The proposal for administrative reform by the Bolsonaro government

Dora Longo Bahia, Revoluções (calendar project), 2016 Acrylic, water-based pen and watercolor on paper (12 pieces), 23 x 30.5 cm each
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By MARCUS ORIONE*

Tackling the issue is fundamental, as it involves changing the structure of the Brazilian State, which has been in progress for some time.

“The gaze that holds is loose / The gaze that lets go is trapped”

Recently, in the midst of the Covid-19 pandemic, the government of Jair Messias Bolsonaro sent to Congress the Proposal for Constitutional Amendment No.o. 32. This is a public administration reform proposal. Dealing with the theme is fundamental, since it involves the modification, already underway for some time, of the structure of the Brazilian State.

Before dealing with the subject, however, some preliminary observations are indispensable.

If, from Marx, we can understand that the dynamics of capital is constituted from the collection of goods, with the Russian jurist Evgeni Pachukanis we understand, in greater depth, the Marxian reading that those do not go to the market alone, being indispensable, for this, the subjects of law. Thus, if, in the capitalist mode of production, we have the overdetermination of the commodity form, in the dialectic relationship between production and circulation, this does not materialize in materiality without legal subjectivity. Whether for production or for circulation, what supports capitalism is a series of contractual relationships (not in the merely legal sense of the term, but also in this one) flown in a matrix character: the purchase and sale of labor power – which is processed by free, equal and proprietary subjects. Much has already been said about this by Pachukanis. Finally, subject of law and legal ideology are the substrates of this legal or contractual form.

On the other hand, as one of the most immediate derivations of the dialectic produced by the commodity-legal (contractual) form, we have the state-form. If, in general, the state is presented to us as the bearer of the public interest, Pachukanis demonstrates that this is only its appearance. The state emerges as neutral, since there would be no possibility of direct violence against the commodity producer. If, in other modes of production, this was possible, in capitalism, coercion will become economic and the state will play a fundamental role in this transition, since it will be the holder of the monopoly on violence authorized by its “legitimacy”. Here, the appearance of the public and its distance from the private is fundamental to capitalism. The equation public law versus private law is the expression of this hypothesis in the legal field, extending its tentacles over the spheres of social knowledge. What is ultimately hidden is the violence in production and circulation. Conceived as a mediating agent for the purchase and sale of labor power, the state assumes a fundamental role for the existence of the capitalist mode of production. Examples can be given to gaps. When, by court decision, the illegality of the strike in the transport sector is recognized, imposing limits to the free transit of vehicles at peak hours, what is being promoted is the circulation of the workforce, under the excuse that the public interest embodied in the right to come and go will be achieved. When the state builds roads, raises hospitals and schools, the logic is the same. The appearance is the promotion of the public interest, its relationship with the essence indicates that it is really a question of the free movement of the workforce.

To carry out this task, which contains within itself the ideology of the concluded contract (a unique ideology, as Louis Althusser recalled, which challenges us on a daily basis towards the alienation of the workforce), the state has repressive apparatuses (the police, the army and so on). and so on), but it is also equipped with ideological apparatuses (which are not restricted to the state in its strict sense, but extend to civil society – schools, unions, etc.). Therefore, this equipment is fundamental for the ideology that enables the reproduction of the contract above to take place.

Without understanding these assumptions, it would not be possible to advance to the analysis of the existing state reform behind the Proposal for Constitutional Amendment n. 32.

As the contractual (or legal) form adapts to changes in the capitalist mode of production, there is a constant resizing of the relationship between the public and the private. The same is true of state apparatus. Two situations have been shown to be historically important for this relationship: 1) as class struggle intensifies, capitalism makes strategic use of the distance between the two dimensions; on the contrary, with the lesser intensity of the class struggle, there is a rapprochement between both (making it even more difficult to discern where the public begins and at what moment one is talking about the private) and 2) in an initial stage of capitalism, a greater distance of the structuring dynamics of the public and the private was fundamental, integrating a set of measures of rigid organization of the purchase and sale of the workforce; at the present time, the approximation of the dynamics of public and private structuring is part of an integrated whole regarding the flexible organization of the purchase and sale of the workforce. Thus, if, in Fordism, for example, there was a sense of distance even from public sector management techniques, from Toyotism, it is part of the structuring logic that the private sector administration dynamics become integrated into the public sector ( for example, the transfer to the public sector of postulates such as efficiency and the importation of management techniques typical of companies in the market for state entities).

In order to understand the proposal for administrative reform brought to Congress by the current government, it is necessary to understand exactly that we are in the second instants of the previous table: a) approximation of public and private due to less intensity of class struggle; b) decrease in the gap between public and private sector administrative techniques at a time of flexible organization of the purchase and sale of the workforce.

Let us now consider the Proposal for Constitutional Amendment n. 32, based on all the premises set out above.

Currently, the constitution states that the “direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall obey the principles of legality, impersonality, morality, publicity and efficiency” (art. 37, “caput ”). It should be noted that the original text did not speak in principle of efficiency. Added by Constitutional Amendment of 1998 (n. 19), it already indicated a trend referring to what we mentioned above of a state guided by the dynamics of the market. If from the classical logic of liberalism, legality and impersonality are principles that governed the liberal state in its birth and drags on to the present day, efficiency as a principle of public administration performance is the unequivocal admission of the private agenda by the public sector - indicating exactly the absence of any distinction between the two spheres, which, deep down, work together for the fullness of the private notion of property. If this was already happening even before the current government, indicating the transfer of the structuring dynamics from the private to the public sphere, the phenomenon intensifies with Proposal for Reform n. 32. There, in addition to efficiency, the postulates of innovation and good public governance now govern the performance of our administration. Concluding the private character of the unitary dynamics with the public, the principles of unity and coordination appear. In a tight summary, these last two would constitute the prediction of a unitary action of the public sectors with the private sectors, although under state coordination - but not very intense as can be seen from the provisions concerning the contracts to be signed by the entities of power public from the various spheres (art. 37-A of Proposal for Amendment n. 32). In an ever-increasing capitalism, there is a more flexible organization of the purchase and sale of the workforce – in line with a project intensified with labor reforms that have been taking place in particular (but not only, as it was on the agenda of previous governments) from the Temer Government and the pension reform of the Bolsonaro Government itself (Constitutional Amendment n. 103/19) -, the proposed Constitutional Amendment n. 32 of 2020 is born under the sign of total promiscuity between public and private, revealing that, in essence, this distinction does not exist where the contractual (or legal) form prevails.

In fact, in general, it is clear that the Bolsonaro government's proposal, more than a reform of the entire dynamic of linking the public and the private, which had already been operating through successive previous reforms, is specifically aimed at the final deconstruction of public services based on a profound change in the working conditions of public servants. Therefore, we are talking much more about an administration reform based on the deconstruction of the concept that we had, until now, of the worker who provides services for the administrative sphere. From a stable worker in a structure made for services provided continuously and with the exclusive participation of the state, in most hypotheses, one passes to one who will be submitted to the instability typical of the private sector (a sector that becomes, increasingly more, a “partner”, a “collaborator”, becoming almost a majority partner of the works related to services previously of a typically state nature). It is not surprising that this reform of public services, already underway for some time, would inevitably lead to changes in the working conditions of public servants. Let's see how this was processed, revealing that exactly at the moment when the class struggle is most deadened is the propitious moment for more specific and direct changes in the living conditions of workers in the public sphere.

The logic that permeates all of this is that, by deconstructing the service as essentially public, there is the correlative unnecessary need for a traditionally public servant, with guarantees such as stability and wages of various natures. Faced with this situation, it leads to the trench of those devoid of legal protections, similar to what happens to workers in the private sector, public servants, with which, also weakened, they would not have the same current mobilization capacity. Here, the fight for the defense of rights should never be seen from the perspective of the preservation of the liberal state, but only from the perspective of the dimension of the minimum guarantees of mobilization (it is not easy, for example, for a worker without job stability, to carry out a strike, in view of the fear of losing his job. Something that already happens in the private sphere would be transposed to the public sphere).

There is no way to hide from the fact that the segmentation of the working class already takes place when talking about male and female workers in the public sector versus those in the private sector. However, now, more than ever, the division promoted within the working class, a potent weapon of the bourgeoisie in the course of the historical process, begins to inhabit the public sphere more intensely. If this already happened in previous government reforms (as in the case of Amendment 41 of 2003, which now contains the provision of supplementary pensions for civil servants), with the current intended amendment, we would now have public workers with an indefinite contract versus those for a fixed term (art. 37, par. 8th., item IV, and 39-A, item II, and its 2nd paragraph.), as well as the former would be divided into those invested in typical state positions (art. 37 II-B) and those who are not (art. 37 II-A).

Let's talk a little more about the last segmentation.

A strange figure is that of a civil servant in a typical position in the state, who, in accordance with art. 39-A, in its 2nd paragraph., will be defined by Complementary Law (with a much less qualified quorum than that required for a constitutional amendment and, therefore, less subject to political dispute). It is certain that the definition will respond to a new reality, insofar as, with the undoing of public services exclusively under the responsibility of the state, civil servants with typical activities will find themselves grouped in increasingly rare cases. Perhaps those who are fundamental will survive here in this capacity only so that the rule of law itself does not cease to exist (and these, in general, are those coming from very specific careers, such as legal or diplomatic, for example). But, whatever the solution, the hypothesis goes back to everything we talked about earlier, insofar as the exercise of specific state activities is something less and less usual and these will be the few that will hold prerogatives such as the protection of stability (art. 41). The server, in greater quantity, that is not in this condition, does not have the same guarantee. Certainly, this unstable worker will be led to precariousness, with the “compensatory” possibility of indiscriminately accumulating other public positions, as can be seen from art. 39, item XVI-B (since the ban on accumulation of positions, which is currently restrictive to all civil servants, will no longer be so for those who do not fit into typical state careers, which can be seen from art. 39, items XVI and XVI-A). Finally, the figure of a public servant of the "jocks" is being built... including "jocks" in various spheres of the state itself. The same flexible organization envisaged for the private sphere is being designed for the public sector. Or rather, the two types of workers submitting themselves to the same dynamics of the flexible organization of the purchase and sale of labor power – which must be considered more than just a dimension of the act of alienating work itself, referring to the entire structure that favors the reproduction of this contractual dynamic. Finally, the maximum of the real subsumption of labor to capital, which we call hyper-real subsumption in another article.

Another theme to be highlighted, in this context, is the possibility of hiring workers for a fixed period of time (something that the Bolsonaro Government had already achieved in Constitutional Amendment n. 106/20). Although the hypotheses of bonding for a fixed period are expressly provided for in the constitutional text, it must be noted that this is a provision that also reinforces the thesis of the precariousness of the condition of public workers and of the Administration itself. Its destructive potential is revealed by the very opening of the terms that define the hypotheses, authorizing a wide discretion of the administrator, as can be seen from art. 39-A, par. 2nd., items I to III (which covers situations such as activities and procedures on demand, for example). The truth is that we are facing a type of precarious hiring, affecting, with this precariousness, not only public servants, but the service provided itself. Added to this is the expansion of situations involving outsourcing in the public service, with the support of jurisprudence, tending to the inclination of its generalization also there for core activities (a phenomenon similar to what happened in the private sector). In other words, the precarious ways of contracting the private sector will increasingly take over public activities. With this, the cycle that we denounced before is completed: the approximation, in both spheres, of the dynamics of flexible organization of the purchase and sale of the workforce. Here, too, the dividing line between public and private law tends to disappear, since everything, in the end, is revealed as a defense of private property. The most impressive thing is that in this conformation of the legal (or contractual) ideology, it is no longer even necessary to resort to the figure of the neutrality of the state, since the popular imagination (meaning that of male and female workers, with strength in reality, in materiality, and not just as a conscience) starts to incorporate the “discourse” of the need for a state subject to corporate onslaughts. The very concept of a neutral state, which makes economic coercion possible, has been taking on a new form.

And here we can end exactly with a fundamental fact of this legal (or contractual) ideology, placed in the Proposal for Constitutional Amendment 32, which is the opening to the real possibility of an intensification of the militarization of the Brazilian state apparatuses. We are not talking about its repressive apparatuses, but ideological ones, making it perfectly possible to use the expanded Althusserian notion of the state, also reaching sectors of civil society. All of this must be seen from the ideological perspective that we are challenged, in capitalism, to the constant reproduction of the practice of buying and selling labor power.

This worrying fact is revealed in at least two devices that are intended to be introduced in the constitutional text.

In the first, the possibility opens up for the military called to perform functions in the civil public service to maintain the bond with the armed forces, even if suspended for two years. Only after that, he would move to the reserve. In this regard, see the wording of art. 142, item III, of the Proposed Constitutional Amendment n. 32. This disposition is fundamental for the composition of a government with premises of militarization of the state apparatuses, in the most different echelons (but especially in the inferior ones). Kept intact for a certain period, the relationship with the military public service will facilitate a constant movement of military personnel to civil public positions, safeguarding the possibility of returning to previous posts. In addition, there is a kind of guarantee for the military that they will not lose, if the experience is not successful, the bond related to their original functions. Guarantee for the military, which more than personnel, means the preservation of military logic in the consolidation of state apparatuses.

In the second (art. 142, par. 4th., of PEC 32), the explicit possibility is opened that the military can accumulate their functions with those of the public or private spheres of teaching and health. Here, one must think about the notion of state in the broad Althusserian sense, in which the ideological apparatuses are not limited to the merely public space, but also reach the private sector – a theory that starts from the Marxian perception of the ideological reasons for compartmentalizing civil society and the state . It is in the school, as Althusser said, that the dissemination of knowledge of the techniques of buying and selling labor power will take place, constituting the fundamental space for the reproduction of this contractual modality as a constitutive data of the capitalist mode of production. Military infesting schools and universities, public and private, would certainly be what this government would most like. By propagating positivist ideals, these people would help conclude the battle against the “leftist ideology” that “infests and contaminates” teaching, especially higher education. Here, at last, would be achieved the pretension of a “school without party, without ideology”, since teaching the purchase and sale of the work force and the preservation of this type of order is not, for this government, ideology, but a given nature of the world we live in.

Finally, after this incipient reading of the Bolsonaro government’s administrative reform proposal, a warning remains: if, with Dorival Caymmi, we learn that “the gaze that holds is loose, the gaze that lets go is trapped”, he also learned the lesson that that look that admires, that is surprised, in short, “the look that frightens is dead”, being, however, that the “look that warns is lit”.

*Marcus Orione is a professor at the Faculty of Law of the University of São Paulo (USP).

References


ALTHUSSER, Louis. Ideological state apparatuses: notes on the ideological state apparatuses. Trans. Walter José Evangelista and Maria Laura Viveiros de Castro. Rio de Janeiro: Ed. Grail, 1985.

MARX, Carl. Capital: critique of political economy. Book IV II. Trans. Reginaldo Sant'Anna. Rio de Janeiro: Brazilian Civilization, 2008.

ORION, Marcus. “The government's policy of preserving employment and income in times of coronavirus: perspectives for the subject of law”, 2020. Website A Terra é Round, São Paulo, 15 May 2020. Available at

https://aterraeredonda.com.br/o-direito-napandemia/.

PACHUKANIS, Evgeni. The General Theory of Law and Marxism and Selected Essays (1921-1929). coordinator Marcus Orione. Trans. Lucas Simone. São Paulo: Sunderman, 2017.

 

 

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