Electronic copy available at: http://ssrn.com/abstract=2575985

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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

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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.

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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”.

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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)