliefs, and interests. Because only a few powerful actors can influence it, the law exerts a symbolic power: the power of influencing others' behavior without coercion (Reference BourdieuBourdieu, 1987). Framing law as a discourse of power centers on the role of ideas in legal professionals' actions in globalization processes as well as the power of ideas in globalization outcomes.
Field theory also conceptualizes law as a field or a social construction (Reference Dezalay, Madsen, Banakar and TraversDezalay & Madsen, 2013). As a field, the law is a social environment in which actors compete to legitimate their legal views (Reference BourdieuBourdieu, 1987). Law is also part of the field of power, where lawyers compete against other powerful agents (Reference BourdieuBourdieu, 2014). Under this approach, actors with similar resources, or capital, occupy the same position in relation to others, for example, of opposition, hierarchy, and affinity. They also tend to have similar dispositions to act and think, or “habitus,” because they undergo analogous experiences in the field (e.g., legal training and institutional socialization). Having similar capital and habitus, actors have a similar space of possibilities to act. As a result, they tend to adopt similar courses of action or position-takings (Reference BourdieuBourdieu, 1993). Globalization impacts field competitions because it offers lawyers global capital in the form of “degrees, contacts, legitimacy, and expertise” (Reference Dezalay and GarthDezalay & Garth, 2010: 7), which they can use in their local disputes. Law as a field thus theorizes the role of local competitions for power in globalization processes.
But in studying globalization outcomes (law as a discourse of power), field scholars have focused more on the legal reforms driven by global discourses of power (e.g., neoliberalism) than how these reforms promote discourses of global domination about social progress, human behavior, or justice. For example, Reference Hagan and LeviHagan and Levi's (2005) work on the International Criminal Tribunal for the former Yugoslavia shows how actors' disputes in the court contributed to renewing the force of international criminal law, detailing the legal strategies used. However, how this renewal promoted particular views of justice over others takes a secondary role. As the authors would later argue, field scholars have placed less emphasis on the worldviews or “epistemological frameworks” reconfigured and legitimated in globalization processes (Reference Levi, Hagan, Dezalay and GarthLevi & Hagan, 2012: 38).
Similarly, in studying globalization processes (law as a social construction), field scholars have privileged objective elements, such as capital, oppositions, hierarchies, and interests. For example, in Reference Dezalay and GarthDezalay and Garth's (2010) study of the globalization of human rights in Chile, we learn more about actors' alliances, rivalries, and use of global resources than about how actors' conceptions of human rights contributed to this process (cf. 2002: 141–160). As a result, subjective elements stressed by the law and anthropology literature, such as actors' beliefs, identities, and worldviews, take a secondary role.
To account for these elements, I propose a discourse-centered field analysis. This approach incorporates “discourses” and “frameworks” as analytical concepts to field theory. Bourdieu has criticized “discourse analysis” for assigning too much explanatory power to cultural works, hence downplaying the social forces behind them (Reference BourdieuBourdieu, 1996: 195–206). However, I will show that these concepts address important elements relevant to field theory that are useful to analyze both globalization processes and outcomes.
Regarding globalization processes, “discursive frameworks” illuminate how actors mobilize local schemes of interpretation to adapt and resist global ideas. Although scholars have mobilized it in different ways (Reference FisherFisher, 1997), this concept highlights the constitutive role of ideas in shaping actors' experiences and guiding their actions (Reference Benford and SnowBenford & Snow, 2000). In Bourdieusian field theory's terms, “frameworks” capture the structuring “principles of vision and division” and “social frames of perception” that make legal actors' habitus (Reference BourdieuBourdieu, 2000: 96, 175–176; Reference DoddDodd, 2021: 2). This concept highlights the ideas law inculcates in individuals' habitus and how experiences in the field lead to their incorporation. As a result, “frameworks” illuminate the link between field positions and action (Reference Fligstein and McAdamFligstein & McAdam, 2011). I define “discursive frameworks” as stable sets of connected ideas historically mobilized by actors in a particular field position and incorporated into their habitus. In sum, the concept of frameworks captures the constitutive role of ideas in globalization processes.
The concept of discourse, on the other hand, illuminates the expressive role of ideas in globalization outcomes. It emphasizes what actors say about global ideas in their local disputes, that is, their (discursive) position-takings, capturing the externalized use of language that forms law as a discourse of power and its potential consequences for social domination (Reference BourdieuBourdieu, 1991). I argue that legal field discursive struggles provide the contours of what is thinkable (although debated) and what is implicitly accepted. I conceptualize actors' mobilization of anti-corruption ideas as “discourses” that form law as a symbolic system which communicates ideas that will inform actors and the broader population.
To conduct the analysis, I consider how the field structure (capital, oppositions, hierarchies, interests) and actors' habitus have informed their use of particular frameworks in their disputes and which discourses emerged as a result. Because I am concerned with globalization, I turn my attention to how local frameworks interact with global ones and what global discourses become legitimated as a result.
DATA AND METHODS
In this paper, I examine the public hearings on the Ten Measures Against Corruption (bill n. 3855/2019). These hearings were conducted by a Brazilian House of Representatives special committee. The committee heard 101 civil society members in 28 meetings held between August and October 2016. Among these speakers, 84 belonged to the legal profession, including 28 federal and state prosecutors, 21 private attorneys, nine police officers, eight judges, seven public auditors, and three public defenders, with the remaining belonging to other occupations.
My analysis concentrates on the 16 federal prosecutors and 14 criminal defense lawyers who are the protagonists of the discursive struggles I examine. As I will show, they represent the main groups struggling over Brazilian anti-corruption law, not only in legislative debates but also courts and academia, even before Car Wash. While there may exist lawyers and federal prosecutors who disagree with those involved in the Ten Measures debates, they are likely to occupy a marginal position in the field, hence bearing little relevance in participating in law as a social construction and producing law as a discourse of power. I accessed their speeches through the official written transcripts provided by the House's Publishing Office. Footnote 1
I also analyze two written publications in which defense lawyers and federal prosecutors present their views on the Ten Measures. The first document is the 96-page official justification for the bill forwarded to Congress and authored by a group of prosecutors (MPF, 2015). The second is a publication titled We Are All Against Corruption published by the Brazilian Institute of Criminal Sciences (IBCCRIM), an organization engaged in criminal law advocacy. This publication (IBCCRIM, 2015) is authored by a group of renowned criminal defense lawyers who criticize the Ten Measures. The two documents include references to academic works and international sources, thus helping to identify the discursive frameworks into which their position-takings fit.
The Ten Measures hearings are crucial to grasp how global anti-corruption ideas have reached the Brazilian criminal law field. This event presents a rare occasion in which legal actors discuss the same topic, in the same format, before the same audience. While legal actors often mobilize their ideas in a legal lexicon, speaking to a lay audience encourages them to use more accessible terms. Also, as the bill entails comprehensive legal reform, it expresses their broad worldviews about the topic at hand instead of focusing only on legal minutiae. While the Brazilian Congress never concluded the bill's voting process, Footnote 2 the legal debates around it provide an insightful point of entry to understanding local legal dynamics around the fight against corruption.
I divide the analysis into two research moments. I first map the Brazilian criminal law field. In particular, I look at the sub-field of white-collar crime law where anti-corruption debates occurred. To map the field, I analyze the Ten Measures speakers' professional trajectories through their résumés and secondary bibliography. Résumés are publicly available on the Lattes platform, a standardized system maintained by the Brazilian government. In total, I analyze the résumés of the 16 federal prosecutors and 14 lawyers who spoke at the Ten Measures debates, as well as of the nine lawyers who authored the IBCCRIM publication (three of whom also participated in the hearings) and the 14 prosecutors who wrote the Ten Measures' justification (three of whom also participated in the hearings), totaling 47 actors. Footnote 3
Résumés offer unique insight into the opposing discourses in the field. While field scholars have relied on interviews to map fields (Reference Dezalay and GarthDezalay & Garth, 2010), I argue that résumés reveal more specific information about actors' discursive frameworks. As legal actors necessarily express their worldviews in legal terms (Reference BourdieuBourdieu, 1987), information such as publication titles, research project summaries, courses taught, and institutions attended reveals the discursive frameworks actors have mobilized in the field. In addition, the dated list of a résumé's information allows me to identify shifts in authors' academic and professional activities (e.g., when they have started studying corruption). Résumés also help to determine the forms of capital actors use to defend their views, as they reveal actors' academic prestige (e.g., institutions attended), relation to state power (e.g., participation in policy-related committees), and international ties (e.g., overseas training courses).
After mapping the field, I turn to the Ten Measures debates. To analyze actors' discourses, I employ a mix of deductive and inductive coding using computer-assisted qualitative data analysis software (Reference Emerson, Fretz and ShawEmerson et al., 2011). In this step, I focused on actors' views on the problem of corruption, the solutions they proposed, and how these were linked with global anti-corruption ideas. While deductively using the corruption literature to identify topics of interest (e.g., corruption diagnosis and its solutions, the role of the state and the market), I inductively searched for any common ideas actors mobilized. With this procedure, I identified four global anti-corruption discourses: corruption as underdevelopment, as a sign of cultural inferiority, as a state problem, and as a result of rational choice.
Next, I employed the same procedure to identify actors' discursive frameworks. In this step, I identified the different institutional and legal doctrinal frameworks actors used in evaluating the situation of Brazilian criminal law and their propositions to make it better. With these codes at hand, I returned to the field analysis to show how field dynamics have shaped actors' mobilization of global anti-corruption ideas.
THE FIGHT AGAINST CORRUPTION AND THE BRAZILIAN CRIMINAL LAW FIELD
My study has analyzed the trajectories and discourses of federal prosecutors and defense lawyers, who are the protagonists of the discursive struggles I examine. With almost no exception, federal prosecutors support the Ten Measures wholeheartedly, while lawyers reject them vehemently. As I will show, this reflects the historical division in the field between these two groups, as well as the cohesion within them: members within each group have similar professional trajectories and mobilize the same discursive frameworks.
Specifically, I find that Brazilian prosecutors mobilize global anti-corruption ideas to support their legal reform. But, as I will show, this globalization outcome cannot be reduced to an importation of the global anti-corruption regime. Instead, it is a mobilization of four global discourses of power embedded in the regime: corruption as underdevelopment, inferiority, a state problem, and rational choice. These discourses play an important role in prosecutors' disputes in the field of power, allowing them to frame themselves as representatives of the population and, in the legal field, giving them an external source of capital against academically dominant defense lawyers. However, as I will show, these global discourses are not just weapons that fit prosecutors' interests in a competition for power. These discourses also fit prosecutors' views and identities crystallized in two of their historical discursive frameworks.
The Ministério Público Federal (MPF): Institutional power and the anti-politics framework
Brazilian Federal Prosecutors are members of the Ministério Público (MP), an institution that comprises all Brazilian states' MPs and the Federal MP (MPF). With the 1988 Constitution, the MP became a “fourth power” (Reference ArantesArantes, 1999: 90), independent of the executive branch, with governance and budgetary autonomy and little accountability (Reference Kerche and MaronaKerche & Marona, 2022). Both the federal and state MP's mandates include challenging the constitutionality of laws, speaking in public interest lawsuits, prosecuting crimes, and litigating on behalf of the population's collective rights (e.g., health, education, environment).
In litigating collective rights since the 1980s, the MP built an anti-politics discursive framework. Through doctrinal works, prosecutors advanced the idea that collective rights are a judicial rather than political issue, a perspective Arantes calls “anti-political” (Reference ArantesArantes, 1999, 96). This framework supported the MP's identity as the population's representative against inefficient executive and legislative branches (Reference ArantesArantes, 1999).
In the 1990s, the MP began to employ its anti-politics framework in the fight against corruption. The 1988 Constitution and the 1992 Administrative Improbity Act established the possibility of holding “public agents” accountable for corruption without resorting to criminal law (Reference Arantes, Power and TaylorArantes, 2011). Although the consequences of an improbity conviction are less severe than criminal procedures, the act offers prosecutors some advantages. For example, no intent or negligence needs to be proven, and defendants have fewer procedural safeguards. As a result, state MPs brought thousands of administrative improbity cases to courts (Reference Arantes, Power and TaylorArantes, 2011).
In the 2000s, however, the MPF turned toward fighting corruption via criminal law and built a new discursive framework against “the criminal elite.” After massive investments in accountability institutions—including the MPF—and the passing of white-collar crime laws (Reference EngelmannEngelmann, 2020), Brazil saw unprecedented growth in federal “elite crime” investigations (Reference Arantes, Power and TaylorArantes, 2011). As a result, while the MPF continued using the Administrative Improbity Act, criminal law became its “preferred instrument to fight corruption” (Reference Kerche and MaronaKerche & Marona, 2022: 37).
This shift has led prosecutors to develop new ideas about the MPF's role in fighting crime as well as new theories of criminal law. This new “anti-elite crime” framework was built in reaction to the dominant doctrinal views of criminal defense lawyers who have been working in the field for much longer and hold academic positions at prestigious universities. Therefore, to understand their anti-elite crime framework, it is necessary to look first at defense lawyers' discursive frameworks.
The criminal bar: Academic prestige, “Garantismo Penal,” and critical criminology
Brazilian defense lawyers' discourses are based on two frameworks: critical criminology and Garantismo Penal. The former was developed in the 1960s and 1970s, when Brazilian lawyers began reading European and American criminology, particularly labeling theory and Marxist criminology (Reference VasconcelosVasconcelos, 2014). Labeling theory posits that the criminal justice system stigmatizes already marginalized populations, who then incorporate deviant traits. Mobilizing labeling theory has allowed Brazilian lawyers to argue that criminal law creates rather than deters crime. Marxist criminology, in turn, argues that criminal law sustains capitalism through mechanisms such as punishing working-class individuals who refuse to be exploited. This theory has provided lawyers with arguments about criminal law's immanent problems, such as discrimination against the poor and racialized minorities. One lawyer's résumé illustrates the group's views on criminology. The résumé contains a short description of a research project this lawyer led. According to this description, the project studies punishment transformations in the 1980s in the context of “neoliberal politics,” “the reduction in social policy investments,” and “social exclusion,” which led to a “demand for more repressive penal policies.” Footnote 4
Garantismo Penal, in turn, is a legal doctrine created by Italian jurist Luigi Ferrajoli who holds a politically liberal distrust of state power and advocates for its limitation. For him, the ideal criminal law model criminalizes few conducts, reduces punishment, and strengthens procedural protection (Reference FerrajoliFerrajoli, 1995 [1989]). According to a research project in which two defense lawyers participated, Ferrajoli's model was adopted by the Brazilian 1988 constitution. The project's goal, as described in their résumés, is to make “the Brazilian criminal procedure” compatible with “the constitutional-garantista paradigm,” which serves as “a restriction to the [state's] absolute power, a restriction to domination.” In sum, while lawyers mobilize critical criminology to critique how the law operates, they use Garantismo Penal to make arguments on how the law should operate.
The propagation of lawyers' two frameworks has been facilitated by the Brazilian legal profession's structure. Considering that access to public positions depends on years of full-time study for highly competitive exams and that they are lifelong, there is little mobility across legal occupations. As a result, lawyers hardly ever work as prosecutors and vice-versa. Also, unlike lawyers from other areas, defense attorneys seldom face each other in court and customarily defend the same perspective: that of the defendant against the prosecution. Finally, unlike prosecutors, who work at an institution that covers almost all legal areas, defense lawyers specialize in criminal law early in their careers, as their résumés show.
To develop these two frameworks, lawyers have relied heavily on academia. Since most Brazilian law schools do not require faculty to work full-time, many lawyers are also part-time academics. As the Ten Measures lawyers' trajectories show, many of them have doctoral degrees and post-doctoral experience at renowned European institutions and hold faculty positions at prestigious Brazilian universities while maintaining their practice. Having built this academic prestige, lawyers also have a strong record of participation in legislative hearings and bill-drafting committees where they have used these frameworks to fight “punitivism.”
This does not mean that every criminal defense lawyer in the country shares the Ten Measures lawyers' Garantismo Penal and critical criminology. However, these are the strongest discursive frameworks in the legal field against prosecutors' anti-corruption efforts. The Ten Measures lawyers also represent the interests of their peers. As one lawyer summarizes: “What is sought [by the Ten Measures] is the empowering of the accuser to the detriment of the defense, in a plain imbalance of the procedure” (IBCCRIM, 2015: 13).
The Ten Measures lawyers are among these frameworks' most prominent representatives. These lawyers work at prestigious firms facing prosecutors in court, including in Car Wash cases. They also hold appointments at the country's most important universities, from where they have denounced Car Wash's abuses in lectures and publications such as: “When Criminal Procedure is Washed Away,” “Car Washolatry,” and “Criminal Procedure: Crisis and the Car Wash Standard.” Outside of academia, they formed a group named Prerrogativas, of which nine of the Ten Measures lawyers are a part. The group was created to “defend lawyers' professional prerogatives,” which they claim “were systematically violated in Car Wash's Brazil” (Prerrogativas, 2022). The Ten Measures debates are thus the stage of an ongoing dispute in the criminal law field.
Prosecutors' new activity: American law and the anti-elite crime framework
Prosecutors' anti-elite crime framework is a direct response to lawyers' frameworks. In the Ten Measures' written justification, prosecutors argued that affluent defendants enjoy too many procedural rights, making convictions difficult to obtain (MPF, 2015: 44), and when convicted, the powerful receive overtly lenient sentences (MPF, 2015: 27). Therefore, prosecutors' anti-elite crime framework proposes the opposite of Garantismo Penal: less procedural protection and harsher sentences. Prosecutors also challenge lawyers' critical views on the criminal justice system as inherently problematic, claiming that swift and harsh punishment deters corruption. Together, Garantismo Penal and critical criminology represent prosecutors' main enemy: the “impunity” that stems from lower sentences and an inefficient procedure. As the Ten Measures' written justification states, in the Brazilian criminal justice system, “instead of criminals, it is the victim that suffers, not just from the crime committed, but also from the economic and moral costs of another process without a practical consequence. The biggest penalization is the one that comes from impunity, which stimulates criminality and new legal violations” (MPF, 2015: 62).
The core of prosecutors' argument is that defense lawyers' interpretation of Ferrajoli's work only emphasizes the theory's elements that support their views. As a prosecutor claims in the Ten Measures hearings: “The criminal procedure safeguards are guaranteeing what is protected by criminal law … like the right to life, physical integrity, public and private property, public administration … In other words, Garantismo Penal must be complete [integral in Portuguese].” (PH 1017/16: 3). This argument is developed in a book titled Garantismo Penal Integral, organized by federal prosecutors, two of whom participated in the Ten Measures hearings and the committee that drafted the bill. The book was published in 2010, 4 years before Car Wash was launched, which shows that the Ten Measures is the stage of a longer dispute between prosecutors and academically dominant defense lawyers. As it usually happens in field disputes, those in a dominated position seek to show they have found the true meaning of their adversaries' foundational references (Reference BourdieuBourdieu, 1993).
Another component of prosecutors' anti-elite crime framework is American criminal law. In an environment dominated by lawyers' Garantismo Penal, prosecutors have found in American criminal law the legal ideas to defend fewer procedural safeguards and harsher punishment. The professional trajectory of Car Wash's chief prosecutor and Ten Measures' idealizer, Deltan Dallagnol, illustrates this argument. As Dallagnol recounts in his book, he decided to pursue a Master of Laws degree (LL.M) at Harvard to counter lawyers' academically dominant culture (2017):
If the goal was to win against impunity, it would be necessary to change the legal rules and culture. It was not enough to change the system from the inside; it was necessary to act outside of it, in academia and through [legislative] reform proposals. In this vein, nothing better than seeking [professional] development in the United States, a country where the criminal justice system functions much better than ours and is, at the same time, the cradle of human rights protection (Reference DallagnolDallagnol, 2017: 33).
Indeed, many of the 19 legislative proposals in the Ten Measures are based on American legislation and Supreme Court decisions.
Besides Dallagnol, other prosecutors turned to academia in the 2000s to advance their new anti-elite crime discursive framework. The titles of their master's and doctoral theses illustrate such a move: “The penal selectivity in the abuse of habeas corpus by white-collar criminals,” “Criminal policy and economic penal law: An interdisciplinary study of economic and tax crimes,” “Plea bargaining deals and the effectiveness of the microsystem of public probity protection,” “Financial crimes and their punishment as a legal limit to economic power.”
But implementing this academic strategy is challenging for prosecutors. Unlike lawyers, who have worked in the criminal law field throughout their careers, prosecutors are required to work in different areas of the law. Most of them hold only a bachelor's or master's degree from Brazilian universities, and few hold teaching positions. Prosecutors also have less experience in criminal law as they spend their early career years studying for a general admission exam, begin working in smaller cities with few universities, and rotate more across legal areas. As a result, academia is a difficult medium to advance their views and interests. The success of the 2014 Car Wash prosecution, however, would provide them with other means to achieve their goals.
The Ten Measures: Corrupt politicians and abusive defense attorneys
In 2014, Operation Car Wash became the country's most debated topic and Car Wash's judge and prosecutors became national heroes, revered at anti-corruption protests (de Sá e Reference de Sá e SilvaSilva, 2017). With Car Wash's success, fighting corruption and white-collar crime became the MPF's flagship activity. It also provided, Dallagnol with the opportunity he needed to change Brazilian legislation. With help from other Car Wash prosecutors, he drafted the Ten Measures Against Corruption. Such an initiative would have been impossible if individual MPF members did not enjoy great levels of independence—they can only be fired through a judicial process, are free to have their own legal opinion, and face very little accountability for their actions (Reference RibeiroRibeiro, 2017).
With such independence, a small group of Car Wash prosecutors took on the mission of changing Brazilian law. The bill later became an MPF's institutional project after the MPF's head formed a committee to improve the bill's original draft. Once the draft was ready, the institution launched a campaign to promote the Ten Measures (MPF, 2015). Besides the MPF's official position, the president of its main professional association defended the project in the hearings. Likewise, representatives of important MPF offices supported the bill, such as its head's office and the 2nd Chamber of Coordination and Review, which “co-ordinates and reviews the professional practice of federal prosecutors in relation to criminal matters” (MPF, 2022).
Therefore, the Ten Measures epitomize prosecutors' anti-elite crime discursive framework. The bill's proposals are the product of years of federal prosecutors' institutional learning in fighting corruption and white-collar crime. Throughout the hearings, prosecutors presented the bill as the solution to problems they have faced throughout their careers. In defending the Ten Measures, they mention difficulties in their daily work and specific cases in which justice would have been reached if the Ten Measures were law, including Car Wash.
The MPF prosecutors sought to overturn what they perceived as a power imbalance between them and defense lawyers. For example, the bill's justification claims that attorneys use “abusive” tactics to defend their clients. (MPF, 2015: 62). As one prosecutor summarizes, “the Ten Measures … brings a balance between [the accusation and the defense]” (PH 1017/16: 3). Footnote 5 The bill's final version proposed 20 legislative changes organized into 10 topics. The reform included the creation of six new laws, changes in nine, and one constitutional amendment. Table 1 lists these 20 changes.
TABLE 1 The Ten Measures Against Corruption.
The bill's emphasis on criminal law is clear. Even though criminal punishment is only one way of addressing corruption, it is the Ten Measures' preferred one. Only three measures focus on preventing corruption (Measures 1, 2, and 3, although 2 also leads to punishment), while the rest emphasizes punishment. Among the reforms related to punishment, only three address administrative punishment (11, 12, and 13), three apply to more than one form of punishment, including criminal law (2, 4, 16), and the other 12 are exclusively related to criminal punishment. This trend is noticed by Susan Rose-Ackerman, a Yale Political Science Professor whom prosecutors cite to support their reform (PH 0953/16: 56). Four years after the Ten Measures debates, she argued that the bill “primarily concentrated on streamlining the criminal justice system, not on making fundamental institutional change” (Reference Rose-Ackerman, Pimenta, Lagunes and SvejnarRose-Ackerman & Pimenta, 2020: 200). In sum, the Ten Measures challenge defense lawyers' “minimum punishment” views by focusing overwhelmingly on criminal law.
The Ten Measures also fit prosecutors' anti-politics framework. The bill's proposed three new crimes focus on public employees and political agents: illicit enrichment, non-disclosure of public campaign donations, and money laundering for electoral purposes. Among the nine crimes whose sentences the Ten Measures aim at increasing, only two criminalize private behavior, and eight involve the diversion of public funds by government employees with or without the participation of private actors. Under the bill, a government official who takes a bribe to turn a blind eye to “grand” tax evasion would be sentenced to 12 to 25 years; a private individual who evades the same amount would be sentenced to 2 to 5 years. Just like in the international anti-corruption norm, for the MPF, corruption is transactional, and its solution should focus on demand, not supply (cf. Reference Williams and BeareWilliams & Beare, 1999).
This does not mean that prosecutors oppose criminalizing private corruption. In fact, about a third of defendants prosecuted by Car Wash were connected to business organizations (Reference Ribeiro, Morilas, Rodello, Nasser and BetranRibeiro et al., 2022). However, the Ten Measures proposals follow prosecutors' anti-politics approach, emphasizing public corruption and expanding the “criminalization of politics promoted by Car Wash” (Reference Kerche and MaronaKerche & Marona, 2022: 16).
To promote the Ten Measures, the MPF relied on the media, popular support, and international legitimacy. Lacking the political mandate to pass legislation, the MPF launched a national campaign to gather citizens' signatures in support of the bill. Under the Brazilian Constitution, a “popular bill” can be introduced in Congress if signed by 1% of the electorate. To gather signatures, the MPF created a website with short texts, animated videos, news about corruption, and photos of campaign events, carrying the institution's logo (MPF, 2016).
Prosecutors also relied on global strategies to endorse the Ten Measures. In 2015, Car Wash's Task Force received the Global Investigations Review (GIR) award (Procuradoria Geral da República, 2015). In 2016, Car Wash prosecutors, alongside Car Wash's judge Sergio Moro, received Transparency International's Anti-Corruption Award. The NGO's webpage promoted the Ten Measures and featured a video of Moro and Dallagnol discussing corruption (Transparency International, 2016a). International anti-corruption actors also provided expertise in the MP's crusade: the institution's website, for example, is modeled after Transparency's campaigns (Transparency International, 2016b). As the following sections show, global anti-corruption ideas fit perfectly into prosecutors' “anti-politics” and “anti-elite crime” discursive frameworks developed in their competition against politicians and defense lawyers.
Corruption is a serial killer: Underdevelopment, inferiority, and state blaming
Following the global anti-corruption regime, prosecutors claim that corruption is responsible for Brazil's poor economic and social development. As a prosecutor states, corruption “is behind all the problems we have in Brazil, be they financial, economic or social” (PH 1269/16: 29). In framing corruption as underdevelopment, prosecutors mirror two strategies seen in the global regime: they mobilize both strong affects and statistics to discuss corruptions' harmful consequences.
Prosecutors equate corruption to vicious crimes like murder and sexual assault: corruption is “a serial killer,” “the rape of our homeland” (PH 1201/16: 4), “an immense evil that causes so much damage and bleeds our country” (PH 0953/16: 3). They also equate corruption to a serious health problem. Twenty years after the World Bank's president announced that “we need to deal with the cancer of corruption” (Reference WolfensohnWolfensohn, 1996: 6), the metastasis reached Brazil: “corruption is the great cancer of our society” (PH 1026/16: 4). This framing allows prosecutors to justify the magnitude of their reform. As a judge who supports the Ten Measures puts it: “we don't fight corruption with an aspirin” (PH 1017/16: 44).
Prosecutors also resort to statistics to convey corruption's economic and social impacts: “About 4% of the Brazilian GDP is lost every year from the mishandling of public finances. This amounts to around 200 billion reais” (PH 1269/16: 3). Like the global regime, prosecutors link these financial losses to ordinary Brazilians' quality of life: money lost from corruption “could be used to triple the country's education budget, double the federal government's housing program, increase science funding by thirty percent, or pay for 17 million sessions of chemotherapy” (MPF, 2015: 30). In sum, prosecutors mobilize the global anti-corruption regime's rhetoric and statistics to portray corruption as a fundamental cause of Brazil's perpetual stage of underdevelopment.
Prosecutors also frame corruption as a matter of Brazil's inferiority vis-à-vis other countries. Like “corruption as underdevelopment,” “corruption as inferiority” serves to defend the urgency of the problem. Showing the connection between underdevelopment and inferiority, a reformer argues that Brazil must fight the “source of backwardness” that is corruption, or else the country “will … never be among the top 10 countries to live, grow, raise a family” (PH 1136/16: 23). International rankings play an important part in the diagnosis of Brazil's inferiority: “Hong Kong was seen as the most corrupt place on earth … today Hong Kong is the 17th most honest country in the world according to Transparency International's ranking, in which we occupy the 76th position” (PH 0953/16: 21).
To defend this much-needed change, prosecutors resort to two discourses of Brazilian inferiority. The first links Brazil's corruption to its cultural values. A prosecutor condemns Brazil's “workaround culture” (PH 1026/16: 50), and another explains: “[Brazilians] have no commitment to true capitalism, which is competitive. They do not want to compete. They want to come here and rob the government. They want to suck on the government's tits” (PH 1136/16: 22).
This view reproduces Brazilians' consolidated self-image of cultural inferiority. As Reference SouzaSouza (2017) argues, the Brazilian foundational myth is based on the idea that its people are amicable and friendly but averse to rules. Early twentieth-century Brazilian scholars coined this idea, which is founded on the racist notion of Brazil as a morally flawed society due to its mix of African, European, and Indigenous populations (Reference SouzaSouza, 2017). In the 1940s, the state transformed a “positive” version of the Brazilian myth into national identity, endorsing that Brazil's multiracial culture makes its people more friendly but also prone to rule-breaking. Friendship and social ties become more important cultural values than impersonal laws. The need to break with this negative side of Brazilian culture, thus, provides prosecutors with a popular appeal.
The second type of discourse on Brazilian inferiority explains corruption through poor political decisions. In this framing, Brazil is not corrupt because of its culture but because of its inaction toward fighting corruption. A prosecutor explains that what distinguishes Brazil from other countries is that “as time went by, through the right policies, or choices” (PM 1026/16: 3), other nations became less corrupt. From this perspective, Global North countries are not inherently superior; they have once been corrupt but chose to change. The United States, for example, is presented as a model: “at the beginning of the last century, [it] was a country that had very serious problems of systemic corruption,” which were overcome (PM 1026/16: 3). In reference to the Viking raids on England, another prosecutor states that Nordic countries were once “uncivilized,” but today are a reference in anti-corruption (PM 1026/16: 11).
Finally, prosecutors frame corruption as mainly a state problem. As the section above has shown, the Ten Measures focus overwhelmingly on public actors. As a result, so do the discourses prosecutors use to support the bill. Following the global anti-corruption regime, a prosecutor states that corruption is “the selling out of the public mandate” (PH 1265/16: 3). The written justification of the bill presented to Congress explains the focus on public corruption: “We cannot forget that public employees transit in an environment in which transparency must reign, different from what occurs in the world of private actors, which does not receive investments from society” (MPF, 2015: 21).
Mentioned 16 times in the Ten Measures written justifications, the “white-collar criminal” whom the MPF seeks to punish is a public agent. For example, reformers rely on the global anti-corruption regime to propose measures such as “surprise integrity tests” (in which someone pretends to bribe a state employee) and the creation of the crime of “illicit enrichment,” which occurs when a public official fails to prove the legitimate source of their assets. These measures, a prosecutor argues, are “prescribed by the United Nations” and “recommended by Transparency International,” respectively (PH 0953/16: 23).
This framing of corruption as underdevelopment, inferiority, and mainly a state problem is employed by prosecutors as a discursive strategy against politicians in the field of power. In their opening and closing remarks, reformers frame corruption as an urgent problem, a strategy that mobilizes the population and pressures politicians to pass the reform. Addressing legislative members in their speeches, a prosecutor says: “your excellencies are […] dealing with […] the hopes of two hundred million Brazilians” (PH 0953/16: 13). Another prosecutor asks politicians to muster the “courage to make history, to seize this opportunity to transform Brazil” (PH 1217/16: 25). At the same time, these global anti-corruption ideas are aligned with prosecutors' historical discursive position as representatives of the population against ineffective executive and legislative branches. To that end, they mobilize support for the Ten Measures and frame critics as pro-corruption, that is, pro-underdevelopment and anti-Brazil. “Nobody can raise their voices to be against the project because of the stigma of being in favor of corruption,” a lawyer says (PH 0987/16: 36).
In sum, the global regime provides prosecutors with a discourse that works against their two adversaries. In the legal field, the exogenous (non-legal) discourses borrowed from the global anti-corruption regime support a criminal law reform that challenges lawyers' endogenous dominant discourses of limiting criminal law. At the same time, these ideas help them mobilize the population against politicians in the field of power. Such a discourse is particularly powerful considering the prestige of international authority in Global South countries (Reference MerryMerry, 2003).
I argue that local legal field dynamics amplify this legitimation effect. Prosecutors mobilize corruption as underdevelopment and inferiority to talk about a broad social problem to which they propose specific solutions—based on criminal law. While these solutions require adaptation to the Brazilian legal system, the framing of the problem does not. When presenting these solutions, prosecutors discuss in depth how legal changes would affect the Brazilian justice system and what adaptations would be required. But to frame the problem of corruption as underdevelopment and inferiority, they need to make fewer adaptations, because these discourses are not directly linked to their specific proposed solutions to corruption.
The impunity land: Corruption as rational choice
Finally, prosecutors also mobilize international discourses to claim that individuals are rational actors who calculate the profits and risks to decide whether to engage in corruption. “Corruption as rational choice” supports prosecutors' proposals to increase the risks of engaging in corruption via criminal law. But this use of the global regime to discuss corruption solutions requires more adaptation. While criminal punishment for corruption is part of the global regime, it is not the only one. Global anti-corruption norms, campaigns, and academic works tend to mobilize corruption as rational choice to justify reducing opportunities for corruption and increasing the economic risks through institutional and economic reform. For example, Rose-Ackerman, a global regime exponent cited by a prosecutor to frame corruption as rational choice, recognizes that “our main focus is on institutional reform that reduces corrupt opportunities” (Reference Rose-Ackerman and PalifkaRose-Ackerman & Palifka, 2016: 53).
Brazilian prosecutors, however, adapt “corruption as rational choice” in a narrower way in their struggle against defense lawyers. Prosecutors argue that Brazil is “an impunity land” (PH 1269/16: 31). To support criminal law reform, they link impunity both to insufficient punishment and excessive procedural safeguards. A prosecutor claims that “the penal system is unbalanced toward the defense, toward impunity” (PH 1026/16: 113). Others invoke statistics to back the impunity discourse: “Three out of every 100 cases of corruption in Brazil are punished” (PH 0953/16: 16) or mention popular frustration: “Brazil no longer accepts this feeling of impunity” (PH 0975/16: 37).
While prosecutors' focus on impunity shows a discursive shift away from the global anti-corruption regime's emphasis on institutional and economic reform, they invoke the regime to substantiate their argument. Prosecutors claim that impunity is a problem because, as international experts argue, it is the main reason why individuals engage in corruption. A prosecutor explains: “I'm not the one saying this. It is the biggest corruption experts in the world. They are authors such as Susan Rose-Ackerman, a Professor at Yale University … and Andy Hochstetler, from the United States, a criminology professor that bases his writings on statistics” (PH 0953/16: 20). Another prosecutor states: “Richard Posner, one of the greatest scholars of the relationship between Law and Economics … says that man is, in essence, a rational calculator. Men calculate the costs and benefits of all the activities in which they engage” (PH 1265/16: 3). Thus, impunity may be a local discursive category, but it is legitimated by a rational choice perspective embedded in a global anti-corruption regime.
In sum, prosecutors' discourses of corruption as underdevelopment and inferiority justify the seriousness of the problem. In the field of power, these discourses pressure politicians to pass a bill that goes against their interests. In the legal field, the urgency of the problem makes it difficult for lawyers to publicly oppose the Ten Measures, which makes them look pro-corruption. These strategies, then, help prosecutors advance their new anti-elite crime framework. “Corruption as a state problem,” on the other hand, justifies measures that focus mainly on public corruption and fit prosecutors' historical anti-politics frame. Finally, “corruption as rational” choice fits prosecutors' anti-elite crime framework to argue that impunity is behind corruption, hence justifying harsher criminal law.
“We're all against corruption”: Defense lawyers' critiques of the Ten Measures
Defense lawyers oppose the Ten Measures vehemently. “Opportunistic,” “populist,” “punitive,” “arrogant,” and “fascist” are some of the words they use to describe the bill (IBCCRIM, 2015: 14). However, they do not challenge prosecutors' global discourses on the problem of corruption. Instead, they mobilize endogenous frameworks of Garantismo Penal and critical criminology to criticize prosecutors' criminal law solutions to corruption. The title of their written rebuttal to the Ten Measures' shows that they have no quibble with prosecutors' corruption discourses: “We are all against corruption.” Lawyers' opposition to prosecutors is based on “the way through which the evil of corruption is confronted” (IBCCRIM, 2015: 1). As many lawyers argue, “the ends do not justify the means” (PH 1072/16: 2). But by focusing on the means whereby prosecutors seek to end corruption, this position implicitly accepts global discourses of corruption as underdevelopment, inferiority, and a state problem.
I argue that four factors have contributed to this outcome. First, the nation's anti-corruption sentiment may have discouraged lawyers from countering prosecutors' discourses on the problem of corruption. However, even if lawyers wanted to criticize these discourses, legal field effects made the “space of possibilities” for this critique unlikely. Second, prosecutors' criminal law proposals threatened lawyers' abilities to defend their clients and challenged their identity as critics of criminal law intervention, crystalized in Garantismo Penal and critical criminology. Third, these two academic discursive frameworks were lawyers' strongest weapons against adversaries with wide popular support. Fourth, these two discursive frameworks have been historically developed solely to discuss criminal law. Consequently, they do not offer lawyers any discourse to counter corruption as underdevelopment, inferiority, and a state problem, only rational choice (which lawyers partially rebut). This is true even though Garantismo Penal and critical criminology are based on worldviews that are at odds with those embedded in prosecutors' discourses, such as neoliberalism. I now turn to each of these four arguments.
The national anti-corruption sentiment may have discouraged lawyers from resisting prosecutors' discourses on corruption as a major social problem. As noted, when the Ten Measures were debated, the Brazilian people saw corruption as the country's biggest problem (Reference MendonçaMendonça, 2015) and Car Wash was portrayed daily in the news in a positive light (de Sá e Reference de Sá e SilvaSilva, 2020). This context put lawyers in the difficult situation of being labeled as “pro-corruption.” A lawyer complains: “To talk about anti-corruption measures is always a problem … One is always walking on thin ice when one defends that constitutional protection is for everyone because, sometimes, this may lead to the interpretation that one is defending the corrupt” (PH 1072/16: 2). Another puts it more bluntly: “The issue is that to say one is against corruption is like saying one is against cancer: those that disagree with that would be quickly diagnosed as crazy” (PH 1185/16: 19). Therefore, criticizing discourses of corruption as inferiority, underdevelopment, and a state problem could make lawyers be perceived as diminishing an issue that greatly concerned the Brazilian people.
But context alone cannot explain lawyers' lack of resistance to prosecutors' anti-corruption discourses. I argue that three other effects internal to the legal field have contributed to how lawyers reacted to the Ten Measures. First, the bill threatened lawyers' abilities to defend their clients and challenged their identity as critics of criminal law expansion. As a result, lawyers saw the Ten Measures not as an anti-corruption bill but as a proposed criminal law reform. A lawyer claims: “[the bill] has no real relationship with preventing corruption. It is a proposal for a radical reform of criminal law and criminal procedure” (PH 1185/16: 12). More than that, this radical reform would make lawyers' daily work much harder when facing prosecutors in court: “[the bill] would give all power to the MPF!” (IBCCRIM, 2015: 24). Another lawyer pleads: “Don't take the means of defense away from me” (PH 1215/16: 19).
Prosecutors' proposals also challenge lawyers' identities as defenders of Garantismo Penal: “My concern is about the extent to which this legislative proposal harms the rights and safeguards established by the Constitution” (PH 1067/16: 2). Some lawyers go as far as to argue that the Ten Measures' penal changes are comparable to the criminal law of the Brazilian military dictatorship, which suspended criminal defendants' rights. As a lawyer summarizes, the Ten Measures “bring us memories of the darkest time in our history” (PH 1077/16: 21). In lawyers' view, the bill is “punitive” and “anti-democratic” (IBCCRIM, 2015: 14; PH 1215/16: 24).
The correlation of forces in the legal field also contributed to lawyers' emphasis on criminal law, not corruption. As noted, the global anti-corruption regime gave prosecutors international capital to fight academically dominant defense lawyers. Facing an adversary with popular support and international legitimacy, lawyers' academic discursive frameworks of Garantismo Penal and critical criminology were their strongest weapon.
Lawyers' critiques of the Ten Measures' theoretical basis illustrate this argument. As a lawyer posits, criminal law and criminal procedure have a “theoretical corpus” whose concepts cannot be “employed thoughtlessly” (IBCCRIM, 2015: 10). Lawyers also mobilize their academic capital and criticize the MPF's use of grammar, style, and legislative “technique” (IBCCRIM, 2015: 20). They also mention scholars outside of the legal field to support their arguments, such as Immanuel Kant and Sigmund Freud. For lawyers, the prosecutors' bill is “vulgar” and “condemns theory to exile” (IBCCRIM, 2015: 10).
Finally, I argue that lawyers' discursive frameworks did not offer them ideas to counter prosecutors' anti-corruption discourses. This is true even though Garantismo Penal and critical criminology are based on worldviews that are at odds with prosecutors' corruption discourses. As I will show, lawyers denounce the “marketization,” “capitalism,” “neoliberalism,” and “ideology of globalization” promoted by the Ten Measures. However, unlike critical corruption scholars, lawyers' rebuttal of these ideas is directed at prosecutors' use of criminal law, not global anti-corruption discourses.
I argue that both Garantismo Penal and critical criminology were developed to fight criminal law expansion, not anti-corruption discourses. Despite lawyers' vast academic publishing, their résumés list few studies of corruption. Before the Ten Measures campaign was launched in March 2015, only one lawyer among the 17 with a Lattes résumé available had an academic publication with corruption in its title. This contrasts with over a thousand journal articles, books, and chapters published before 2015. I illustrate this argument by comparing lawyers' discourses with critical corruption scholars' critique of corruption as underdevelopment, inferiority, a state problem, and rational choice.
Scholars have criticized the global anti-corruption regime for framing corruption as responsible for Global South countries' underdevelopment. This framing blames these countries' populations for their social and economic problems. In so doing, it erases the fact that these problems are caused by an unjust global economy and a history of colonial exploitation (Reference de Graaf, Wagenaar, Michel, de Graaf, von Maravić and Wagenaarde Graaf et al., 2010; Reference Gutterman, Kukucha and AndersonGutterman, 2016). In contrast, lawyers begin their speeches by briefly acknowledging that corruption is a serious problem. A lawyer states: “Any law that fights crime and respects the Constitution will have … my support” (PH 1072/16: 11). Their written publication even uses similar rhetoric as prosecutors to talk about corruption: “There is no doubt that corruption sordidly erodes institutions, hampers a country's development, and ultimately eliminates funds that should be destined to the wellbeing of society's most vulnerable groups” (IBCCRIM, 2015: 1).
Lawyers also do not counter the imperialism in discourses of corruption as underdevelopment. Yet, the global regime is an imperialist construction. Only a few powerful states participate in its making (Reference DavisDavis, 2019), and its practices and discourses contribute to Global North domination. Institutions such as the International Monetary Fund and the World Bank export these discourses and policies through structural adjustment programs (Reference de Graaf, Wagenaar, Michel, de Graaf, von Maravić and Wagenaarde Graaf et al., 2010); international organizations create indicators to measure corruption and sort countries into global rankings, often made with little concern for a country's local characteristics (Reference BukovanskyBukovansky, 2006); and international NGOs blame and shame countries to pressure them into compliance (Reference Gutterman, Lohaus, Kubbe and EngelbertGutterman & Lohaus, 2018).
In contrast to these critiques, lawyers condemn the Ten Measures' imperialism for importing American criminal law. In their written publication, they argue: “Translations' are automated under the ideology of globalization on account of apparently free communication between models, but essential considerations are neglected such as: (a) what are the intentions behind them? (b) what kind of political economy governs the flows between donor and recipient cultures?” (IBCCRIM, 2015: 11). While this argument challenges' imperialism, it does not refer to corruption but to the incompatibility between Brazilian and American criminal law: “The North American criminal procedure model, which apparently served as reference for the legislative modifications suggested, is the “social control of crime,” which attributes to criminal procedure the predominant function of fighting crime” (IBCCRIM, 2015: 11). This model, “is not compatible with our constitutional model” (IBCCRIM, 2015: 11). Therefore, even when lawyers move away from criticizing prosecutors' technical criminal law solutions and focus on the assumptions behind these solutions, they do not counter prosecutors' discourses on corruption.
The global anti-corruption regime, however, is also an instance of American imperialism. As critical corruption scholars have pointed out, the global anti-corruption regime was born from the United States' pressure on other countries to mimic American law and forbid their companies from bribing foreign officials (Reference Gutterman, Kukucha and AndersonGutterman, 2016). In addition, lawyers fail to adopt the critique that the United States enforces its anti-corruption laws against non-American companies, collecting billions of dollars in plea agreements, including the Brazilian Petrobras at the center of the Car Wash scandal (Reference Gutterman, Margolies, Özsu, Pal and TzouvalaGutterman, 2019).
Critical corruption scholars have also criticized the racist undertones of the global anti-corruption regime in portraying Global South populations as morally defective (Reference KajsiuKajsiu, 2013). My study shows that prosecutors do not refer to racialization, but their discourses on the inferiority of the Brazilian people have racist roots (Reference SouzaSouza, 2017). As corruption is framed as a moral problem (Reference de Graaf, Wagenaar, Michel, de Graaf, von Maravić and Wagenaarde Graaf et al., 2010; Reference Gutterman, Kukucha and AndersonGutterman, 2016), corruption as inferiority also conveys the idea that Global North populations are morally superior.
Here, too, lawyers do not counter prosecutors' discourse of corruption as inferiority, even though concerns with racism are part of lawyers' critical criminology framework. Racism appears in a few of their critiques of the Ten Measures, but only insofar as it is connected to prosecutors' criminal law solutions. For example, questioning prosecutors' proposal to expand the possibility of seizing assets from organized crime, a lawyer claims that organized crime is a “concept used to fight the imaginary internal enemies of the racist state” (IBCCRIM, 2015: 24). In sum, their discursive frameworks allow them to challenge racism in the criminal justice system, but not in corruption discourses.
Lawyers also do not counter the neoliberal ideas in prosecutors' discourses of corruption as a state problem. As anti-corruption scholars have argued, the regime's definition of corruption as “the abuse of public power for private gain” portrays corruption as a state rather than a market problem (Reference Gutterman, Kukucha and AndersonGutterman, 2016: 9). This discourse portrays “businesses as victims of corruption” (Reference KajsiuKajsiu, 2013: 29). However, this is a very narrow conception of corruption, shifting the narrative away from harmful practices in the private sector, such as tax evasion (Reference Bukovansky, Cooley and SnyderBukovansky, 2015). This definition also fails to consider how global capitalism's inherent characteristics contribute to corruption, like the private concentration of economic power (Reference Morck and YeungMorck & Yeung, 2004). Besides, the global regime's solution to corruption is neoliberalism: economic deregulation and privatization (Reference Brown and ClokeBrown & Cloke, 2004; Reference BukovanskyBukovansky, 2006).
And yet, Brazilian defense lawyers do not see neoliberalism in prosecutors' corruption discourses, only in their criminal law solutions. None of the lawyers echoes critical corruption scholars' critique of neoliberalism, even though many of them have been critical of neoliberalism throughout their careers. According to one lawyer: “The neoliberal ideology and the market logic that inform the proposals emphasize the rationality of an apparent modernization in the penal system but hide the reality of bureaucratization and ‘administrativization’ of the punitive power of the capitalist state” (IBCCRIM, 2015: 24). It is the “punitive power,” not the global anti-corruption regime, that lawyers consider neoliberal.
Lawyers' discussion of specific legislative changes illustrates this argument. One lawyer considers “surprise integrity tests” problematic not because they promote a negative view of the state, as critical corruption scholars argue (Reference Anderson, Heywood, de Sousa, Lamour and HindessAnderson & Heywood, 2012), but because they violate one of Garantismo Penal's core axioms: “Punishment, in a democratic state, should focus not on intention but on culpability and the occurrence of an actus reus [fact]” (PH 1067/16: 43). While lawyers reject neoliberalism, they do not oppose it in prosecutors' discourses of corruption as a state problem, only in their criminal law solutions.
Lawyers' resistance to corruption as rational choice is different, however. On the one hand, lawyers do not echo critical corruption scholars' claims that corruption as rational choice erases structural problems by focusing on individual behavior and framing corruption as a technical problem, hence legitimating standardized global models (Reference BukovanskyBukovansky, 2006). On the other hand, lawyers reject prosecutors' rational choice by mobilizing the argument, embedded in critical criminology, that increasing sentences does not deter crime: “If increasing sentences reduced crime, Brazilian prisons would be empty because in the last 40 years we have systematically increased sentences for all crimes” (PH 0987/16: 71). Although this increase in sentences occurred only in relation to blue-collar crime in Brazil, this lawyer rejects deterrence for corruption. Another argues that “criminological studies show that the only effective answer to crime is […] one's integration into the economic, political, ideological, cultural, and labor realms” (PH 1067/16: 6). This assessment relates to blue-collar criminality since the individuals targeted by the Ten Measures are fully “integrated” into society. Another lawyer is more sensitive to the fact the Ten Measures is about white-collar crime: “Differently from other crimes, white-collar crimes are learned. Raising sentences, as was proven in the United States, had no effect” (1072/16: 26). In sum, despite their emphasis on crime, not corruption, lawyers rebut prosecutors' rational choice discourse, which differs from their silence about corruption as underdevelopment, inferiority, and a state problem.
Discursive mismatch and globalization by stealth
I argue that Brazilian legal actors' dispute is characterized by a discursive mismatch. To discuss the problem of corruption, prosecutors mobilize discourses exogenous to the legal field and imported from the global anti-corruption regime (corruption as inferiority, underdevelopment, and a state problem). To counter prosecutors' criminal law solutions to corruption, defense lawyers mobilize legal discourses historically embedded in their professional identities (critical criminology and Garantismo Penal). This mismatch makes global anti-corruption ideas reach Brazil uncontested. Prosecutors' discourses already carried great influence in Brazilian society, given Car Wash's popularity (de Sá e Reference de Sá e SilvaSilva, 2017). But the fact that there is no resisting discourse from the main actors in the realm where corruption is discussed amplifies this legitimacy. I call this process globalization by stealth not because actors hide their global discourses but because these discourses go unnoticed in their local struggle, as Figure 1 shows.
Figure 1 Discursive mismatch and globalization by stealth.
Prosecutors mobilize global anti-corruption discourses using their anti-politics discursive framework developed to criticize politicians. They do so to justify an American-inspired criminal law reform based on their anti-elite crime framework, which challenges defense lawyers' views. Lawyers, in turn, mobilize their discursive frameworks of critical criminology and Garantismo Penal to resist prosecutors' general solution to crime (deterrence based on rational choice) as well as their specific solutions based on American law. Yet, lawyers do not resist prosecutors' discourses on the problem of corruption. While neither group seems to intend to promote Global North interests, the way their dispute unfolds legitimates global anti-corruption discourses.
Specifically, three anti-corruption discourses were globalized by stealth: the first is that corruption is Brazil's biggest and most urgent problem, responsible for the country's underdevelopment and its population's poor living conditions. Second, Brazil is inferior to Global North countries because of its morally defective culture or its historical inability to make correct political decisions; and third, corruption is mainly a state rather than a market problem. And while the fourth argument, corruption as rational choice, is indirectly resisted by lawyers' rejection of deterrence, it conveys the idea that human beings are rational calculators. As I have shown in the section above, these discourses legitimate Global North and capitalist domination (see Table 2).
TABLE 2 Prosecutors' global discourses.
Despite its potential, my field analysis has some limitations. More in-depth knowledge of field dynamics would be gained by combining my analysis of legal actors' discourses and résumés with traditional field theory methodologies. As field scholars have shown, in-depth interviews can reveal detailed information about how actors' competitions influence each other (Reference Dezalay and GarthDezalay & Garth, 2010). Similarly, multiple correspondence analysis is a suitable way to capture oppositions in the field (Reference BourdieuBourdieu, 1993). My examination of actors' discourses and discursive frameworks would also benefit from archival analyses of legal actors' publications and ethnography of other sites where they discuss the law, such as academic events and courts. Combined, these methods would give greater insight into other factors that contribute to actors' adaptation and resistance to global ideas, such as class origin and divisions within the two groups analyzed.
The scope of my analysis also presents some limitations regarding sources, actors, and time. The Ten Measures debates are an important event in the Brazilian fight against corruption, and federal prosecutors and defense attorneys are crucial actors in this process. However, other spaces where these debates have been held, such as the media, courts, and academic events also have the potential to influence how anti-corruption ideas are spread in the Brazilian legal field and to the population. Besides, analyzing other discourses from the legal field and other professional fields would capture more voices in the public debate and alternative framings of corruption.
It should also be noted that the Ten Measures occurred at a particular historical moment. Since 2016, Car Wash has lost much of its media and popular support. In 2019, leaked messages showing Car Wash's judge, Sergio Moro, directing the prosecution strengthened the narrative that the operation was politically motivated. Bolsonaro's presidency worked to dismantle the investigation, now fully over. Therefore, future research should investigate how recent political events changed the “space of possibilities” available to legal actors (and others) to discuss corruption and what discourses emerged as a result.
CONCLUSION
I have shown how local field dynamics in Brazil have contributed to a globalization by stealth of anticorruption ideas. Prosecutors' field position vis-à-vis lawyers and politicians helps understand their mobilization of global ideas. Since the 1980s, they developed an anti-politics framework to criticize the executive and legislative branches in their litigation of collective rights and create an identity as the people's representatives. Corruption as underdevelopment, inferiority, and a state problem fits this framework and helps prosecutors argue for the seriousness of corruption and the need to punish politicians and public employees. Since the 2000s, federal prosecutors have increased their activity in the criminal law field, academically dominated by elite defense attorneys. To counter these attorneys, they developed an anti-elite crime framework. Corruption as rational choice fits this framework, helping prosecutors argue that harsher punishment will make individuals think twice before engaging in corruption.
Lawyers agree, although in passing, that corruption is a serious problem. The issue, they claim, lies in prosecutors' criminal law solutions to it. The anti-corruption sentiment at the time may have discouraged lawyers from countering prosecutors' anti-corruption discourses. However, I argue that their main discursive frameworks developed in previous field competitions did not offer them a repertoire to counter prosecutors' global discourses. Both Garantismo Penal and critical criminology have been historically developed to address criminal law expansion, not corruption. Even though these frameworks are critical of some of the worldviews in prosecutors' anti-corruption discourses, like neoliberalism and imperialism, lawyers have used them narrowly to address criminal law issues, not the global fight against corruption. As a result, prosecutors' global anticorruption ideas are not contested locally.
This analysis offers several contributions to the law and globalization literature. First, it highlights the importance of analyzing discourses in legal globalization outcomes while also focusing on globalization processes. Although processual scholars acknowledge law's power in promoting global discourses of domination (e.g., neoliberalism), their analyses have focused more on the specific legal transformations driven by these discourses (Reference Halliday and ShafferHalliday & Shaffer, 2015; Reference JodoinJodoin, 2019; Reference Levi, Hagan, Dezalay and GarthLevi & Hagan, 2012). To fill this gap, the paper combines processual theories' emphasis on legal actors' disputes for power with the law and colonialism scholars' focus on the law's role in promoting imperialist and capitalist ideas.
Drawing from these literatures, the paper proposes a discourse-centered field analysis. This approach conceptualizes local actors' mobilization of global ideas as discursive position-takings in local disputes for power. Without this step, the Brazilian case would have been interpreted as an instance of globalization of anti-corruption and criminal law reforms, not corruption as underdevelopment, inferiority, a state problem, and rational choice. My findings show the importance of considering in more detail the discourses of domination involved in the construction of “transnational legal orders” (Reference Halliday and ShafferHalliday & Shaffer, 2015), global legal “orthodoxies,” (Reference Dezalay and GarthDezalay & Garth, 2010) and “world society” culture (Reference Meyer, Boli, Thomas and RamirezMeyer et al., 1997).
Second, this paper highlights the impact of discourses on legal globalization processes. Without a textual analysis of the opposing groups' discourses, the Brazilian case would have been interpreted simply as a globally inspired anti-corruption reform, met with fierce local resistance. However, drawing from field scholars, this analysis shows how prosecutors' international strategies helped legitimate an anti-corruption global orthodoxy. This paper also demonstrates how such an orthodoxy was upheld by a “legitimacy chain” formed by the global anti-corruption and the Brazilian criminal law fields (Reference ContiConti, 2016). In this chain, the anti-corruption regime, legitimated by economic ideas in the global field, is legitimated by criminal law in the Brazilian legal field.
My study advances this scholarship by locating yet another field mechanism that contributes to the legitimation of global ideas. By looking at the discourses in local legal actors' disputes over global ideas, I show that these ideas became legitimate because of the discursive mismatch between global regime importers and their main adversaries, which led to the globalization by stealth of discourses of global domination. This finding suggests the potential for law and society scholarship to consider not only discursive mismatch and globalization by stealth as mechanisms driving globalization processes but also other ways in which discourse impacts globalization processes. As argued in the introduction, this contribution can be applied to the study of any legal dispute, not just globally inspired ones.
The paper's third contribution lies in new insights into the role of local discursive frameworks in shaping legal globalization. It combines processual approaches' emphasis on local disputes over state power with anthropologists' concern with the interaction between local and global culture. This proposition entailed conceptualizing actors' field positions not only in terms of resources, interests, and general worldviews but the specific identities and doctrines they have historically developed. This analysis has allowed me to capture how prosecutors' anti-politics and anti-elite crime discursive frameworks have contributed to their importation of four specific global anti-corruption discourses. It has also allowed me to grasp how lawyers used Garantismo Penal and critical criminology to counter prosecutors' criminal-law-related ideas but not their corruption-related ones. If prosecutors' and lawyers' disputes were only conceptualized as being driven by interests and resources alone, prosecutors' nearly adaption of four anti-corruption discourses and lawyers' lack of resistance would have been difficult to grasp.
This emphasis on discursive frameworks also offers contributions beyond law and globalization by showing the importance of examining the inside world of legal actors' doctrinal and professional ideas, such as Garantismo Penal and critical criminology. Law and society studies have historically taken an “outsider perspective on the law” (Reference RilesRiles, 2011: 15; see also Reference Morrill, Edelman, Fang and GreenspanMorrill et al., 2020). In so doing, the field has mostly disregarded legal ideas as law on the books to focus on the social forces beyond doctrine, or law in action. Yet, my analysis shows that there is much action in how law on the books is made, and law on the books bears great influence over such action.
ACKNOWLEDGMENTS
I wish to thank the three anonymous reviewers and LSR editors, as well as Ron Levi, Sida Liu, Calvin Morrill, James Williams, Kristin Plys, Luisa Schwartzman, Lucas Pilau, Mariana Prado, Markus Schafer, Miriam Smith, Natália Otto, Ping-Chun Hsiung, Roberta Pamplona, Todd Foglesong, Vitor Dias, and the participants of the University of Toronto's Sociology Research Practicum for their written comments on earlier drafts of this article. Previous versions of this article were presented at the 2019 Law and Society Association Annual Meeting, the 2021 American Sociological Association Annual Meeting, and the Danish National Research Foundation's Centre of Excellence for International Courts' workshop “Continuity and Change in the Legal Profession”.
FUNDING INFORMATION
This work was supported by the Vanier Canada Graduate Scholarships (Vanier CGS) and Social Sciences and Humanities Research Council (SSHRC) Insight Grant (# 435-2021-0204).
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