social funct land & mst

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.

mailto:[email protected]

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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.’

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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.

3 See also O’Brian 1996 and Houtzager 2001a & b.

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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.

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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.

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One of the strengths of the social function principle is that it allows context-specific

definitions that are negotiated politically. It can therefore travel widely and, through local

political negotiations over its content, contribute to the democratisation of one of the basic

institutions of the market, that of private property. The definition of social function depends

in part on the understanding of a particular community or region’s problems or needs. In

Japan, where population pressure on land is a major concern, stringent action such as forced

sale or lease is possible if owners of agricultural land cultivated inefficiently, or more likely

in event of persistent non-use. Hence social function in this case is defined primarily in terms

of high productivity. Elsewhere the central problem may be that of poverty or inequality, in

which case social function can relate to fundamental rights such as the right to life or

livelihood or shelter. If the problem is defined as environmental preservation, then

definitions will focus on reducing or limiting pollution. For example, where mining is a

significant economic activity such as in parts of Latin America and European Community,

social function has been used as a framework for restricting mining activity to reduce its

environmental impact.9 Furthermore, the remedies that are used when land has failed to fulfil

its social function are likely to be context specific. If renting out land is viewed as a positive

function, such as in Japan, legislation will encourage renting to avoid expropriation.10 In

Brazil, where rental markets in rural areas are small and precarious, expropriation and

redistribution of land through public grants has been preferred.

II. Movement Field and Judicial Field11

Social movements and judiciaries have sharply contrasting logics. Movements have a

quick and sometimes reckless pace, while judiciaries tend to plod cautiously along the path of

due process. If movements acquire much of their social and political significance from mass

public displays and by skirting the edges of legality, judiciaries obtain theirs from individual,

almost private, performances that reinforce those legalities. Movements’ hunger for media

coverage is matched only by the judiciaries’ aversion. Not surprisingly then, encounters

between movements and judiciaries are complicated and unsettling affairs, for society as well

as for the parties involved. It is not that movements are forces of change and judiciaries are

9 Bastida (mining) . 10 Macours et al 2002.

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guarantors of status quo. There are innumerable reactionary movements and many instances

of progressive judicial action.

What then gives each its particular logic and when do these synchronise to produce

changes in how property and fundamental rights are interpreted and brought into a new

balance?

The logics of movements and judiciaries are shaped by distinctive forms power,

hierarchies and institutions. Rather than continuing to speak of movements and judiciaries, it

is useful here to cast a wider net and to speak of movement and judicial fields. The latter is

central to the process of law and is constitutive of the modern state. The judicial field is not

coterminous with the modern state, however, because it is reproduced not only by the actions

of state agencies and judges, but also by private lawyers and law firms, by professional

associations and law schools, by law reform non-governmental organisations and public

advocacy groups, and so on. The movement field similarly contains myriad actors – self-

identified movements, associations, NGOs, fragments of political parties and sometimes of

state agencies, and so forth. There is no analytic gain here in drawing sharp lines between

what is inside and outside of each field. This should be an empirically driven exercise. The

important point is to recognize that the unique bases of power, hierarchies, and institutions

give fields a particular logic and coherence of their own, and therefore also a degree of

autonomy from each other. This helps explain why actors who are highly successful in one

field may fail terribly in another, or why institutions that appear quite similar can have very

different effects when located in relation to different fields.

The Movement Field

The movement field has a logic that is fundamentally quick, expressive, and rooted in

public and collective action. It is a logic shaped by the need to concentrate social energy in

short bursts, and in ways that balance three functions. First, movement action must disrupt

the ordinary and routine to build and display its power. A central function of disruptions is to

communicate the importance and righteousness of the movement’s cause, and the number,

worthiness and commitment of its members.12 Movements’ reliance on mass media to

communicate with the public and to build political power, reinforces the need for short and

expressive bursts of collective energy, as well as for a degree of risk taking. Second,

11 This section draws on the work of Bourdieu 1987 and Bourdieu and Wacquant 1992, Santos 2002, Garth and

Dezalay 1998, Edelman, Uggen, and Erlanger 1999. 12 See McAdam et al 2001, chapt. 2.

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however, movements inevitably must maintain the support of broad segments of the general

public or of more powerful actors, who may tolerate inconvenient disruptions but not a

sustained paralysis of valued institutions. Movements of the poor, because they are short on

material resources or specialised knowledge (such as legal knowledge), in particular require

access to allies’ resources, knowledge, political support and influence. Third, movements

must keep the costs of collective action to participants as low as possible, particularly in

relation to the concrete gains.

In order to balance these three functions movements generally seek to engage in

forms of legitimate disruption – those forms on the edges of legality – while simultaneously

developing discourses and set of symbols that are far more radical than their actions and

demands are in practise.

This is not to say that most movement activity does not occur well within legality and

over sustained periods of time. There is considerable research that shows that movements

pursue diversified strategies in which extra-institutional activities are combined with

institutional ones, such as participation in electoral politics, litigation, lobbing, etc.13 And,

there is no absence of humdrum routine activity in the movement – most activity in fact

consists of endless meetings and other ordinary organising and political activities. It is public

collective action, however, that creates much of the basis of power of the movement.

The logic of specific movement fields, set in particular social contexts, is also shaped

by the hierarchies and institutions that organise relations amongst its protagonists. In general

terms, different kinds of capital operate within the movement field and provide the bases for

hierarchies. These include strong oratory skills (of the kind that stir emotion and a sense of

righteousness or indignation) and the ability to mobilise people, to maintain relations with

important actors from other fields and bridge fields. There is also some capital in “length of

service” – that is, the number of public demonstrations one has participated in – or

participation in a particularly significant event, or the degree of militancy demonstrated at a

significant event.

13 There is an entire literature being built around this conclusion. See Houtzager 2001, McAdam et al 2001 and

the Cambridge series on contentious politics

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The Judicial the Field

The logic of judicial field could hardly be more different. It is a slow logic paced by

formal procedural rules (due process) and involves individual rather than collective action. It

generally unfolds in relative obscurity, out of public view. If the role of the media is quite

limited in the judicial field, the importance of the internal organisation of professional groups

and formal institutions cannot be over estimated. The hierarchies in the judicial field appear

to be more complex than those of the movement field. This is the case not the least because

the judicial field is a meta-field, in that it plays a key role in organising and regulating other

fields. In part because of this it has an especially wide array of actors as protagonists – along

with law schools and professional associations of lawyers and judges, there are legal advisors

to political parties, corporations and consumer groups, and of course individual actors such as

public prosecutors, ministers or secretaries of justice, and magistrates.

In Brazil, there is considerable variation between public or private sector judicial

protagonists. If we focus on the public sector, however, there appear to be four hierarchies

within which protagonists are located.14 The size of jurisdiction: professional stature

increases as one moves from local to state, and from there to federal, and at the local level

from small to large jurisdictions. The institutional position: legal administrator or none-

practising advisors and law professors fill the bottom ranks, public defenders rank

somewhere in the middle, while public prosecutors (Ministério Publico), state secretaries of

justice, and judge sit at the top. The type of law: labour and family law is generally seen as

low prestige, criminal and commercial (depending on the stakes involved) are middling,

while tax and constitutional law are high prestige. And, the geographic region: the states of

São Paulo and Rio Grande do Sul, and then Rio de Janeiro, Minas Gerais and, to some extent,

Pernambuco, are the most important regions. Litigation and jurisprudence created outside of

these states has little national repercussion or in other regions. It would take an adventurous

judge in the state of São Paulo to cite jurisprudence from the northern states of Pará or Mato

Grosso, whereas the contrary is routine.

The four hierarchies do not suggest a lack of agency. Individual capital in the field

can come from the degree of control one has over specialised knowledge – legal doctrine,

principals, norms etc. – and the rhetorical style of law. Further capital comes from relations

built within the organisations in the legal field. Within the judiciary length of service (the

14 Prestige in the private sector is more heavily influenced by the level of remuneration and the value of the

cause.

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principal criteria for promotion) provides a form of capital, though its doubtful there is much

agency involved in accumulating it. At the higher echelons of the field, political ties can

provide an important source of capital. Less than in other fields, capital can also come in the

form of ‘stardom’ – that is, high public visibility.

principal criteria for promotion) provides a form of capital, though its doubtful there is much

agency involved in accumulating it. At the higher echelons of the field, political ties can

provide an important source of capital. Less than in other fields, capital can also come in the

form of ‘stardom’ – that is, high public visibility.

Diagram 1 Hierarchies in the Judicial Field, Brazil Diagram 1 Hierarchies in the Judicial Field, Brazil Ministro da

Justiça

Secr. de Justiça

Procurador

2 instancia

Ministro

Desembargado

Juiz Fórum

Ministro STF

GProcuradores das autarquias

Juiz

3 & 4 instancia

CA

COMPETÊNC I

da Prefeitura Assessor Jurídico

da Prefeitura1 instancia Assessores

jurídicos

RGO Trabalhista Civil outras Tributário

MATÉRIA DE DIREITO

Juiz Junta de CJ

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Procurado doEstado RS

Juiz leigoJ Esp. Civ

Advogado eral da União

Promotor doTrabalho

Promotor

Def. Publico

Ass. Jurídico doMin. do Trabalho

Promotor doTrabalho

TRT

Ass. Jurídico

Promotor MinPublic Federal


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.

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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.

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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

strong.

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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.

- 14 -


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.

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appeal – does not provide the basis for ruling against a petition where fundamental rights are

at stake. The opinion clarifies that “to reach what is just, it is not always possible to avail

ourselves of specific legislation because, when we are dealing with principles (even more so

when these are universal) of law, one inverts that hermeneutic rule according to which the

specific law trumps (derroga) the general one… fundamental principals of law, recognized

universally, …supersede (sobre poem) any norm, especially internal (procedural) norms.”

This breaks with long standing civil law tradition in Brazil, which tends to favour procedural

concerns over those with judicial outcomes or the social consequences of such outcomes.

Second, its interpretation of the social function of property, by linking it to

fundamental rights, is considerably broader than those used in previous cases. Government

agencies and the courts had previously focused (and often still do) overwhelmingly on the

productivity criteria of social function. Furthermore, the Constitution itself only states that,

in addition to meeting basic productivity criteria and complying with environmental and

labour laws, land should be used to the benefit of both owner and employee. Bringing in the

fundamental rights of third parties significantly expands how the social function of property

can be used in litigation. The opinion observes that “when there is a need to sacrifice the

rights of one of the parties, the property rights should be sacrificed, guaranteeing fundamental

rights.” (RENAP 2001: 28) This additional step links social function to both the

fundamental rights and the broader social context in which they have failed to materialise.

This represents a significant broadening of the use of social function, well beyond the four

criteria established in the Constitution.

The opinion reveals that the judges were centrally concerned with the collective

nature of the occupation, its occurrence in a social context of substantial privation, and the

failure of the government to solve the profound social problems involved. The last of these,

they point out, shifts the burden of solving social problems from the executive into the

judiciary. Although the tribunal affirms Merlin’s legitimate possession, and (surprisingly)

characterise the occupation as adverse possession (esbulho), it nonetheless finds that land

should not only be productive and produce profit for the producer, but should also lead to

payment of taxes, public tariffs, and should fulfil social obligations and generate jobs. By

this broad standard the property was not fulfilling its social function.

- 16 -


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

- 17 -


pieces of the civil or civil procedure codes, a process that makes any broader legal

interpretation of legislative intent or the social consequences of judicial rulings difficult and

rare. The shift that is occurring today is towards legal argumentation and rulings that

combine competing constitutional principles, the specifics of the case and applicable

legislation, and the broader social consequences of judicial action. There is, as a result, an

evolving post-positivist hermeneutics to guide how legal norms can be interpreted through

constitutional principles, and how to balance these principles when they come into conflict.24

Behind the specific Primavera ruling and the constitutionalisation process in Rio

Grande do Sul stands a progressive legal tradition in the state that is unique in Brazil. During

the democratic transition of the 1980s a number of judges concerned with social justice,

worked through their professional association, AJURES, began to explore legal

interpretations of the law that would deal with the profound inequalities and privations of

Brazilian society. This initiative was eventually labelled the alternative law movement. As

the 1990s progressed and the possibilities of the new Constitution became apparent,

participants in this informal network of judges became part of the process of

constitutionalising law. These judges, including some members of the state’s Tribunal,

visited MST agrarian reform settlements, while all 22 of the Tribunal’s judges would have

been keenly aware of the growing popular and political support for the movement, in a

national context in which extreme social inequality and deprivation appeared to be

worsening.

The attorney who filed the petition in the Tribunal was none other than Jacques

Alfonsin, who functioned as a bridge between the movement and judicial fields. On the one

hand Alfonsin occupies a highly regarded position within the judicial field, as a well know

criminal lawyer, and as a retired state attorney general. On the other hand he commands

significant respect within the movement field as a result of personal history of human rights

and public interest litigation, dating back to the 1970s when the military held power. In

addition, the attorney detains forms of capital that are valuable in the judicial field – skilled

wielding of legal knowledge, updated by teaching at a law school, political ties to the

Workers’ Party (which has since 1986 governed the state capital Porto Alegre and has since

been an important force in the state), and a strong rhetorical flourish.

RENAP 2001: 26.

24 Again, see Barroso 2002a & b, as well as Streck 2002.

- 18 -


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.

- 19 -


mid-1990s that it has sought to establish closer and ongoing relations to these. Prior to this

lawyers were sought out in piecemeal fashion to extract movement activists from prison and

to battle the various forms of legal harassment.

If RENAP helped to bridge the movement and judicial fields, and the gradual

constitutionalisation of law created new doctrinal bases from which to argue cases involving

the MST, the growing the intersection between the movement and judicial fields in Rio

Grande do Sul was also driven by (i) the growing burden of criminal prosecutions against

MST leaders and activists, forcing onto it a greater preoccupation with the judicial field, and

(ii) the Worker’s Party’s growing power in the state. The MST and Workers’ Party emerged

out of the same process of political mobilisation that helped produce the transition to

democracy. They have maintained strong ties over the past 18 or so years. In 1998 the Party

won the state government, instantly turning government from enemy into friend, so much so

that several people of or close to the MST entered government departments and agencies the

following year. During the Workers’ Party administration (1999-2002) the movement built

important relations with progressive judges, the federal (Ministério Publico), and the state’s

military police brigade.

The intersection of movement and judicial fields should not be overstated, however.

It is highlighted here to gain insight into the broader questions of how movements contribute

to balancing fundamental and property rights. However, for the MST court cases are

primarily political moments in which misdeeds of landowners, including adverse possession

of public land, can be made public and the image and legitimacy of the movement can be

reaffirmed. What it considers some of its greatest victories in the judicial fields came in

causes that it lost in legal terms. For the movement victories in the judicial field are

measured by their effect on public opinion, on forcing executive branch action, and in

keeping its leaders and activists out of prison. While some members of the movement are

interested in bringing a public class action lawsuit for failure to implement agrarian reform,

the level of support for such a legal mobilisation strategy is not clear.

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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.

- 21 -


Through the hands of sympathetic government officials, most likely working in the

state’s land institute ITESP, local MST leaders discovered that in the 1940s the state

government had surveyed the region known as the Pontal do Paranapanema and established

that there was 444,130 hectares was public land (terras devolutas) held in adverse possession

by large/powerful squatters, and another 519,315 hectares remained to be surveyed (Mançano

1996: 160). For government to regain possession of such public lands it has to first bring a

land discrimination action (Ação Discriminatoria) which established the veracity of its claim,

and then a possession order (Acões Revindicatorias) against the people who hold the land.

The second and critical step, however, was never taken and the lands remained in private

hands. Fifty years later, in 1991, MST leaders sought to pressure the state government to

implement agrarian reform settlements on these de jure public lands. Rather then enter the

judicial field directly, however, the movement launched a series of land occupations to

pressure the state government to intervene in the region and assume the legal-judicial burden.

In the first three years of occupations the movement targeted Fazenda São Bento,

which produced a series of civil and criminal cases against MST members, some significant

jurisprudence in its favour, but no agrarian reform. Declining land values, escalating lawyers

fees, and an attractive offer from the ITESP eventually led the owner of São Bento to

negotiate the sale of the land.29 With this victory the MST’s ranks swelled and, using the

well located and secure São Bento as an operational base, the movement began a series of

other land occupations.

After 1994 a critical shift occurred in the political field that had significant

repercussions for actors in the movement and judicial fields. The election of a highly

regarded centre-left governor, along with the widespread view within the Worker’s Party and

amongst other progressive sectors that the MST represented Brazil’s most important

movement for social justice in the 1990s, brought the state government to intervene in the

region. The Governor, generally sympathetic towards the movement’s goals, if not

specifically to the movement, and fearful of the type of massacre that had recently occurred

in the Amazon region, made the political and social justice decision to mobilise part of the

formidable legal-bureaucratic apparatus at his command to resolve the region’s land conflicts.

The Governor and his Secretary of Justice became personally involved in solving the social

conflict in the Pontal, and both played a role in designing and executing the judicial

29 Technically the government bought the improvements made on the land, since it was already the legal owner

of the land.

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component of the strategy to reduce social tensions, provide some degree of social justice,

and ensure that the Governor would not have to face the embarrassment of a bloody social

conflict in the wealthiest state in the country. (The escalating rates of urban violence were,

fortunately from the governor’s vantage point, the political liability of mayors.)

With the MST averaging around 50 land occupations a year in the region, the

government succeeded in obtaining 68,300 hectares of land through the judicial system in

four years (Mançano and Barbosa 2002). With this land it created 60 agrarian reform

settlements. What had failed to occur in five decades now took place in the spaces of a few

years.

Synchronising Movement and Judicial Time One of the principal hurdles the government had to overcome was the gross

discrepancy in the time operative in the movement and judicial fields. The occupied areas

had already been declared public land, but the government had to file possession cases in the

regular courts in order before it could redistribute land to landless families. In legal terms the

only uncertainty in such cases was the amount the state would pay squatters for

improvements (benfeitorias) they had made on the land – that is, for buildings, fences etc.

The public prosecutor for the Pontal region requested that the disputed land be ‘sequestered’

(sequestro) while the parties negotiated a settlement on the value of the improvements. This

would allow the MST families to remain in their encampment while legal proceedings ran

their natural course. The final ruling on the request for sequestering the land, which was

favourable, came from the Federal Superior Court in 2002. The stumbling block therefore

consisted of both landowner/squatter intransigence – either out of believe that the government

would give up and go away, or in order to hold out for a better deal – and their ability to keep

legal procedures running for many years on end, and the slower turning of the wheels of

justice at the higher levels of the judiciary.

Aware that sequester cases would likely take years to resolve, that violence could

break out, and with elections only four years away, the Secretary of Justice in 1995 launched

its own case in the local court using a new procedural instrument called anticipated tutelage

(tutela anticipada).

The Code of Civil Procedure in Brazil has a number of procedural instruments that

allow provisional rulings early on in a case to anticipate the effects of the final ruling. Such

instruments in effect greatly accelerate the time operative within the judicial field. Due

- 23 -


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.

- 24 -


Not surprisingly given exalted position the Secretary of Justice holds in the judicial

and in the political-administrative fields, he had a particularly astute legal expert on staff who

was also a professor in civil procedure. The expert was aware that new legislation on

anticipated tutelage was coming into effect in January 1995. Asking for anticipated tutelage

within the possession orders looked like a promising strategy. The territory occupied by the

MST had already been declared public land, and therefore the final outcome of case was

certain. Only the level of compensation for improvements made to the land was uncertain.

Delaying settlement of the occupying families could lead to irreparable damage. And large

squatters use of procedural manoeuvres with the intention of delaying a final ruling in land

cases was recurrent in the region.

Over next four years the government won a series of cases using anticipated tutelage,

which made it possible to settle families who had occupied public lands within a relatively

short time frame. Success in wielding this procedural instrument greatly increased pressure

on landowners to settle with the government, which began to occur with greater frequency

after the first favourable ruling. Having set this precedent, between 1998 and 2002 the state

government was able to go a step further and negotiate another 25 settlements with squatters

during the initial land discrimination phase of proceedings, further reducing the judicial time

required to regain possession of public lands.

How did the historically conservative São Paulo’s magistrates, who were almost

certain to deny the anticipated tutelage in these land cases, come to accept and institutionalise

the use of anticipated tutelage? The Secretary of Justice and his staff, along with ITESP and

the governor, developed an unprecedented and tout court political-judicial strategy behind the

anticipated tutelage. The Secretary and state prosecutors visited the local judge who would

hear the cases, the local public prosecutor who would argue that state’s point of view, the

state Tribunal of Justice, and the President of the Federal Superior Court. They explained

what the new instrument permitted and why it applied to the cases emerging in the Pontal.

They also made clear the Governor’s great concern that the region might descend into

violence and disorder. At the same time, he and other government officials carried out what

amounted to a media campaign that highlighted the volatility of the region. Reports that the

Pontal do Paranapanema was on the verge of violence appeared daily on the front pages of

the São Paulo and national press. What the real threat of violence was at the time is

impossible to ascertain because the three parties involved – state government, MST, and

landowners – each for their own reasons, claimed that the parties were on the verge of a local

civil war. - 25 -


The judge, caught in the eye of a hurricane, ruled in favour of anticipated tutelage. As

the government anticipated, the squatter appealed to the São Paulo Tribunal of Justice, which

reversed the lower court ruling. The case then went on to the Federal Superior Court. The

state government went for broke. Not only did the state attorney general and the Secretary

for Justice make regular pilgrimages to the Superior Court, the governor himself flew to

Brasilia and visited the Court’s President in his chambers. The argument he made, and which

was repeated by the Secretary and others in numerous follow-up visits, had two parts. One

was legal – the requirements for Article 273 were present in the case, and the government

was only asking for possession of only a third of the territory in order to expedite the process

of negotiating a final settlement.. The other was socio-political, or as one protagonist put it,

ad terrorem. That is, the Pontal do Paranapanema was on the verge of large scale collective

violence like that seen in the Amazon region, and if Federal Superior Court did not given the

state government the legal tools necessary to maintain the landless on the land a social

convulsion might ensue. Furthermore, in the long run only the redistribution of public lands

in the region could ameliorate the social conflict. If the Superior Court set a favourable

precedent in this first case, it would undo the legal logjam and the other landowners/squatters

whose land was occupied would settle quickly. After fifteen days of deliberation under

intense pressure the STJ upheld anticipated tutelage.

Conclusion

The legal-judicial environments in many countries today seem particularly favourable

to the kinds of mobilisation narrated in the two episodes. The new generation of social, or

citizen, constitutions in countries such as the Philippines and South Africa have replaced

liberal constitutions – that is, liberal at least in defining property rights – and guarantee a

variety of new collective social and economic rights. These rights not only provide

movements and other reform-oriented actors new legal instruments, but they also provide

bases from which to reinterpret a range of implementing legislation and statutory norms.

That is, they provide a set of constitutional principles through which ordinary legislation and

state action can, and should, be interpreted. In addition, the widespread perception that

judiciaries in many parts of the world are in crisis – whether of democratic legitimacy and/or

of capacity to process a growing case load – has produced national and international contexts

broadly supportive of legal innovation and experimentation.

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Among the lessons that can be drawn from the episodes of land conflict and their

judicial resolution discussed here, however, is the considerable role actors outside of the

judicial field played in securing outcomes that protected fundamental rights and limited

property rights. The particular forms the outcomes took, on the other hand, were very much

shaped by the dynamics of the judicial field, including those set in motion by the 1988

Constitution and the doctrinal and procedural menus that were available at the time.

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