a journal of modern society & culture

Society against State: The Brazilian Crisis Beneath the Surface

Crisis, Democracy and Reaction

The current Brazilian crisis is redefining the boundaries between law and politics for a second time in less than 30 years in a dramatic and radical fashion. For different reasons, when the music stops, Brazilian politics and law will never be the same again. It seems that the Brazilian justice system has revealed the corrupt core of our public life, which has been open for business since at least the late 1980’s.[1]

braziliancrisis400x300 In varying degrees, most representatives of power seem implicated in this plot: the political parties as a whole and almost all of the leading political and business figures as well. This process can either open up an opportunity to radicalize Brazilian democracy or become an excuse to dismantle it. Thus, the crisis is not only about corruption; it is also related to radical democracy, and particularly to the so-called second wave of radical democracy that was born within Brazilian civil society.

The first wave of democratization took place when the Brazilian people were still living under a dictatorship. It eventually led to the 1988 Constitution, which include a long chapter on social rights and was based on a struggle-for-rights strategy that produced a strong and influential judiciary and system of justice. In fact, this state branch has been crucial to meet Brazilian society’s ever-growing demands. In the past twenty years, the judiciary – particularly the Supreme Court – has played a central role in Brazilian politics. It has finally started to rule on controversial cases that used to wait long on its shelves, such as traditional communities’ land rights, the abortion of anencephalic fetuses and gay marriage.[2] Furthermore, the Supreme Court was endowed with exclusive jurisdiction in the “Mensalão” (“monthly pay-off”), a criminal trial about corruption scandals during President Lula’s terms that involved federal authorities, including important members of his government. The justice system, the police, the Public Prosecutor Office and the judiciary, are all currently involved in the “Lava-jato (car-wash) Operation”[3], a joint and massive initiative to fight corruption in Brazil. One can interpret these transformations as a response to the corrupt political system, which seemed to have turned its back on the demands of civil society and dedicated itself to maintaining power for its own sake.

The implementation of the constitutional rights established in 1988 was partially sabotaged by a conservative political culture and structure called “pemedebismo,”[4] which was first put into practice during the Brazilian Constitutional Assembly (1987-1988) in order either to avoid the recognition of social rights within the constitution or to weaken its enforcement and implementation. Also, both the deregulation and transnationalization of markets in the 1990´s have played a role in weakening/undermining the force of this struggle-for-rights impulse by diminishing the power of the State to control and tax capital in order to fund public social policies.

The ongoing social process triggered by the second wave of radical democracy is civil society’s reaction to the aforementioned “pemedebismo” phenomenon, a political arrangement that has made the state largely indifferent to social demands. As far as this new wave of democratization is concerned, its specific form of institutionalization is yet to be determined. Nevertheless, both the autonomist inspiration and anti-hierarchical form of social action[5] of such a wave may well have given birth to a generation of activists who are not particularly interested in taking part in traditional politics or even occupying state power positions. Rather, these activists are mostly concerned with creating self-organized forms of action using art and culture as a tool.[6]

Today’s wave of social activism might be absorbed by traditional politics and have its innovative potential frustrated, or it could have important long-term consequences that should be taken into account when analyzing the current crisis. There might be either a systematic disregard for the state, so as to develop anarchic and experimental autonomous zones, completely free from its influence; or perhaps the rise of a new form of state, which is deprived of (most of) its power to directly regulate society, but which in turn still plays a central role in stimulating and partially financing the various self-regulating social fields, as well as helping them cope with conflicts that occasionally appear.[7]

If the latter possibility should happen to occur, an all-mighty state will not exist any longer. Instead, a coordination entity would take over the country’s affairs, sharing its sovereign power with society, giving back normative power to the latter ‒that is, a form of power presently concentrated in parliament ‒, and dedicating itself primarily to solving conflicts among the many partially autonomous zones. Even though it is not easy to imagine such a possibility taking place in reality ‒ as our political imagination seems to be almost completely dominated by the State and civil society duality[8] ‒ it is necessary to seriously consider this prospect in order not to prematurely subsume what could be innovative about this new wave of social activism in the traditional political grammar.

As a matter of fact, it is important to point out that the current political crisis is partially a positive result of the development of a strong justice system, designed to implement the Brazilian constitution and include an autonomous and very well-paid judiciary, as well as an equally powerful and well-paid federal and state prosecutor, that is, a public agency responsible for representing social interests in crime investigations and trials (corruption included), and proposing a Brazilian version of class actions to address environmental issues, among other collective or universal questions. Moreover, it is worth noting that the state and federal prosecutor have become so powerful and autonomous today that it makes sense to describe them as a new state power rather than a mere agency among others.

Over the last two years, almost every single week Brazilians have had to deal with shocking new revelations of a complicated, widespread and long-lasting corruption scheme, which has been uncovered in “Operação Lava-Jato” by the state prosecutor with the aid of the federal police and the federal Department of Justice. On the one hand, there has not yet been any conclusive proof that all of those involved in this scheme have use power for private gain. That is one of the reasons why a significant part of the country’s population went to the streets to oppose the impeachment of Brazil’s President Dilma Rousseff from the PT (Workers’ Party), and has systematically cast doubts about how the federal Justice has been treating the former President Lula. On the other hand, there seems to be no compelling reason to doubt that all political parties and a large number of leading political figures, including those from the PT, received a substantial sum of money from some of the main Brazilian contractors to finance their campaigns, personal expenses, and party expenses.

Bearing all that in mind, one may draw the conclusion that “Operação Lava-Jato” has unearthed a deep and fundamental structure of Brazilian politics. Of course, there is a chance that everything will remain the same, with business as usual prevailing over other areas after some scapegoats are sacrificed on the altars of our society of the spectacle. But this “tudo termina em pizza” (“everything ends up in pizza”) scenario – to quote a well-known and widespread Brazilian euphemism for impunity – seems less likely to occur this time around if one examines the evolution of the rule of law in Brazil and the roots of the system put in place to prevent and investigate corruption. Since the promulgation of the 1988 Constitution, Brazil has experienced a radical transformation of the rule of law, which has changed the way politics operates, and which will certainly change the country’s self-image. When the power, duties and income of the police, judges and prosecutors do not depend only on political negotiations[9], but derive directly from the text of the Constitution, it become less likely that they will be manipulated by political interests.


The First Wave of Democratization: The 1988 Constitution and “pemedebismo

Before 1988, left-wing thought and social activists had never taken law seriously in Brazil, and that was for a good reason. Brazilian politics has always functioned top to bottom and been used law mainly to legitimize autocratic decisions. During the twentieth century, the country alternated between short democratic periods followed by coup d’états and long periods of authoritarian government in which the democratic rule of law did not exist. It is only now that Brazil is experiencing its longest democratic period, almost 30 years.

Orthodox Marxist and Foucauldian approaches to law still tend to prevail among the Brazilian academic left as these theories provided a relatively accurate description of Brazil’s reality, at least through 1988.[10] As far as a Brazilian left-wing intellectual’s task, such a thinker has always been expected to denounce the oppression implemented by means of law and not to explore its potential double-edged properties, as Franz Neumann put it in the preface of The Rule of Law.[11] For law will acquire this double-edged character only if it becomes a matter of contestation between the classes in parliament and the judiciary.

Neumann states that when the lower classes start fighting for its rights, it exposes the inequality of bourgeois law, especially regarding contracts and property.[12] This fight makes it clear that contracts conceal an unfair exchange of work for wages, and that property rights disguise self-interest. To bring some balance to the “exchange” promoted by labor contracts, it is necessary to add several obligatory clauses to them, which limit exploitation by granting social rights to all workers.

Mandatory social rights both compensate and expose the inequality of work under capitalism, as well as and the inequality of the freedom of contract. During the Weimar years the concept of social function of property appeared to regulate goods in the name of social interest rather than the purely egoistic interests. To hold property then was no longer a matter of merely satisfying one´s own individual needs; on the contrary, it was related to using things economically in a way that takes the social interest into account.

Most importantly, those changes in the function of law, which were caused mainly by certain transformations in the structure and functioning of state powers due to the configuration of social conflict, started to limit bourgeois control over capital. That is why, as Neumann asserts, Nazism followed the democratic effervescence of the Weimar Republic. When the rule of law is put in the service of the oppressed classes and menaces the bourgeois power over capital ‒ for example, by guaranteeing social rights and restraining the control over property ‒ the bourgeoisie tends to try to escape from law [13]by providing support to irrational and autarchic forms of government or regulation, which neutralize demands from civil society. To illustrate that point, one may come up with regional and global examples from different times ans contexts, such as the Nazi regime or the Brazilian “pemedebismo” phenomenon[14], as well as the so-called transnational private regimes[15] respectively, which even traditional theorists like Gunther Teubner admit, it tends to become authoritarian.[16]

Neumann generalized his analysis to the USA during the 1950’s by using the concept of false legality and political alienation.[17] Only if formal institutions do not respond to social demands appropriately will society tend to feel alienated from politics. Such a state of affairs, combined with some psychological factors and certain legal circumstances, facilitates the rise of authoritarian forms of rule. One of those alienated forms of the state is discriminatory legality. For example, during the McCarthy period, public servants were investigated and finally dismissed simply for being accused of communism. Although the state had the right to dismiss its servants during that period, Neumann argued that this right was exercised in a discriminatory manner. The state used the universal form of the law to disguise its discrimination against communists, thus disrespecting popular sovereignty by creating a zone in which law was used arbitrarily.

A democratic law should allow social conflicts to impact the performance and design of formal institutions, thereby upholding the sovereignty of individuals and keeping them legally free from state control. Neumann makes this point clear in the last pages of his introduction to Montesquieu’s The Spirit of Laws,[18] where he states that the classic view of the separation of powers (in his social context) should be abandoned, as it constitutes an obstacle to social transformation. Contrary to ordinary interpreters, Neumann argued that Montesquieu’s separation of powers consisted in the idea that no power should be allowed to make a decision without revision. That is all.

As far as state powers are concerned, they must not necessarily have a delimited number beforehand (two or three, for instance) nor a predetermined set of competences, because such a naturalized structure could be used to delegitimize social transformation. For example, during the Weimar Republic, Carl Schmitt and some other conservative jurists defended the view that the Parliament and statutes should not rule over property rights. As a result, all social rights granted by the Weimar constitution did not have the same binding force as did the other parts of the constitution. [19]

Since 1988, Brazilian law has lost much of its autocratic and top-down character. The 1988 constitution has more than 200 articles and was the result of a direct participation process that still needs to be properly studied. The Constitutional Assembly lasted almost two years and received 120 popular amendment proposals backed by twelve million signatures, as well as seventy thousand suggestions by individual citizens and organizations. 180 public hearings were also held to debate all parts of the constitution with those directly interested in it.[20]

Of course, all this participation did not come from nowhere. During the 1970´s and the 1980´s, even under a civil-military dictatorship, Brazilian civil society organized itself in several social movements, trade unions included. For example, Eder Sader’s classic study, When New Characters Entered the Scene (Quando Novos Personagens Entraram em Cena),[21] tells the story of the struggle of the mothers’ clubs, the metalworkers’ union from Sao Bernardo, the metallurgical union’s opposition from Sao Paulo, and the health committees of the East Side of Sao Paulo. Such a book helps to explain how Brazilian civil society could respond so quickly to the political opportunities opened up by the National Constitutional Assembly.[22] It also sheds light on why the reaction against this radical democratic impulse was so quickly and effectively organized.

The radical social movements increasing control of the state budget, by means of those various social rights guaranteed by the 1988 Constitution, did not go unopposed. Already during the elaboration of the constitution, a group of federal deputies and senators called “centrão” (“big center”) formed to counter the incorporation of a progressive agenda into the constitutional text. So the Brazilian conservative political culture known as “pemedebismo” may be traced back to this group of representatives and, what is more, has dominated Brazilian politics since then.[23]

The political culture of “pemedebismo” generalized those practices performed by “centrão” and PMDB (Brazilian Democratic Movement Party) throughout the entire political system. The PMDB ‒ then MDB ‒ was created during the Brazilian dictatorship as an authorized oppositional party in an artificial bipartisan system that was institutionalized right after the coup. The MDB ‒ later PMDB ‒ was never a political party with a consistent ideology. Rather, it was created to gather all the oppositionist that Brazilian dictatorship was willing to tolerate in a political system that provided very little room for popular participation.

Right after the democratization process, the PMDB became the biggest party in the country. It used its expertise to incorporate new members and supporters without developing a coherent ideology. From that moment on, the PMDB has managed to occupy a central position in all Brazilian national coalitions. Nowadays, it is virtually impossible to govern Brazil without support from PMDB, and its long-standing and well-established practices have left an indelible mark on Brazilian political culture.

The Brazilian political system is organized to form big coalitions that tend to dissolve social antagonisms. In fact, the system has perpetuated itself by ignoring social conflict and attracting ever increasing numbers of allies in exchange for desirable and influential positions in the government, which makes it possible to control part of the public spending. Therefore, the more the system is able to avoid influence from the public sphere, the more it perpetuates itself without incorporating new interests.[24]

As a result of these fierce conflicts, the 1988 constitution guarantees all sorts of rights in a complex and contradictory way, making it impossible at times to conclude, from its text, what is the content of this or that right. Besides that, the binding force of many social rights still depend upon further statutes which were never enacted by the parliament. Chapter by chapter, one can identify the social struggle that took place during its elaboration. One could say that the 1988 constitution does not have any winners.

So social conflicts continue, but are now carried out by other means. The implementation of rights by the Executive and its final interpretation by the judiciary ‒ especially the Supreme Court ‒ plays a central role in Brazil today. The indeterminacy of the Brazilian constitution, which expresses an uneasy political compromise between progressive and conservative forces, leaves opens a lot of space to interpretation. From 1988 until today, Brazilians have been doing nothing less than fighting for the meaning and the implementation of their constitution, inclusive through the judiciary.[25] Not surprisingly, the judiciary has been accused, mostly by reactionary forces and social scientists, of disrespecting “the” separation of powers and promoting a “judicialization of politics” which disrespects the “natural” limits between state powers.[26]

The advance of social rights and its counter-force, “pemedebismo”, both came to a head at the end of Lula’s two terms. As mentioned above, civil society organized itself to dispute the text of the constitution during its elaboration and has continued to do so by all means available since then. It was not necessary to change the constitution to implement Lula’s projects. He just implemented many of its progressive parts.

On the other hand, to implement a massive project of privatizations and conservative economic measures during Fernando Henrique Cardoso terms, it was necessary to change the constitutional text through amendments.[27] Conservatives still say today that the social rights guaranteed by the 1988 constitution weaken Brazilian international economic performance, exert huge pressure on its budget, and threaten to produce unbearable public deficits and they demand a complete reform of the constitution[28].

At the end of Lula’s second term it seemed that almost nobody in the country was in open opposition to the government. There was no significant political adversary of the governmental coalition, which had reached the height of its power. Even after accusations of corruption and the condemnation of several key PT figures during the “Mensalão” ‒ an investigation which revealed a scheme to distribute money to deputies and senators in exchange of votes, and which triggered the current “Operação Lava-Jato” ‒ Lula was still one of the most popular presidents in Brazilian history. His two terms benefited from an international boom of commodities, which generated massive new income for Brazil, enough to finance social programs without intensifying social conflicts and to create jobs as a result of economic growth.

Nonetheless, the radical impulse that raised its head during the elaboration of the 1988 constitution seemed to be finally exhausted and tamed. The implementation of redistributive programs which reduced inequality in Brazil to historically low levels was financed by an international boom of commodities, not through much needed reform of the regressive and unequal tax system and the state economic incentives to capital ‒ the two most important sources of inequality. Since the head of the ruling coalition was a center-left party, some items of a progressive agenda were implemented, even though from within the traditional and corrupt political framework.

The Second Wave of Democratization: June, 2013 and the Autonomist Impulse

Then something completely different and unexpected happened in June 2013, even before the severe economic crises that have hit Brazil more recently. The country experienced the biggest wave of public protests in its entire history. They were triggered by a demonstration for free public transportation for all and against a twenty cent rise in the state of Sao Paulo’s bus fee. This demonstration has been organized almost annually by an anarchist inspired group called “Movimento Passe Livre” (MPL-Free Fare Movement).

But during that year nothing happened as expected.[29]The impact of the twenty cent raise in the budget of the city workers, who had not been the focus of the PT’s redistributive programs; the anger and disappointment of part of the population against PT’s participation on “Mensalão”, and the extreme brutality of the state police against peaceful demonstrations in the “Avenida Paulista” in the heart of Sao Paulo, caused a popular revolt. Subsequent protests organized by the MPL attracted a rapidly increasing number of participants and eventually culminated, a few weeks later, in massive spontaneous demonstrations in several large and medium cities, but now without any clear political direction. People seemed to be protesting against everyone and everything.

Everyone who was on the street during this time had the impression that something genuinely new was happening. Young workers and students, who had never been in a public demonstration before, were on the streets fighting for free public transportation side by side with members of the middle and even the upper classes, railing against corruption and the government, and demonstrating for better public services. Depending on where one was in the demonstration, one could hear and read different and even contradictory slogans, from left to right. Also, for the first time since the Brazilian dictatorship, right-wing movements organized themselves to capture the street and to protest against corruption and against the PT’s political hegemony.

The Brazilian people, either organized or not, have not left the streets since then. In 2014 and 2015 the country witnessed an increasing number of public demonstrations, making clear that June 2013 was not an isolated episode. There seems to be a new and radical democratic impulse manifesting itself in Brazilian civil society, born behind the back of a corrupt and deaf political system. New characters are still entering the scene. In 2015 in Sao Paulo, students occupied 200 public schools to protest against a Governor’s plan to close supposedly under-utilized schools and to relocate its students.[30] The occupations lasted almost two months and managed to gain public support, despite the attacks of Sao Paulo’s government and police. As a result, the relocation plan was officially postponed and the state’s Secretary of Education was dismissed.

Between 2014 and 2016 hundreds of empty buildings were occupied by MTST (Homeless Workers Movement) to fight against real estate speculation and abusive increases in rent. Though these occupations have been taking place before, they seem to gain force after 2014. [31] Also in 2015, the so-called “feminist spring”[32] ‒ a series of internet and public demonstrations in various cities of Brazil ‒ occurred in response to the approval of a conservative bill by a specialized commission of the lower chamber of the Parliament (n. 5.069/2013) that was presented by the Deputy Eduardo Cunha (PMDB-RJ) and the lower chamber´s Constitutional Commission. The proposed bill made it more difficult for raped women to gain access to abortions, a right guaranteed by Brazilian federal legislation. Feminism has also been extremely active on the internet, promoting digital campaigns that have gained widespread attention, such as the ones propagated through the hashtags #PrimeiroAssedio (#FirstSexualHarassement) and #NãoPoetizeOMachismo (#DoNotPoeticizeMachismo).[33] Still in 2015, the Black Women’s National March organized its biggest demonstration in Brasilia, the capital of Brazil, with around twenty thousand women participating.[34]

For anyone who believes in the transformative force of law under democracy, it is impossible to write or to read about these recent developments in Brazilian civil society without being profoundly moved and without feeling a deep sense of resentment against a bureaucratized PT and the other left-wing parties who have not yet made any significant overtures to this remarkable new wave of activists. On the other hand, these new social movements do not seem interested in taking part in formal politics ‒ at least not in the form of politics that have occurred during the last thirty years.

The 1988 wave of democratization deeply changed Brazilian politics and law by creating a constitution based on the political grammar of the struggle for rights, but also by creating the PT, a party that elected the President of Brazil for four consecutive terms. The institutional consequences of the 2013 wave are still unclear. The PT still behaves as the leader of the left-wing parties and ‒ against all evidence to the contrary ‒ accuses the judicial system of punishing only politicians of the left, and turns its back on the gale storm of fresh air coming from civil society. As any bureaucratized party, it seems to insist on staying in the forefront of the same center-left coalition, by appealing to trade unions and peasant organizations who still support the party and the government.

But the new autonomist and anarchist inspired social movements do not show any signs of interest in the old political parties or in forming new ones. The new right-wing social movements seem not to be following the same path. They showed their discontent with political parties and offered their backing to only those involved in the “Lava-jato Operation”, but recently decided to openly support candidates for city councilor[35]. Some radical left-wing parties, such as PSOL (Socialism and Liberty Party), also see the operation as an opportunity to transform Brazilian politics and to give voice to civil society, though none of them seemed to be able to give these new radical activists a voice in formal politics.

Some Final Remarks

Since no one saw June 2013 coming, no one knows what will happen in the near future. Will Brazilian politics go back to the way it was before 2013? Will the country experience a radical transformation of its politics, either moving towards the right or the left? Will the left-wing break into pieces as the PT loses its power and prestige, and wait years till someone like Bernie Sanders manages to take its voice back to the mainstream? Will these new social movements help to reinvent the state and the political parties? All I think it is safe to say for now is, to paraphrasing a well-known Mayakovski quote (“It is better to die from vodka than from boredom”): nobody will die from vodka in Brazil, at least for the next twenty years. But maybe someone will suffer a heart attack, considering the extremely high speed of the unfolding events.

Within civil society, a new wave of public school occupations is demanding better conditions in public education.[36] The streets keep sending signals to the political system that even a thorough reorganization will not be enough to realign the state with the demands of society. Perhaps it will be necessary to redesign Brazilian formal institutions, our representative system and parties, or perhaps to destroy and rebuild our separation of powers, to make society feel represented by the state again. Until these demands find a new institutional setting, civil society will remain in extreme tension with the law and the state.

Or maybe one will see the emergence of a new form of political organization which, as I suggested at the beginning of this text, has as its main objective to prevent the state from becoming the all-powerful ruler of life and society, but without falling into a radical libertarianism, that is, by maintaining the state’s function of financing and judging conflicts between self-regulated spaces.[37] “Two axioms, indeed, seem to guide the march of Western civilization since its dawn: the first establishes that the true society develops under the protective shadow of the State; the second sets out a categorical imperative: it is necessary to work “, recalls Pierre Clastres.[38] For such a political organization proves possible, it may be necessary to deal with the second imperative mentioned: work.

To give greater plausibility to this possible renewal in the forms of political organization, one would need to analyze this new wave of activism from this point of view, that is, with a view to its possible willingness to defend new ways of living and working apart from competition and life forms that seek to overcome the division between rich and poor. These divisions are closely related to the division between dominant and dominated which, in turn, are related to the state as the guarantor of private property. Unfortunately, this is a task to be carried out on another occasion as it is beyond the scope of this text.

Notes

[1] Of course I am not saying that there was no corruption in Brazil before. I am simply suggesting that its current features seem to have emerged during the 80s.

[2] Ferreira. S. L; Fernandes, E. B. D. (2013) “O STF nas “cortes” Victor Nunes, Moreira Alves e Gilmar Mendes”, Revista Direito GV, n. 9. Vol. 1, p. p. 23-46.

[3] It is relevant to note that the “Car-wash Operation” appears to distinguish Brazil from other countries in Latin America where the left is currently facing successive defeats.

[4] Nobre, M. (2013) Imobilismo em Movimento. São Paulo: Cia das Letras.

[5] Gohn. M. G. (2014). Manifestações de Julho de 2013 no Brasil e nas Praças dos Indignados do Mundo. Rio de Janeiro: Vozes.

[6] Despite that fact, many of these collectives are financed by the State culture incentives, see: Castilho, I. (2016). “Nas Periferias Nasce um Novo Feminismo”, Outras Palavras, http://outraspalavras.net/oca/2016/01/04/nas-periferias-nasce-um-novo-feminismo/.

[7] I am certainly moving on thin ice here, as these phenomena are recent and have not been systematically studied yet. Nevertheless, there are evidence that these new social movements do not demand new rights, they are mostly preoccupied in fighting against sexism, racism and violence without the intervention of State police and justice apparatus, for example, using culture of creating safe spaces to change the way women see themselves and to have an impact in their forms of life.

[8] Scott, J. C. (1998) Seeing Like a State. How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press; Graeber, D. (2004) Fragments of an Anarchist Anthropology. Chicago: Prickly Paradigm Press.

[9] Of course there are political negotiations every time a branch of state bureaucracy demand an increase on its budget and income. What I am saying here is that judges, public prosecutors are protected by the Constitution, that requires public tender to access the office, guarantees them stability in office and the highest salaries among public servants.

[10] For exemple: Kashiura Jr., C. N.; Akamine Jr., O.; Melo, T. (orgs.) (2015) Para a Crítica do Direito. São Paulo: Outras Expressões.

[11] Neumann, F. L. (1986) The Rule of Law. Political Theory and the Legal System in Modern Society. Leamington. Spa: Berg.

[12] For a complete analysis of these issues: Rodriguez, J. R. (2009) Fuga do Direito. Um Estudo sobre o Direito Contemporâneo a partir de Franz Neumann. São Paulo: Saraiva.

[13] For more detail see: Rodriguez, J. R., (2006) Fuga do Direito

[14] There is no space here to analyze these different autarchy figures, but I want to make it very clear that as mentioning them side by side I do not intend to suggest that Brazil is following an authoritarian path similar to these political moments. I am just saying these completely different figures appear as a reaction against democratization processes.

[15] “Transnational legal regimes” are de facto legal orders that produce norms away from state control to regulate business transactions, soccer and the internet, among other social fields. About this, see: Teubner, G. (1996) “Global Bukowina: Legal Pluralism in the World-Society”, In: Global Law Without a State, Gunther Teubner (ed.), London: Dartsmouth; Scheuermann, W. (2008) Frankfurt School Perspectives on Globalization, Democracy and the Law . New York & London: Routledge.

[16] Teubner, G., op. cit. ; Scheuermann, W., op. cit.

[17] Neumann, F. L., (1953) “The Concept of Political Freedom”, 53 Columbia Law Review 901-935.

[18] Neumann, F. L., (1957) “Montesquieu”, in: The Democratic and the Authoritarian State, ed. H. Marcuse, Glencoe, IL: Free Press, p. 96-148.

[19] Kahn-Freund, O. (1931) “The Social Ideal of the Reich Labour Court – A Critical Examination of the Practice of the Reich Labour Court”, In: Kahn-Freund, O. (1978). Selected Writings. London: Stevens.

[20] Pilati, A. (2008) A Constituinte de 1987-1988. Progressistas, conservadores, ordem econômica e regras do jogo. Rio de Janeiro: Editora PUC-Rio.

[21] Sader, E. (1988) Quando Novos Personagens Entraram em Cena: experiências, falas e lutas dos trabalhadores da Grande São Paulo (1970-80). Rio de Janeiro: Paz e Terra.

[22] Brandão, L. C., (2011) Os movimentos sociais e a Assembleia Nacional Constituinte de 1987-1988: entre a política institucional e a participação popular, São Paulo: Universidade de São Paulo, Dissertação de Mestrado, mimeo.

[23] Nobre. M. (2013). Imobilismo

[24] Yet it is certainly true Brazil has a fragmented party system that makes it very difficult to conquer a majority in the parliament, from 1993 until 2013 Brazilian politics found a way to organize itself between two clear alternatives, PSDB and PT, that alternated themselves as leaders of big coalitions that were able to implement, respectively, center-right and center left programs, see: FIGUEIREDO, A. C. (2001), “Instituições e Política no Controle do Executivo”. Dados, vol. 44, no 4, pp. 689-727; FIGUEIREDO, A. C. (2001); LIMONGI, F. (1999), Executivo e Legislativo na Nova Ordem Constitucional. Rio de Janeiro, Editora FGV; FIGUEIREDO, A. C. (2002), “Incentivos Eleitorais, Partidos e Política Orçamentária”. Dados, vol. 45, n. 2, pp. 303-344.

[25] Rodriguez, J. R. (2015). “Luta por direitos, rebeliões e democracia no século XXI: algumas tarefas para a pesquisa em direito”. Em: Streck, Lênio L., Rocha, Leonel. S.; Engelmann, Wilson (orgs.). Constituição, sistemas sociais e hermenêutica. Porto Alegre: Livraria do Advogado.

[26]Nobre M., Rodriguez, J.R. (2011) “Judicialização da política: déficits explicativos e bloqueios normativistas”. 91 Novos Estudos 5-20. Seeing federal Judge Moro, who is heading “Lava-jato operation”, as an individual hero is certainly a big mistake. His performance in several other processes had followed the exact same pattern: he defends criminal proceedings with fewer guarantees for the accused, like many of his fellow prosecutors who work in Lava-jato. His conservative vision of criminal law, which is object of dispute among lawyers, is aligned with the global debate on the subject, which is influenced by the same theoretical sources that influenced, for example, the creation of the American “patriotic act”. His supporters say finally someone is enforcing the Brazilian law and his critics say he is disrespecting the constitution. Indeed, Brazilian corruption bureaucrats are in constant contact with the international debate on the subject and are influenced by it (about this, see: Schaffer, G. C. (2012). “Transnational Legal Process and State Change”, 7 Law and Social Inquiry, pp. 229–264.). Of course this is a big theme to be debated, but surely it is not a new one. What draws one’s attention in this case is the high degree of efficiency and integration between Moro’s, the public prosecutors’ and the review courts’ work. It seems clear they have been working together coordinately, something unheard of before. In previous corruption cases, even some judged by Moro himself, there were cancellations by procedural errors that do not seem to be happening this time. Moro is just a symbol, or the “concrete-absolute”, as Hegel could have put it: Brazil is experiencing an institutional transformation that needs to be studied. This transformation is both a proof of the strength of our institutions and an opportunity for patriotic-act like public policies, especially considering the huge support “Lava-jato” has being having so far. Nevertheless, several measures taken by Moro, even though confirmed by review courts, have been violently criticized, including by ministers of the Brazilian Supreme Court, which shows how his positions are controversial, but not clearly illegal. About this question, see: Rodriguez, J. R. (2016). “Contra o fanatismo textualista. Corrupção, jeitinho brasileiro e estado de direito”, Novos Estudos Cebrap, n. 104, Março, pp. 61-76.

[27] Melo, M. A. (2008) Reformas Constitucionais no Brasil: Instituições Políticas e Processo Decisório. Rio de Janeiro: Revan.

[28] Pessoa, S. de A. (2011) “O contrato social da redemocratização”. In: Bacha, E. L.; Schwartzman, S. (orgs.). Brasil – A nova agenda social. São Paulo: LTC., Almeida Jr., M; Lisboa, M. Pessoa, S. (2015) “O Ajuste Inevitável”, Folha de S. Paulo, Ilustríssima, http://www1.folha.uol.com.br/fsp/ilustrissima/226576-ajuste-inevitavel.shtml.

[29]Figueiredo, V. (org.). (2014) Junho de 2013 – A sociedade enfrenta o Estado. São Paulo: Summus.; Gohn, M. G. (2014). Manifestações de Julho….; Jedensnaider E.; Lima, L.; Pomar, M.; Ortellado, P. (2014). Vinte Centavos: a luta contra o aumento. São Paulo: Veneta; Borba, M.; Felizi, N.; Reys, J. P. (orgs.). (2014) Brasil em Movimento. Reflexões a partir dos protestos de junho. Rio de Janeiro: Rocco.; Vários, (2014). Cidades Rebeldes: Passe livre e as manifestações que tomaram as ruas do Brasil. São Paulo: Boitempo.

[30] Harris, Gil. (2015) “School’s not out for summer: student protests in São Paulo”, http://frombrazil.blogfolha.uol.com.br/2015/12/16/schools-not-out-for-summer-student-protests-in-sao-paulo/; JANUÁRIO, Adriano; CAMPOS, Antonia Malta; MEDEIROS, Jonas; RIBEIRO, Márcio Moretto. (2016) “As ocupações de escolas em São Paulo (2015): Autoritarismo burocrático, participação democrática e novas formas de luta social”. Revista Fevereiro. vol. 9, pp. 1-26.

[31] Kachani, M. (2014) “O boom das ocupações”, Blog do Morris, UOL, http://blogdomorris.blogfolha.uol.com.br/2014/05/08/filosofia-lacan-e-mtst-no-campo-limpo/.

[32] El Pais, (2015) “Primavera feminista no Brasil”, http://brasil.elpais.com/brasil/2015/11/13/opinion/1447369533_406426.html

[33] Medeiros, J. (2016) “Para além da crise política”, Jota, http://jota.uol.com.br/para-alem-da-crise-politica.

[34] Geledés. (2015) “Marcha das Mulheres Negrashttp://www.geledes.org.br/tag/marcha-das-mulheres-negras-2015; Neris, N. (2015) “O paradoxo do direitos para negros e negras, Jota, http://jota.uol.com.br/o-paradoxo-do-direito-para-negros-e-negras

[35] Veja.com. (2015) “MBL deve lançar até 10 candidatos a prefeito e 200 a vereador”, http://veja.abril.com.br/brasil/mbl-deve-lancar-ate-10-candidatos-a-prefeito-e-200-a-vereador/

[36] Nitahara, A. (2016) “Reflexo da crise no RJ, ocupação de escolas vive momento de expansão”, UOL Notícias, http://noticias.uol.com.br/ultimas-noticias/agencia-brasil/2016/04/10/ocupacao-de-escolas-e-amadurecimento-das-jornadas-de-junho-de-2013.htm.

[37] See above, notes 5 and 6.

[38] Clastres, P. (2003) A Sociedade Contra o Estado. São Paulo: Cossac y Naif.

 

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