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Social & Legal Studies
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DOI: 10.1177/096466399200100208
1992 1: 235 Social & Legal Studies
Boaventura De Sousa Santos
Law, State and Urban Struggles in Recife, Brazil

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by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
235-
LAW,
STATE AND URBAN
STRUGGLES IN
RECIFE,
BRAZIL
BOAVENTURA DE SOUSA SANTOS
University of Coimbra, Portugal
INTRODUCTION
Y INTEREST in the urban
struggles
in Brazil dates back to
1970,
when
I studied some
aspects
of the inside life of one of the
largest squatter
M settlements in Rio. I was interested at the time in
analyzing
the social
processes by
which these settlements consolidated themselves as urban com-
munities,
in
spite
of the fact that
they
were
constantly
victimized
by
discriminatory
administrative measures on the
part
of the state and
recurrently
threatened with
expulsion
on the
grounds
that
they
had no
legal
title to the
occupied
land. More
specifically,
I studied the
legal
and
judicial practices
centered around the
neighborhood
association
by
which a
variety
of
disputes
among
residents were settled
by
the
president
of the association
through
an
informal and unofficial
legal process
which I called
Pasargada
law
(Santos, 1974,
1977).
It was a
period
in which the
legitimacy
claims of the
military regime,
if never
significant among
the
popular classes,
were at their
lowest,
a
period
of brutal
repression
on the
part
of a state
power
which seemed not to have
yet
exhausted its
capacity
for internal
development.
The removal of
large squatter
settlements and
the
resulting
destruction of the communities could be executed
overnight
with
the massive mobilization of the
police
and armed forces. The
popular
classes
were
disorganized
and isolated and there was no
point
in
trying
to
struggle
for
their collective
rights
as urban residents in the official courts. The
popular
classes
were on the defensive and I then conceived of the
development
of an internal
legal system
in the settlement as a defensive
struggle, among
others.
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
236
When,
ten
years
later,
I initiated the research in
Recife,
with
Joaquim
Falcao
and Alexandrina Moura,
the
study
was
quite
different,
as were the
political
and
social contexts in which it was to be conducted. The
focus, however,
was once
again
on subordinate classes in the
squatter
settlements of a
large city.
In contrast with the
Pasargada study,
the Recife
study
did not focus on the
internal
legality
of the
settlements,
but rather on the use of the state
legality by
the
residents of these settlements in defense of their
socio-political right
to
adequate
housing.
It did not focus on
legal
conflicts between individuals but rather on
conflicts
that, though having
an individual
dimension,
were collectivized in the
development
of the
struggle.
It did not focus on intraclass conflicts
(conflicts
between residents of the
settlements),
but rather on interclass conflicts
(conflicts
between the urban
poor
on the one hand and the
big
landowners,
real estate
developers
and the
state,
on the
other).
The
political
and social context of the
study
was also different. The
military
regime
seemed to have exhausted the conditions of its own
reproduction
and its
legitimacy
claims centered around the
political process
of its own
demise,
the
question being
the control of this
process;2
in other
words,
the
question
of how
much of the
present regime
would
reappear
in the next one. It was a
period
of
intense social
struggles
between workers and industrial
capital
in Sio Paulo,
between
peasants
and
big
landowners in the rural
hinterland,
and between the
urban subordinate classes in
squatter
settlements in
large
cities and real estate
developers
and state
agencies.
The
popular
classes were not as isolated as in the
previous period.
The
process
of redemocratization had
permitted
a certain return of the old
populist politics
but had also
given
rise to a new
generation
of
political
leaders with a
potentially
more
genuine relationship
with the
popular
classes.
Just
as
important,
the dark
years
of the
dictatorship
had witnessed the
re-emergence
of a
political agent
whose
oppositional
work on the side of the
popular
classes had contributed to
new forms of
political
mobilization. I am
referring
to the Brazilian Catholic
Church.3
In the
following,
after
providing
some
background
information on Recife,
I
will
briefly
describe three urban conflicts.4
Thereafter,
I will
provide
a
hermeneutical account of the
microphysics
of the
political legality
of these
conflicts,
and will then
try
to locate such an account in a broader structural
context.
THE PRODUCTION OF URBAN SPACE IN RECIFE
The
Metropolitan Region
of Recife is one of nine
macro-regional poles
in Brazil
with a total
population
of
2,200,OCO inhabitants,
58
percent
of whom live in the
city
of Recife. The constant
swelling
of the
city
is
basically
due to the
migration
fluxes
converging
on it. As
happens
in
any
other
large city
of the
capitalist
periphery,
the
city
cannot
adequately incorporate
these
migrations,
either in
production
terms
(employment),
or in
reproduction
terms
(housing). According
to
employment
statistics of
1976,
78
percent
of the active
population
is in the
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
237
tertiary
sector and most of it in the so-called informal sector. It is also calculated
that more than 60
percent
of the urban
population
lives in
squatter
settlements.
In
Recife,
the
production
of the urban
space
structure has been
shaped by
two
main factors. The first one is the
sugar
cane
economy
and the
plantation system
in force since the sixteenth
century. According
to Recife
geographer,
M. C. de
Andrade,
forty years ago
the
sugar
cane fields covered areas which are
today fully
urbanized
(1979: 58).
Still
comprising
more than 52
percent
of the total area of
Recife
Metropolitan Region,
the
big
estates of the traditional landed
bourgeoisie
(the
urban
latifundios
as
they
are
called)
are the main cause of difficulties of access
to urban land in Recife.
The second factor is the
ecological
features of the land: located on the coast
between the mouths of two
rivers,
the
city
is for the most
part
built
upon
land
subject
to the influence of the ocean tides. This land is state
property
and the
concession of
rights
to the use of land
through perpetual
leases has
traditionally
been tied
up
with the
processes
of local
politics, political
influence and
administrative
corruption.
The destruction of
genuine legal
documents and the
production
of
forged
ones have been common and account in
part
for the
ambiguity
of the
legal
status of urban land in Recife. Another factor
contributing
to this
ambiguity
is that
part
of the land was in fact
produced by
the
popular
classes
through
landfill.
They
were allowed to build their shacks
upon
stilts,
would do the
landfill, and,
once it was
done,
would be
expelled
from the area so
that holders of the
rights
to the use of the land could benefit from the differential
ground
rent thus
produced.
This
explains why,
in some of the conflicts included
in our
research,
the urban
poor
claim to have a
legal right
to the
land, since
they
or
their ancestors carried out the landfill.
Indeed,
many legal
titles to a declared area
in the
Register
of Deeds do not
correspond
to the real area or
shape
of the
land,
which have been
changed by
landfill.
The
ambiguity
of the
legal
status of the land has caused
many
land
disputes.
Their number has increased
dramatically
in recent
years,
due
mainly
to the
speculation
on the land market
brought
about
by
a
profitable
association
between the traditional
landowning
families
(in
Recife,
mainly three)
and the real
estate and
housing developers.
This
process
has created a new
scarcity
of urban
land in
Recife,
and has increased the
pressure
on the land
occupied by
the
popular
classes sometimes for more than a
century.
This
scarcity
and this
pressure,
associated with the constant
migration
flows to the
city,
have also
produced
important changes
inside the
existing popular
settlements. The increase in the
demographic density
inside these has created new forms of internal social
stratification and
spatial segregation.
It has also
multiplied
lease contracts in
which the rents for
shacks,
or rooms in
shacks,
may
be
priced beyond
the reach
of the
poorest poor.
This is indeed a decisive factor in
triggering
new invasions
and new
occupations
of the still
unused
land. Of the nine conflicts
originally
included in the research four involved recent
occupations.
In a
survey
conducted
in six of the nine urban conflicts
initially selected,
72
percent
indicated as the main
reason for
having participated
in the invasion the fact that
they
could not afford
to
pay
the rents in the settlements
they
came from.
These
aspects
of the
changing
nature of the
capitalist production
of the urban
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
238
space
in Recife are the
background
to the social
struggles
on which I will
concentrate below.
THE URBAN CONFLICTS
THE CHILDRENS TO WN
In October 1979 300 families invaded a tract of land
(3 acres)
which had been
unused for more than
thirty years.
The land was located in a middle-class
neighborhood
and had been
recently bought by
a commercial
company,
a
subsidiary
of a multinational
corporation specializing
in cosmetics with its main
headquarters
in Sao Paulo. One month
later,
the directors of the
company
heard
of the
occupation
and
immediately
hired a
couple
of
lawyers
from the Recife bar
and
brought
a lawsuit
against
the invaders. Since to file a
complaint
the
personal
identification of each of the defendants was
necessary,
and since the
lawyers
anticipated
that the residents would resist
being
identified for a court action
against
them, they
obtained the names
by deception, claiming
that
they
would be
needed for the
company
to
compensate
the residents should
they voluntarily
abandon the land. The lawsuit was a
summary
one,
and the
judge
delivered
judgment solely
on the evidence
brought by
the
plaintiff
and without the
presence
of the defendants. In
spite
of court
congestion
the decision was
promptly given
and
quite anomalously
was executed on a
Saturday
and
Sunday.
The residents were
brutally
treated when
they
tried to resist
expulsion. They
tried to obtain outside
support,
but because it was the weekend their efforts were
in vain.
THE SKYLAB
In
July
1979 some 200 families invaded 5 acres on a
steep
hillside owned
by
a local
real estate
developer
with
strong
connections with the traditional landed
bourgeoisie.
The invasion started on a
Friday night.
A drunkard
passing by
and
seeing
all the work
being
done to
prepare
the
land,
asked whether the
Skylab
had
fallen there. The new settlement was thus
baptized.
The next
morning
the area
was divided into 300
plots
of land.
During
that same
day
the owners heard of the
occupation. They immediately requested
from the State
Secretary
of Public
Security
the intervention of the
police
to
expel
the invaders from their land.
They
were told that
they
would have to wait until
Monday,
since the services were
closed for the weekend. The owners then talked to the
people,
and
proposed
that
they
abandon the area
voluntarily
so
that
the land could be
adequately
urbanized
by
the
company
and then leased to them
legally.
The invaders
suspected
the
trap
in this
proposal
and
rejected
it.
The
following Monday morning
the directors of the
company
arrived with
two trucks and
twenty employees,
escorted
by
several
police
cars.
They
destroyed
some shacks
already
built at the bottom of the
hill,
but the men
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
239
barricaded themselves on the hill and sent the women,
children and old
people
inside the
remaining
shacks. In the
meantime,
some of them contacted the
legal
office of the
Justice
and Peace Commission set
up by
the
Archbishop
of Recife
and
Olinda,
D. Helder Camara. The
lawyers
there
promptly agreed
on their
defensive
strategy.
First,
they
asked the residents to
go
back to the
Skylab
and
try
to maintain the
occupation by
all
possible peaceful
means.
Second, they
contacted the mass media and alerted them to the massive
display
of
police
force
protecting
landowners in their violent actions
against poor people struggling
for
shelter.
Third, they
contacted the State
Secretary
of Public
Security
and
proposed
a 24-hour truce
during
which no demolition or construction of shacks would
take
place. Finally, they
invited the
high
officials of the State
Secretary
of
Housing
to visit the locale. This
they did,
and came to the conclusion
that, given
the low market value of the
land,
the state should
expropriate
it and distribute it
among
the invaders. But later
on,
back in their
offices, they
retreated from this
proposal
which,
as
they
said,
could undermine
private property -
and
proposed
instead a
legal agreement
between landowners and residents. The truce was
accepted
and when the owners tried to violate it a few hours
later, they
were
stopped by
the
police.
Nevertheless the tension
grew.
The
lawyers
called the
mass
media,
informed
politicians
from the
opposition parties
and asked D.
Helder to visit the settlement to show his
solidarity
with the settlers and
prevent
the
likely
outbreak of violence. D. Helder was
enthusiastically
welcomed
by
the
residents and
preached
to them on
peaceful
active resistance and on
popular
organization.
The
landowners,
for their
part, argued
that the
lawyers
and
priests
were
communist
agitators,
and refused
any negotiations
until the invaders left the site.
However,
due to the insistence of the state officials,
they agreed
to a
meeting
with
representatives
of the state and Church
lawyers,
as well as the residents
committee which had in the meantime been elected in a
widely
attended
general
assembly
held in a
parish
house
nearby.
After several
meetings
an
agreement
was
reached and a
protocol
was
signed by
all the
participants. According
to the terms
of the
agreement,
which were ratified
by
the
people
in
general
assemblies,
the
owners and the residents would enter into a land-lease contract for a maximum
period
of five
years.
THE PEASANTS TOWN
In November 1979 several hundred
people
invaded 14 acres of land owned
by
a
government corporation
which
produces
and distributes
electricity
in Recife.
This area is covered with the
poles
of
high voltage
wires. Soon after the
occupation
2000 families were
living under
the wires.
As soon as the
corporation
was aware of the
occupation,
their
lawyers
visited
the area several
times,
in unsuccessful
attempts
to convince the residents to leave
this
dangerous place.
The
residents,
of
course,
as
they
said,
had looked
downwards
(on
the
land)
for a
place
to
live,
not
upwards (to
the
wires).
Given the
need for
personal
identification of the defendants for the court action,
the
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
240
lawyers managed
to obtain 135 names
through very
much the same
deceptive
devices that had been used in the Childrens Town case.
In
February
of the
following year
the residents were summoned
by
the
judge
for a
hearing. Having
then realized that
they
were
being
sued in
court,
the residents assembled in a
nearby
church with the
support
of their
parish
priest
and decided to
struggle
for their
rights. They
elected a residents
committee and decided to
get
the
legal
assistance of the
Justice
and Peace
Commission. At the
meeting
the
priest
advised them - as later on the
lawyers
also did - not to
give
their names under
any
circumstances,
in order to make
it
difficult,
if not
impossible,
for the
electricity company
to sue the rest of
them.
The
lawyers
of the Church Commission decided to take the case and started
participating
in the
general
assemblies. At one of these assemblies it was decided
that the residents were to be
present
en masse at the court
hearing.
Hundreds of
them filled the courtroom,
and indeed the
courthouse,
singing popular
and
religious songs
and
holding posters
with
slogans
such as Who
bought
the land
from God? and The
people
united wont be defeated. In a
very
tense
atmosphere
the court
proceedings
started with several motions
by
the defense
lawyers. Shortly
after,
the
proceedings
were
suspended
and
adjourned by
the
judge.
The
people
marched to the Governors
palace
where
they
were later
granted
a
meeting
with both the State Governor and the State
Secretary
of
Housing,
and
eventually they
were
promised
another tract of land where
they
would be relocated. In view of this the defense
lawyers
asked for a
suspension
of
the court
proceedings
for another
thirty days
in the
hope
that an
extra-judicial
solution would,
in the
meantime,
be found. As it would take months to have the
new location
ready,
the
electricity company pressed
the
charges against
the
residents.
By
means of
sophisticated legal arguments,
however,
the defense
lawyers managed
to
persuade
the court to defer its decision until
February
1981.
On the new date set for the
hearing,
Adolfo
Esquivel,
the Nobel Peace Prize
Winner of
1980,
was in Recife
and,
at the
suggestion
of the defense
lawyers,
decided to be
present
in the courtroom
along
with the
Archbishop
and thousands
of residents. But the
general public
were not allowed to follow the
proceedings:
the
microphones
were disconnected and
only
the
legal professionals
around the
judge
could hear what was
going
on.
Commenting
on this fact for the
press,
D.
Helder said: This disconnection of
microphones
is
symbolic
of a
justice
that
doesnt know how to
speak
to the
people.
The
judge
delivered
judgment
in favor of the
company
and the crowd was
informed in the
square
in front of the courthouse
by
the defense
lawyers.
Gathered in a
general meeting,
the residents decided to resist eviction. The
defense
lawyers
then filed an
appeal
based on constitutional
grounds,
a
highly
exceptional type
of
legal
measure.
According
to the main
argument,
the
right
to
private property
should
yield
in face of the
socio-political right
to decent
housing.
Moreover,
the eviction would affect
only
135 of the 2000 families and
the court of
appeals
was made aware of the social tension involved in the
execution of the decision of the lower court. To the
surprise
of the
defense,
the
appeal
was
upheld
and the execution of the eviction was
suspended.
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
241
THE MICROPHYSICS OF POLITICAL LEGALITY IN URBAN STRUGGLES
I will
try
in the
following
to
analyze
the
microphysics
of
political legality
in the
urban
struggles
in Recife and to locate it later in the broader concerns of the state
and
world-system.
At the end of
Whigs
and
Hunters,
E. P.
Thompson, reflecting upon
his
historical research on the Black Act and its
evolution,
comments that from
certain
viewpoints
his concern with the
rights
and
wrongs
of law of a few men in
1723 is concern with
trivia {1975: 259),
and the same could be said of
my
concern
with the
struggles
of the
poor
in Recife. What can these small-scale social
struggles
tell us about law and the state in
contemporary
societies which has not
already
been told
by
the
sweeping
social transformations of our
time,
the Russian
Revolution,
Fascism and
Nazism,
two world
wars,
the
struggles
for national
liberation
against
colonialism and
imperialism and,
in the closer and more recent
context of Latin
America,
the Cuban Revolution and its
evolution,
the rise and
demise of Allendes
regime
in
Chile,
the
Nicaraguan experience,
the
struggles
in
El Salvador?
However,
it is
my
contention that a concern with the urban
struggles
in Recife
is not a trivial one.
First, because,
in
my view,
the
grandiose processes
of social
transformation,
be
they
revolutions or
counter-revolutions,
are the end
products
of
long
and,
for the most
part,
invisible
processes
of
gradual
transformation,
small-scale
oppressions, struggles,
victories and defeats. Second, because an
inbuilt bias in our social sciences has drawn our attention to the
why
and how of
radical
change,
while
very
little attention is
given
to the social
processes by
which
the
grand
events of
discontinuity
are
deconstructed,
after
they occur,
into an
infinity
of small events and
practices
within which old continuities
reappear
hand
in hand
(or
fist
against fist)
with the new continuities.
For these two reasons I think that it is
up
to the social scientist to
uncover,
or
even
help
to
create,
the link between the small-scale local
developments
and
global
historical
processes.
This
link,
more than what is
connected, provides
the
key
to an
understanding
of social transformation.
The three conflicts I have described do not raise all the
important
issues of our
research. But
they
do raise most of them.
They
are
legal,
but also social and
political
conflicts;
they
are interclass
conflicts,
though they
are also individual
legal
conflicts between individualized
legal subjects.
All of them involve the
urban subordinate classes and their
allies,
the
landowning
classes, and the state in
its
quadruple
face of
government,
bureaucratic
administration,
courts and
police.
All these social forces use
legal (and
sometimes
illegal) political
and
ideological
resources in
complex
and
dynamic
combinations. Since these combinations are
socially
structured each one of those social forces
produces
a
specific profile
of
action.
As to the urban subordinate
classes,
the most
striking
feature of their
strategy
in urban conflicts is the extent to which
they rely
on their alliance with the
Catholic Church of Recife. In most of the
struggles
included in our
research,
the
Church tends to assume an
important
role in
organizing
the
communities,
providing
them with the
legal, political
and
ideological
resources
required by
the
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242
strategies
called
for, which,
indeed the Church also
helps
to
shape.
As a matter of
fact we are
dealing
here with a wide
range
of
grassroots religious
actions
among
the rural and urban
poor involving
hundreds of
priests
and nuns who live
among
the
oppressed
and
help
them
organize
in hundreds of
lay organizations
and
associations with thousands of members. All this under the
inspiring spiritual
leadership
of D. Helder
Camara,
the charismatic
Archbishop
of Olinda and
Recife.
The Church has
recognized
the law as a
privileged
arena of
struggle
and has
channeled
important
financial and
organizational
resources to
provide
the
collective conflicts of the
poor
with
engaged
and
professionally competent legal
counsel. The
Justice
and Peace Commission has been active
mostly through
its
legal
office,
staffed
by highly qualified lawyers.
The
general
characteristic of the
legal strategies designed
in those
legal
offices is
that the
legal
defense must
always
be articulated with a
political defense,
so that
both defenses are
mutually
reinforced. It is
up
to the
political
action to
reconstruct the conflict in such a
way
as to facilitate the investment of
sophisticated legal
resources which should
produce
outcomes that will in turn
feed back into the
political development
of the conflict. This
strategy
is
adopted
for two reasons.
First, given
the overall class character of the
law,
the initial
legal
position
of the urban
poor
is,
in most
conflicts,
and in strict
legal terms,
a rather
weak one. If the
legal system
alone is allowed to control the definition of the
conflict,
there is
very
little that can be done on this terrain to defend the interests
of the urban
poor,
and less so in view of the conservative
ideology
of the
judiciary.
It is thus
imperative
to transform the
dispute,
to reconstruct the
conflict in
political
and social
terms,
before the
legal system gets
a
grip.
In other
words,
the
legal
conflict has to be
politicized
before it is
legalized.
The second reason is that this
strategy
is indeed
structurally homologous
to
that of the
ruling
classes in their conflicts
among
themselves and with the
dominated classes. The
apparent
absence of
political
mobilization of the law in
this case is due to the fact that the
political
factors
they
invoke in their favor are
congealed
in the
legal
forms themselves and
are,
by
this
process,
naturalized or
depoliticized (for instance,
the
legal recognition
of
possessive
individualism
through
the extensive
protection
of
property
and
property rights).
The
political
mobilization of the law
by
the urban
poor
in Recife
comprises
a
complex
set of
practices
and three main
phases,
which I have called: the
politics of
the
fait accompli;
the social reconstruction
of
the
conflict;
and the
seizing of
the
law.
THE POLITICS OF THE FAIT ACCOMPLI
The first
phase
consists,
in
general,
in
producing
and
defending
a
given
status
quo,
no matter how
legal
or
illegal.
In this
phase,
the
political-legal strategy
consists in
inverting
the relations of
production
of social and
legal
time in favor of
the
residents,
and
comprises
a combination of social
actions,
which I cannot
analyze
here for lack of
space. They
have
mainly
to do with the fact that the state
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as a
living bureaucracy
has
specific reproductive
needs and cannot function
twenty-four
hours a
day,
seven
days
a week. This fact is an arena of
struggle
and
can be
appropriated,
either
by
the landowners as in the Childrens Town
case,
or
by
the urban
popular
classes, as in the
Skylab
case. The
politics
of the fait
accompli
has also to do with other kinds of
management
of the
timing
of state
actions,
be
they
administrative or
judicial.
THE SOCIAL RECONSTRUCTION OF THE CONFLICT
This
phase
is aimed at
supplementing
the
politics
of the fait
accompli
and involves
a set of actions which redefine the conflict in such a
way
as to redistribute its
legalities
and
illegalities
in favor of the residents. This is indeed a crucial
phase
and
consists in
transforming
the
conflict,
from a
legal dispute
on land titles between
individual
legal subjects,
into a social and
political
conflict between
antagonistic
classes with
antagonistic
class interests, in which thousands of
people struggle
for
the minimal conditions of survival which the state
should,
if
nothing
else,
at least
guarantee.
The
symbolic expansion
of the conflict takes
place
in different
directions: from individuals to
classes;
from
private
matters to social and
political
issues;
from concrete
grievances
to a
general
indictment of an
unjust
social
organization;
from an isolated
dispute
to a series of conflicts
resulting
from the
same social conditions. This
symbolic expansion
is nonetheless real and
material;
it is in fact constitutive of the social
practices
of the actors involved in the
conflict;
it is
accomplished through
an articulated set of actions which include the mass
media and both downward and
upward politicization.
The mass media
play a
crucial
role, their
availability being explained by
the
process
of redemocratization
hesitantly
in course. The
symbolic
creation of a
class
enemy by
the mass media was
quite striking
in the case of
Skylab. They
produced negative images
of the landowners
capable
of
damaging
their business
reputation
as real estate
developers.
The interviews with the landowners reveal
how well aware
they
were of this risk and how this fact conditioned their
strategy. They
ended
up by accepting
a
negotiated agreement
with the residents
because,
as
they
said,
though they
would win in
court,
such a course of
action,
because of its
delays
and
publicity,
would favor the interests of communist
agitators.
Downward
politicization
consists
basically
of the mobilization and
organiz-
ation of the communities to
struggle effectively
for their collective
rights.
This
grassroots
or base
work,
in which the Catholic Church
again plays
a central
role,
is the least
visible,
but also the richest social
phenomenon emerging
from the
urban conflicts in Recife. Residents associations are set
up, general meetings
are
convened,
rhymes
are written on
the topic
of the
struggle very
much in the
tradition of the romance de
cordel,
so
popular
in the
Northeast,
comics are
prepared
and
widely
distributed most of the time
by
the mass
organizations
of
the Church. This is
particularly
remarkable in the older settlements
(like
the
well-known Movement of
Nobodys
Lands in the Yellow House
Hills)
but even
in the new settlements downward
politicization
is also
possible,
as we saw in the
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Skylab
and in the Peasants Town cases. This
politicization
enables the
poor
to
understand the
deep
causes of their
misery,
to
identify
the
enemy
and to
redefine their interests in
struggling against
it. When such
politicization
is not
possible,
as in the Childrens Town
case,
the behavior of the urban
poor
is
desperate,
chaotic and
self-defeating.
In this
particular case,
some of the
residents,
upon seeing
their shacks
destroyed, agreed
to be hired
by
the
landowners to
help
to
destroy
the other shacks for a
daily wage
and two meals a
day.
In
contrast,
in the
Skylab
case,
the residents talked to the
company
employees
in
charge
of the demolition and showed them their common
interests
(as
urban dominated
classes).
Some of the
employees
refused to
go
on
demolishing
the shacks and as a
consequence
were fired on the
spot by
the
landowner.
The level of downward
politicization
is also crucial to understand the
types
of concessions obtained from the
state,
as can be illustrated
by
the different
quality
and value of the land
promised by
the state to the residents in the
Childrens Town case and in the Peasants Town case.
Upward politicization
consists in the immediate and direct action of the
defense
lawyers
to
mobilize,
in favor of the
residents,
the state administrative
agencies
to which
they
have access. It involves
many
actions I cannot describe
in detail
here,
and reaches
beyond
the state towards the
Archbishops,
opposition politicians
and even a Nobel
prize
winner.
Through
all the
practices
I have referred to,
the conflict is
socially
reconstructed as a
political
and collective conflict and it is then that its
legalization
takes
place.
Hence the third
phase
of the
political legal strategy.
THE SEIZING OF THE LAW
The
principle
that the
political
and the
legal development
of the conflict should
go
hand in hand is the
key
to
understanding
the
legal
and
judicial strategies
of
defense
lawyers.
In some
instances,
the
political
and
legal
actions are
kept
separate, though they
feed back
upon
each other. In other instances, however,
they
are so
intimately
intertwined in concrete
judicial practices
that
they
can
hardly
be
distinguished.
These
practices
are
complex
action formations in
which
political
and
judicial
elements are
structurally interpenetrated,
and
they
are the realm of the
political
mobilization of the law in the narrow sense. I
distinguish
three of such
practices:
the
production
and distribution
of judicial
time;
the reindividualization
of
collectivized
conflacts;
the
politicization of
the
trial.
THE PRODUCTION AND
DISTRI$UTION OF JUDICIAL
TIME This
political-
legal practice
can be summarized in one comment of a defense
lawyer
in the
Peasants Town
case,
Thank God
justice
is
delayed. Judicial
time is an arena of
struggle
and can be
effectively appropriated by
the
landowners,
as in the
Childrens Town
case,
where the
objective
of the
plaintiff
was to control the
legal development
of the conflict before it could become
politicized.
To this
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end,
the control of court
bureaucracy
was obtained
by
both
legal
and
illegal
means.
THE REINDIVIDUALIZATION OF COLLECTIVIZED CONFLICTS
This practice is
particularly important. Legal
conflicts are individual conflicts between
legal
subjects.
Both Marxism and critical
legal
theories have claimed that this is a
crucial feature in
understanding
how class relations and class
inequities
are
reproduced by
the
legal system.
The individuals
(be they
urban invaders or
landowners) appear
before the law as
formally equal
citizens,
abstracted from the
social differences between
them,
in view of which their formal
equality
is little
more than a sham.
Though
there is much truth in this
critique,
it seems to me that in
reality things
are much more
complex
and the
process
of
legal
individualization is more
contradictory
than it
appears
to be. In the Childrens Town
case,
the
legal
individualization took
place
before the conflict could be
politicized,
and
accordingly,
it
produced
all the
expected disorganization
and atomization of the
urban
poor.
In the Peasants Town
case,
on the
contrary,
the
landowning
company
lost control of the
process
of
legal
individualization before it was
concluded. Hence it could
only identify
135 of the 2000 families. In this
case,
the
legal
individualization of the
conflict,
initiated in the landowners
interests,
turned
against
them as the
legal
conflict
developed
side
by
side with the
political
conflict. The defense
lawyers
were skillful in
exploring
this contradiction:
anyone
even
vaguely
familiar with life in a
squatter
settlement will understand
the social and
practical problems
that would have been involved in
finding
the
names of the
people (a minority
of
residents)
that were to be evicted.
In the
Skylab
case the individualization of the conflict took
place
not in the
judicial arena,
but rather in the contract arena. But here also the conflict was
made
political
and collective before it was made
legal.
The landowners
signed
individual contracts with the residents
only
after
having negotiated
with them
collectively.
This shows that the
political development
of the conflict makes it
possible
for
the factor of atomization to be transformed into a factor of
polarization.
THE POLITICIZATION OF THE TRIAL The
political
reconstruction of the
conflict is also the
political
reconstruction of the actions of
parties brought
to
trial. For the defense
lawyers,
the actions of the urban dominated
classes,
be
they
new invasions or resistance
against
eviction from old
settlements,
are social and
political actions,
irrespective
of their
legal
or
illegal
status. The actions for which
they
are tried are not
ordinary illegal
or criminal
actions; they
are social and
political
actions in which
they
are more victims than
aggressors.
This
political
reconstruction
permeates
all the substantive and
procedural
arguments
of defense
lawyers. However,
to be tried for a
political
action is one
thing
and to make the trial itself
political
is another. The
highest
form of
political
reconstruction is where the two are combined. As Bankowski and
Mungham
have
shown,
there are different
strategies
for
politicizing
the trials
though they
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246
involve in
general
the
breaking up
of the consensus in the courtroom and the
presentation
of an alternative world view
(1976).
The
politicization
of trials themselves is a
relatively
uncommon
phenomenon
in our
research,
but it did occur to a certain extent in the Peasants Town case.
Twice the crowd
jammed
the
courtroom,
singing, shouting
and
carrying
banners. The
objective
was not so much to transform the court scene from a
legal
scene into a
political
scene,
but to allow the
legal
scene to be
played
inside a
political
scene and both inside the same courtroom. The defense
lawyers
never
tried to
proceed entirely
outside the court
process
and never
neglected
the
objective
of
obtaining
a
legal victory (in contrast,
for
instance,
with the
Chicago
conspiracy trial). Indeed,
they hoped
that, through
this dramatization of a
play
within a
play,
the
legal
scene would rebel
against
its
political
shell and would
confirm its
primacy by granting legally
to the defendants what
they
could not
obtain
politically.
On the surface at
least,
it seems that this
strategy
failed. In both instances,
the
legal
scene knew well how to insulate itself from the
political
scene. In one
case,
the
judge suspended
the
proceedings
and
postponed
the moment of
decision,
and
in the other the
microphones
were disconnected.
On further
reflection,
an
interpenetration
of the two scenes
may
indeed have
taken
place,
not in the trial court but later in the court of
appeals.
It was in this
case that for the first time the Recife courts
recognized
the
socio-political right
to
adequate housing
as a
legal right. Legal enough,
at
least,
to
stop
the
right
of
property
from
aggravating
the
misery
of 8000
people
for a three-month
period.
CONTRADICTIONS OF STATE PRACTICE
The discourse of the
microphysics
of the
political legality
in class conflicts I have
just
recounted contains another
underground
discourse,
with much broader
boundaries,
in which the state and the world
system
are the
privileged
focal
points.
For
many years,
the
sociology
of
law, particularly
the functionalist
sociology
of
law,
both in its
phenomenological
and
positivist
versions,
could not
locate the state within the social text of the
law,
a failure that had the most
detrimental effects on our
knowledge
of both the state and the law in
contemporary
societies.
But,
if I am allowed to
paraphrase
a Brazilian
protest
song
here: We have learned a lot in these
years.
Ive written elsewhere that in
capitalist
societies at
least,
state
power
and state
domination are neither monolithic nor stable. Unable to solve the structural class
contradictions in
society,
the state limits its
activity
to
solving
the social tensions
that derive from such contradictions - a
complex process
which I have called the
negative
dialectics
of the
State. This
process
is activated
by
a
variety
of measures
and non-measures which
operate
as mechanisms for the
dispersal
of social
contradictions. These
mechanisms,
though very diversified,
tend to
operate
through
law.
Now,
law is a
complex
social
process
in which I
identify
three
structural
components,
articulated in different
ways: rhetoric, bureaucracy
and
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247
violence. From all this results an
unstable, asymmetric, fragmented
and indeed
dynamic
form of
political
domination
(Santos, 1980).
The Recife research shows that in
periods
of institutional crisis such as those
which
usually accompany
the
process
of
regime
transformation,
state action is
particularly
unstable and
contradictory
and this is reflected in the
relatively
advanced forms of
political
action
by
the subordinate classes. This is not to
say
that there is a relative
equilibrium
between the
ruling
classes and the dominated
classes and
that,
as a
result,
the state assumes a
particularly high
level of
autonomy
to fulfil its own interests as in the so-called
Bonapartist
state.
In our
case,
the
autonomy
of the state is less the
purposeful
affirmation of
well-defined
policies
than the end result of cross-neutralizations of state
action,
a
negative autonomy
as it
were,
a
lumpen bonapartism
if
you prefer.
The
analysis
of the conflicts reveals
contradictions,
both within the different
levels of the state
(city, state, federal),
and within the different state
apparatuses,
and even within the same state
apparatus,
from conflict to
conflict,
and even
within the same conflict at different times. For
example
the urban
poor may
be
treated like
dogs by
the state
agency
as
they
said in the Childrens Town
case,
and
they may
be
granted meetings
with the
Governor,
as in the Peasants Town
conflict. The
police may
act
brutally
in the first
case,
or intervene in favor of the
poor -
even
though they
had been summoned to
protect
the landowners - as in
the
Skylab
case. In this
particular case,
the
Secretary
of
Housing
started out
by
proposing
the
expropriation
of the land and then retreated to a lease contract
between the landowners and the residents. Even the courts behaved
differently
in
the Childrens Town and in the Peasants Town case.
This
high
level of contradiction in state action becomes constitutive of the
social
practices
of the different classes in conflict. As to the urban
poor,
it confers
a
great flexibility
to their social and
political practices. They keep testing
the state
by increasingly polarizing
their
struggles
and then
trying
to
stop
short of the
point
at which the state will activate the mechanisms of
dispersal
of contra-
dictions which are most detrimental to their
interests,
that
is,
in
my terminology,
the mechanisms of
repression
and exclusion.
As to the
landowners,
it
gives
a defensive character to their
practices
as in their
view
they
cannot take the state for
granted anymore,
most
absurdly (again
in
their
view)
not because the state is not
globally
on their
side,
but because it is
disorganized, incompetent
or infiltrated.
The
emphasis
on the contradictions of state action should not
imply
that such
contradictions are either infinite or random. As a matter of fact
they
are
structured in
specific ways
and even
though
social
struggles
can dislocate the
structural limitations of the state
action,
as Erik O.
Wright
would
put
it
(1978),
these will continue to exist and to
shape
the social
practices
of classes and
groups.
One of such structural
limitations,
particularly
relevant to our
research,
is the
principle
of
private property.
This takes us for a brief moment to the land
question
and more
specifically
to the urban land
question.
On the basis of both
my
research on the urban
question
in Recife and the research on the rural
question
in
Portugal,
conducted at the Center for Social Studies
(Coimbra)
(Hespanha, 1981, 1990; Reis, 1981),
I have come to the conclusion
that, contrary
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248
to the view of some urban
sociologists (Lipietz,
1974; Topalov,
1974, 1977),
the
theory
of the
ground
rent as
developed by
Marx for
agriculture (in part following
Ricardo yo
is also valid in the urban
context,
and that it is valid in its
triple
form of
absolute rent, differential rent and
monopoly
rent.
However, contrary
to
Marx,&dquo;
I maintain that because the
ground
rent is not an
exclusively
economic
factor,
it
doesnt
operate
alone,
either in the rural or in the urban context
(Santos,
1982: 35
ff).
It
operates
in articulation with the different forms of land
property. 12
Though
I cannot
go
into details on this issue
here,
the articulation of
ground
rent
with the different forms of land
property might help
us to unravel the
logic
underlying
the contradictions of state
action,
at least in some cases.
In the Childrens Town
conflict,
for
instance,
the land had a
very high
market
value and was owned
by
the
subsidiary
of a multinational
corporation
which had
bought
it
recently
to
expand
its
headquarters
in Recife. In this
case,
state
justice
moved
swiftly
and
efficiently
in favor of the landowner. In the
Skylab conflict,
on the
contrary,
the land had
very
low market value and there was no reasonable
expectation
of dramatic increases in the differential rent in the near future. The
land was owned
by
an old local real estate
development company
with various
ties with the traditional landed
bourgeoisie.
In this case the state was much more
ambiguous
in its defense of land
property. First,
it
proposed expropriation
and
then a
negotiated
solution between landowners and residents. That
is,
the state
sought
a
compromise
that would
minimally satisfy
the interests of the residents
without
undermining
the
right
of
private property.
In the Peasants Town
conflict the land was state owned
and,
given
the
specific public
use of the
land,
ground
rent
only operated marginally.
This was also the case in which the state
showed a more
specific
interest in
protecting
the
rights
of the residents.
Ground rent
however,
only provides
a
partial structuring
of the contradictions
of state action. These
contradictions,
in the urban
context,
will not be
fully
understood unless we take into account other
patterns
of state action in other
fields of social
life,
both in Recife and in the State of
Pernambuco,
and indeed in
the whole
country. Just
as an
illustration,
I will mention the distinction between
social
production
and social
reproduction
as an
important
structural factor of
contradictory
state action. It is in
my
view most
significant
that,
at the time of the
field
research,
the same state of
Pernambuco,
which showed a relative concern
for the urban
poor
and made
important
concessions at
times,
even if under
pressure, could,
at the same
time,
exercise a brutal
repression against
the
sugar
cane
workers, who, just
a few kilometers outside the
city,
were
fighting
the
sugar
cane
growers
and
sugar
mill owners for better
wages
and a labor contract. The
truth of the matter is that the
struggle
of the urban
poor
was a
struggle
for
housing,
that
is,
for social
reproduction,
while the
struggle
of the rural workers
was for
wages,
that
is,
for social
production.
The
primacy
of the relations of
social
production
over the relations of social
reproduction
in
capitalist
societies
provides
the
explanation
of
contrasting
and
apparently contradictory
state
actions in the two fields of social life.
But the
structuring
factors of state action should not be
sought
for
exclusively
at the socio-economic
level,
but rather at the
political
and cultural levels as well.
Recife,
the cruel
city
as it has been
called,
and the state of Pernambuco have a
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
249
distinctive tradition of social
struggles
across time and
regardless
of
regime
changes,
which constitute a
symbolic capital
invested in the social
practices,
both
of the different
classes,
and the state itself. Since
any
action of the state is also an
action on the
state,
there are
processes
of state accumulation that run
deep,
like
underground
rivers,
in the state
practices
across
time,
and that survive untouched
the dramatic
explosions
of
changes
of
regime.
LAW,
STATE AND THE
WORLD-SYSTEM
In the
preceding analysis
I have tried to locate the
microphysics
of the
political
legality
of urban
struggles
in Recife in the context of the state. In this
way,
we
gained
a
deeper understanding
of our
object.
It seems to
me, however,
that in
view of the state of
development
of our social sciences
today,
we cannot be
content to
stop
here. This in itself is
dramatic,
because the state of
development
of
social sciences is such
that,
though
it tells us
very clearly
not to
stop
here,
it tells
us
very
little about how to move on. For
many decades,
sociological
studies of
law and the state defined the nation-state as the
privileged,
indeed the natural unit
of
analysis. Today,
we have come to the conclusion that this unit of
analysis
is
unnatural and rather narrow. We live in a world in which nation-states are not
isolated and
autonomous,
but rather
integrated
in a
complex
and hierarchical set
of
unequal exchanges,
which Wallerstein has called the
world-system (1974).
This
expansion
from the nation-state to the
world-system
is both a
spatial
and a
temporal expansion
because, as we also
begin
to understand,
this
world-system
is
not a creation of our time: it has been in force in
changing
forms since the
sixteenth
century.
It would be a
gigantic
task to
try
to locate the urban
struggles
in Recife in the
context of the
world-system.
But I
can,
at
least,
raise a few
interesting questions.
For instance: these
struggles,
which were not
possible
ten
years ago,
are
they
only
the result of increased
popular organization
or are
they
related to the
changes occurring
in the
position
of the Brazilian
economy
and state in the world
economy?
Did these
changes produce
structural
spaces
which were then filled
by
the
popular struggles?
Can the
changing
role of the Church in these
struggles
be
explained
in national terms
only,
or is it related to
changes
in its role on a world
scale,
as if it were a multinational of
religious
services? Can we
separate
the role of
the Catholic Church in Recife from its role in Poland?
In the social
sciences,
we often ask
questions
which are almost answers. In this
case,
the
questions
are not even
fully
formulated,
because we lack the
methodological
tools to be able to ask them in
adequate
forms.
But,
we must
confess,
it would be
fascinating enough merely
to ask them in
precise
terms.
This
expansion
of the unit of
analysis
leads us also to
change
the nature of our
scientific and
political
interests in the
aspects
of social life we
analyze
in different
countries as these
analyses
become
directly
relevant to
understanding
in our
social life in each one of our countries.
As a matter of fact we are
reaching
the conclusion that most of our
general
theories on
law, power
and the state
(and probably general
theories in
general),
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
250
are indeed far from
general
and reflect our
specific
form of ethnocentrism: that
is,
centercentrism.
Just as,
according
to Durkheim
(1964),
the most
developed
societies,
the ones
organized
in terms of
organic solidarity,
were
ceasing
to be
ruled
by
criminal law
(that is, by repression
and
coercion),
and were
increasingly
being
ruled
by
restitutive law
(contracts, reciprocity),
at the same time these same
societies launched in their colonies the most
sweeping
wave of criminalization of
social behavior,
criminalizing
not
only
a whole
range
of
types
of social conduct,
until then
accepted
or even recommended
by
custom, but also new
types
of social
conduct
originating
in the
unequal exchanges
between the native cultures and the
colonial cultures.
At a time in
which,
according
to
Foucault, Europe developed
a
radically
new
form of social control based not on torture and
physical
destruction but on the
disciplinary
use of social scientific
knowledge
to create a total order of docile
bodies,
which he called
panopticism (1976, 1977, 1980),
at that time and indeed
much
later,
in the
European periphery, panopticism
was
imported
not to
bring
about
significant changes
in the material
practices
of social control,
but to serve as
an
ideology
to
legitimize
broader
political
concerns of the
modernizing
elites.
At a time in which Marx celebrated the victories of the British
working
class in
securing, through factory legislation,
a better life and the decriminalization of
both labor
organization
and the labor
process ( 1970: T, Ch. 10),
at that
time,
and
indeed much
later,
the same British
legislators legislated
the
global
crimina-
lization of the labor force and the labor
process,
for
example
in the Rhodesian
mines,
a
process impressively
described
by
van Onselen
(1976),
and of such a
brutal character that our own traditional centercentric distinctions between
criminal law and labor law
totally collapse.
These
disturbing
facts of the nineteenth and
early
twentieth centuries should
caution us
against
the new forms of centercentrism and thus of unwarranted
generalizations
in which we
might stray today.
It is true that we dont have
empires anymore
but we still
have,
and
probably
more than
ever,
a world
economy
based on
interdependence
and on
exploitation.
The
sociological
studies of the
periphery
are thus more and more relevant for
the studies of the center. This
relevance, however,
is not exhausted in
establishing
differences. There
may
be also
important
similarities. In this
perspective,
and to
restrict
myself
to the field of the
sociology
of
law,
two
points
should be
brought
out as a
way
of conclusion.
I think I have shown in this
paper
that the social
struggles
in Recife are
practice
formations in which both
legal
and
illegal
moments or elements coexist:
legal
struggles
and
struggles
for law but also direct
action, illegal
mass behavior and
other forms of social action whose
legal
status is dubious and which,
for that
reason,
I
may
label as
a-legal.
It seems to me that this
finding
is of universal
significance.
The distinction
among
social
practices
lies not so much on whether
they
are
legal
or
illegal
but on how the
legal
and
illegal
elements are
present
and
articulated. In some
practice
formations,
the
illegal
moments
may
be dominant;
in
others,
the
legal
ones.
This leads me to the conclusion that for a
long
time and for reasons that I
cannot
go
into
here,
we have reified the distinction between law and revolution
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251
or between reform and revolution in such a
way
that makes it rather
inadequate
for us to understand in concrete terms the concrete transformative
practices
of
our time. In
reality,
these
practices comprise heterogeneous
elements in terms
of their
legal
status and form of
legitimation.
In an
encapsulated
form,
Marx
somehow
expressed
this idea in
referring
to the
factory legislation,
when he said
that this
legal
creation was the
product
of a
protracted
civil war
{1970: I, 299).
But this articulation of
legal
and
illegal
elements in social
practice
is not
exclusive of the transformative actions
by
the
oppressed
classes in our time.
Indeed,
and
contrary
to overt
appearances,
the social
practices
of the dominant
classes,
even in the most stabilized
democracies,
have
always
involved
legal
and
illegal
elements.
Indeed,
class
struggles
are
today, probably
more than
ever,
struggles
for the redistribution of
legalities
and
illegalities produced
in social
conflict. In the course of the
development
of
legal strategies, illegalities
are
produced,
and vice
versa,
and the
struggle
is for the
appropriation
of such
production.
The dominant classes have
always
tried to control for their own
benefit the distribution of the
legalities
and
illegalities produced
in
society.
For
instance,
they
have tried to make
illegal
the most
powerful
forms of
resistance
against
class
oppression by
the dominated
classes,
and at the same
time to conventionalize their own
illegalities,
be
they
tax evasion or breach of
labor
safety regulations. They
have also
tried,
since
factory legislation
at least -
to stick to the same
example -
to
bargain
over their
illegalities
in such a
way
that
major illegalities
will not be
punished, provided
that the minor
illegalities
are
promptly
and
voluntarily
eliminated
(Marx, 1970,
I: 280
ff).3
These
processes
are,
of
course,
contradictory.
The fact that the dominant
classes are forced to frame their social
practices
in terms of
legality
and
illegality
is in itself
significant.
It creates the social and normative
space
within which the
subordinate classes
try
to
operate
a redistribution of
legalities
and
illegalities
to
their
benefit,
as when
they try
to
effectively
make
ruling
class
practices illegal,
be
they
concerned with
pollutant
industries or land tenure.
Every legal society
is thus
composed
of
legalities
and
illegalities
and the social
struggles
within it aim at
moving
the threshold of
illegality upward
or
downward,
according
to the concrete interests of the classes in conflict.
But law in
society
is not
only
both
legality
and
illegality.
It is also both
ideology
and
utopia
and this is
my
second and final
point
of conclusion. Law is
order and
disorder, retrospection
and
anticipation, nostalgia
and
desire,
oppression
and
emancipation.
In order to
capture
the
ideological
and
utopian
dimensions of the
law,
and indeed of
any
cultural
artifact,
we
need,
methodo-
logically,
to combine Marxist
negative
hermeneutics with
positive
hermeneu-
tics.
In this
way
we will be able to uncover the
objective
conditions
accounting
for the fact
that,
though
law is both
ideology
and
utopia,
it is not
equally
both
in all societies and at all times. Moreover it is not
merely
a
question
of
equal
or
unequal presence
of both elements. It is also a
question
of the mode of
presence
or absence.
Indeed,
I think that these modes
vary, among
other
things,
according
to the
position
of the national law and state in the
world-system
and
this is related to the distinct forms in which two modes of
power -
the cosmic
by Valeria Picco on October 29, 2012 sls.sagepub.com Downloaded from
252
power
and the chaosmic
power,
as I have called them elsewhere
(1980: 390)4 -
are articulated in the central and in the
peripheral
countries.
In the
center,
the
ideological
and
utopian
sides of the law are like the two sides
of a coin which has been
polished
so
thinly
as to become almost
transparently
side-less,
like Western
polyphonic
music. In the
periphery,
the
ideological
and
utopian
sides of the law are the two sides of a coin which has been
disputed
in
such a
way
as to become almost two
coins;
rather like the two movements of
Construo,
the
song
of the Brazilian
singer,
Chico
Buarque
de Holanda.
My closing metaphor
is
obviously
not value-free: we all know that in our
world-system
coins dont flow to all
pockets
in the same
quantities
at the same
time.
NOTES
1. This research
project
was
part
of a
larger project
on urban land invasions in Recife
conducted
by J.
Falcao.
My
own
project developed
out of an invitation extended to
me
by
Falcão to assist in the field research and in the data
analysis
of his
project.
Since
some of the
analytical
issues in which I was
particularly
interested were not central to
the
larger project,
I
developed
a
separate
research
project,
for which I was
fully
supported by
Falcão. To him and to his research assistant Alexandrina
Moura,
who
also assisted me in
my research,
I
express my
thanks.
Though
I used
extensively
the
data
already
collected for the
larger project,
I collected new data
during my
field
research in
September
and October of 1980. Thirteen urban conflicts were
analyzed,
most of them
having
taken
place
between 1977 and 1980. The field research consisted
basically
of
in-depth
interviews
(with squatter
settlers, community leaders, lawyers,
priests,
state officials, etc.)
and document
analysis.
For an overview of the
larger
project
see Falcão
(1984).
Falcãos
project inspired
other studies on urban conflicts in
Recife
throughout
the decade.
See,
for
instance,
Moura
(1986).
2.
See, among
others,
two influential books on the
military regime by
F. H. Cardoso
(1977,1979).
3. There is an immense
bibliography
on the role of the Catholic Church in
contemporary
Brazil. See
among others,
Cava
(1975),
Alves
(1979),
Krischke
(1979),
Rolim
(1980).
4.
Though
the research
project
involved thirteen urban conflicts,
the ones
analyzed
here illustrate
particularly
well most of the theoretical issues raised in the
study.
5. These data as well as other official data mentioned below were those available at the
time of the field research.
6. The term
swelling (inchação)
was coined
by Freyre
in 1938
(1951).
7. There is an extensive
bibliography
on the
history
of Recife, e.g.
Castro
(1945),
Freyre (1951),
Bezerra
(1965),
Melo
(1978),
Andrade
(1974,1979).
8. For a more detailed
analysis
of the
Skylab,
see Santos
(1983).
9.
Among
the Marxist
analyses
in which law is
specifically
dealt with see,
Reich
(1972),
Bankowski and
Mungham (1976),
Brandes et al.
(1977), Holloway
and
Picciotto
(1978),
Pashukanis
(1978),
Poulantzas
(1978),
Cain and Hunt
(1979),
Beirne and
Quinney (1982), Sugarman (1983), Jessop (1980, 1990).
On the critical
legal
studies see three
important
overviews:
Kairys (1982),
Critical
Legal
Studies
Symposium (1984),
Kelman
(1987).
10. On the debate over the similarities and differences between Marxs and Ricardos
theory
of rent
see,
for two
opposing
views,
Lipietz (1974: 257 ff)
and Ball
(1977: 380 ff).
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253
11. Marx
develops
his
theory
of the
ground
rent in Vol. III of
Capital (1970).
12. See Santos
(1982:51 ff).
The
question
of the articulation between the
ground
rent
and the forms of land
property
is
very complex.
While in the case of the absolute
ground
rent it is
generally agreed
that it is an effect of the
private appropriation
of
land,
in the case of the differential
ground
rent it is debatable whether it is a
purely
economic
category (an
effect of
unequal
conditions of
production - fertility,
localization - as
they
are valorized
by
the
capitalist
mode of
production)
or rather a
socio-political category (given
the fact that the amount of the rent cannot be
calculated
regardless
of the form of
property,
that
is, regardless
of
socio-political
factors).
In
my view,
the
second, non-economistic, perspective
is the correct one.
See,
among
others, Coulomb
(1973),
Ball
(1977), Massey (1977), Bentivegna (1980),
Lojkine (1981).
13. For another
analysis
of the
factory legislation, developing
out of Marxs
analysis,
see Carson
(1979).
14. Cosmic
power
is centralized,
physically
located in formal institutions and
hierarchically organized.
This is the traditional
conception
of
juridical power.
It is a
macropower
that,
since the seventeenth
century,
has found its most
complete
embodiment in state
power.
Chaosmic
power
is the
power emerging
wherever
social relations and interactions are
unequal,
in the
family,
at
school,
on the
street,
etc. It is a
micropower.
It is
eccentric, atomized, multiple,
without
specific
location,
mobile - in
sum, chaotic.
Liberal
political theory
is based on a militant refusal to
recognize
this dualistic
power
structure
by reducing
it to a
unity, namely,
state or
juridical power.
What I
call chaosmic
power
echoes Foucault. But whereas he identifies it as the
general
form of
power,
in
my conception
the coexistence of two forms of
power,
and the
dialectical relations between
them,
are what constitute the
deep
structure of social
domination in modem societies. Foucault
merely
inverts liberal
political theory
(which
identifies cosmic
power
as the
general form)
and therefore remains inside its
intellectual universe,
no matter how radical his formulation.
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