Social Function of Property, Movement of the Landless (MST), and the Judicial Field in Brazil Peter P. Houtzager 11 October 2003 Institute of Development Studies (IDS) University of Sussex Brighton – UK [email protected]This paper was written for the workshop “Fundamental Rights in the Balance: New Ideas on the Rights to Land, Housing and Property,” 16-18 October 2003, Institute of Development Studies (IDS), Brighton, UK. The paper owes much to generous discussions with Eugênio Facchini Neto, Jacques Távora Alfonsin, Ipojucan Vecchi, Avelino Strozake, and Claudio Pavão and Luís Cristiano. Kate Gooding has provided valuable in-depth research on the social function of property and Daniel Guimarães Zveibil on the procedural instrument ‘anticipated tutelage’ (tutela anticipada) in Brazil.
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Social Function of Property, Movement of the Landless (MST),
and the Judicial Field in Brazil
Peter P. Houtzager
11 October 2003
Institute of Development Studies (IDS) University of Sussex
This paper was written for the workshop “Fundamental Rights in the Balance: New Ideas on the Rights to Land, Housing and Property,” 16-18 October 2003, Institute of Development Studies (IDS), Brighton, UK. The paper owes much to generous discussions with Eugênio Facchini Neto, Jacques Távora Alfonsin, Ipojucan Vecchi, Avelino Strozake, and Claudio Pavão and Luís Cristiano. Kate Gooding has provided valuable in-depth research on the social function of property and Daniel Guimarães Zveibil on the procedural instrument ‘anticipated tutelage’ (tutela anticipada) in Brazil.
Mobilisation of social movements in the judicial field has a substantial role to play in
redefining the boundaries of property rights and balancing these with fundamental rights.
Changes in law are contingent in part on who enters judicial field, and the kinds of resources
and objectives they carry with them.1 Charles Epp’s (1998: 3) work shows how, in the case
of 1960s United States, sustained legal mobilisation from below played a decisive role in
bringing about the rights revolution. Because the judicial process is “costly and slow and
produces changes in the law only in small increments,” only collective actors have the
resources and stamina to engage in the broad and sustained litigation required to effect
change through the judicial system. In the case of expanding fundamental rights of poor
social groups, the entry of social movements into the judicial field is critical. Movements do
what no individual can – redirect and concentrate the energy of non-poor actors toward
sustained judicial claim making and the construction of new interpretations of legal norms.
For social movements, however, acting in the judicial field can be particularly
difficult. Movements and judiciaries have markedly contrasting logics. Movement time,
forms of action, and discourse could hardly be more different from those of the Judiciary.
When social conflict becomes judicialised, the outcome is often the absence of legal change,
and the criminalisation of movement activity, if not of the movements themselves.
This paper explores under what conditions social movements do enter the judicial
field and are able to contribute to shifting the balance between fundamental rights and
individual property rights towards the former. It examines two episodes of land conflict in
Brazil during the 1990s that became judicialised and in which the Movement the Landless
(MST) was a key protagonist. In the first episode, over farmland in the southern most state of
Rio Grande do Sul known as Fazenda Primavera, the social function of land became an
important principle through which to balance property and fundamental rights. In the second
episode, in a region of the state of São Paulo called the Pontal do Paranapanema,
longstanding adverse possession (esbulho possessorio) of public lands by large/powerful
squatters was reversed (here property was indeed theft). Perhaps no less significant, in this
1 From a sociological or political perspective, law is a process that state and societal actors, with differential
legal capacities and access to resources, set in motion when they attempt to create, use, and comply with legal rules to negotiate relations with each other. In this view legal rules (legislation, government regulations, court rulings, etc.) are neither self-enforcing nor self-interpreting. To become authoritative legal rules, they require that actors interpret and invoke them. State law could more accurately be labelled more accurately be labelled state-society law or ‘society-wide authoritative law.’
second episode a new procedural instrument was introduced – the anticipated tutelage (tutela
anticipada) – which sped up judicial time and brought it in line with movement time.
The first section of the paper briefly discusses the social function of property. The
principle that property must fulfil its social function in order to receive state protection
provides an important ethical and doctrinal basis on which to balance private property rights
and fundamental rights such as the right to life or livelihood or shelter (all central to
maintaining human life and dignity). The social function of property has deep historical roots
and brings back into focus the social component of property obfuscated in the recently
constructed ‘classic’ notion of property rights, deployed by the World Bank, USAID in
pursuit of market-led reforms. 2 The principle is also found across cultures and nations and in
international conventions. It easily encompasses the concerns of diverse groups –
environmental, access to land and shelter, and so forth. This suggests the possibility that
legal mobilisation strategies can be constructed in ways that form broad cross class and
indeed cross-national constituencies.
Understanding how movements contribute to legal changes requires understandings
the disparate logics of both the popular movement and judicial fields, and how these
synchronise in ways favourable to movement claims. The papers’ second section therefore
examines the logic of the movement and judicial fields and highlights some of the tensions
between them. It nonetheless suggests, as Santos (2002), Hunt (1998), and others do, that the
judicial field is an arena of struggle through which real social change can and does occur. In
contrast to those who see the judicial field, and the law more generally, as fundamentally
oppressive and elite empowering, it suggests that the gap between the promises of dominant
legal frameworks (or what Santos calls “laws’ excess of meaning”) and the practices of state
institutions and political elites provides a terrain of legitimate social struggle.3 For
movements the willingness and capacity to litigate, and the ability to win litigation in
particular, is heavily contingent on the decisions made by actors in other fields. Ultimately
change in law is an outcome of mobilization in multiple fields. And, mobilisation in the
2 International actors such as USAID and the World Bank work hard to spread a ‘classic’ interpretation of
property rights in the wake of the Eastern Europe collapse and failure of structural adjustment programmes in Africa. Through new structural adjustment programmes, a variety of types of loans, and broader legal reform programmes, actors such as these have led a remarkable campaign to create rural and urban land markets built on a particular interpretation of ‘western’ property rights. The creation of land markets is also a central part of World Banks programmes to combat poverty. In this case the focus has been the strengthening of individual property rights and creation of rural land (rental and property) markets, and pursuit of redistribution through market-based land reform.
judicial field takes place alongside mobilisation in other fields, such as that of the political or
of democratic representation.
The analytic narrative of the two episodes of land conflict follow. They demonstrate,
among other things, the importance of the new constitutional framework and the rise of the
Workers’ Party in bringing the movement and judicial fields together in ways that have made
the MST a protagonist in redefining the legal boundaries of property and fundamental rights.
The conclusion offers a few brief observations on the role movements and the principle of
social function of property may play in balancing fundamental rights in different national
contexts.
I. Social Function of Property
The Brazilian Constitution of 1988 may be unique not only in making the social
function of property a constitutive part of property rights, but also in making explicit the
content of that social function. Furthermore, it places social function in its chapter on
fundamental rights (Article 5).4 If the Brazilian Constitutions appears to offer a promising
basis from which to argue for a more social alternative to the new classic notions of property
rights,5 it may not be alone. A quick survey of national constitutions and sources of
international law shows that the social function principle is widespread and indeed cross-
cultural. Virtually all of the Latin American constitutions carry a mention, as do their
agrarian reform legislation.6 Similarly, the constitutions of Germany, Japan, Italy, and the
Philippines, as well as many others carry mention. Among sources of the social function of
property in international law, one can point to Article 21 of the EU Charter of Fundamental
Rights and Article 11 of the International Covenant on Economic, Social and Cultural Rights
– which grants the right to adequate food and commits signatories to reform agricultural
4 The social function of property appears in several sections of the Constitution. In addition to Article 5 on
Fundamental Rights and Guarantees, it is repeated in Article 156 on taxation, Article 170 on the principles of economic activity, Article 182 on urban policy and Article 184 on agricultural and land policy and agrarian reform.
5 Its worth pointing out that the Lockean formulation of property which is regularly invoked to validate the ‘classic’ interpretation contains a strong social component. What has become known as the Lockean proviso suggests that the right to property is provisional – its status as natural does not mean it cannot be overridden by the competing rights of another. “As much as anyone can make use of to any advantage of life before it spoils, so much by his labour he may fix a property in. Whatever is beyond this, is more than his share, and belongs to others.” The proviso is that a person has the right to acquire as much property as (s)he can provided “there is enough and as good left in common for others.” Locke’s analysis property is rightful possession. And rightful is of course a social construct that can be constructed in different ways depending on the society and historical moment. See Singer 2000 and Lemos 1975.
systems in a way that guarantees adequate food. Furthermore, social function is often linked
to environmental regulation and the EC Court of Justice, for example, has ruled that property
rights must be seen in terms of their social function and therefore can be restricted if there is a
larger public interest.7
The Brazilian Constitution is particularly interesting because, alongside the general
principle, it provides relatively specific definitions of what constitutes social function in
urban and in rural areas. Furthermore, social function is defined as involving both negative
and positive obligations that property holders must fulfil in order to obtain state protection of
their property rights. 8 In the case of the urban areas, it states that property fulfils its social
function when it is used in accordance with requirements established in the master plan
(plano diretor) cities create to direct urban development. All cities with a population of over
twenty-thousand residents are constitutionally mandated to draw up such master plans, which
are then ratified by City Councils. The social function of agricultural lands is met when it is
used in a manner that is (i) economically rational, (ii) adequate to the available natural
resources and ensures preservation of the environment, (iii) in compliance with labour law,
and (iv) favourable to the well-being of both owners and workers (Art. 186).
The social function of property, one can reasonably argue, is the common sense
correlate to holding property individually and has in recent years been hidden by the classic
interpretation of property rights. In somewhat crude terms:
Private Property has two types of interests: that of individuals who claim rightful ownership and that of the community that grants protection and enforcement of those claims. The value of the individuals’ property interests derives fundamentally from this protection, as well as from a range of basic (and sometimes not so basic) infrastructural investments made by the community (such as streets, security, sewerage, parks, etc.).
The interests of individuals therefore do not exist separate from those of the community. The community has a legitimate, and very practical, interest in ensuring that property is used in ways that contribute to the well-being of the community and not only the individual rights barer. Without contributing to the well-being of the community, the institution of private property itself may fail to reproduce itself.
6 The exceptions in Latin America are Chile, Guatemala, Mexico, Peru and Nicaragua. 7 The Court ruled in a dispute over the Nitrates Directive (ELO 2000). Several judgements have established
that the social function of property justifies regulation of agrarian products and markets under the Common Agricultural Policy (CAP).
8 The negative obligations that come with property rights, such as those found in environmental legislation and in nuisance laws, have expanded greatly in the second-half of the last century. This is particularly the case because property rights have been subjected to increasing limitations on environmental criteria, with a substantial area of regulation of such rights based on the idea of social function.
III. Movement of the Landless (MST) in the Judicial Field
This section uses two episodes of land conflict, in the states of Rio Grande do Sul and
São Paulo respectively, to help identify when movement and judicial fields meet in ways that
are favourable to legal innovation that favours the fundamental rights of rural poor the
landless. The MST is considered the most important social movement in Brazil of the past
decade and it is without doubt the most visible.15 Its trade mark red and white caps and flags
are know to most Brazilians and to many non-Brazilians as well. Its principle form of
collective action is to organise landless families and occupy agricultural land that, the
movement claims, is either does not fulfil its social function or is public lands that
large/powerful squatters hold in adverse possession (esbulho possessorio).16 In both cases
the land occupations are primarily a strategy to force the executive branch, at either the
federal or state levels, to intervene in the area and carry out land reform.17
The MST at first sight is an unlikely candidate for a case study in this paper. Its
leaders argue accurately that the movement does not rely on judicial system as a part of its
agrarian reform strategy. A profound distrust of the judiciary runs through much of the MST
and even today, 18 years after military rule ended, the movement has yet to acquire a legal
identity that would allow it to be either a plaintiff or, more likely, an accused in legal
proceedings. For most leaders and activists, the judiciary is the enforcer of bourgeois
property rights and an instrument through which landowners and local political elites
criminalized the movement. There is probably little in movement members’ life experience
to counter the impression that the judiciary is an instrument of the powerful. The peculiarly
slow time of the judicial field, at least when contrasted to that of the movement field, along
with the cost of entering the field (through litigation, seeking legal counsel, obtaining
15 Its hundreds of thousands of participants either run or are settled government run land reform settlements that
now number over a 1,000. It also runs an elaborate network of primary and secondary schools, rural cooperatives, and even food processing plants. See Zander 2001, Mancano 1999.
16 The overwhelming share of the MST’s energy is dedicated to the quiet and notably un-public movement work of reproducing these relations and obtaining a variety of resources and services through them. It is nonetheless the episodic, and spectacular, land occupations that it stages with hundred of landless families that have enabled it to concentrate so much social energy towards its goals, to obtain land for thousands of families, and to play a noteworthy role in the judicial field.
17 The Constitution gives only the Federal government the power to carry out agrarian reform but state governments have reclaimed public lands from large/wealthy squatters to redistribute in what amounts to state level agrarian reform. So much so that it numerous cases it is the National Land Reform Institute that foots the bill.
required documentation etc.), further discourage the MST from exploring opportunities
there.18
In what sense then, does the movement contribute to the construction of new legal
interpretations of property rights and how these should be balanced with fundamental rights?
And more broadly, is it possible for the contrary logics of the movement and the judicial
fields to synchronise, so that the latter provides social movements such as the MST real
opportunities for achieving social justice outcomes?
The MST has in fact had a tremendous impact on both legal interpretations of
property and fundamental rights as the two fields have, periodically, come into contact in
ways that favour the movement. Its impact results primarily from a remarkable capacity to
concentrate legal talent and resources to engage in the type of broad (both geographically and
across issues) and sustained litigation that ensues from land occupations and which makes
possible redefinition of legal terrain.
Although not directly part of its agrarian reform or political strategy, MST leaders are
acutely aware that its struggle for land takes place in the shadow of the law and have learnt
that land occupations become judicialised almost immediately.19 The core of the dynamic
that brings the MST into the judicial field and, as the fields synchronise periodically, allows it
to obtain legal and political victories therein seems to be the following.
18 Evidence from the courts shows that it is indeed extremely rare that lawyers working for the movement
initiate cases, and when they do these tend to be against the abuse of authority by state officials (mandato de segurança) and not to obtain land. It also shows the extent of the campaigns by landowners and local authorities to criminalize the movement and forms of legal harassment. In recently commissioned research by the When the Poor Make Law project (Houtzager, IDS), which was undertaken in local court houses of jurisdictions where the MST has been active since the early 1990s reveals that, in São Paulo and Rio Grande do Sul 85 of its leaders have been accused in civil or criminal proceedings. The leader with the largest number of cases, José Rainha Junior, has been or is a defendant in 25 cases in the state of São Paulo alone. This includes five separate cases in which the accusation is forming an criminal organisations.
19 An ‘average’ occupation will produce an array of cases. Those initiated by the landowners targeting the MST include civil cases particular possession orders (reintegração da posse), maintenance of possession orders (manutenção da posse), or damages (danos). A variety of ‘cases within cases’ result, as each actor seeks to manoeuvre within the limits of the law, while not infrequently engaging in extra-legal activity on the side. Landowners also frequently file police complaints that can provoke preventative detention (prisão preventiva) and that usually initiate criminal prosecutions for adverse possession (esbulho possessório); the constitution of a criminal organisation (formação de quadrilha); theft (roubo); private imprisonment (carceraria privada), and even homicide (homicidio). The MST is far less active as a plaintiff. If any of its leaders are imprisoned by local police or the court orders detention, lawyers who work with movements will file for habeas corpus. In response to landowner violence against its participants, they might file a police complaints that can lead to a criminal case. In rare cases it might file an abuse of authority case (mandado de segurança) against particular public officials. The federal or state government (its executive branch that is) will, for its part, bring a case against the landowner or the person/group in possession of the land if it decides to claim the occupied land for the purposes of agrarian reform. In these cases the MST, notwithstanding its interest in the case, is not a party to the proceedings. The government’s action can provoke the landowner into filing an abuse of authority case (mandado de segurança) and almost certainly into a sequence of appeals.
1. Land occupations create a new political reality at the local level (facts on the ground) that produces a combination of publicity, threats of violence, and particularly the judicialisation of the land conflict.
2. This draws in the energies and resources of protagonists of the judicial field – that is, of lawyers, public prosecutors and defenders, and so on – who, as a result, enter new areas of work or new geographic regions. The concentration of legal energies occurs in two forms: one, private lawyers mobilise to defend movement leaders and activists, particularly in criminal cases and, two, state lawyers mobilise to resolve the land tenure situation. As cases move up the court system, the status and skill of the legal expertises appears to grow exponentially. Pulling the executive branch into the episode of conflict, and having it deploy its formidable resources in the judicial field, is singularly important. Federal and state government have as their primary concern avoiding the escalation of social conflict, rather than protecting local power relations or status quo.
3. As these private and public legal specialists confront the legal system’s limits, including the procedural conservatism of local judges and the relatively slow nature of judicial time, they are pushed into innovative interpretations of substantive law or legal procedures to maintain the movement’s leaders out of prison and its participants on the land.
4. When the movement’s legal proxies succeed in the judicial field and win favourable rulings, particularly in the higher courts, the innovative interpretations of substantive and procedural law that were deployed become part of jurisprudence. And although the Brazilian legal system does not have star decisis, and high court rulings are therefore not binding on lower courts, they do become institutionalised in less obvious ways and are available for use in other legal contention.
Most land occupations of course do not set in motion this chain of events and the
ability of the movement to redirect energies in the judicial field is contingent on a variety of
factors’ it does not control (some of which are examined below). It does have, however, a
remarkable network of relations that include people prominently situated in a variety of
fields, including the judicial, the religious (through the progressive wing of the Catholic
Church and pastoral organisations), the political (through the Workers’ Party in particular),
the labour movement (via the labour organisation Central Única dos Trabalhadores), and the
globalised field of advocacy groups and NGOs. Public rhetoric aside, it also has dense
relations with state actors at all levels and across with the executive and legislative branches
in particular. Relations with the important federal Public Prosecutor (Ministério Publico) are
There have been significant shifts in the judicial, movement, and political fields since
the early 1990s that have contributed to the periodic synchonisation of the movement and
judicial fields, turning these networks of allies into particularly valuable assets to the MST.
In the judicial field there has been the emergence of a national network of progressive
lawyers that work pro bono for social movements and, starting somewhat earlier, the
networking of judges concerned with social justice and intent on making the Constitution of
1988, and its fundamental rights, substantive law. These networks provide a bridge between
movement and judicial fields. And, without necessarily working together, these have had an
important role in constitutionalising law. The importance of this process cannot be
understated, not only because the civil code that was operative until 2003 was starkly liberal
in its conception of property rights and the individual nature of rights in general, but also
because of the array of social and diffuse rights available in the 1988 Constitution.
In the movement field two changes are note worthy. One is the gradual learning
process of MST leaders as small victories accumulate in the judicial field and encounters with
less conservative judges become more commonly place. Second, and probably more
importantly, out of necessity it has had to develop a concern with human rights. Many of its
most important leaders are no longer first time offenders in criminal cases, hence face greater
chances of long jail sentences.
Finally, in the political field the growth in strength of its key political ally, the
Workers Party, has had a significant effect. With the growing number of Workers’ Party
governments at the municipal, state, and now the federal level, the MST’s longstanding
vision of the state as the enemy, and the judiciary as part of its enforcement mechanisms, is
changing. In addition, through its long and close relations to the Workers’ Party it has also
been able to acquire access to legal resources and quite likely information on the legal status
of land, helping to identify those with dubious ownership titles or which appear to be failing
to fulfil their social function.
As a result of these broad shifts, a broad network of allies, and a strategy of
contentious land occupations, the MST has over the last ten or so years won a critical core of
legal victories in both civil and criminal areas and contributed to laying new jurisprudential
ground on property and fundamental rights.20 The following sections explore the dynamics
of two episodes of contention which produced significant legal outcomes.
- 13 -
20 One of the most important rulings it has obtained came in a Brazilian Superior Court ruling on a habeas corpus petition in 1996, and then again in 1997. The ruling effectively decriminalised both the movement and its tactic of occupying land to pressure the government to carry out agrarian reform. The ruling
Fazenda Primavera and the Social Function of Property21
In early September 1998 approximately 600 families left their encampment on the
shoulder of BR-285, a federal highway that cuts through the northern stretch of the state of
Rio Grande do Sul, and occupied farmland known as Fazenda Primavera. The MST families
expelled employees of Merlin Industries and Commerce of Vegetable Oils Inc, which had
possession of the land, offices, and silos, through a rental contract with the legal owner. The
company immediately filed a possession order (reintegração de posse) and within six days
had obtained a favourable ruling. The local judge, citing various articles of the civil code,
found that (i) Merlin had legitimate possession of the farmland and, conversely, (ii) that the
families had adverse possession (esbulho possessorio), which stipulates intent to use the land
for personal gain. Proof of the latter, she noted in her ruling, came from Merlin’s police
complaint and newspaper reports. The families were given five days to leave the property
and the military police brigade was instructed to carry out the judicial order with ‘sufficient’
manpower because ‘of the expressive number of invaders’ (RENAP 2001, 5-6).
An attorney who worked with social movements filed an appeal (agravo) in the Rio
Grande do Sul Tribunal of Justice to suspend the sentence. The petition set out a variety of
reasons for suspending the sentence and allowing the MST families to remain at Fazenda
Primavera. The core elements of the appeal, however, were:
i. Doubts about whether Merlin had legitimate possession of the farmland. The lower court ruling did not take into account that third parties (public sector creditors) held an interest in the possession. The owner of Primavera had a substantial debt with the national social security agency, the INSS, and the tentative date to auction of the land had already been set. As a temporary measure the petition suggested the government hold the land in receivership (sequestro) until the outstanding legal conflicts over possession were resolved. The families should be allowed to remain where they were in the meantime.
ii. The finding of adverse possession (esbulho possessorio) was based on a narrow procedural interpretation of the law and did not consider that, because the occupation was collective and consisted of families whose fundamental rights that the state had failed to guarantee, there was a larger public interest in the case.
juxtaposed right to property and right to claim rights, finding that the movement’s land occupations could not be considered adverse possession (esbulho posessorio), a criminal act, because there was no criminal intent. Instead, it should be seen as exercising the rights of citizenship, particularly the civil right to pressure the government to guarantee constitutional rights, in this case that of the agrarian reform. Land occupations are therefore an exercise of citizenship to pressure to state to provide constitutionally guaranteed rights. For the same reasons, the MST should be considered a popular movement and cannot its leaders cannot be tried for creating a criminal organisation (formação de quadrilha).
21 The analysis in this section relies heavily on RENAP (2002) and interviews with members of the MST, RENAP, and the Rio Grande do Sul Tribunal.
Constitutionally defined fundamental rights and the country’s adhesion to UN Resolution 2200 of 1992, which guarantees “fundamental rights of all people to be protected against hunger,” make clear that rather than adverse possession there was, instead, a conflict between fundamental rights.22
iii. The tribunal should consider the social consequences that might accompany the execution of the judges sentence, in light of recent conflictual agrarian history in the country, which could include a ‘social convulsion’ as the 600 families, with no where else to go, were to be forced off the land by a military police brigade.
A month after the occupation of Fazenda Primavera began, the Tribunal suspended
the lower court possession order. This not only allowed the families to remain on the land,
but it in effect brought Merlin’s civil proceeding against the MST to a halt. It also created
substantial pressure on the company and the owner of the land to negotiate its transfer to the
National Institute for Land Reform (INCRA) for the purposes of agrarian reform. Often this
transfer is settled between the parties but in this case INCRA had to litigate. It won
expropriation after about a year and eight months in court.
The Tribunal’s ruling that suspended the possession order is worth quoting:
Appeal recognised, notwithstanding the failure to comply with Art. 526 CPC [Civil Procedure Code] in light of jurisprudence on the matter and because the claim involved fundamental rights.
Guarantee of fundamental goods as a social minimum.
The fundamental rights of the 600 families encamped prevail in detriment to a company’s purely property rights. Property : guarantee of clothing, shelter, and refuge of the citizen.
Notwithstanding that the area is productive, it does not fulfil its social function, circumstance which is demonstrated by the fiscal debts that the proprietor company has with the Union. Imovel penhorado to the INSS.
Considerations of social conflicts and the Judiciary. Local and foreign doctrine.
Recognized by the majority; rejected the preliminary of lack jurisdiction, unanimously; support the petition, by majority.
The ruling makes several moves that have repercussions for the judicial field. It first
finds that a procedural mistake – in this case the failure to inform the local judge of the
22 The petition goes onto suggest the kind of interpretation (hermeneutics) that might be employed when
conflicts between such rights occur, particular in cases where social problems lead to collective occupations of land. It summarises briefly the new hermeneutics being introduced in Brazil to interpret legal norms through constitutional principles – i.e. the hermeneutic principles of necessity, proportionality, and safeguard of the essential core of fundamental rights. For more on these principles see Barroso 2002a & b.
This latter part of the ruling leaves little doubt that the magistrates are comfortable
moving beyond interpreters of law to something more. The opinion approvingly reproduces
the following passage from the jurist Antônio Carlos Wolkmer:23
The jurisdictional function transcends the modest and subservient activity of acceding to the caprices and will of legislators, because, with the power to create, the Judge is not a simple technician who mechanically applies the Law in the face of different real cases, but, searching for solutions to conflicts of interests between legal subjects, the magistrate appears as a true social expression that is marked by a fundamental autonomy and irredutivel in relation to the other spheres of the State.
If we retrace our steps and move from the ruling back to the occupation, it is possible
to discern the constellations of factors that produced this remarkable judicial outcome. The
text of the tribunal ruling can be the point of departure for this reverse journey. The contrast
between the reasoning of the tribunal and that of the lower court is marked. The ruling of
latter follows the classic form of legal reasoning, labelled legalist or positivist by its
detractors, which is heavily procedural and confined to applying discrete articles of the civil,
criminal, and civil procedure codes. It makes no mention of the Constitution, the social
function of property, or fundamental rights. In contrast, both the Alfonsin petition and the
Tribunal’s ruling make ample use of constitutional principles, including that of the social
function of property and suggesting that these are law and immediately applicable – that is,
do not require implementing legislation to be considered substantive law. The decision also
deals head on with conflict between fundamental and property rights.
The tension between the Tribunal and lower court interpretations of law reflects a
relatively recent, and profound, split within the judicial field. Part of this tension is a product
of attempts of protagonists in the judicial field to adjust to the 1988 Constitution, which is
widely regarded as a watershed. Its significance hinges not only on the expansion of
collective social rights and legal instruments that make it easier to transform individual legal
battles into collective ones, but also on the greatly expanded role it affords judges in
interpreting legal norms. The latter is intimately tied up with the constitutionalisation of law
that has been taking place. Up until recently constitutions in Latin America, including in
Brazil, had been seen primarily as political documents rather than as law. The civil code of
1916 and subsequent legislation and jurisprudence was considered law. Historically, actors
in the Brazilian judicial field tended to produce case-specific interpretations using bits and
23 Antônio Carlos Wolkmer, “Ideologia, Estado e Direito,” Revista dos Tribunais (1989), 146, quoted in
Furthermore, Alfonsin and the less well positioned lawyer who worked with the MST
in the lower court were part of the National Network of Popular Lawyers (RENAP), created
in 1996 to support public interest litigation and to work with social movements. Alfonsin is
among founders of the network, which now has approximately 420 law professionals, in 22
of 26 states. RENAP performs a variety of tasks, including linking less experienced and
positioned lawyers to their senior colleagues. Through its magazine Cadernos RENAP and
periodic publications it circulates new jurisprudence. Two recent edited volumes give some
evidence of the importance the network is acquiring within the judicial field. Agrarian
Question and Justice (A Questão Agrária e a Justiça) and Agrarian Questions: Annotated
Sentences and Submissions (Questões Agrárias: Julgados comentados e Pareceres) contain
essays by over 30 notable legal jurists on civil and criminal cases that involve the MST. 25
The publications reveal RENAP’s impressive reach in the judicial field, and through it that of
the MST.26
The publications also show a sophisticated strategy to establish a new legal common
sense in the field. The volumes have not only been made available to RENAP members but
have also been sent to hundreds of judges. This initiative is remarkable because both lawyers
sympathetic to the MST and local judges, who may or not be, have very tenuous access to
sources containing jurisprudence (and in some cases to new legislation as well). As several
judge in São Paulo and Rio Grande do Sul observed during interviews, there are judges who
still apply parts of the 1916 civil code which have long been superseded. Once out of law
school, even professionally committed judges find it difficult to keep abreast of new
legislation (which is particularly voluminous in Brazil) and especially with jurisprudence.27
The constitution of RENAP therefore provided the MST with an important ally in the
judicial field. The network of lawyers has, in turn, played an important role in overcoming
the movement’s resistance to entering the judicial field and in building relations of trust
between the movement and other judicial protagonists, including the informal network of
judges committed to social justice and to the constitutionalisation of law. Although the MST
from its early days in the 1980s drew progressive lawyers into its orbit, it is only from the
25 See Strozake 2000 and 2002. 26 Lawyers working for or with the MST are in fact the primary force behind the creation and expansion of
RENAP. 27 The primary source of jurisprudence for lower level judges is the Journal of the Tribunals (Revista dos
Tribunais), which state courts are expected to make available for free. Even in the country’s wealthiest state, São Paulo, however, judges in the countryside complain of six months or greater delays in received the RT or not receiving it all.
Property is Theft in the Pontal do Paranapanema, São Paulo28
The movement and judicial fields in the state of São Paulo have intersected since the
mid-1990s in a markedly different way. The state of São Paulo is the economic powerhouse
of Latin America and produces close to a third of Brazil’s GDP. The Pontal do
Paranapanema, a triangular piece of land in the state’s relatively poor south-western corner, is
nonetheless the only region in Brazil that analysts agree has had true agrarian reform –
widespread expropriation that fundamentally remade rural land tenure and social and political
relations. When local residents speak of the revolution, they are not referring to the Cuban
Revolution in 1959 or the military coup of 1964 in Brazil. Instead, they mean the eight years
spanning 1991-1998 in the Pontal, when the movement and judicial field came together in an
unprecedented way. In the municipality of Mirante do Paranapanema alone, over 5,000
families obtained land and close to 60 percent of its territory was turned into agrarian reform
settlements.
The MST’s principal strategy in the Pontal region, as elsewhere in the country, has
been to occupy land and build political support amongst a broad array of allies. But in this
region its occupations have challenged property rights not on the basis of social function, but
on claims of adverse possession of public lands by large/powerful squatters. It is likely that
property is theft in substantial parts of rural Brazil, and the MST approach adopted in São
Paulo has considerable potential. A number of state governments have taken notice of São
Paulo’s success in repossessing public lands to settle landless families, and several are likely
to follow suit.
Three features of the judicialisation of land conflict in the Pontal do Paranapanema
region are important. First, the role of protagonists in the political field (primarily urban), in
particular that of the Governor and his Secretary of Justice, and the Worker’s Party. Second,
the ability of the state prosecutors to accelerate the pace of the judicial field, bringing it more
in line with that of the movement field. And, third, the fear of a heightened level of social
conflict that, paradoxically, the movement, landowners/squatters, and government all played
a part in constructing through the media.
28 The analysis in this section is based on interviews with members of the MST in the Pontal do Paranapanema,
former members of the Public Prosecutor’s office in Presidente Prudente, current and former ITESP officials, former members of the Secretary of Justice’s staff, as well as Mançano 1999 and research carried out by Daniel Guimarães Zveibil.
process, which is the alibi of slow judicial proceedings, turns out to be very tricky in cases
where the time consumed by following normal procedures has a substantial impact on the
benefits of the final outcome. Time can be a decisive factor in the utility of the outcome of a
case. A patient with a life threatening condition, for example, will gain little from a ruling
that guarantees access to needed medication if that ruling comes after the condition has run
its full course. In such cases a cases a provisional ruling (medida cautelar) can be requested
to accelerate the judicial clock. This shifts the balance between due process and the efficacy
of the ruling towards the latter.
The Secretary of Justice’s problem was that such provisional rulings can only be
requested, according to the Civil Procedural Code, under highly restrictive conditions.
Anticipated tutelage, which became law in 1995, is far less restrictive than the provisional
measures that were already part of the civil procedure code.30 The legislation (Article 273 of
the Civil Procedural Code) states that:
The judge can, if requested by the party, anticipate, all or part, of the effects of the intended judicial remedy in the initial petition, as long as, in the face of unequivocal proof, (s)he is convinced of the truthfulness of the allegation and:
I – has a well founded fear of irreparable damage or of difficult repair; or
II – abuse of the rights to defence occurs or the intent to delay tactics are evident
1st … 4th The anticipated decision can be revoked or modified at any time
by a well grounded decision. 5th Whether the anticipated decision is granted or not, the case
proceeds to its final decision.
Exactly how magistrates would interpret the new instrument, whether differently from
the older provisional measures, was an open question, however. The legislation created
considerable confusion within the judicial field because it appeared to invert the longstanding
logic of provisional measures – that they be applicable only in cases of absolute necessity. In
the absence of jurisprudence, lawyers and judges would have to construct interpretations of
how and when the instrument could be deployed.31
30 In an ordinary cases involving a medida cuatelar, to guarantee the utility of the outcome, the standard is high:
there has to be an absolute necessity to anticipate the effects of the judicial ruling in order to ensure the fulfilment of the party’s rights.
31 The Congress modified the legislation slightly in 2002 in an effort to clarify its intent.
Alfonsin, Jacques Távora. 2002a. “A Força Normativa das Necessidades Frente ao Direito de Propriedade.” In Juvelino José Strozake, ed., Questões Agrárias: Julgados comentados e Pareceres. São Paulo: Editora Método.
Alfonsin, Jacques Távora. 2002b. “Dos Nós de uma Lei e de um Mercado que Prendem e Excluem aos Nós de uma Justiça que Liberta.” In Dénise Dourado Dora, ed., Direito e Mudança Social. Rio de Janeiro: Ford Foundation and Renovar.
Barroso, Luís Roberto. 2002a. O Direito Constitucional e a Efetividade de Suas Normas: Limites e Possibilidades da Constituição Brasileira. Rio de Janeiro: Renovar.
Barroso, Luís Roberto. 2002b. “Fundamentos Teóricos e Filosóficos do Novo Direito Constitucional Brasileiro,” Jus Navigandi no. 59. http://www1.jus.com.br/doutrina/texto.asp?id=3208.
Bastida, Elizabeth. ____. “Managing Sustainable Development in Competitive Legal Frameworks for Mining: Argentina, Chile and Peru Experiences.”
Bourdieu, Pierre. 1987. “The Force of Law: Toward a Sociology of the Judicial Field,” translated by Richard Terdiman, Hastings Law Journal 38: 814-53.
Bourdieu, Pierre and Loïc Wacquant. 1992. An Invitation to Reflexive Sociology. Chicago: University of Chicago Press.
Edelman, Lauren, Christopher Uggen, and Howard S. Erlanger. 1999. “The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth,” American Journal of Sociology 105, no. 2, 406-54.
European Landowners Organisation (ELO). 2000. “Property rights within European law: Contribution to the Convention.” http://www.europarl.eu.int/charter/civil/pdf/con8en_en.pdf.
Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press.
Galanter, Marc. 1981. “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,” Journal of Legal Pluralism 19, 1-47.
Garth, Bryant and Yves Dezalay. 1998. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order. Chicago: University of Chicago Press.
Hart, Vivien. 1994. Bound by Our Constitution: Women, Workers, and the Minimum Wage. Princeton: Princeton University Press.
Houtzager, Peter. 2001a. “We make the Law and the Law Makes Us: Some Ideas on a Law in Development Research Agenda,” IDS Bulletin 32, No. 1.
Houtzager, Peter P. 2001b. ‘Collective Action and Patterns of Political Authority: Rural Workers, Church, and State in Brazil,’ Theory and Society 30, No.1
Hunt, Alan. 1993. Explorations in Law and Society: Toward a Constitutive Theory of Law. New York: Routledge.
Jaffer, Murtaza. 2000. “Expanding Equity by Limiting Equity.” In Charles Geisler and Gail Daneker, eds., Property and Values: Alternatives to Public and Private Ownership. Washington, D.C.: Island Press.
Lemos, R.M. 1975. Lockean Property and Social Welfare.
Mançano, Bernardo. 1996. MST: Formação e Territorialização em São Paulo. São Paulo: Editora Hucitec.
Mançano, Bernardo and Cristiane Barbosa Ramalho. 2002? “Luta pela terra e desenvolvimento rural no Pontal do Paranapanema – SP.” Manuscript, Núcleo de Estudos, Pesquisas e Projetos de Reforma Agrária, UNESP, Brazil.
McAdam, Doug, Sidney Tarrow, and Charles Tilly. 2001. Dynamics of Contention. Cambridge: Cambridge University Press.
McCann , Michael W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press.
George Meszaros. 2002. “Taking the Land into their Hands: The Landless Workers’ Movement and the Brazilian State,” Journal of Law and Society 27, no. 4, 517-541.
Moore, Sally Falk. 1973. “Law and social change: the semi-autonomous social field as an appropriate object of study,” 7 Law and Society Review, 719-746.
Navarro, Zander. 2001. “’Mobilização sem emancipação’ — as lutas sociais dos sem-terra no Brasil.” In Boaventura de Sousa Santos, ed., Reinventando a emancipação social, Lisboa e São Paulo.
Prosterman, Roy and Tim Hanstad. 1999. “Legal Impediments to Effective Rural Land Relationsin Eastern Europe and Central Asia: A Comparative Perspective.” World Bank Technical Paper no. 436. Washington, D.C.: World Bank.
RENAP. 2001. Primavera, Cadernos RENAP 1, no.2.
Santos, Boaventura de Sousa. 2002. Toward a New Legal Common Sense: Law, Globalization, and Emancipation. 2nd edition. London: Butterworths 2002.
Scott, James C. 1985. Weapons of the Weak: Everyday Forms of Peasant Resistance, New Haven: Yale University Press.
Singer, Joseph William. 2000. “Property and Social Relations: From Title to Entitlement.” In Charles Geisler and Gail Daneker, eds., Property and Values: Alternatives to Public and Private Ownership. Washington, D.C.: Island Press.
Streck, Lenio Luiz. 2002. Jurisdição Constitucional e Hermenêutica: Uma Nova Crítica do Direito. Porto Alegre: livraria do Advogado.
Strozake, Juvelino José, editor. 2000. A Questão Agrária e a Justiça. São Paulo: Editora Revista dos Tribunais.
Strozake, Juvelino José, editor. 2002. Questões Agrárias: Julgados comentados e Pareceres. São Paulo: Editora Método.
Varella, Marcelo Dias. 1997. 'O MST e o Direito,' in João Pedro Stédile, ed, A Reforma Agrária e a Luta do MST. Petrópolis: Vozes.
World Bank. 2002. “Land Institutions and Policy: Key Messages of the Policy Research Report.” Draft paper by Klaus Deininger and Gershon Feder. Regional Workshop on Land Issues in Asia. Phnom Penh, June 4-6, 2002.