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Developing Alternative Conceptions of Legality

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Developing Alternative Conceptions of Legality

This section develops a number of themes. It argues that although the MST’s relationship to law was initially marked by mutual ideological hostility, that situation has long since developed into one where, no matter how fraught relations may be, law’s potentialities are recognised. The change was neatly symbolised in June 2000 by a front cover of Caros Amigos magazine picturing an MST leader holding up a copy of the Brazilian Constitution under the caption: ‘The Weapons of the MST’.16 Some detailed examples of these ‘weapons’ are discussed, as well as the shift from what I term a defensive conception of legality to an offensive conception that appreciates law’s potentialities. We also examine the increased willingness on the part of legal practitioners (prosecutors, judges and legal theorists) to recognise the contribution and potentialities of the movement itself. Far from equating to Raul Jungmann’s description, it turns out that the MST offers a fundamental reference point for interpretations of legality together with the crucially important practical impetus for change so frequently lacking in legal discourses. This last theme is continued into the fourth and final section dealing with the Lula administration.

    1. Legal Conservatism and the Imperative for Change

Law’s class character, and consequent inability to deliver progressive social change, understandably left deep marks upon the MST. In its early days the movement was compelled to develop uncompromising methods, notably the mass occupation of properties, as part of its strategy to propel land reform forwards. Contestation and conflict came to be seen as the primary motor of political change. Perhaps because of its success, this perspective left little scope for fuller consideration of the role that law might play. It came to be viewed either with a mixture of hostility and suspicion, or at best as an afterthought. A typical example of the latter occurred in October 1987 with the simultaneous occupation of seven locations across the state of Rio Grande do Sul. Although the occupations themselves were meticulously planned and executed, simultaneously shocking the political establishment and capturing the public imagination, there was little evidence of legal planning. Sympathetic lawyers scurried hundreds of kilometres from one occupation to the next and then back to the courts, improvising the best defence they could to legal counter attacks. With relatively minor variations this pattern of neglect would be repeated throughout Brazil. The MST’s daring and imaginative political offensive contrasted starkly with its restrictive conception of legality.
Although it would take several years for the MST to overcome its legal conservatism, the case for doing so was present at the outset. The success of mass occupations, their remarkable capacity to establish a progressive social and political agenda and counter many aspects of landowner power, including violence, created a paradox: simultaneously relegating law to the shade and enhancing its significance. After all, occupations not only created victories and landowner defensiveness, but also engendered a backlash, i.e., the reinvigoration of parliamentary and violent extra-parliamentary landowner networks and court based responses. Legal success offered landlords a great prize: the prospect of enlisting the direct support of the State and de-legitimising the movement. For if the courts sided with landowners, imposed an injunction and the MST resisted, the military police could then be summoned to arrest MST members and halt occupations in their tracks. Clearly, the MST’s underdevelopment of legal expertise, at its simplest, the failure to present an adequate defence in court because lawyers were unavailable, was leaving the movement badly exposed. Either it would have to reconsider the question of law, or risk fighting with one arm tied behind its back.
There was no Damascene conversion to the virtues of the established legal order. Instead the movement gradually moved from defensive conceptions of law to more offensive – proactive - ones. Undoubtedly, the MST’s painstaking construction of legal personnel networks and arguments strengthened its hand. But this still left landlords with massive legal firepower (backed by monetary and other advantages). The playing field is anything but level. Representing landowners is so lucrative that some lawyers leave the ranks of INCRA, the land agency, to join those of landowners, and in many cases, litigating, advising and researching on behalf of landless workers represents a costly personal undertaking. Were it not for the dedicated body of lawyers and paralegals willing to offer these services on a voluntary basis, the MST’s legal presence would be a fraction of its current size.
According to MST leaders, serious discussion of legal issues, like the possibility of forming an in-house legal team instead of relying upon the good will of the Catholic Church’s Pastoral Land Commission (Comissão Pastoral da Terra, CPT), began in the early 1990’s. This was a direct response to the wave of violence unleashed by President Fernando Collor de Mello’s administration (1990-1992). Until then, the approach had been both deliberately and inadvertently piecemeal. On the one hand the MST did not wish to go down the route adopted by other organisations which, it believed, had become so enamoured with individual lawyers and legal niceties that, in effect, political and movement imperatives had been subordinated to legal ones. On the other hand, though, a relationship of convenience had developed with third parties, like the CPT. ‘Why change it?’ was the attitude. For radical independent lawyers like Jacques Alfonsin, who provided legal services just as occupations were taking off in Rio Grande do Sul, the movement’s arms length approach in the mid 1980’s was inadequate and difficult to deal with on a personal level. ‘At the beginning I almost felt like an appendage, an excrescence’, he said17. Like many lawyers he would be called in to assist occupations at the last minute, or in their aftermath. A tension clearly existed between the internal political dynamics of a vibrant social movement, still operating under semi-clandestine conditions, and externally constituted legal demands. The MST felt that lawyers could never ‘solve’ fundamental problems (e.g., accelerate expropriations) on its behalf and that the key to changing social attitudes and pressurising the state into land reform lay with mass mobilisations. If it came down to a choice between who was going to be subordinated, then it would have to be the lawyers, not movement actions.
Whatever the substantive merits of the MST’s position, in practical terms the choice was not so stark as this. Legal action could be expanded and enhanced without compromising the movement’s strategic objectives. Indeed, over time even leaders like João Pedro Stedile came to recognise that, ‘clearing up after the milk was spilt’ was not an adequate policy.18 Gradually, therefore, a more sophisticated, expanded and assured concept of militant legal action emerged that was in harmony with the MST’s imperative of political autonomy. Evidence of this shift comes in the early 1990s, with the development of in-house legal services that drew directly upon MST resources; and the increased support given by the movement for the National Network of Popular Independent Lawyers (Rede Nacional de Advogados e Advogadas Populares, RENAP), officially created in 1996.
The emergence of a more coherent legal strategy, or consciousness, partly arose in response to external shocks like the repression of the Collor administration and the host of court based and paramilitary countermeasures undertaken by landowners in the 1990s. Prior to this legal consciousness was incipient and episodic. Over time, however, the movement’s exchanges with the radical legal profession became second nature. Lawyers like Jacques Alfonsin were instrumental in the development of RENAP and legal dialogues in the mid 1990s. Another lawyer, Luis Eduardo Greenhalgh, also provided the movement with assistance during its early struggles, such as the occupation, in 1985, of the Annoni ranch in Rio Grande do Sul. As a radical lawyer and politician of national standing he was used to straddling the contradictory worlds of politics and law in a way that better suited the movement. Although this may have helped cement the closer relationship he enjoyed it hardly constituted an autonomous legal consciousness. Dependence upon the personal characteristics of an individual lawyer, no matter how brilliant, represented a precarious foundation. As if to underline the point it was Greenhalgh himself who took the lead in setting up the MST’s in-house legal services.
The Worker’s Party (Partido dos Trabalhadores, PT) provided yet another support network through sympathetic lawyers and leading figures like Plinio de Arruda Sampaio. Like Greenhalgh, Alfonsin and many others, Sampaio was separate from, but closely linked to, the movement’s fortunes from its earliest days. Sampaio’s background also straddled the worlds of law and politics. He was a Party heavy weight in the legal sphere (making a notable contribution to those chapters of the 1988 Constitution dealing with the separation of powers and role of the Attorney General’s department), and was deeply involved in agrarian questions (hence his citation as a possible Minister of Agrarian Reform under President Lula da Silva, and his appointment as head of the commission that elaborated the National Programme of Agrarian Reform [PNRA]). Numerous exchanges with such figures aided the development of a more mature and nuanced legal conception. Vigorous exchanges also took place between the MST and the radical legal education network AJUP (Apoio Juridico Popular). It organised seminars for lawyers and militants, produced specialised pamphlets, and actively supported the movement, but Miguel Pressburger, one of AJUP’s leading figures and a Marxist lawyer, was openly critical of the MST’s lack of legal policies, arguing that these failed to exploit its scope for action. Finally, of course, there was the CPT upon which, as noted earlier, the MST greatly depended and whose influence is still felt today. In short, change was more than just the product of external shocks; it was also part of a wider process of critical reflection going back to the mid 1980s.
The development of in-house legal services during the early 1990s, under the official heading of Human Rights Sector, undoubtedly represented a major step forward. At last the movement could systematise its legal policies; offer a point of contact for the agglutination and coordination of external legal support; comment officially upon individual cases; represent the legal plight of landless workers at a national level; and produce legally oriented publications. It should be stressed, however, that this was not a legal service in the usual mould. The connection between movement and lawyers was intended to be organic. Instead of contracting outside professionals, the movement began training its own cadres, like the head of the Human Rights Sector, Juvelino Strozake, the son of landless workers and an MST activist. His university education was sponsored by the movement, and he was given vital practical training by a skilled lawyer, Luiz Eduardo Greenhalgh, who’s political and legal judgements the movement respected. These characteristics would help ensure the legal department meshed fully with the movement’s wider objectives.19
The MST’s tightly controlled model of organic legal growth came at a price. It was slow and therefore bound to be limited in scale, a major problem when dealing with social conflicts scattered across a country of Brazil’s dimensions. Some attempts were therefore made to break these limits through agreements, established with both the Cardoso and Lula governments, providing federal funds to retain lawyers to work on certain human rights cases.20 In no way did the subcontracting of functions at the periphery imply a loss of control at the centre. An extended division of labour and professionalisation of legal services was perfectly in keeping with the movement’s political and legal objectives. Providing the MST with material leverage – enough lawyers in the right place and at the right time – was obviously a vital task, but so too was broadening its range of legal arguments. Intellectual leverage could not be established in isolation or organically: the movement had to reach out. In this context RENAP would prove highly significant. It offered both lawyers that the movement’s internal resources could never hope to match and a vital network of information exchange.
RENAP also had repercussions within the MST.21 Central to RENAP’s agenda is what Jacques Alfonsin described as the ‘need to bring together and concentrate law professionals, to improve the provision of legal advice, and to debate and clarify legal defence strategies - especially in relation to criminal and civil matters arising from the struggle for agrarian reform’.22 For RENAP members, steeped in radical legal theory and activist struggles, this meant attempting to consolidate an alternative model of legal action by questioning their role as legal professionals; developing jurisprudence that challenged orthodox interpretations; propagating these concepts through pamphlets, meetings, courses, and information technology networks; and seeking a close working relationship with the MST (amongst others) that stressed not only the latter’s autonomy (and in this sense the limited nature of legal action), but RENAP’s autonomy too. The constant dialogue with the MST would give RENAP initiatives their vital grounding, but also helped the MST reorient its legal agenda from a conservative/defensive posture to one grounded in more offensive/radical notions of legality.

    1. From Defensive to Offensive Legality

Although João Pedro Stédile accepts that substantive changes have taken place,23 he is keen to stress that these occurred primarily as a function of politics rather than law. Certainly it is true that the movement never lost strategic control over its legal dealings, or found itself in awe of law or lawyers. No matter how insightful Greenhalgh’s legal advice might be, it was overruled on several occasions.24 Thus, offensive legality had its limits. It was developed within constraints imposed by the MST and the wider social struggle. Notwithstanding these limits, legal action did possess its own logic and qualities. Just as Stédile emphasises that movement activities should ‘lead society to support us’, there can be little doubt that occasionally law constituted a vital bridge in this process. Events in the Pontal do Paranapanema, which first marked the MST in the nation’s consciousness, bear this out.25 As Stedile says:

It is obvious that the Pontal was very important from an ideological perspective, because in the Pontal there were 700,000 hectares of public land: the status of the property, which belonged to the State, had already been clearly decided in the courts. It had been illegally seized [grilhada26] by large landowners and figures from São Paulo’s aristocracy, indeed the ex-governor, Roberto Costa de Abreu Sodré was a grilheiro from the region. The fact of having made occupations and organised the movement here acquired greater symbolic value on account of these aspects.27

In other words, the politics of occupation, near the epicentre of landed, industrial and media power, was complemented by the legal situation. Whatever their de facto power, which was immense, in de jure terms landowners found themselves in a vulnerable position, a fact not lost upon the movement and made much of in the course of its public pronouncements. In private negotiations too, with centrist and conservative local town mayors, law exercised a bridge building capacity. According to José Rainha, the MST’s chief spokesperson at the time, ‘we won over the mayors and isolated the landowners, because there was no way of saying ‘no’, because the land was public.’28 Thus, no longer was law simply used to defend the movement from attack; it was also used in a wide variety of contexts to put others on the defensive. Consider, for example, the attitude of landless workers themselves, who are said to be reluctant law breakers.29 If true, Rainha’s affirmation that the Pontal’s legal situation made it ‘a great deal easier’ to organize workers is significant. He could claim ‘we’re not the illegal ones; you [the landlords] are because the law says that the land belongs to the State.’30 The MST was using a legal claim as an aid to mobilisation.
Although the MST’s legal claim was aided by the devolved status of land, activists simultaneously relied upon another prop of wider significance: the idea that the State had failed to accord landless workers fundamental collective rights enshrined in the 1988 Constitution. Thus, struggles over devolved land were part of a much broader process of struggle in the social, political and legal fields. Offensive legality’s task was to develop the legal imagination and tools capable of undertaking these struggles in all their diversity and universality. Finding a ‘trump card’, like the 1958 decision confirming the devolved status of land in the Pontal, could not be relied upon elsewhere. Indeed, court victories alone were not enough, as the fact that it took 35 years to begin to establish the 1958 court’s writ so powerfully illustrates. Instead cards had to be manufactured through painstaking work inside and outside the courts.

    1. Changing Legal Culture

Judicial conservatism resides at the heart of Brazil’s legal system, and nowhere is this more evident than in questions pertaining to property. While the movement has always looked beyond the horizons of law, it has come to recognise that these cultures must be contested head on, rather than written off and accepted as forms of oppression. Contestation here neither constitutes an overestimation of movement power nor a sign of its institutionalistation. Rather, it is viewed simply as a necessary part of the struggle.

Although the uphill nature of that struggle is clear for all to see, favourable shifts do occur sometimes. In March 1996, for example, one of Brazil’s highest courts, the Superior Tribunal de Justiça, was asked to decide upon the merits of a petition for habeus corpus (HC.4.399 SP.) made by six leading MST members preventively imprisoned following a wave of occupations in the Pontal.31 In a landmark ruling the court concluded that their actions could not be characterised as a crime under the terms of the penal code because the subjective intentions of the petitioners was furtherance of agrarian reform, rather than theft of property. Their intentions were, in the words of the judges, ‘substantively distinct’ from those alleged by prosecutors. The court also noted the connection between the inaction of the state on land reform, the constitutional imperative for change, and MST activities. The implication was clear. Given the monumental failure on the part of the political class there was a corresponding need to understand the circumstances in which workers felt compelled to occupy land. A comment one often hears from the MST captures this well: ‘From the point of view of our legislation, if there was political will, there would be no need for land occupations.’32

The court’s decision touches upon many of the themes discussed in this article. The ruling would become an important piece of ammunition in the MST’s arsenal. Through networks like RENAP, as well as the MST’s own legal service, the precedent was used in countless other legal actions, albeit with varying degrees of success. The case was also used to cement further the legal aspects of movement’s claim to legitimacy, both before the public and internally, among members. Finally, the case clearly showed that even within Brazil’s conservative legal establishment, there were sectors - at the very highest levels - willing to embrace theses advanced by MST lawyers.

The 1996 ruling by the High Court illustrated other issues. Although the judges failed to detail judicial failures, reserving criticism for politicians instead, they did emphasise the importance of a contextual approach and substantively oriented legal reasoning, rather than the purely formal variety characteristic of prevailing legal orthodoxy.33 This was not a revolution in legal thinking, or the radical kind of reasoning proposed by some legal scholars and judges34, but it did represent a symbolic break with tradition and an implied criticism of colleagues. The presence on the panel of Luiz Vicente Cernicchiaro, a leading intellectual in penal affairs who chaired the committee examining reform of the Penal Code, gave the decision added weight. It could not be written off lightly. As such the MST would keep it in the public and judicial eye over the years to come.

For the MST the central issue is not to ‘sacrifice the Rule of Law in name of the combat against poverty and social exclusion’, but to regain those aspects of law’s rule that deal favourably with questions of poverty and social exclusion but which have been buried under the immense weight of other institutional, political and class imperatives. Regaining law’s progressive potential and pushing its boundaries is not just a matter of legal archaeology. New precedents have to be set. One example of this occurred in December 1999, near the town of Matão, in São Paulo state. Six hundred landless families occupied an area devoted to the intensive cultivation of sugar cane, land that was deemed productive. In so doing, the MST appeared to have placed itself on a collision course with the 1988 Constitution, which makes a crucial distinction between so-called productive and unproductive property. According to article 185 the expropriation of productive properties is ‘not permitted.’ Closer examination reveals that the movement was not on a collision course with the Constitution, but rather with highly restrictive constitutional interpretations. It was attempting to re-establish the validity, indeed primacy, of other constitutional clauses, notably article 186 which asserts that in order to be accorded legal protection, property must simultaneously fulfil its ‘social function’.35

A striking feature of the Matão occupation is that from the outset activists were acutely aware of and drew attention to the legal implications of their actions. This was offensive legality at work. As one leader explained, ‘it is essential that land fulfils its social function, and occupations are one means of carrying out this debate in society.’36 To the surprise of many, the lower court validated the movement’s main argument, namely that the property in question was failing to fulfil its social function because of local pollution and the systematic abuse of labour rights. Thus the occupants were allowed to stay. This ruling established an important new precedent. It seemed the MST had an arguable case after all, a remarkable fact given the greater public, political and judicial hostility towards occupations of productive property.

A shift in legal culture appeared to be taking place. The MST’s arguments even received support from local and state prosecutors. A few days before the occupation began prosecutors and other state officials issued an open letter dealing with the social function of property in much the same terms as those advanced by the MST.37 Far from coincidental, the letter was indicated increased cross fertilisation between the movement and various legal practitioners.38

Though unusual, the Matão case highlights a broader trend: the increasing responsiveness of Brazilian legal professionals towards innovative strategies advanced by the MST. Furthermore, the occupation underlines the movement’s capacity for creative case construction. Legal issues were woven into the very fabric of this occupation and the MST was more than happy to draw attention to this fact. Throughout, though, the essential driving force remained the unresolved nature of the social and legal contradictions themselves.

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