The Tragedy of the Intertemporal Fiscal Commons: Fiscal Responsibility, Surface Legality, and Short-Term Incentives in Brazil

This article proposes a legal-institutional interpretation of Brazil’s fiscal difficulties through the concept of the intertemporal fiscal commons. The central argument is that the public budget should not be understood merely as an annual accounting instrument or as a technical object of fiscal policy, but as a shared institutional resource distributed across branches of government, social groups, political cycles, and generations. Brazil’s fiscal problem does not arise only from the absence of rules or from occasional noncompliance with formal fiscal constraints. It also arises from a deeper institutional pattern: multiple legally authorized actors can extract present benefits from the fiscal commons while transferring part of the aggregate cost to future budgets, future governments, taxpayers, and future generations. The article argues that the Brazilian Constitution, the Fiscal Responsibility Law, Law No. 4,320/1964, and Complementary Law No. 200/2023 contain significant fiscal restraints, but these restraints are better suited to address visible budgetary illegality than sophisticated forms of fiscal expansion operating through surface legality, quasi-fiscal mechanisms, revenue waivers, credit instruments, deferred obligations, contingent liabilities, and institutional fragmentation of responsibility. The paper develops three analytical ideas: short-term constitutionalism, surface fiscal legality, and the intertemporal fiscal commons. It concludes that fiscal responsibility should be reconstructed as a substantive principle of public law designed to protect the State’s future capacity to act, rather than as mere formal compliance with annual fiscal metrics.