Post on 27-Mar-2023
Electronic copy available at: http://ssrn.com/abstract=2575985
1
The Barons of the Constitution: Pact and Politics on the Definition of the Right to
Property in the Brazilian Constituency 1
Abstract
The close reading of newspaper articles for the construction of law may seem
really interesting, but it is not certainly a sociological common practice in the juridical
studies. As part of society, journalists can be considered actors of a privilege point of
view in delineating the boundaries of a social system and its surroundings based on
selectiveness. We have tried to make evident the definition of the right to property and
the critical paradox involving its social function. There is also an attempt to make clear a
very biased discussion on the effects of what would be social in an urban country, but
with strong traditional forces of large rural property owners. For that, we created a set of
concepts strongly recommended to shed light on what we define as supra and meta-party
during the 1987-88 Brazilian Constituency. The selection of discourses, personal
relations, informality and parallel legislative mechanisms were common practices only
during the anti-democratic periods as barons used to have in the Brazilian society. The
national dimensions of singular structures of the re-democratic legislatures and the logic
to capture the legal order in the right to property are essential as well. The objective of
the present article is the analysis of forty-seven pieces of newspaper articles to show how
the idea of selectiveness structured the legislative work in the making of the 1988 Federal
Constitution. We collected documents from 1985 to 1988 period related to the tension on
the right to property and the fights for what would mean “social function” in the Magna
Chart.
Keywords: Right to Property, Social Function of Property, Politics and Law Relation
1 Wellington Migliari, Ph.D. Researcher in Public International Law, University of Barcelona, Faculty of
Law. Alexandre Douglas Zaidan de Carvalho, Ph.D. Candidate in Law at the University of Brasília and
Visiting Researcher at the Pompeu Fabra University. We remain grateful to the Coordenação de
Aperfeiçoamento de Pessoal de Nível Superior (CAPES), Brazilian Public Funding for researchers.
Electronic copy available at: http://ssrn.com/abstract=2575985
2
1. Introduction
Behind the disputes endeavouring to stabilise the definition of what would be
property in the future 1988 Brazilian Federal Constitution, there was set of class interests
and private sectors interested in influencing the matter. Representatives of the civil
society such as the Rural Brazilian Society and the Federation of Agricultural Labourers
of São Paulo State, respectively, national landowners of large properties and local small
proprietors were some of them. Apart these civil actors much inspired in variations of
privatism for the coming magna Chart, we may add two paradigms in the Brazilian case
observing the fresh elected legislature responsible for the constitution elaboration. The
first one has to do with the presence of a supra-legislative power during the constituency
period formed by politicians of different centre-right wing parties.
A meta-party called “Centrão”, a non-political entity formed by the ordinary
legislative representatives in unicameral sessions, was a prominent actor during the
constitutional formulation in the late of the 1980s. From different political origins, the
legislative representatives were not elected for the making of a constitution, but for
ordinary work in the Brazilian re-democratic public sphere. In order to face the scenario
with a myriad of interests and the need of two thirds of the quorum in their votes, the
meta-party was understood as a fast-track coalition to approve the future constitutional
text ignoring the especific estatutes of the parties and stimulating the spirit of negotiated
agendas. In other words, the contingency based on ideological interests coopted the idea
of what should be renovated in the Brazilian politics, i.e., the real debate on topics that
could radically transform the society with representation. There were two mainstream
lines in this coalitional process. The first one has to do with the actions of the meta-party
in changing the internal regime of the Constituency to renegotiate new rules and
accommodate the interests of more conservative parties. A coterie conceived by the
coalitioners changed the rules of its own practice to approve its own projects for the new
constitution. A social system distinguished by its surrounding relying on an internal logic
that gave much room to self-references to feed its own interests (LUHMANN, 1998, p.
390-391). The second paradigm is intimately intertwined with an automatic detachment
involving the meta-party and its voters. The rationality of representation was used to
create a legitimate instrument to defend a particular definitions for the new constitutional
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text on topics such as liberty, social and fundamental rights. The purpose of this article is
devoted to the questions on property right. How the “Centrão” was a protagonist that
emerged from the conservative and interested centre-right nuclei to dictate the
constitutional text and guaranteed the right to property in the terms we see in the Article
5, intent XXII; and Article 170, intent II.
With reference to the limits of property during the constituency they were forged
presupposing a state intervention over this right if there is an imminent public danger as
we observe in the Article 5, intent XXV. Other boundary imposed by the constitutional
text is the obligation to harmonise the environment with the use of the property by the
proprietor based on the Article 170, intent VI. In general, the themes of expropriation that
the Brazilian State could dispose in its future constitution, the obligation to indemnity in
case of state expropriation and how compensation would be made generated some of the
tensions which revealed the instability or the inexistence of a social consensus in such
matter among leftists, centre and right-wing parties. However, were there intents of
classes in elaborating the 1988 Brazilian Constitution to protect the private interest linked
to urban or rural land? The social function of property as a progressive tool idealised to
promote equality in the Brazilian society may be a starting point. The dispute, which
outlined the social contribution demanded from the right to property, was understood as
a menace for private initiative (entrepreneurship) and individuals (house owners) in urban
or rural areas.
2. Agreement, Pact and the Right to Property
The entry property has been circumscribed in the realm of fundamental or
economic rights in some constitutional texts. It is really rewarding the analysis of
constitutional parameters in relatively recent democratic systems and their paradoxes.2
2 We may refer to the 1978 Spanish Constitution, Chapter of Rights and Liberties, Article 33; and the 1974
Portuguese Constitution, Chapter of Economic Rights, Article 62, as examples of material right. We
selected these Magna Charts to highlight the idea of property guaranteed for every citizen in the
constitutional text, but a very contradictory reality. In Spain, there have been approximately 3.4 million
empty houses while in Portugual more than 1.3 million non-occupied units. See, respectively, the oficial
information available on http://goo.gl/clnzsy and http://goo.gl/ndj1to for both countries. In absolute
numbers for the Brazilian case as well, there are 7.2 million units non-occupied and 72.7% of them in urban
areas, the others in the countryside. Only in São Paulo, 1.3 million vacant houses. See page 43, oficial
report, on http://goo.gl/NufN5C. The housing deficit in Brazil was 5.4 million 2011 as pointed out by IPEA
(Instituto de Pesquisa Econômica Aplicada) http://goo.gl/QKrQKW. In Spain, the excess of housing units
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Although our present article has much interest in the newspapers articles specifically for
the Brazilian reality in pre-constitutional times, it is curious certain similarities and
identical contradictions between the large numbers of empty houses and roofless people.
Since the XVIII century the right to property has been isolated in realm of private interest
and, different from the Roman tradition till those days, re-conceived as a fundamental
right in the 1789 Declaration of Rights of Man and Citizen. On the one hand, the
revolutionary period elaborated a contract to guarantee property for a political community
as an essential good for man’s development among other matters in the Article 2. On the
other hand, the right to property would be protected and shall remain inviolable as it says
the Article 17. The context of this liberal conception was intimately connected to the
purposes of free-market initiatives without the historical monarchic burden impeding the
use of property as a classless means of production. Yet the economic history and political
experience since then have told us quite the opposite about the right to property, it is still
seen as an instrument to generate wealth and it must be protected against violation.
The responsibility of proprietors in paying more taxes for those properties
underused or non-occupied for an unjustifiable reason, which was materialised in a type
of a social commitment for urban and rural realities, was reduced to a countryside dispute.
According to Túlio de Azevedo, Estado de S. Paulo newspaper, “[…] há uma outra
definição para a ‘função social da terra’: sua produtividade. Nessa conceituação, não
importa a quem pertence a terra, mas sim que seja capacitada a produzir e a alimentar a
população do país”. Moreover, the author affirms it would be a disaster the substitution
of large rural properties based on free-initiative production of commodities for the
external market to small farms to give support to the national demand. For him, it is
essential the generation of foreign exchange through the selling of commodities such as
grains and meat.3 It is clear in that mentality that the urban question was oppressed by the
large farm system. The positions of the constituents and journalists were coherently
has not been counted considering the number of roofless people. It means there is no demand for houses
and family has a place to stay. As Raquel Rolnik has mentioned some years ago, a paradox has dominated
the Spanish society. There have been a considerable amount of non-payable houses that distorted the
country reality not expressing the emergency for affordable houses - http://goo.gl/rKgaRA. The case of
Portugal may sound peculiar as well since the calculation of roofless people from 2001 to 2011 was affected
by the reduction of sheltering public services for homeless people. However the decreasing numbers, there
were approximately 132.656 units for those families that cannot afford for a house in 2011. See, page 45,
on http://goo.gl/lCFaA8. Access: 14.11.2014. 3 See http://goo.gl/e4TaYo. Access: 17.11.2014.
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elaborated against the social function of property not observing the mass of unoccupied
housing units in the Brazilian metropolises. The vacant or underused property in urban
areas should be understood as an urgent topic since till the 1990 estimation for housing
deficit in Brazil related to precarious or inappropriate houses was around 10 million
houses.4 The negligence in not seeing the “subnormal housing units” as a topic of ultra
emergency contributed to the increase of “favelas”, hives and irregular occupations. It
impeded also the change of old practices in rural land dispute to favour the ordination of
the urban needs in city planning legal framework. The social function of property, if it
were thought in urban context, could subsidise other social rights through the right to
housing in metropolitan areas for example.5
One of the first comments promoted by the Constituency politicians was about a
non-consensual situation regarding the right to property. Non-violation of property and
expropriation only with proper cash indemnity were the two initial hard nuclei of the
dispute.6 The leftists suggested the proper indemnity with public debt bonds for both rural
and urban private areas expropriated and the conservative forces considered only
pecuniary compensation in cash regardless of the property location.
Once democratic and conservative representatives did not agree about the matter
for the constitutional text, among them extreme left wing, they understood it was
necessary a moment of coalitions and agreements. Meanwhile the debate was taking place
in the new democratic arena, it emerged a political actor trying to re-modeling the party
coalitions with the excuse of putting aside the ideological content of the dispute. In other
words, the “Centrão”, or the Big Centre, was from the point of view of its participants an
effort made to impede micro-polarizations about a topic supposed to be of all interest.
This kind of supra-party, between the legality of the recent democratic established rules
and not considering the ideological preferences of those who had elected their
representatives, was a plural right-wing coalition composed by Partido Democrático
Social (PDS), Partido da Frente Liberal (PFL), Partido Trabalhista Brasileiro (PTB) and
the most conservative section of the Partido do Movimento Democrático Brasileiro
(PMDB). On the other side, facing the elitist and traditional demand of this supra-party
4 See http://goo.gl/Byv8kz. Access: 17.11.2014. 5 The “abnormal groupings” are a terminology used by the Brazilian Institute of Geography and Statistics
(IBGE). 6 See http://goo.gl/ZF1YVr. Access: 18.11.2014.
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with organic participation of unions and other civil society actors, there were the Partido
dos Trabalhadores (PT) and Partido Comunista do Brasil (PC do B). The working class
Partido dos Trabalhadores voted against the final “Centrão” agreement, but some left
representatives supported the conservative proposal at the end.7
Another difficult point was the terminological battle between the social function
of property and the “socializing concept of property”. In one of the newspaper articles,
Gastone Righi (PTB – SP) said the social function was too general and could be extended
to those movable goods. According to him, this aspect if applied to the right to property
would mean the socialization of “our cars, paintings and even our pieces of clothes”.8 The
President of the National Constituency Assembly, in charge of the making of the 1988
Federal Constitution, Uysses Guimarães (PMDB- SP), was an important politician in
favor of conciliation logic. Curiously, the agreements led by this pacific mood favoured
more and more the “Centrão” positions. Ulysses Guimarães intended to diminish the
potential radical divisions with reference to the expropriation mechanism, i.e., previous
pecuniary indemnity in cash or public debt bonds. The rhetorical trick can be seen yet in
the terminological battle between “the right to property subordinated to the social
interest” or “the right to property with no loss to the social interest”.9 The top
Constituency representative had a protagonist role with other politicians as the Senators
Fernando Henrique Cardoso (PMDB – SP) and Mario Covas (PMDB – SP). The former
one became president of Brazil reelected twice during the 1990s and the latter governor
of São Paulo. Both defended as many other politicians from the “Centrão” the idea of
right to property without opposition to the social matter.10 The idea of agreement bit a bit
took place in the political logic of the Brazilian public sphere in this period of re-
democratization. We are not affirming that this rationale of our last Constituency was
something new, but certainly updating the traditional mechanisms to allocate the interest
of those proprietor classes in the 1988 Brazilian Constitution.
The tension between “subordinated” or “with no social loss” expressions gave
room to the control of “Centrão” political representatives. They used to list the priorities
they judged acceptable in questions of property compensation, voted for their own agenda
7 See http://goo.gl/ZVJfNJ. Access: 13.11.2014. 8 See http://goo.gl/6YLUlY. Access: 09.11.2014. 9 See http://goo.gl/UJcsts. Access: 04.11.2014. 10 See http://goo.gl/M2eta1. Access: 08.11.2014.
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and, if rejected by those who could collaborate to the majority clause they needed to
approve any proposal, simply abandoned the plenary session. So, the most conservative
section of the supra-party controlled the quorum and selected which voting process should
be considered valid. We cannot deny that the re-democratic experience brought
progressive changes for social demands and rights, but the logic of negotiation delays and
distorts meaningful changes in housing issues. The negative effect of these manoeouvres
perpetuated the control of legality in the legislative power about property system and, as
a consequence, made the right to housing a subproduct of the right to property. Up to a
certain extent, it has meant the traditional logic of detachment between society and elected
representatives. The “Centrão” politicians such as Ruy Nedel (PMDB – RS) and
Bonifácio de Andrada (PDS – MG) mentioned they were in favour of conciliatory speech
and said the quorum control was one of the “old practices in every worldwide parliament”.
11 It seemed to be necessary for them to re-naturalise their democratic practices the
distances between the decision making process and the electorate.
The initial agreement was later renegotiated and the approved final text has
explicitly the general terminology of imposed by the “Centrão”, e.g., “social interest”,
“social function” and the “well-being” inhabitants. The most important mechanism for
the supra-party was the prior and fair indemnity for urban areas in case of expropriation
and the rural properties fair payment with public debt bonds with expiry dates no more
than twenty years. In the countryside areas, the Senate shall evaluate and vote for State
obligation under agrarian reform purposes.12 But the extended discussion before the
general idea of social interest and the fight for no radical transformation in the system of
property in Brazil recapture the spirit of our federative pact.13
The Brazilian legal order based upon the right to property discussion has revealed
the brutal hierarchy and the social demands from the political forces in a deeply unequal
country. One of the pieces of newspaper articles pointed out the disagreement after an
apparent consensus among the representatives of “Centrão”. It is really symptomatic the
11 See http://goo.gl/ruCiv4. Access: 17.11.2014. In an article published by Jornal de Brasília newspaper, on
February 9th 1988, the paralysis of the voting process during the plenaries was considered a traditional
practice in the Brazilian politics. Thereon, the Constituency was understood as a group with feedback
system working with no connections to the Brazilian anxiety for a Constitution. 12 See 1988 Federal Brazilian Constitution, Article 182, Paragraph 3; and Article 184. 13 The social function of property is predicted in the Articles 5, intent XXIII; 170, intent III; and 184 of the
1988 Magna Chart.
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discontentment of politicians and the way they used to transform the public sphere into
an instrument of classes in defense of their own interests.14 A supposed autonomy for
agreements, which is disconnected from the social demand when it is declared elected,
leads to a personal practice and tends to be perpetuated outside the formal plenary. The
“Centrão” representative José Lourenço (PFL – BA) and the democratic movement led
by Mário Covas (PMDB – SP) tried to set up an agreement making phone calls. As it says
the newspaper O Estado de S. Paulo, on February the 10th, the rupture of the agreement
about the right to property occurred after a non-response from Mario Covas to the supra-
party leader: “Da primeira vez, Covas informou a Lourenço que estava conversando com
os partidos de esquerda para fechar o acordo e que tudo caminhava bem, pedindo que um
novo contato fosse feito em uma hora”. The returned phone call happened and “Lourenço,
irritado por não ter uma resposta, disse à secretária que o acordo estava rompido, sem dar
maiores explicações”. Jarbas Passarinho (PDS – Pará) was another senator who
mentioned the right to property should not be submitted to the social interest in response
to Fernando Henrique Cardoso (PMDB – SP). FHC affirmed that in many countries such
as Italy, Spain, Germany and Japan the right to property was subordinated to the social
interest. The conservative senator from Pará in defense of “Centrão” highlighted the
project of the “Comissão de Sistematização” was incoherent: “Não é concebível que se
tire com a esqueda o que se dá com a direita” and, if the social interest subordinates the
right to property, there is a possibility of a governor in possession of immoral feelings
expropriates serving their own interest.15 A kind of preoccupation about personal forces
colonizing the public in favour of private interests ironically denounced the informal
partialiaty in phone calls, rupture of agreements and the potential fear of arbitrary
governors. At the end of a long discussion and ruptures, the right to property was not
subordinated to the social interest.16 The voice of José Geraldo (PMDB – MG), who was
14 “Na primeira votação foram registrados 248 votos contra o texto do Centrão, 236 a favor e 19 abstenções.
Na segunda, 255 votaram a favor do texto da Sistematização, 214 contra e 42 pela abstenção. Para aprovar
um dos dois textos, seria necessário 280 votos, no mínimo. ‘Estamos caminhando para o buraco negro’,
afirmou um dos líderes do Centrão, senador José Lins (PFL – CE), enquanto os constituintes de esquerda
comemoravam sua vitória parcial”. See the article published by O Estado de S. Paulo on February the 10th.
Availabe on http://goo.gl/pe6wWh. Access: 21.11.2014. 15 See http://goo.gl/HZoLO6. Access: 21.11.2014. Read also in the same document what Ulysses
Guimarães says about the need for conciliation among legislators: “O que ocorreu ontem no plenário da
Constituinte com relação à votação do direito de propriedade, ‘cujo acordo já estava praticamente fechado’,
é mais uma demonstração de que há necessidade de entendimento entre as lideranças, afirmou Ulysses
Guimarães. Para ele, ‘é fundamental o entendimento nas questões mais polêmicas’”. 16 See http://goo.gl/APXjM3. Access: 02.11.2014.
9
a “Centrão” member with certain discontentment about the dissolution of the previous
agreement, indicates as anti-democratic and as arbitrariness the action of setting up an
agreement during the night without quorum. The moment the sun rises, when the
“Centrão” notices it has back the majority against the idea of “social interest” in the
agreement made, the supra-party abandoned the plenary. José Geraldo said such attitude
was anti-ethical.17
For the legislative practice around the right to property, the conciliation was a
traditional instrument to define the concept, vote and create a community for its use. It
was the metaphor used by Guilherme Afif Domingos (PL – SP) which “commander was
detached from the troops”. The symbolism of hierarchy, however, how they act related to
the social sphere. With one meaningful difference, if the “Centrão” leaders make
agreements by their own, after they will probably tackle with resistance and rupture in
negotiations. At that moment, after the approval of the right to property, the moderate
section of “Centrão” defended the idea of eliminating radicalisms in the supra-party and
open the dialogues with other parties.18 The progressive conservative members of the
“Centrão”, a paradox in terms but a traditional contradiction used to grow the ambiguous
plant of oscillation in the Brazilian politics, started a phase of a pact. There was a time of
new conciliations, other coalitions for future supra-parties and the revival of the old
privilege logic in creating non-normative framework for their own practices. 19 Eduardo
Magalhães (PFL – BA) and José Geraldo (PMDB – MG) gave all support to new arenas
of agreements and worked for the isolation of radicals in the “Centrão” such as Amaral
Netto (PDS – RJ), José Lourenço (PFL – BA) e Bonifácio de Andrada (PDS – MG) and
Cardoso Alves (PMDB – SP).20
The paradox remains in the idea of property as a good that does not presuppose
everyone to reach it. In order to broaden the access to such fundamental right, the
democratic systems have relatively excluded more people to include a minimum
acceptable by the economical structure (MACPHERSON, 2012, p. 122).21 The 1987 –
1988 Constituency for the Brazilian Magna Chart preserved two liberal theories that every
individual shall have the right to property and never it shall be object of expropriation
17 See http://goo.gl/PxpKY7. Access: 03.11.2014. 18 See http://goo.gl/Ztl3GT. Access: 20.11.2014. 19 See http://goo.gl/Fr10ap. Access: 06.11.2014. 20 See http://goo.gl/YWNAUi. Access: 01.11.2014. 21 See MACPHERSON, 1973, p. 120-140.
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without fair compensation. For our case, the point is how the legislators used both
individual right to a land title and its protection by the State without eliminating our
sociological singularities and inequalities. It is the right written and defended by
proprietors for few and highly exclusivist. The articles in the approved 1988 Brazilian
Federal Constitution concerning the right to property for urban and rural areas have an
immense connection with classes of proprietors and protection of market interests
restricted for privileged groups.22
3. The Meta-Party and the Constitutional Definition of a Right
According to an article published by Folha de S. Paulo, on December 4th, the
property model defended by the Constituency was based on free market initiative. The
same newspaper articles emphasises the need for a reflection of what would mean “social
justice” in future generations since 10% of the population in Brazil retained 50,6% of the
Gross Domestic Product. Privileges, means of production’s owners and concentration of
income for few are some of the paradoxes in the redemocratization period present in the
political agenda: “[...] ‘A ordem econômica e social tem por fim realizar o
desenvolvimento nacional e a justiça social’, prega a Constituição em seu Artigo 160. Os
números, porém, apontam para uma realidade diferente”. The sociologist Francisco de
Oliveira, who was mentioned in the article, said the 1988 Brazilian Federal Constitution
was about to flirt with the private system of property under a biased liberalizing
reductionism. The social productive representatives were also disputing the meanings of
liberalism in constitutional terminologies. The Sociedade Rural Brasileira (SRB) and
Federação dos Trabalhadores na Agricultura do Estado de S. Paulo, respectively, land
owners of large properties and small proprietors, defended opposite projects. The first
was against of any kind of agrarian reform and the other in favour. However, the tension
22 During the period the Brazilian representatives were writing the new 1988 Federal Constitution, after a
long period of Military Dictatorship (1964-1985), many discussions and negotiations were made to
establish the outlines of future legislations about the right to property. The Partido do Movimento
Democrático Brasileiro (PMDB) was considered by the public opinion as a golden key to open and close
the debate about the matter since the party had the majority in the plenaries. According to the article
published by the Gazeta Mercantil newspaper, February 1988, there was an agreement between the
conservative representatives known as “Centrão – Democratic Centre” and the PMDB: “Líderes partidários
e de grupos que se formaram na Assembléia [sic] Nacional Constituinte fecharam um acordo sobre o direito
de propriedade”. See http://goo.gl/zChYuO. Access: 12.11.2014.
11
was mainly whether the historical large property system would be dismantled causing a
significative transformation in the countryside for peasants dedicated to familiar
agriculture. In this sense, the liberal concept of free market initiative for Flávio Menezes,
who was the SRB spokesman, affirmed: “A esquerda pensa que reforma agrária é apenas
distribuir terras”.23 What is contradictory in this rural large owner mentality is that the
historical concessions of land for proprietors used the same logic. There was no demand
for primitive capital before 1850 Land Statute in the royal concessions except the class
alliance between the Portuguese Crown and aristocrats (SILVA, 2008).24
Plínio de Arruda Sampaio (PT – SP) defended in an article written to Folha de S.
Paulo, on December 4th 1985, that the Brazilian society required a land reform with a
more precise constitutional text for what would be the social function of property and the
effective legal mechanisms the State could use. For the Federal Congressman, the liberal
free market conception was historically construed by the privileged classes and had been
unable till that moment to reduce the socioeconomic inequalities.25 On the other hand, the
political science intellectual Hélio Jaguaribe said he hoped the 1988 Brazilian Federal
Constitution resulted in: “uma economia de mercado aberta socialmente, regulada por um
Estado democrático e representante dos interesses populares”. He added also that the new
Constitution was the last chance to face: “[…] o abismo que separa o Brasil europeu,
cujos setores econômicos têm indices comparáveis aos das grandes nações desenvolvidas,
do Brasil asiático, que tem metade de sua população vivendo em condições miseráveis”.26
Although there was a debate around the right to property in two polarised
ideological arguments, it is difficult to eliminate the traditional inequalities and privileges
in the dispute once both of the sides declared the intention of liberty. Carlos Lorena, who
was the director of Instituto Nacional de Colonização e Reforma Agrária (INCRA), said
in democratic societies the base of human liberty was intimately connected to the private
property.27 For the intellectuals and public representatives of different powers, there is an
23 See http://goo.gl/DcRKgR, newspaper article published by Folha de S. Paulo on December the 4th 1985.
Access: 029.10.2014. 24 SILVA, 2008, pp. 15-124. 25 See http://goo.gl/Xr7us6. Access: 01.12.2014. 26 See http://goo.gl/Quxnhi. Access: 03.12.2014. 27 See http://goo.gl/hQgMX7. Access: 17.11.2014. Read also “É válido observar que, a partir da
propriedade privada, o homem tem poderes para utilizar esses bens, construindo, em consequência, a sua
liberdade. Tem-se seguramente, assim, que alguns milhões de brasileiros – os excedentes populacionais,
notadamente os de origem rural – não são homem livres”.
12
intrinsic relation among the concepts of private property, democracy and constitutional
paradigms. The paradox is that in a very unequal society in socioeconomic questions of
equality in theory cannot make the constitutional text effective. It has been totally
incongruent or absent the political participation and inclusion of popular power in
different uses of property. During the Constituency, the land access debate was
immensely affected by political representative principles related to the countryside debate
not the urban tensions. The land use continued being imposed by a traditional top-down
model of politics from the rural forces, but Brazil had been considered an urban country
since the very beginning of the 1970s. Selective logic was perpetrated in property
questions and opened a period of ambiguous political actions.28
The ambiguities in the constitutional text pointed out by the Folha de S. Paulo
newspaper on December 5th 1985 mentioned the fact the legislative power reinforces its
dominating logic creating vague rhetorical social clauses. The negation of a precise
definition separating the city and the country needs on property reform set up a tactics. It
made the institutions unable to decide autonomously once the law could not permit
extended interpretations of its normative possibilities by the trained judges in dogmatic
schools.29 Since the insufficiency had been installed, the legislative power consequently
28 See the comments made by the Folha de S. Paulo newspaper opinion on the Constituency and property
right: “Entretanto, é fora de dúvida – mesmo entre setores situados na esquerda do panorama partidario –
que o Brasil se inscreve, de modo decidido e consciente, entre as nações que privilegiam o regime de livre
iniciativa como o camino mais adequado para a construção de uma sociedade economicamente moderna,
políticamente democrática e capaz de superar o abismo de desigualdades e, injustiças que ainda o afasta do
mundo plenamente civilizado”. Available on http://goo.gl/HKrpFD. Access: 17.11.2014. The Federal
Congressman Mateus Schmidt (PDT – RS) mentioned that “Para que os direitos humanos possam ser
exercidos, é fundamental a garantia dos meios econômicos”. Available on http://goo.gl/Lud8Pj. Access:
17.11.2014. 29 The case of Fundação Navantino Alves, Minas Gerais, Belo Horizonte, led by the federal judge Daisy
Starling Lima Castro, is an example of negotiation among the property squatters, State representatives and
the juridical power with subintegrated citizenship. It was understood as an experience of success and with
a high humanised aspect during the process by most of its participants, but implicitly promoted segregation
and marginalised the squatters. The State agreed in changing a more central area, where the families were
living with no sanitary and appropriate conditions, for a title of property materialised in a house in the
periphery of the city with high deficiency in cityt infrastracture. Pinheirinho case is another negotiated
experience with city subintegration logic. We must mention the violence was applied by the São Paulo State
Military Police while people were driving out the area. After a long juridical battle, the eviction was
conceived by the São Paulo Tribunal of Justice invalidating the Federal Regional Tribunal position
according to the rules of competence and jurisdiction in the Brazilian Federalism. After that, the squatters
of Pinheirinho were led to an outside urban subintegrated area of São José dos Campos. In other words,
negotiation meant the close reading interpretation of the right to property based on what says the Brazilian
Civil Code, Articles 926-931. Moreover, the integrated property for a class of citizenship is exchanged with
other subintegrated property for an inferior class of citizenship. If there is no possibility of exchange, the
logic of negotiation is not viable.
13
maintained its traditional protagonist role and continued dictating norms. This was a kind
of reinvention of our political forces dedicated to armor its own structures of
representativeness with no explicit connections to the Brazilian social order and
reinforcing the power of a sovereign coterie submitting other powers. So, the new
democracy that was about to be founded in Brazil operated a top-down political
detachment from its citizens and captured the judiciary power making it dependent on the
legislative work of definitions. The concept on social function of property reflected the
selectiveness in rural problems as well. Miguel Reale, who was a participant of the
Constitutional Comission on the right to property and ex-rector of the São Paulo
University, suggested that for the agrarian reforms projects the criteria should be defined
by future norms, i.e., it was not expected the 1988 Brazilian Federal Constitution to
regulate the matter of expropriation in precise words. But in case State expropriated for
other interest, he defended that the compensation should be fairly paid in advance.30
In the XI National Conference realised by the Ordem dos Advogados do Brasil
(OAB), the tension between legislative and judiciary power was commented by the
president of the institution Luiz Carlos Madeira at that time in Rio Grande do Sul. He
mentioned exactly the absence of participation of civil society in the making of the future
1988 Brazilian Federal Constitution and the parliamentary negligence in including
different sectors of the society at that very important moment: “Disse Madeira que o povo
não sabe o que é Constituição ‘porque o governo não quer que ele saiba’”. Luiz Carlos
Madeira finishes his comments affirming “[…] não terem os advogados qualquer
responsabilidade em relação a essa ignorância. ‘Essa responsabilidade é de quem quer se
manter no poder’ […]”. He added that “o ato convocatório da Constituinte, feito pelo
governo, excluiu um debate nacional, e que a coincidência das eleições constituintes com
a escolha dos governadores, ‘desviou a questão principal’”.31 The Constituency works
promoted by the legislators was bitterly critised by the lawyers during the XI National
Conference in Belém, because they de-naturalised what would mean a constitutional
process with wide popular and civil participation: “Todos os advogados que se
manifestaram sobre o assunto não pouparam críticas ao governo por ter ‘desnaturado’ a
função da Constituinte, confundindo-a com a atividade congressual”. Our question is if it
30 See http://goo.gl/uh4yHR. Access: 21.11.2014. 31 See http://goo.gl/SoKm2S. Access: 07.01.2015.
14
were a confusion or selective force to focus on restricted discussion, solution and legal
apparatus in favour of certain groups.32
In other to face the vague constitutional text and give more precise content to the
matter, the lawyer Dalmo de Abreu Dallari presented the right to property subordinated
to a social function. He reminded the audience the 1974 Portuguese Constitution had
already included this mechanism to promote social justice. Beyond that, the jurist
defended that abandoned properties should be punished to avoid negative externalities for
society. So, for him, the future Constitution could predict three types of good related to
the right to property. The first was the property of use, the second the production and the
other speculation. According to Dalmo de Abreu Dallari, every person was expected to
have one of each category as a maximum. Yet his ideas about the right to property might
sound radical for a country full of proprietors with large rural areas, it was an attempt to
call the attention to the constituents to the singularities of property in country and urban
spheres. His comments had no effect in the Constituency what seemed to be once more
the selective force on how the question of property should be formatted.33
The legislative exercise during the Constituency gave an idea of how much the
congressmen felt independent to select their own functions too. But much more than that,
while they were elaborating, discussing and voting the new Constitution they promoted
what we name as meta-party. The “Centrão” emerged and it was active, but when it was
dissolved the remains of identical interests in different parties still needed articulation.
The right to property dissension in the Constituency can be apprehended as an eloquent
example in how the legislative power constructed its own isolation. The parliamentary
practice seemed to impose more a revisionist project with vestiges of partrimonialist
government practices and beaurocratic opacy on property theme. In this sense, the act of
José Lourenço (PFL – BA) calling to Mario Covas (PSDB – SP) to inform him the pact
that they had been made was aborted tends to a selective order based on personal
contingencies. He said he had had problems with his personal “meu pessoal” and
“Lourenço rompeu o acordo sem especificar os motivos”.34
The President of the Federal Board of the Ordem dos Advogados do Brasil (OAB),
Hermann Assis Baeta, said: “que provavelmente consolidará [new Constitution] muitas
32 See http://goo.gl/k1w60B. Access: 07.01.2015. 33 Idem 34 See http://goo.gl/k2vqfY. Access: 13.01.2015.
15
das normas em vigor, expurgando-se do texto algumas normas arbitrárias e, até mesmo
incluindo-se outras de teor democrático”, but, he continued, “Mas não iremos dispor de
uma nova Constituição legítima e democrática, fruto da consciência nacional, capaz de
dar início a um novo sistema de vida aos brasileiros”. He mentioned the case of the right
to property as an abuse not limiting the area of large properties. With reference to agrarian
reform, it was urgent the political establishment had a consensus that they were obliged
to go beyond the formal legislative practices to change the Brazilian reality. Baeta also
referred to the negligence of the government when it did not solve the rural guerrilla in
the Brazilian countryside. For him, the agrarian reform would immediately be the first
step to stop the violence between large land proprietors and peasants. Old forms of
legislation with elevated degree of repressive tone, anti-scientific, retrograde and not
humanized appreciation were what the Brazilian society had seen till then.35
As the meta-party, a group of politicians from different parties and with parallel
programmes compared to the ones in their original parties, acted it was more and more
distant from society or institutions from civil society. The meta-party is what we see as
the evolution of the supra-party “Centrão” with updated rules of the legislative making
process in new democratic period in the end of the 1980s. It was fully-committed to found
the basis of a power to control, diminish and make dependent other powers. The judiciary
can be considered the immediate affected sphere once the right to property was not free
of the ideological dispute concentrated on rural cases. The large property owners
continued being in the exercise of a constitutional normative framework in which
speculation was incentivised, production restricted to wealthy and influential families.
The use of property for housing purposes was still vulnerable in urban areas. If the use is
different from abuse, another question is how the administration would govern
expropriation with reference to the speculative private interests in construction
35 See http://goo.gl/lV7Tto. Access: 13.01.2015. An example of arbitrary, anti-scientific and dehumanized
practices in the cases of expropriation of those properties destined to use can be seen in the construction of
the Guarulhos Airport. The O Estado de S. Paulo newspaper, on November 7th, reported: “Miguel Antônio
dos Santos teve sua casa, no Parque São Luís, em Guarulhos, desapropriada para a construção do Aeroporto
Internacional de Cumbica. O expropriante foi a Copasp – órgão ligado ao Ministério da Aeronáutica. A
importância oferecida amigavelmente a título de prévia e justa indenização, além de ser flagrantemente
inferior ao valor real do imóvel demorou dez meses para ser liberada e o pagamento foi efetivado sem
correção monetária”. See http://goo.gl/fC8ibv. Access: 14.01.2015. The vague constitutional defense of
fair and previous compensation in cash in case of expropriation can be also seen in Farabulini Junior’ speech
(PTB – SP) when he mentions: “Admitimos a desapropriação por utilidade pública social, mediante prévia
indenização e justo preço da moeda, conforme o anteprojeto da Subcomissão dos Direitos e Garantias
Individuais – afirma Farabulini”. See http://goo.gl/ljxcC4. Access: 13.01.2015.
16
entrepreneurship, housing and letting market once Brazil was more and more an urban
nation. José Carlos Graça Wagner published a text in O Estado de S. Paulo, on February
12th, referring to those principles he believed were reasonable for a new democracy: “No
caso do direito à propriedade, como em todos os outros, pode haver o uso e o abuso. O
uso deve ser garantido pela Constituição. O abuso deve ser contido. Não pela eliminação
do uso. Mas através do impedimento do abuso, através de normas precisas, de modo a
permitir que a propriedade decorra proveito para todos”. 36 Once more, the debate was
open to the making of a new constitution, but the normative practice closed to external
influences. The selection of rural dispute on land is clear when the logic of the cities is
predominant and the migration wave from the countryside massively since the 1970s.
The general discourse is a landmark of the meta-party. The Senator José Paulo
Bisol (PMDB – RS), who belonged to the same party that participated of the “Centrão”
meta-activities, emphasised the proprietor should lose their right if it were proved they
were not in using, sub-using or speculating their property. It is an example of how the
meta-party could select cognitively the criticism on property debate, but format it as it its
own convenience. José Paulo Bisol suggested no precise normative instrument to bar the
anti-social use of property, but echoed the opposition discourse.37 An interesting fact is
the notion the meta-party members had about the historical abuses linked to the right to
property. Speculation was mentioned by the conservative and progressive political
representatives, but not seen in the constitutional final text limited by the Magna Chart.
The iconic Congressman José Paulo Bisol (PMDB – RS) had opposite rethorical sides of
his own party like João Menezes (PMDB – PA) or from other allied parties, but from the
“Centrão” such as Farabulini Júnior (PTB – SP). A relevant observation is that the
political projects of the Brazilian parties do not say much in principle questions related to
other parties. However, they were contingent of interparty coalitions and permitted a
blend of ideas in rule making political representation. It made evident a selective meta-
legislative logic social radical changes. The system of political practice of the meta-party
was cognitively opened in communication, but re-phrasing in the normative approved
36 See http://goo.gl/4igNvg. Access: 18.01.2015. José Carlos Graça Wagner also understood the right to
property as intimately linked to life since it guaranteed the access to other rights such as natural resources. 37 See http://goo.gl/ADjkCm. Access: 18.01.2015.
17
texts traditional preferences. The emphasis on rural and not urban property conflict was
one of the examples we can find during the Constituency.38
The selection on participation or not during the legistlative work to prepare the
other constitution was another topic. The control of a minimum number of legislative
representatives while the works of the Constituency were in progress was very
illustrative. The way the “Centrão” constructed its basis for the meta-isolation among
other powers. Since the previously fair compensation was in charge of administration and
should be regulated by posterior normative framework, the legislative practice in the re-
democratised Brazilian reality was about to have a more protagonist role. As the
contingent exercise of “Centrão” politics had its days counted, it was necessary for the
Congressmen of the meta-party the maintenance of a tradition in making laws as a
mechanism to cyclically reinforce its own power. The compensation would mainly favour
more those one were in connection to real cordial administrations. The question was if
the agenda were not exactly the meta-party desired, no pact would be realised. It is
important to remember the “Centrão” controlled the quorum and indicated whether its
representatives should be present in legislative sessions to vote. Previous compensation
was another unnegotiable point and showed how the meta-party selected indistinctly the
proprietors as if they were facing the same reality in rural or urban areas.
The Comissão de Sistematização suggested fair previously compensation to the
expropriated by the State through public debt bonds in opposition to the compensation in
cash defended by the “Centrão”.39 This impasse was fruitful for the “Centrão”, because it
cleaned the road to the constitution of future coalitions among those political
representatives of privileges and the ones against. The selection reverberated also to the
exclusion of groups isolating those uncommunicable parties considered radicals. It was a
moment to make an experiment using the right to property and to delineate the main
procedures for coming polemic topics in the Brazilian future democracy. The meta-party
logic was germinated in the “Centrão” coalition with the many meta-legal guarantees and
a prominent role including to change the rules that governed themselves. So, the formal
38 “O tema [the social use of property] provocou reação imediata dos integrantes da comissão, sendo que
o senador João Menezes (PMDB – PA) chegou a anunciar a apresentação de um substitutivo totalmente
contrário à proposta de Bisol. Outro parlamentar, o deputado Farabulini Júnior (PTB – SP), considera a
idéia absurda e diz que o direito de propriedade está em risco no Brasil.” See http://goo.gl/zQhHL9.
Access: 19.01.2015. 39 See http://goo.gl/eal25w and http://goo.gl/OuH5zW. Access: 20.01.2015.
18
parties did not agree with the informal pact about the right to property were excluded: “O
PC do B e o PT estão excluídos das negociações, em virtude das posições intransigentes
que defendem”. 40 The concept of pact as a practice among different ideologies in favour
of a meta-interest is expressed by a piece of newspaper article published in the Correio
Braziliense, on February 8th 1988, when it said: “O acordo sobre propriedade privada está
caminhando. Poderá ser aproveitada uma emenda elaborada pelo senador Virgílio Távora
(PDS – CE), a partir da junção de várias emendas […]”. There was clearly a selection of
how the social function of property should be included in the constitutional text, once the
definition of the criteria was to be approved by the meta-party, and whether the property
should be subordinated or not to collective interest. So, the right to property “fica
subordinado à sua função social, como deseja o lider do PMDB, Mário Covas (SP), mas
as desapropriações só podem ser feitas mediante indenização em dinheiro, como exige o
Centrão”.41
The Congressman Expedito Machado (PMDB – CE) added also that the “Centrão”
wanted more expression in the voting process and the constitutional matters. According
to him, the meta-party looked for venue in forwarding the main topics and putting in
practice a pre-negotiation logic inside the legislative power. Ulysses Guimarães, who was
the president of the “Centrão”, said he was not worried with Machado’s declaration once
he was only committed to observe the tendency of the voting leadership.42 The episode
involving the two politicians reveals a lot in what extent the Brazilian politics was
affected by a personal meta-legislative logic detached from the social basis and the civil
society institutions observing the needs for social demands such as the ones indicated by
the Ordem dos Advogados do Brasil (OAB): “Tudo estava fechado, mas, uma hora
depois, Lourenço [José Lourenço (PFL – BA)] telefonava a Covas [Mario Covas (PMDB
– SP)], dizendo que estava com problemas com ‘o meu pessoal’”.
40 It would be really profitable to observe the changes that “Centrão” promoted in its own internal law. The
Jornal de Brasília, on February 17th, pointed that the Constituency had two phases. The first one was set
up by the Comissão de Sistematização, the other by the reform of its own by law. See http://goo.gl/oiMHTl.
Access: 20.01.2015. With reference to the extinction of the “Centrão” and the protagonist rule making
process, there is an newspaper article that says: “O Centrão deixará de ser força majoritária na Constituinte.
Pelo menos é o que o presidente da República em exercício, deputado Ulysses Guimarães, depois que o
deputado Expedito Machado (PMDB – CE), que diz liderar cerca de 40 parlamentares de um grupo
autodenominado centro-democrático do PMDB, solicitou-lhe uma audiência para comunicar que o grupo
votará a seguir a liderança do partido nas votações e não mais a do Centrão”. 41 See http://goo.gl/2Hl10h and http://goo.gl/4EpYK5 Access: 20.01.2015. 42 See http://goo.gl/x39FVk. Access: 22.01.2015.
19
The partial interest is evident as well in the legislative machine with too much
personalism and the logic of pact as we see in the excerpt published by Folha de S. Paulo,
on February 10th 1988, as it says: “Os deputados Bonifácio de Andrada (PDS – MG) e
José Lins [(PFL – CE)] deram apoio a Lourenço, além de um ‘detalhado assessoramento’
da União Democrática Ruralista (UDR) contra o texto do acordo”. The appearance and
extinction of pacts are also fruit of non-transparent practices: “Às 12h15, Lourenço
rompeu o acordo sem especificar os motivos”. 43 Roberto Cardoso Alves (PMDB – SP)
insinuated that the União Democrática Ruralista was as opportunist as the leftists. He also
defended the logic of exchanging favours saying that “it is only giving that we get back”
as reported by the Jornal do Brasil on February 17th 1988. 44 It sounded really scandalous
his pronouncement since the rural civil organization was considered by many
parliamentary members as traditional. The selectiveness of interests against convictions
was noticed by the Jornal do Brasil newspaper, on February 11th. It referred to a difference
in “Centrão” practice between interest and conviction affirming its members were:
“pessoas reunidas mais pelo interesse do que pelas convicções”. Yet the criticism, the
opinion of the newspaper revealed also a support of such selectiveness on property right.45
The operation of the meta-party gives room also to the updated proposals of new
traditionalisms. When the “Centrão” lost its power in leading the pact for the right to
property, Jarbas Passarinho (PDS – PA) appealed to the present congressmen for a new
agreement. Carlos Sant`Anna (PMDB – BA) is a very good example of a supposed non-
sense party in which the political entity does not have a project to represent the society.
There is an apparent dissention inside PMDB, but in fact the legal parties have been
operating in a legislative framework and used the present platforms to impose projects
conceived by alliances and vagueness. Carlos Sant’ Anna (PMDB – BA) suggested it was
not possible to amend something that did not exist. On the other hand, “José Genoíno
[(PT- SP)] alegou que as emendas seguintes eram substitutivas (substituíam todo o
43 See http://goo.gl/jrPpwb. Access: 22.01.2015. 44 See http://goo.gl/9kn0ck. Access: 23.01.2015. 45 See http://goo.gl/Ccb8F1. Access: 24.01.2015. It is important to mention the opinion of the columnist
Carlos Castello Branco about the interest and not the convictions of the legislative representatives: “É
visível a insuficiência oratória do Centrão para transmitir com eficiência e com o indispensável brilho que
se gosta de ver na tribuna seus argumentos em defesa das teses que motivaram a reunião de pessoas reunidas
mais pelo interesse do que pelas convicções para impedir a votação de um texto constitucional que, no seu
entender, ameaça o direito de propriedade, inviabiliza a empresa e bloqueia o ingresso de capitais
estrangeiros de investimento”.
20
parágrafo) […] Depois de iniciada a votação [Gastone] Righi [PMDB – SP] tentou
suspender a sessão, com o mesmo argumento de Sant´Anna ‘Não pode haver substituição
do nada. Esta aberração não pode continuar’”.46 Once more it is clear the practice of
selecting the cognitive information of what is acceptable or not for the right to property
in a closed normative framework.
The constitutional text approved for the right to property defined compensation in
cash for under the matter of expropriation evoked by the State and public debt bonds in
case of agrarian reform. The effects of this agreements were very negative for the
Brazilian society once it did not incentivise the expropriation for social needs in urban
cases: “[…] Em clima de aplausos e cumprimentos mútuos, a Liderança do PMDB e o
Centrão conseguiram ontem um acordo em plenário e aprovaram, por 446 votos contra
40, a definição da nova Constituição sobre o direito de propriedade”. Based on the
legislative logic of the meta-party, the two invisible actors, PMDB leadership and
“Centrão”, guaranteed the right to property “sem subordinações, mas fica claro que ela
atenderá a sua função social”. The terminology is not precise when it selects the right to
property shall serve “atenderá”, but not will be subordinated or applied without loss of
social function. It seemed to be modelled by the traditional debate on countryside XIX
century discussion on property.47
The final pact between “Centrão” and the civil forces of the Brazilian society
meant a pact of class. Informal meetings involving the two forces defined the right to
property and the rules for expropriation violating the first article of the internal regime
observing the meetings for legislative practices should be in the dependencies of the
Congress. This legal norm of formal places of discussion was fairly committed to those
ideas of transparency and participation of other nuclei of the society: “Foram necessárias
três reuniões de cúpula do Centrão com os representantes dos produtores rurais – União
Democrática Ruralista (UDR), Sociedade Ruralista Brasileira (SRB) e Confederação
Nacional da Agricultura (CNA)”, then the meta-party reaches “a uma proposição final de
proteção à propriedade produtiva, limitando as possibilidades de desapropriação para fins
46 See also “Plínio [de Arruda Sampaio (PT – SP)] pediu a todos que pelo menos lessem a emenda, para
constatar que ela nada tinha de ‘socializante’. Ele disse que se tratava de uma resposta ‘pragmática’, que
visava sobretudo impedir a especulação de terras agrícolas. Gastone Righi [PMDB – SP], ao discursar
contra, disse que a emenda de Lula [Luiz Ignácio Lula da Silva (PT – SP)] era ‘fruto de um analfabetismo
total’”. See http://goo.gl/o13ut0. Access: 24.01.2015. 47 See http://goo.gl/YxYJNE. Access: 25.01.2015.
21
de Reforma Agrária”.48 The president of the executive power selected also some
politicians to discuss the constituency work. On June 8th 1987, the Gazeta Mercantil
newspaper reported the President José Sarney (PMDB – MA) at that time invited for a
super the politicians of the Comissão de Sistematização in order to “estreitar os contatos
com a classe política”. So, the unit of the democratic alliance coincidentally or not
resulted in ministerial indications for the Caixa Economica Federal (CEF), Instituto
Nacional de Reforma Agrária (INCRA), Banco da Amazônia (BA), Rede Ferroviária
Federal (RFF) and Instituto Brasileiro de Desenvolvimento Florestal (IBDF).49 The
practice, which was signalised by the executive power to the legistlative representatives,
has been much to do with the pact among political classes operating in a meta-reality and
legal order. The meta-party is the one that exists in different political actors in the
Brazilian society based on detachment of the popular basis, isolating the judiciary power
and contaminating the public life with patrimonialist interests. The meta-party selects its
own manners of selectiveness to perpetuate its political practices. Such selective
mechanisms in elaborating legal norms, internal logic for the alliances’ participation and
the definition of those included in its preferences result in different levals of integration.
4. Upper-class integration and under-class integration: the Brazilian singularity?
A Brazilian historian once said that “[…] In a land where everyone is a baron it is
not possible a long-lasting collective agreement, except if it is imposed by an external,
respectful and frightening power”.50 In other words, Sérgio Buarque de Holanda was
simply calling our attention to the debility of our institutions and the room in our
traditional to parallel ones. What should be supposed impersonal decision related to the
interests of all it is decided by a group that promotes a meta-lawmaking power. Based
upon an alien, fearful and sovereign forces above all institutions, the author points out the
“land of barons” idea as the social logic of what we have conceptualised as meta-authority
intrinsic to our political system. The Brazilian thinker highlights that even the principle
of hierarchy was rarely considered an important aspect in the national reality. The
48 See http://goo.gl/nuR5rE. Access: 02.02.2015. 49 See http://goo.gl/Tl03ts. Access: 02.02.2015. 50 See HOLANDA,1963, p. 5. The lines above were freely translated by the authors of the present article.
22
selection of privileges for upper or under-intergration was more complex to a simple
radical norm based on vertical and hereditary power.51
The context of this affirmation was the very beginning of the 1930s when the book
Raízes do Brasil was published. A time of transformation and variability in the Brazilian
political participation was accompanied by a rising unionism in urban areas and a cultural
upheaval.52 The end of the commercial Coffee and Milk Republic (1894-1930) was
decisive to update tradition in Brazilian politics. In a country recently declared a Second
Republic (1930-37), which was free from antagonistic oligarchic politics between São
Paulo and Minas Gerais, there was an expectation of more collective rights and less
personal powers. The barons of commodities had the property culture favouring them
with no limitations of the land extensions as it happened to the 1850 Land Statute, Act
601, from the II Imperial Era. This legal system just conceived the principle of land tenure
giving a more modern appearance to the right to property and sovereignty with no radical
emancipation of the1603 Philippine Code.53 Till then the State permission to explore the
land was similar to the old concessions of extensive powers inside the limits of the
property, but now with the productive and wealthy clauses for the subject of the contract.
In theory, no possession should be given to those who could not match these criteria.
The barons of the coffee after 1850s, as a lineage of modern aristocrats taking part
of the international commerce, were part of a pact that put the coffee in the index among
the most important products during the II Brazilian Empire in the XIX. The barons of the
land had the traditional dominium given by the Real authority and were the ones who
determined the civil laws inside their domains including the decision who would live or
not inside their fences. It also included the inexistence of a formal legal practice once the
barons were the meta-rule-making class inside their concessions since the 1824 Brazilian
Emperial Constitution. The practices of a supposed autonomous land cultivation gave
room to different kinds of meta-authorities. The alliances, the pacts and personal
decisions were emotionally implicated with the formation of the Brazilian State once
51 “No fundo, o próprio princípio de hierarquia nunca chegou a importar de modo cabal entre nós. Tôda
hierarquia funda-se necessariamente em privilégios. E a verdade é que, bem antes de triunfarem no mundo
as chamadas idéias revolucionárias, portuguêses e espanhóis parecem ter sentido vivamente a
irracionalidade específica, a injustiça social de certos privilégios, sobretudo dos privilégios hereditários”.
Idem, p. 8 52 See MIGLIARI, 2012, pp. 186-202. 53 See CUNHA, 2011, pp. 1171-1181.
23
everywhere was local and not center. There was no city under the terms we have known
nowadays54. Not only had they influenced meta-political routes of a country in terms of
politics and the way the barons of the land cultivated political alliances, but also in parallel
logics in law making. After the second half of the XIX century, the creation of the
Brazilian Republic did not mean the abortion of class alliance relation on property. The
first three decades of the XX meant landowners and the making of politics between Minas
Gerais and São Paulo, respectively, producers of milk and coffee in the properties. The
consequences of a so-negotiated executive power resulted the permanence of meta-
possibilities among the barons of the land in making the rules of their own interests while
the rising of urban middle-classes, military forces and industrialists were excluded from
the political process. As a response to such “anarchical” contingency, a concept which is
defined by a well-knitted lack of social cohesion, Getúlio Vargas perpetrated a coup
d’État in 1937. He governed the land under the Estado Novo regime till 1945 and received
support from meta-nuclei of the society. The emphasis on urban property production
through technical development of industries in the country was essential to desmantle the
traditional alliances from the rural areas in the Brazilian politics. It is relevant the
contextualization of that period to show how the republican system was in its origins
connected to traditional politics around the barons of the land and their modes of
selectiveness.
It is clear the debate on property system excluding the urban reality as a way to put
foward a convenient meta-programme on class integration in the Brazilian federal State.
The several factors, that marked the discussion of the right of property in the Brazilian
constituency, opened up some interesting possibilities for the analysis on the dynamics of
the Brazilian institutions. One of them is that the institutional organisations are most of
the time subject to particularistic orders of certain interested groups. They decisively
select in their politics and law systems not the expectation for the public good orienting
service sharing widely as an impartial normative framework. They are much more keen
on the realization of agreements among extractive elites55. Removed the normative
54 See FRANCO, 1997, p. 121-122. 55 The terminology “elitist explorers” has been used here on to evoke the thought presented by
ACEMOGLU & ROBINSON, 2012, p. 118 (kindle posição 2007 de 8248) in “Why Nations Fail: the origins
of power, prosperity and poverty”. This work shows in a series of examples in the economic history how
the underdevelopment in many countries, specially those ones known as inheritors of colonial tradition and
24
assumptive overload described often by the jurists about the constituent power56, which
was known as free manifestation, sovereign and the unlimitations to the people, it is
important to highlight how political process and law are mutually conditioned. How such
intimate connection limits choices and reinfoces class privileges at the same time. The
observation about the power relations involved in the composition of the committees, the
voting-writing mechanisms and the disputes among parties on the meaning of the
Constituency Internal Regime are some examples.
Convened by the Amendment n° 26/1985, the National Constituency Assembly
had its legitimacy contested immediately, either to be the outcome of the reform power
or for not having exclusively elected members57 for the constituents work. However, it is
true there was a legitimizing discourse prevailing in the opposite direction. Factors related
to the maintenance of the military power58 and the unequal representation59 in Congress
mitigated the idea that in 1987 we had one of those special moments described by Bruce
Ackerman60 to explain the existence of the concept of dual democracy, that is, that on
rare occasions and marked by strong participation, the people expresses its power
regardless of any condition.
It does not follow state that the influence of the movements of civil society
organizations has not been reflected in the process. Bernardo Cabral, who was the
constituency rapporteur, said the constituent meeting was organized in a “extremely fluid
methodology and strong potential dispersion”.61 After the dissension with the
unequally formed from a material perspective, is linked to the incapacity of promoting the adequate
functioning of political institutions related to economic development and social inclusion. 56 For a criticial overview of how the jurists read the constituency power category, which is seen by them
as a key of self-legitimation of a discourse versed in the authority exercise, read COSTA, 2011, p. 226. The
author discusses some of the paradoxes involved in the traditional contractualist justification about
democracy as an absolute government. However, this government is self-limited by a chart of rights under
the name of a fictitious political representation from which the subjects (people) do not delegate especial
power to their representatives. 57 The participation of 23 bionic senators indirectly elected in 1982 can be taken as a starting point of this
discussion. With the legitimacy challenged by Plinio de Arruda Sampaio, the Judge Moreira Alves, then
Chief Justice, the question of the participation of bionic was returned to Congress, which, in turn, decided
to maintain the senators appointed by the military regime. Position taken by Senator Afonso Arinos, José
Richa, Gastone Righi and Fernando Henrique Cardoso, who at the time said: “permitir que a constituinte
tenha poderes sobre a atual constituição é chegar a uma situação perto do arbítrio, porque existe uma ordem
jurídica vigente”. See Gazeta Mercantil, São Paulo, 05.02.1987, p. 6. The Supreme Court even came to
receive consultation made by the former Liberal Party, in the form of interpretive representation on the
extension of the constituent power. See Gazeta Mercantil, São Paulo, 09.02.1987, p. 29. 58 See http://goo.gl/8lNElI. Access: 05.2.2015. 59 See http://goo.gl/qjl7HQ Access: 05.2.2015. 60 See ACKERMAN, 1991, p. 6. 61 See CABRAL, 2008, p. 82.
25
government, lawmakers rejected the guidance of a technical bill. The strong emphasis in
creating a document highly codified with due procedures was defended by legal experts
such as Manoel Gonçalves Ferreira Filho and Miguel Reale. This would be the
differentiating factor for the 1987/88 Assembly that broke with the paradigm of other
Brazilian constituency processes, traditionally confined to institutions and directed by
State officials.62
This is possibly one of the factors that explains why the aspirations expressed by
the majority of the constituents in the installation act was not realised by the promulgated
Constitution, which shows how a proper understanding of the concept of Constitution due
to the diminished result of an intentional planning than a dynamic interpenetration
between politics and law.63 In the case of the 1987/88 Assembly, since there was a room
to a fragmented capacity for the decision-making process among different leaderships,
one can not overlook that the political actors present in the process corroborate the
maximization of their own interests in the choice of that institutional framework.64
Moreover, one of the dimensions of the constituency was the selection of its institutions
and the definition of its rules based on informality and personalistic logic of the
conservative meta-party. So the procedure adopted for the internal regime of the
constituency, which substituted the previous progressive one, resulted in significant
political costs for the defense of specific proposals at stake.
It happens that the operability of this logic of articulation under a mutual tension
between politics and law in the constitutional process has been dependent on structural
conditions for inclusion of citizen participation.65 It is also subject of being effectively
62 See BARBOSA, 2012, p. 146. 63 As pointed in Sandra Gomes’ study, which was based on surveys of the time, 60% of the constituents
preferred to adopt a concise constitution but it did not come true. 54.4% said it was in favour of
parliamentarism, however, presidentialism was maintained; the district vote had support of 63% of the
constituents, but also on this issue the status quo prevailed. See GOMES, 2006, p. 194. 64 The prevalence of the PMDB, which had 303 MPs in the 1986 elections (54.02% of the constituents)
against 35 PFL (24.15%), made the former monopolize the latter in the decision-making process, occupying
the rapporteur of all thematic committees (counter-intuitive to the principle of proportionality as it was set
out in the Constituency National Assembly Regime). However, the heterogeneity of many ideological
perspectives and the weariness between pemedebistas constituents and the right-wing parliamentary
dissatisfaction with supposed progressive positions in hardly changeable committees in Parliament, paved
the way for veto coalition known as “Centrão”, which included 43 constituents of the PMDB and caused
the change of the internal regime for the congress functioning. See GOMES, 2006, p. 206. 65 According to the functional point of view of systems theory the “Constitution makes it possible, at the
same time, a legal solution to the problem of self-reference in the political system and a political solution
to the practice of self-reference in the legal system”. See LUHMANN, 1996a, p. 24.
26
heard in order to have their political demands converted into positive law. Moreover, in
plural and complex contexts, such as capitalist societies that consider themselves
democratic, citizenship participation also relies on the provision that the right provides
the policy: rules on the training procedure of the will. Rules subject to public scrutiny and
to transparent decision. Otherwise, if it fails such constituent power of the holder, the
people lose their interference ability in decision-making process. To make matters worse,
the personalist and meta-partisan aspect of the debate on the right to property sounded
polemic. The political and legal approval of the social function of property was a topic of
massive dispute on media press and among the constituents. The operational effect of
autonomy for this matter in the legal system, with regard to the normative dimension and
interpretation on the scope of property rights in the Brazilian society, was not consentual.
According to Marcelo Neves66, the political decision depends on the citizenship
claim under the rules of law. For him, the reproduction of the law can be blocked by the
destructive actions respecting political and economic particularities, impediment of the
legal system autonomy and citizenship restriction in implementing fundamental rights.
Thereof it seems to be valid the distinction made by Neves, approaching and moving
away up to certain extent, the concepts of over-citizens and under-citizens that had been
proposed by Roberto Da Matta.67 The hierarchical divisions of those more and less
participative citizens in both authors describes the Brazilian social stratification between
what would comprehend upper-class and under-class integrated citizenship.
Beyond the particularities of the Brazilian cultural background, which had some
anthropological traits gathered by Roberto Da Matta68 to justify that between us, unlike
what happened with the countries that experienced the individualistic and puritanical
revolution that predecessor of capitalism's statement, there would be a "dual ethics" in
Weberian terms, that is, that in Brazil the space and temporality notions follow a specific
duality mediated through the world of "relations": the street would be the impersonal
66 See NEVES, 1994, p. 259. 67 The house and the street in the explanatory model of the Brazilian anthropologist Roberto Da Matta’s
sociability would be defined as spaces that differentiate a social group where brands are the privileges,
characterized by the enjoyment of rights without duties (universe of the house), and another where the
absence rights is associated with social interaction space (world of the street). While the house is the space
that is the idea of love, affection and hospitality; the street, according to the author is the "Land belonging
to the ‘government’ or ‘people’ and that is always replete of fluidity and movement. The street is a
dangerous place”. See DAMATTA, 1997, p. 40. 68 See DAMATTA, 1997, p. 33.
27
space of the universal and eternal laws, the house, the place where the bonding mix blood,
age, sex and hospitality, personalism that seen as "human and solidarity" place, and the
other world, which makes the other two spaces sublimating the conflicts and
contradictions between the house and the street, on the resignation of idea 'other world',
by establishing a "ritual triangle"69, which would explain the Brazilian society70.
Da Matta’s anthropological conceptual uses referring to the house and the street
are illustrative in defining the performance spaces of upper-class citizenship and under-
class citizenship. However, for Neves the street sphere is the one without rights, but at
the same time may be the space subject to the exercise of upper-class citizenship abuses.
In this sense, the under-integrated group remains dependent on the benefits of the legal
system, but without reaching them, which does not mean their exclusion from the
system.71 It is a negative inclusion. The under-class individual integration is normally
vulnerable to impositive marginalized participation in society once the excluded citizens
must accomplish their duties. This double paradigm generates violent constrasts in law
realization in an unequal society: “embora lhes faltem as condições reais de exercer os
direitos fundamentais constitucionalmente declarados, não estão liberados dos deveres e
responsabilidades impostos pelo aparelho coercitivo estatal, submetendo-se radicalmente
às suas estruturas punitivas.”72
Over-integration for many social sectors is associated with the maintenance of
privileges to the upper-class integrated group. There is an express support of the state
bureaucratic structure, which would ensure the “institutionalization” of unproper
functioning of rights, in order keep the privileges incompatible with the regime of
equality. It is important to mention there is a financial participation of whole society to
maintain the State. It turns out that, although not extensively worked by Neves, the effects
of this upper-class integration on access to constitutionally defined legal interests obey
69 See DAMATTA, 1997, p. 71. 70 The explanation of Roberto Da Matta (DAMATTA, 1997, p. 13) also supports the interpretation of
Raymond Faoro (FAORO, 2001), according to the latter a group specially formed by technocrats and
scholars would enjoy privileges funded by the State motivated in friendship typical sympathy and loyalty
of personalism common in traditional societies. 71 Neves’ rationale presupposes the concept of inclusion in Luhmann, for whom inclusion “significa la
incorporación de la población global a las prestaciones de los distintos sistemas funcionales de la sociedad.
Hace referencia de un lado, al acceso a estas prestaciones y, de otro, a la dependencia que éstas van a tener
los distintos modos de vida individuales”, which would characterise the state of well-being. See
LUHMANN, 1993, p. 47-48. 72 See NEVES, 1994, p. 261.
28
its own selectivity. This is why integrated citizenship usurps or instrumentalizes the
normative discourse when their interests are at stake, but they appeal strictly to the rules
when the Constitution imposes limits for their political and economic interests. So to
Neves, the text does not act as “horizonte do agir e vivenciar jurídico-político dos ‘donos
do poder’, mas sim como uma oferta que, a depender da constelação de interesses, será
usada, desusada ou abusada por eles”.73 The double paradigm is again the logic of the
over-integrated groups to make their interests valid with a selection of norms depending
on the contingency.
In a society where the property is a determining locus of status that citizens use to
climb social ladders, the exclusion of such exercise of this right for the majority of the
population, followed by the large concentration of rural and urban properties units under
the control of some groups, reinforces the fact of a “non-existent citizenship” or restricts
the isonomic application of the constitution to its symbolic function. The high selective
logic in discourse to take advantage of the normative framework in over-integrated
classes, “pode servir mais à manutenção do status quo do que à integração jurídica e
igualitária generalizada na sociedade, isto é, atuar contra a própria realização da
cidadania”.74 The inclusion of property as a material right in the realm of a social
transformation would also impact the culture of law via politics and economic changes.
5. Between law and politics in the peripheral modernity: the social function of
property in the Brazilian Constituency
Beyond the particularities of the citizenship formation in Brazil and the intricacies
of the categories of its sociological explanation, the constituency processes are usually
marked by the strong participation of interested elites in the consolidation or maintenance
of a political and legal arrangement preserving their structural status quo.75 The meta-
73 See NEVES, 1994, p. 261. 74 See NEVES, 1994, p. 268 75 One criticism of certain atavism of the Brazilian sociological tradition to explain the causes of the failure
of a citizenship in the “modern” frames, and as always refer to the development model of the “central
countries”, is made by Sergio Tavolaro (TAVOLARO, 2009, p. 95-120). The author tries to shed light on
that agonistic dimension and contingency that would be still present in the history of Brazilian institutions.
There has been as well a special attention to the conflict between the federalist and centralist projects still
in the Old Republic with disputes beyond the oligarchic level reflecting the formation of “padrões de
sociabilidade e normatividade que se consolidaram ao longo dos quinze anos que se seguiram à emergência
de Vargas no governo provisório” (TAVOLARO, 2009, p. 114). Aspects such these ones would require a
joint analysis of political oportunities and practices for social transformation not based upon the theories of
sociological dependency reasoning the causes of the Brazilian type of modernity with the later process of
29
party presence in the Brazilian congress at that time involved mobilization of the
constituents assembly agenda regarding their own interests. However, a similar parallel
is also possible in other experiences of the constitional elaboration. The defense of
property against the imposition of taxes by the British Crown has been considered one of
the leitmotiv of the American Revolution, which, as Christopher Thornhill affirms,
became the language of law in British Common law. During the construction of the
former colonies there was an intent of an autonomous political legitimation project
divided in two dimensions. One of them was a negative affirmation, which had been
inspired by the Lockean thought, saying that the State power is circunscribed by the limits
of its natural law in defending itself. The other one was the positive rationale that the
defense of this right has been connected to the performative character of cohesion and
engagement of individuals. So, the constitutional formation of independent community
states required participation.76
According to Michael Parenti, specially in the U.S. case, the composition of the
members of the Philadelphia Convention, which had preceded the 1787 text formatted by
the presence of large landowners, merchants and bankers, must be contextualized. It is
undeniable reasonable clear objectives to establish a central government, adjust debts and
trade clauses between the thirteen former colonies with interested groups. There is also
the element of protection applied to the overseas trade goods and the diplomatic relations
in the international field to establish the frontiers. Such ambitious project could be only
possible if it propagated the commercial and financial interests of a bourgeoisie in
formation, and shielded the accumulated wealth of distributive requirements of other
social classes.77 So, the element of selectiveness has been present in terms of duties and
rights, but not excluding the possibility of over and under-integration with the aspect of
class division clearly present.
The role of law centrality in the conception of sovereignty among Americans, with
the mediating function between central government and the states or the Federal
government and a civil society in formation, has been under observation as the prime
factor of the distinction between the roles of public and private. So, respecting such
industrialization, the patriarchal and patrimonial sociological interpretation and the idea of an Iberian
heritage. 76 See THORNHILL, 2011, p. 186 e 196. 77 See PARENTI, 2006.
30
division the “American constitution used national sovereignty to create the state as a
public order and it utilized rights to delineate the extent and limits of state power”,
avoiding an “uncertain differentiation and endemic re-particularization typical of other
constitutions.”78
Analogies between the Brazilian constituency and the Philadelphia convention are
at risk of anachronism and subject to a series of different special contextualization that
are beyond the scope of this study. However, noting that in both cases the dynamics of
constitution draft was surrounded by conflicts of interest. This is evident if we take into
account the linguistic disputes about the meaning of social with reference to property.
Another aspect is the high selective actitude in paying attention to the entries “submitted”
and “shall observe the social function of property” that favours the due process and the
exclusion of this right for those who cannot pay for it as well. It is relevant to note the
contingency that indicates neither our Constitution is the result of a kind of
“Brazilianness”79, which some appropriations of cultural anthropology made by the
national sociological tradition80 may suggest, nor that the U.S. Constitution is the result
of a genuine manifestation of a constituency power. An effort originated from an ample
concept of what would be people, whose revolutionary force would be sovereign and
unlimited, as the pure perspective of a dogmatic constitutional law often repeats.
The recognition of selectiveness in classes, meanings and ambiguity related to the
effective conquest of social rights means the evaluation of the discussion on the right to
property during the Brazilian constituency is not explained only by a culturalist atavism
as suggests Jessé Souza. Neither the political aspects observed by the barons of the land
idea, enunciated by Sérgio Buarque de Holanda under a historical contingency very
78 See THORNHILL, 2011, p. 198. 79 Jesse Souza (Souza, 2009, pp. 29-39) describes the myth of the “Brazilianness” as Freyre's construction
of Casa-grande & Senzala engaged in an effort to claim a “national identity” deeply marked by self-
complacency and self-indulgency. Sentiments characterized by the amicable and warm friendliness.
However, for Jesse Souza, the effects of such feelings as a cultural and social components neutralize the
self-criticism and weaken productive actions in the political and intellectual debate in the country. 80 A critical position of this tradition to treat Brazilian problems as derived from an a-historical patronage
contrasting to hypostasized idealization of US development, seen as an example of a successful classical
liberal ideology, is presented by Jesse Souza. The authors intends to identify in intellectuals such as
Raimundo Faoro the description of an “intentionality” in the criminal status group. So, the illegality would
be the base of an “original sin” determining the Brazilian social formation (SOUZA, 2000, pp. 171-181).
He is skeptical also to the explanatory category of Iberianism and personalism as Sérgio Buarque,
Raimundo Faoro and Roberto Da Matta use as a common thread (Souza, 2000, p. 184 and 191). However,
the author does not deny the importance of “personal relationships” in informal conflict resolution as a kind
of “dual grammar” that separates individual and person in Brazilian society.
31
peculiar during the 1930s, takes into account the totality of selectiveness among certain
classes. So, the due attention the constitutional history and the fact of dispute leads us to
the core of the decision-making process and the act of selection. The system of privileges,
the biased interpretation of what would be “social” in the property system and the relation
over-under-integrated citizens lie at the roots of the constituency debate. What Roberto
Schwarz named “misplaced ideas” stating that “ao longo de sua reprodução social,
incansavelmente o Brasil põe e repõe ideias europeias, sempre em sentido impróprio”.81
It is exactly at the point that Marcelo Neves’ criticism to an “empirical provincialism”
with the theory of Niklas Luhmann reveals its meaning.82
On this point, it is necessary to recall that, unlike the Weberian concept of social
differentiation whose rationality would assume the action and interaction of those wishes
for the common good socially intentioned, the concept of social differentiation acquires
a more complex character in the theory of systems. This is because any group of general
principles and propositions to analyse the reality are under the humankind and physical
contingency. It is important to note that the pure combination of two asymmetrical
relations system/environment or equality/inequality seem to be inadequate without the
aspect of contingency.83 For Luhmann, this two set of possibilities have intimate relations
to what he calls the three modalities of differentiation: segmentation, stratification and
functional.84
The concept of functional differentiation plays a central role in the theory of
systems, presenting itself as a social mechanism of evolution whose acquisition occurs
from the increasing complexity of its structure. It makes any human being able to capture
more complexity with the reduction of the working senses. This evolution model indicates
a progressive separation of the various functions of society (economy, politics, law,
religion, education, etc.) without addressing, however, for a particular purpose and
previous determination. So, differentiation does not follow a historical and rational
linearity, but it is subject to the contingency related to the number of empirical
81 See SCHWARZ, 2005, p. 29. 82 An account of how the reception of Neves’ critique related to the limits of functional differentiation in
the so-called “peripheral modernity” caused changes in luhmannian theory, especially the fashion of
apprehending inclusion and exclusion concepts as Pedro Henrique Ribeiro does. See RIBEIRO, 2013, pp.
105-123. 83 See LUHMANN, 1977, p. 33. 84 With reference to the distinction involving the three types of differentiation and how they are intertwined
with the social developments. See LUHMANN, 1977, pp. 29-53 e LUHMANN, 2006, pp. 482-490.
32
possibilities of action and communication within the social system or between it and its
environment.
The originality of differentiation concept in systems theory would then replace the
traditional subject/object dichotomy as an epistemological descriptive premise of social
phenomena. This model rejects final and external reasons to the senses produced by the
society to design the attribute of “distinction” as a “form of two sides”.85 This double
form presupposes the unity of the difference, i.e., inclusions and exclusions that mutually
exist. This is operated by the basic methods of communication produced by the society
and such double face modus operandi becomes more complex as their own
differentiation.86 This is why the more complex and differentiated society is, the greater
the degree of its organization to avoid a generic chaos.87 Furthermore, the escalation of
systemic innovative possibilities in communication and its assimilation of the difference
occurs with the increasing speed in selective, variation and then restabilization of the
dynamic system/environment. It is observable in itself as a concrete communicative
operation without a direct dependence of consciousness of the subject in society. The
communication is not dependent on individual thoughts and awareness.
As a result, understanding the functional differentiation process of society as a
correspondent for social change does not follow a pattern of common generalization to
all partial systems. It submits to the particularities of each communication subsystem,
which has its own monopoly on the specificity of their own communication. The double
patterns created by the meta-party, for example, around the concept of “social” during the
constituency, is not universal for the circles outside its own subsystemic reality. The over-
integration is manifested if the process of differentiation has been set up. It is possible the
identification of the negative dialectics of the non-pertaining if the over-integration
citizenship is showed as a defense of certain classes in the Brazilian society. If they base
their demands on the due process and on constitutional terms, they are not the common
marginalized mass. They are the barons of the land.
85 In point Luhmann follows the mathematical calculus based upon George Spencer Brown’ shapes (Laws
of Forms, 1979), to consign that every statement made by an observer presupposes a distinction between
form, enabling the description of the two sides of what is observed. See Luhmann, 1996b, p. 137. 86 Luhmann states that differentiation of social system is a “reduplication of the difference between system
and environment within systems. Differentiation, then, is the reflexive form of system building. It repeats
the same mechanism, using it to amplifying its own results.” See LUHMANN, 1977, p. 31. 87 See LUHMANN, 2006, p. 398.
33
For Luhmann, the dynamic differentiation of the political system is divided in two
dimensions: horizontal and vertical. On the one hand, the vertical differentiation involves
the stabilization of a model in political organizations (government) regardless of kinship
relations, although based on a hierarchy logic of upper and lower second asymmetry of
social roles.88 Such stablitity is the premise that gives complexity and incorporation of
other social mechanisms to the government, as a military body and the economy. On the
other hand, the horizontal differentiation is linked to government specific functions as a
requirement of symbolic generalization of the institutional systems. This is what permits
the different social roles as their own autonomy, that is, when the complexity of its
structure allows the rationalization of its functions, guided by a universal criteria,
regardless of personalization or the special relationship of those who occupy positions in
the State.89
The internal differentiation of the political system does not mean, however, that
its operability is given encapsulated and isolated from society. Much the opposite, for
Luhmann, this autonomy is at the service of “the connection between the political system
and society”. It operates as a reflective mechanism of the decision-making process
destined to the social environment.90 Therefore, it proves to be adequate for the absorption
of several social conflicts, including the one involving the meaning of “social” in the
property right, the creation of an answer favouring the criteria that meet the expectations
of voters and society and not personalized corporative sectors. A clear example is Gastone
Righi (PTB – SP) generalizing the social function to those movable goods as we have
mentioned before. For him, the socialization of “our cars, paintings and even our pieces
of clothes” is the communicative instrument to produce a non-differentiation in theory of
an unequal country, but re-affirming the positive effects on the right to property to the
over-integrated citizens.91 We are talking about a context of a massive subproletariat
88 See LUHMANN, 2014, p. 58. The passage of ancient tribal societies without State to those
institutionalised government social organisms for Luhmann was possible only with the evolutionary transit
of family economy based on agriculture and livestock for a property system, which required making
decisions with a higher degree of abstraction and linking activity. 89 See LUHMANN, 2014, p. 69. There is here on a similarity to Weber's argument about the indispensability
of a bureaucratic administrative system in the transition between the traditional type of domain and the
legal/rational ones. 90 See LUHMANN, 2014, p. 97. 91 See http://goo.gl/Tn4vL9. Access: 04.02.2015.
34
whose belongings could not go far personal objects. A stratum of the Brazilian society
that did not have access to cars, proper houses or other durable goods.
Nevertheless, we must say that for the constitutional theories the functioning of a
constituency is much more the exception in a political system than the daily agenda. A
constituency gives room to a new structural connection between politics and the law. But
when a series of structural constraints impede the autonomous functioning of both the
politics and the law. The legitimate production of collectively binding decisions and
congruent generalization of normative expectations socially shared are affected for a long
time as well. In this sense, the description of what restrictions are identifiable in the social
structure and how they prevent the operational autonomy of politics and law in a society
like Brazil become part of a constitutional theory interested reducing the inequalities.
From this perspective, the focus on the large rural property seen as an abstract
legal principle consecrated in the constitutional text, without observing who decides on
the selection of meanings and what criteria are used during the process may seem
problematic.92 The absence of information in such process of selection, criteria set and
approval of normative schemes for the property right complextity is unproductive. It bars
the analysis of an unequal structure of a stratified society more and more connected to
urban tensions for the access to an adequate housing. The differentiation aspect of the
political system is compromised if there is a biased normative scheme with positive
results for the barons of the land and negative externalities for the under-integrated
citizens. The existance of an ambiguous communicative structure involving politics, law
and personalistic strengths during the constituency affects the institutionalization of a
more effective material equality and legitimacy of what would be an urban democratic
social function of property.93
Law and politics, more than the other partial systems of world society, were
submitted to a territorially segmented differentiation in national states. So, it is relevant
to say there are many historical and cultural traits that permeate the social structure with
different hues in semantics as defended by the Luhmannian “model”. It requires not only
the evaluation of social conditions, but also the adequacy of this “model” as an analytical
92 See LUHMANN, 2014, p. 26. 93 For Luhmann, the concept of political legitimacy points to the meaning of “la toma incuentionada de
decisions vinculantes en el sistema político queda asegurada con independencia de las estructuras de
motivación concretas y personales.” See LUHMANN, 2014, p. 87.
35
reference to the problems of peripheral countries in the global constellation. In this sense,
Neves notes as local or regional factors that accentuate the asymmetry between “center
and periphery” have led to such contrastive forms of differentiation, reaching, in the case
of the legal system analysis, the aspects of “autoreferência de base (elementar), a
reflexividade e a reflexão como momentos constitutivos da reprodução operacionalmente
fechada do sistema jurídico”.94
The existence of distinct functional differentiation processes as “peripheral
modernity” does not imply a “overvaluation of the center” says Neves.95 Such attempts
to describe how the maintenance of unequal socially political structures, including under-
citizenship reinforced by the low degree of effectiveness of the right to property as we
have been discussing, are based on the asymmetry of the relationships. The lack of
equilibrium is crystallized between the antinomy inclusion and exclusion in the social
sphere. It has significant impact also on territorially segmented reproduction of social
systems even in the center of the capital.
It is the description of a hypercomplex modern society and at the same time
insufficiently differentiated that Neves will characterize the peripheral modernity as a
desordered complexity and desordering continuously its own complexity. This kind of
hipercomplexity society has a logic and can be thought as the following argumentation:
“à hipercomplexificação social e à superação do ‘moralismo’ fundamentador da
diferenciação hierárquica não se seguiu a construção de sistemas sociais”. Although the
social systems are for him interpenetrable and interfere among themselves, they are not
permitted to be constructed autonomously.96 Therefore, the modernity we are referring to
would not be defined autonomously to overcome the traditional social schemes. It would
not be materialized with the use of self-referential operation of partial systems, but
negatively just as hypercomplex disruptive meaning moved by a deep hierarchical
traditional moralism. 97
This approach to the concept of own disordered complexity of the peripheral
modernity context, where the operational autonomy of law is restricted, is specially useful
for the discussion of the right of property in Brazil. Here, regulation of urban property
94 See NEVES, 2011, p. 147. 95 See NEVES, 1994, pp. 253-276. 96 See NEVES, 1996, pp. 98-99. 97 See NEVES, 1996, p. 98.
36
only play a symbolic function in the political and legal discourses prevailing in society.
At the expense of its function as a social system, which generalizes congruently normative
expectations, the exercise of the property service and its social function remained subject
to the particularistic interests. The political mediation in the political realm for the
approval of a due process in constitutional terms in case of expropriation was based on
over-integrated citizenship relations. The emphasis on large rural property involved the
decision-making power and public money for the pecuniary compensations in cash. In
this sense, the social function of property for urban conflicts was captured by a biased
communicative subsystem and privatized the State.98 The implementation of equal
fundamental rights, under the concepts of agrarian reform for unproductive lands and the
defense of latifundium owners, made possible a non-differentiated logic for the
construction of the Brazilian citizenship.
The observation of some data on the use of rural properties in Brazil has made
evident the ineffectiveness of the constitutional provision on the subject. According to
the INCRA, at the time of constiuency assembly, the 27 largest landowners possessed
alone more than 25 million acres, while 48% of families in rural areas (about 18 million
people) were living in absolute poverty status. This demonstrates how the concentration
of land ownership and the non-productivity of the latifundium system is constituted in
question and significant consequence of the Brazilian social exclusion. And even with an
agrarian reform approved in the text, after 26 years of the promulgation of the 1988
Brazilian Federal Constitution, the agrarian structure of the country has changed little99.
On the other hand, the urban scenario is disappointing. The number of slums has
doubled in twenty years. In 1990, the number of subnormal housing units, which is a
terminology negatively identified by the Brazilian official agency of statistics, was
exactly 3.183 and, in 2010, 6.329. 100 In 2011, although it had been decreasing since 2007,
the housing deficit in Brazil was 5.409.210. São Paulo, Rio de Janeiro and Brasília the
98 See NEVES, 2011, pp. 151-152 e 1996, p. 102. 99 According to INCRA data, until 1994 16,290,069 hectares had been incorporated to the land reform
programme. This number until January 2014 raised to 88,197,747. Available on: http://goo.gl/hjnTdk.
Access: 21.01.2015. However, a study based on agricultural sense of 2006 shows that the beneficiaries of
the agrarian reform institutions (598,000 production units) occupy about 23.4 million hectares out of
270,500,000 of usable areas. See MARQUES, DEL GROSSI & FRANÇA, 2014, p. 215-240. 100 The data were collected on the Instituto Brasileiro de Geografia e Estatística (IBGE) website. See on
http://goo.gl/p6d36R. Read also http://goo.gl/bzVFze. It means that the right to property has not promoted
social inclusion in Brazil since it is the only way to achieve a legal shelter in the civil, private and
constitutional law. Access: 03.03.2015.
37
three most critical metropolitan areas were pointed in the study. To make matters worse,
the low paid working class was more exposed to the acute problem. For the stratum up to
three minimum salaries, there were more families suffering with the increasing housing
deficit.101 In other words, the contingency in which we observe the property system and
the social function of property is still producing negative differentiation in upper-class
citizenship and under-class citizenship. The right to property and its social function are
guaranteed by the contitutional text, respectively, article 5, intents XXII and XXIII.
5. Conclusion
In this article, we have made an effort to show how the creation of “Centrão” or
meta-party during the constituency was decisive in the definition of numerous social and
fundamental rights. With reference to the right to property, we have seen that the
newspapers in the period informed the constituents’ debate about the matter among the
legislative representatives opposing the free-market initiative, landowners of large
properties and non-governmental market regulation to the figure of the State, micro
farmers and agrarian reform. Beyond that, the meta-party controlled the establishment of
the decision making process in the constituency assembly changing the document which
regulated the constitution preparation. The contingency of a democratic revival was once
more divided into two political mainstreams. The radical opposition between
conservative and progressive was incentivised by the logic of diminishing the plurality of
the parties in one meta-party above all smaller singularities. The “Centrão” was also
responsible for the violation of the article 1.102 It was explicit that the National Congress
was the place where the constituents should work and not phone calls and meetings out
of the formal arena. It is undeniable the influence of the meta-party in its old practice of
treating the public matter in private sphere while the constitution was been written since
it was very common leaders such as Mario Covas (PMDB – SP) and Ulysses Guimães
(PMDB – SP) organising their agendas in one-to-one negotiation. The contingency was
controlled in double agorae, i.e., congress and private offices. During the 1988
Constituency, the political representatives of the meta-party had in its practice no
feroucious opposition to the dissidents and it was a porous permitting the access to the
101 See http://goo.gl/8C8hx9. Read also http://goo.gl/NtQsnN. Access: 03.03.2015. 102 http://goo.gl/1Mfj06. Access: 03.04.2015.
38
coalition for those politicians that decided to change their minds. The “Centrão” could
impede the agenda debate cancelling the congress sessions or simply controlling the
number of politicians present in each session manipulating the quorum. The meta-party
was a key element in coopting and forming the dynamics of the relation between law and
politics on the definition of the right to property in that context. Nevertheless, the
emphasis given to the right to property disconsidered the fact that since 1970s, almost
two decades when the 1988 Magna Chart was promulgated, Brazil was an urban country.
This is very relevante once the concept of urban property was ideologically biased or
reduced to the rural dispute of countryside productiveness.
It is essential to mention that the concept of the right to property, in which were
highlighted the idea of productivity and wealth accumulation, is connected to the class
interests represented by the meta-party. The landowners formed groups which were part
of the economic state budget and at the same time supported political economy for
exportation. It is the land of barons, because the public good is articulated to old codes of
alliance constructed from institutional relations resulting in a marriage of upper-class
overintegrated citizenship. Yet the prestige the coopted groups had in the meta-party and
their wishes fulfilled, the old legality was once more the general laws framed by the new
contingency. In other words, the land of barons accepted the inclusion of the social
function of property, but generically put the emphasis on the property discussion in the
realm of the previous cash compensation.103 The land proprietors in the countryside were
clearly benefited and the expression “property subordinated to social interest” was in
conflict with “the property shall observe its social function”. The latter prevailed as it
says the intent XXIII, article 5, in the constitutional text.
In the urban context, the free market initiative seems to be the main actors in the
scale of national production and consumerism. So, it was expected a reasonable debate
103 Till today more for the landowners proprietors in the countryside than in urban areas, the previous cash
compensation was a counterpart for those properties considered object of public interest. The point is that
it is exactly the rural property, mainly the large one, that is part of national policies for exportation and
decisive in the periphery of the capitalist system. It is the mentality of the Brazilian State in giving all
support to countryside property owners as a way to guarantee the economic survival of the country. The
1988 Constitution resulted in high protection of the monoculture farm producer once he has been seen as
essential for the generation of foreign currency and responsible for Brazil’s integration in the international
market. If the land were considered unproductive it could be targeted by the Federal State with previous
cash compensation. So there has been a double shield for the rural proprietors, i.e., with the help of the
State the public budget would give all support to produce to external market and internally high liquidity
in case of expropriation. See PRADO JÚNIOR, Caio (2004). Post Scriptum em 1976. In: Histórica
Econômica do Brasil. São Paulo: Brasiliense. p. 344-345
39
also in the field of urban property and not only the reductionist theories against “grupos
que se formaram ao redor da reforma agrária e suas conveniências”104. Housing units,
abandoned urban lands and industries were part of a huge metropolitan market that was
intrinsically subject to the unequal growing of the Brazilian cities. Again, it is the land of
barons once the concept of property was defined out of the realm of the cities and the
urban context. Moreover, the owners of the rural large properties were numerically
minimum if compared to the urban population, but undertood by the meta-party as the
principal class of production in the external market in which Brazil had been part of. So,
different kinds of modernization were diminished to give room to the aspects of what
would be modern only from the high-tech machinery in the countryside.
The internal market depended so much on the production of national goods and
mainly the housing issues could be set up in a new democratic context with lower costs
if the urban logic was included in the property debate. In other words, the traditional codes
of the landowners were re-combined by the “Centrão” in the constituency with the topic
of agrarian reform. The result was negative since these two topics were not consensual.
Nevertheless, the barons of the new constitution forged a solution in the constitutional.
The questions on the land use, its titles and production should not be reduced by the rural
property discussion. Urban planning, means of transportation and sanitary infrastructure
were mentioned in the article 21, intent XX, of the Constitution, as matters in which the
Federal State was responsible. The point is that they were not connected to property. Even
in the intent IX, the same article, the organization of the territory is not linked to the
property system once the social development of some regions in Brazil, as it is predicted
in the constitutional excerpt we are referring, is immensely dependent on more dynamical
uses of urban properties. 105
104 The concept of social function of property was also associated to communist ideas about land. See
http://goo.gl/aLQgJ5. Access: 05.03.2015. 105 According to Ruy Cine Lima, “A sesmaria é o latifúndio, inacessível ao lavrador sem recursos. A posse
é, pelo contrário – ao menos nos seus primórdios –, a pequena propriedade agrícola, criada pela necessidade,
na ausência de providência administrativa sobre a sorte do colono livre, e vitoriosamente firmada pela
ocupação”. See LIMA, Ruy Cirne (2002). As posses. Situação Jurídica dos Posseiros. Aquisição do
Domínio pela Posse e Cultivo como Costume Jurídico. In: Pequena História Territorial do Brasil:
sesmarias e terras devolutas. 5.ed. Goiânia: UFG. p. 51
40
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Newspaper articles consulted
01) A Constituinte possível (http://www2.senado.leg.br/bdsf/item/id/109742)
02) Direito à propriedade: a polêmica que entra em pauta
(http://www2.senado.leg.br/bdsf/item/id/115584)
03) A Constituinte e a propriedade (http://www2.senado.leg.br/bdsf/item/id/116907)
04) Apenas os aspectos polêmicos devem ser objeto de maior exame
(http://www2.senado.leg.br/bdsf/item/id/113572)
05) Constituinte: júri popular para a imprensa. Por unanimidade
(http://www2.senado.leg.br/bdsf/item/id/114152)
06) Advogados e governo: um confronto em Belém
(http://www2.senado.leg.br/bdsf/item/id/117366)
07) Baeta quer limitar a propriedade
(http://www2.senado.leg.br/bdsf/item/id/117442)
08) Constituinte - não! Reflexões e objurgatórias atinentes à instalação da
Assembléia Nacional Constituinte (http://www2.senado.leg.br/bdsf/item/id/117816)
09) Alguns pressupostos da revolução liberal na Constituinte
(http://www2.senado.leg.br/bdsf/item/id/116458)
10) Cinco erros a serem evitados na futura Constituição
(http://www2.senado.leg.br/bdsf/item/id/112641)
11) Centrão abandona o plenário mais uma vez e não dá quórum
(http://www2.senado.leg.br/bdsf/item/id/126937)
12) Acordo sai e constituinte vota hoje a questão da propriedade
(http://www2.senado.leg.br/bdsf/item/id/126940)
13) Apreensões com a crise política
(http://www2.senado.leg.br/bdsf/item/id/126917)
14) Centrão rompe, não exibe voto e atrasa Constituinte
(http://www2.senado.leg.br/bdsf/item/id/124943)
15) Constituinte fortalece mais Estado
(http://www2.senado.leg.br/bdsf/item/id/130686)
16) Direito de propriedade: o alerta de Farabulini
(http://www2.senado.leg.br/bdsf/item/id/135761)
44
17) Bisol quer que uma lei ordinária regulamente a questão do aborto [propriedade
deve ser encarada como um bem social
(http://www2.senado.leg.br/bdsf/item/id/135714)
18) Anteprojeto sugere limite à propriedade [uso impróprio e especulação poderiam
culminar na perda de propriedade] (http://www2.senado.leg.br/bdsf/item/id/136142)
19) O conflito na questão da propriedade
(http://www2.senado.leg.br/bdsf/item/id/135918)
20) Comissão mantém sigilo de informação sobre Estado
(http://www2.senado.leg.br/bdsf/item/id/133277)
21) Uma Constituição de alto risco (http://www2.senado.leg.br/bdsf/item/id/122341)
22) Centrão e esquerda fazem acordo para votar direitos
(http://www2.senado.leg.br/bdsf/item/id/125021)
23) Acordo aprova Capítulo I e apressa a votação da Carta
(http://www2.senado.leg.br/bdsf/item/id/122531)
24) Constituinte entra em crise de novo
(http://www2.senado.leg.br/bdsf/item/id/125643)
25) Definição de propriedade cria impasse no plenário
(http://www2.senado.leg.br/bdsf/item/id/126079)
26) A Constituinte prolonga a transição
(http://www2.senado.leg.br/bdsf/item/id/127097)
27) Carnaval pode vir primeiro [indenização ou não paga previamente]/ “Centrão”
não terá maioria hoje na Constituinte (http://www2.senado.leg.br/bdsf/item/id/124227)
28) Acerto sobre direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/124579)
29) Centrão e PMDB fecham o acordo sobre direito de propriedade privada
(http://www2.senado.leg.br/bdsf/item/id/124936)
30) Acordo põe em votação o direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/124820)
31) Direito à Propriedade: Nova Tentativa
(http://www2.senado.leg.br/bdsf/item/id/126946)
32) Acordo dá a “Centrão” vitória sobre garantia da propriedade
(http://www2.senado.leg.br/bdsf/item/id/124501)
45
33) Dividido, “Centrão” é derrotado no direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/124923)
34) Continua desacordo sobre propriedade
(http://www2.senado.leg.br/bdsf/item/id/122440)
35) Centrão” rejeita acordo (http://www2.senado.leg.br/bdsf/item/id/124891)
36) Constituinte se une e aprova propriedade/ Como ficou o texto/ Centrão define
sua estratégia para reconquistar a maioria
(http://www2.senado.leg.br/bdsf/item/id/126555)
37) Propriedade: Acordo, finalmente
(http://www2.senado.leg.br/bdsf/item/id/126549)
38) Tentativa de maior conciliação/ Acordo de liderança garante a aprovação do
direito de propriedade (http://www2.senado.leg.br/bdsf/item/id/124573)
39) Acordo sobre direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/124421)
40) Acordo garante aprovação sobre o direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/124269)
41) Centrão recua e definição de propriedade sai
(http://www2.senado.leg.br/bdsf/item/id/124248)
42) Avanços e recuos na Constituinte
(http://www2.senado.leg.br/bdsf/item/id/126752)
43) “Centrão” se esvazia em duas semanas
(http://www2.senado.leg.br/bdsf/item/id/124285)
44) Constituinte não vota propriedade do subsolo/ Para Ulysses, sistema de governo
não terá acordo (http://www2.senado.leg.br/bdsf/item/id/126243)
45) Centrão se alinha com lideranças ruralistas
(http://www2.senado.leg.br/bdsf/item/id/108814)
46) Constituinte respeitará direito de propriedade
(http://www2.senado.leg.br/bdsf/item/id/109636)
47) Pesquisa indica que há pouca informação sobre a Carta
(http://www2.senado.leg.br/bdsf/item/id/119754)