By RAFAEL VALIM*
An excerpt from the recently released book “As Consequences of Covid-19 in Brazilian Law”
The Brazilian State in the face of Covid-19: contextualization
Facing the pandemic in Brazil has accentuated atavistic problems of our Public Administration. One of them, whose examination is especially interesting for the purposes of this work, is the tendency to intend to solve complex problems with mere restrictive formulas of law, translated into an increase in police administrative and sanctioning activities. [I].
Indeed, we are witnessing an accelerated proliferation of health policy measures and an unjustified timidity in the adoption of administrative support measures aimed at the most vulnerable individuals and legal entities [ii]. In fact, at the federal level, a cynical official discourse is developing, which explores the deleterious effects of the economic crisis resulting from the pandemic and hides the fact that the Union has the means to mitigate them.
The two main measures to expand rights determined by the Union so far were the emergency benefit of job and income preservation, to be paid in cases of proportional reduction in working hours and salary or temporary suspension of the employment contract, introduced by Provisional Measure No. 936/2020, and the emergency aid in the amount of BRL 600,00 (six hundred reais) per month, for a period of three months, to vulnerable people, under the terms defined by Law No. 13.982/2020.
Both, however, are notoriously incapable of dealing with the only certainty we have at the present moment, namely: the very serious economic and social crisis that is approaching.
It seems to us that the exceptional situation in which we are immersed reinstates with great force an idea that, although to many it seems “radical”, has been perfected for hundreds of years by scholars from all ideological spectrums and from the most varied disciplines of the social sciences. [iii]: the universal basic income, understood, in the definition of Philippe van Parijs and YannickVanderborght, as an income paid by a political community to all its members individually, regardless of their financial situation or work requirements [iv].
As Bernard E. Harcourt points out, the current moment “calls for a legal, political and economic revolution capable of inaugurating a new era of cooperation” [v]. Universal basic income, far from being a panacea [vi], constitutes a central piece of this “revolution” and presents itself as a fundamental instrument for the realization of the project of society inscribed in the Federal Constitution of 1988.
The promotion activity in Brazilian Administrative Law
As we have already had the opportunity to state [vii], the Federal Constitution of 1988 unequivocally founds a Social State of Law, the result of the union of the juridical-positive traits of the rule of law – dignity of the human person, popular sovereignty, separation of state functions, principle of equality, principle of legality, system of fundamental rights endowed with petreality, principle of inalienable jurisdictional control, principle of legal certainty and principle of publicity – and of the Social state – list of fundamental social rights, securitization of public services and broad intervention in the economic and social domains.
It is also worth remembering some of the foundations (art. 1 of the Federal Constitution) and fundamental objectives (art. 3 of the Federal Constitution) of the Federative Republic of Brazil: social values of work (art. 1, item IV, of the Constitution Federal); construction of a free, fair and solidary society (art. 3, item I, of the Federal Constitution); guarantee of national development (art. 3, item II, of the Federal Constitution); eradication of poverty and marginalization and reduction of social and regional inequalities (art. 3, item III, of the Federal Constitution).
It is natural to conclude, therefore, that the Brazilian State, thanks to its notorious commitment to social justice, represents the antithesis of neoliberalism. The liberal truism that the State should not interfere in economic life, in light of the wholly questionable assumption that the market would be a more efficient instrument for allocating resources and developing society, is opposed by a State with a marked role in organization of economic and social fields.
Likewise, to the abstract, out-of-context and cynical formulations of liberal discourse, born from the false assumption that people are born equal in rights and obligations, there is contrasted with an interdependent and complementary catalog of fundamental rights, forged from the fact that, moreover, obvious, that the rights of freedom only make sense if accompanied by certain material conditions.
As Manuel García-Pelayo teaches, “while in the XNUMXth and XNUMXth centuries it was understood that freedom was a requirement of human dignity, now it is thought that human dignity (materialized in socioeconomic principles) is a condition for the exercise of freedom” [viii].
From the core of the Social State governed by Brazilian Law, a Public Administration emerges that, in addition to the XNUMXth century purposes of maintaining order and security, must achieve, through public services and public policies, the lofty objectives imposed by the Constitution. Federal. It is the “telocratic State” that Professor Fábio Konder Comparato considers, antagonistic to liberal nomocracy and whose legitimacy rests on the ability to achieve predetermined ends [ix].
The administrative activity of promotion presents itself as a valuable instrument of the Brazilian Social State of Law for the attainment of its purposes. It is not a subsidiary activity, incident on market deficiencies, but a planned action by the State aimed at the realization of public interests.
In view of the need for a positive and restricted definition of the development activity, it seems to us that it can be understood as the transfer of goods and rights in favor of individuals, without consideration or with consideration under facilitated conditions, in order to direct or indirect satisfaction of public interests [X].
Note that the last element of the definition reveals the purpose of the development activity. Although at first sight the expression “in order to directly or indirectly satisfy public interests” may seem like a truism, it contains a decisive feature of the concept of development that we have formulated. Contrary to what the majority of the doctrine defends, we maintain that, in Brazilian Law, the development activity is not limited to indirectly safeguarding public interests, but also comprises very high instruments of direct satisfaction of public interests.
Thus, along with transfers of goods and rights in order to stimulate activities covered by public interest – indirect satisfaction of public interests –, there are transfers of goods and rights aimed at protecting fundamental rights – direct satisfaction of public interests –, of which is an example in Brazil exactly the universal basic income.
The time and place of universal basic income
In Brazilian Administrative Law, the universal basic income constitutes a kind of subsidy, a category that must be separated from the subsidy. While this is intended to stimulate certain activities, indirectly satisfying public interests, subsidies are preordained for the protection of certain fundamental rights, directly satisfying public interests. Taking advantage of the expression of Professor Germán Fernández Farreres, the subsidy is a technique directly linked to the status of the beneficiary [xi].
Subsidies are, therefore, equity attributions in favor of individuals without the requirement of consideration or application of transferred public resources in a specific activity of public interest.
Universal basic income, however, is a kind of subsidy characterized by its unconditionality in the three senses described by Philippe van Parijs and Yannick Vanderborght [xii]: it is a strictly individual right, dissociated from the domestic situation; is not subject to proof of income or assets; and is free from obligations of any kind.
This characteristic is present in art. 1 of Law nº 10.835/2004, which instituted the so-called “basic citizenship income” in Brazil on the initiative of the tireless Senator Eduardo Suplicy. Allow us to transcribe the aforementioned device:
“Art. 1st. As of 2005, the basic citizenship income is instituted, which will constitute the right of all Brazilians residing in the country and foreigners residing in Brazil for at least 5 (five) years, regardless of their socioeconomic status, to receive, annually, a monetary benefit”.
Despite the long period of legal-positive consecration of universal basic income in Brazil, unfortunately the Public Administration has not yet implemented it. We will try to demonstrate, however, that such omissive conduct translates into serious illegality, notably in a context of deep economic and social crisis. In other words, the Chief of the Federal Executive Branch has no margin of appreciation to define the opportune moment for the implementation of the universal basic income. In legal terms, its immediate concession is required.
Indeed, the constitutional principles, in their interpretative function [xiii], combined with the social reality underlying the norms introduced by Law nº 10.835/2004, unambiguously point to the need to implement universal basic income.
By the way, the lesson of Prof. Celso Antônio Bandeira de Mello regarding the reduction or even elimination of discretion in the specific case [xiv]: “Finally, discretion is relative, in the sense that, even when the law has, in its diction, enshrined a certain margin of freedom for the agent, such freedom may fade or even fade away completely in the face of the concrete situation in the situation. which rule should apply. That is to say: in view of the particularities of the event before it, the authority may be faced with a case in which its options for meeting the legal purpose are contained in a more agonizing space than that abstractly franchised by the law, and it may occur, even if, by all evidence, there is only one suitable conduct left to satisfy the normative scope, as no other behavior is capable of collimating the purposes of the law in the face of the composition of the situation. In summary: discretion at the level of the norm is a necessary, but not always sufficient, condition for it to subsist in concrete situations”.
With regard to constitutional principles, it is convenient to examine, albeit briefly, those that support and require the materialization of universal basic income.
From the point of view of work, it is known that the Constitution establishes the pursuit of full employment as one of the principles of the economic order and establishes (art. 170, item VIII), among the rights of the worker, a minimum wage “capable of to meet their basic vital needs and those of their family with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodic readjustments that preserve their purchasing power” (art. 6, IV).
The reality, however, is that unemployment is a structural and not a conjunctural problem of contemporary capitalism. [xv]. Not even economic growth can placate him [xvi]. On the other hand, precariousness and informality are fundamental marks of the world of work today.
To all this is now added the mass of unemployed that will inevitably be generated by the coronavirus pandemic, which will result in more precariousness and informality.
Universal basic income is a decisive response to this dantesque scenario, in order to safeguard minimum conditions for a dignified life for the unemployed, precarious [xvii] and informal workers. Strictly speaking, through it the constitutional aim of providing people with a periodic amount of money that provides them with an existential minimum is fulfilled.
The universal basic income, moreover, promotes greater stability in demand as a result of the continuity of private consumption, allowing companies to plan long-term investments [xviii]. With this, the very important – although forgotten – art. 219 of the Federal Constitution, according to which “the internal market is part of the national heritage and will be encouraged in order to enable cultural and socio-economic development, the well-being of the population and the technological autonomy of the Country, under the terms of federal law” .
Also the principle of free initiative, qualified as the foundation of the Federative Republic of Brazil (art. 1, item IV) and its economic order (art. 170, caput) militates in favor of universal basic income. Although this statement may sound unusual to many, in the lessons of Philippe van Parijs and YannickVanderborght, by guaranteeing “an unconditional floor, a basic income can be expected to help trigger entrepreneurship, by better protecting self-employed workers, cooperatives of workers and labor-capital partnerships against the risk of fluctuating and uncertain returns”. [xx].
It is also worth remembering that the universal basic income is a means to achieve the much-proclaimed fundamental right to freedom. As one of the founders of the US Constitution, Alexander Hamilton, reminds us, “A power over a man’s livelihood equals a power over his will.”[xx]. In other words, the only way to ensure freedom is by satisfying the minimum vital needs. [xxx]. Without this, we will have a simulacrum of freedom, a classist privilege incompatible with contemporary constitutionalism.
Finally, it should be noted that the universal basic income meets all the fundamental objectives of our Republic, namely (art. 3 of the Federal Constitution): building a free, fair and solidary society; ensure national development; eradicate poverty and marginalization and reduce social and regional inequalities; promote the good of all, without prejudice of origin, race, sex, color, age or any other forms of discrimination.
As Guy Standing rightly warns, universal basic income does not eradicate poverty [xxiii], but plays a central role in tackling the already alarming social inequality in all parts of the world, which is only tending to increase with the coronavirus pandemic. Suffice it to say that, according to a study by the Institute for PolicyStudies, the wealth of US billionaires increased by almost 10% in just three weeks, just when the Covid-19 crisis began [xxiii].
Conclusion
To the a priori detractors of universal basic income, it is worth remembering Jean Rivero: “it would be a mistake to ask the Law for more than it can give, but it would be another mistake not to ask for everything it can give” [xxv].
Universal basic income is not only possible, but, in the quadrants of Brazilian law, it constitutes a duty of the Public Administration, which corresponds to a subjective right of all Brazilians residing in the country and foreigners residing in Brazil for at least five years. Denying it means emptying the core of our constitutional order.
Finally, it should be noted that the universal basic income can never serve as a pretext for the State to resign from providing services. It consolidates the Social State of Law, and must be articulated with public services and other social programs provided for in the Constitution and laws.
* Rafael Valim, lawyer, holds a master's degree in Administrative Law from PUC-SP, where he taught from 2015 to 2018. Author, among other books, of Lawfare: an introduction (with Cristiano Zanin and Valeska Zanin Martins) – Contracurrent, 2019.
Originally published in WARDE, Walfrido; VALIM, Rafael (coords.). The consequences of Covid-19 in Brazilian law. São Paulo: Countercurrent, 2020.
References
FLAG DE MELLO, Celso Antônio. Administrative Law Course, 33rd edition. São Paulo: Malheiros, 2016.
COMPARATO, Fabio Konder. Essay on the judgment of unconstitutionality of public policies. Magazine of Legislative Information, 138: 39-48.
FARRERES, Germán Fernández. Differential aspects between subsidies and economic promotion measures. Spanish Magazine of the Consultative Function, 13: 31-81.
GARCÍA-PELAYO, Manuel. The transformations of the contemporary state. Rio de Janeiro: Forensics, 2009.
PARIJS, Philippe van; VANDERBORGHT, Yannick. basic income: the radical proposal for a free society and a healthy economy. Cambridge, MA: Harvard University Press, 2017.
PISARELLO, Gerardo; DECABO, Antonio. The basic rent as nuevoderechociudadano. Madrid: Trotta, 2006.
RODRÍGUEZ-ARANA, Jaime. Administrative right and fundamental social rights, 2nd ed. Sevilla: Global Law Presse, 2006.
ROMAN, Diane. Le droit public face à la pauvreté. Paris: LGDJ, 2002.
STANDING, Guy. Basic Income. London: Penguin Books, 2017.
SUPIOT, Alain (Coord.). Solidarity: poll on a juridical prince. Paris: Odile Jacob, 2015.
SUPLICY, Eduardo. citizenship income: the exit is through the door, 7th ed. São Paulo: Cortez, 2003.
Notes
[I] FLAG DE MELLO, Celso Antônio. Administrative Law Course, 33rd edition. São Paulo: Malheiros, 2016, p. 438.
[ii]It is worth noting the speed of the measures taken in favor of the financial system, as demonstrated by Pedro Serrano, Gilberto Bercovici and Anderson Medeiros Bonfim (Covid-19 and the failure of the Central Bank's measures. Available at: https://www.cartacapital.com.br/opiniao/covid-19-e-o-desacerto-das-medidas-do-banco-central/).
[iii] STANDING, Guy. Basic Income. London: Penguin Books, 2017, p. 17.
[iv] PARIJS, Philippe van; VANDERBORGHT, Yannick. basic income: the radical proposal for a free society and a healthy economy. Cambridge, Massachusetts: Harvard University Press, 2017, p. 4.
[v]HARCOURT, Bernard E. Le coopérationismeou comment finir avec cettepesteéconomique.AOC media – AnalyzeOpinion Critique. Available in: https://aoc.media/analyse/2020/05/11/marches-et-pandemie/
[vi] STANDING, Guy. Basic Income. London: Penguin Books, 2017, p. 54.
[vii]VALIM, Raphael. Subsidy in Brazilian Administrative Law. São Paulo: Contracurrent, 2015, p. 27.
[viii]GARCÍA-PELAYO, Manuel. The transformations of the contemporary state. Rio de Janeiro: Forense, 2009, p. 14.
[ix]COMPARATO, Fabio Konder. Essay on the judgment of unconstitutionality of public policies. Magazine of Legislative Information, 138: 43 and 44.
[X]VALIM, Raphael. Subsidy in Brazilian Administrative Law. São Paulo: Contracurrent, 2015, p. 56.
[xi]FARRERES, Germán Fernández. Differential aspects between subsidies and economic promotion measures. Spanish Magazine of the Consultative Function, P. 39.
[xii] PARIJS, Philippe van; VANDERBORGHT, Yannick. basic income: the radical proposal for a free society and a healthy economy. Cambridge, Massachusetts: Harvard University Press, 2017, p. 8.
[xiii] VALIM, Raphael. The principle of legal certainty in Brazilian Administrative Law. São Paulo: Malheiros, 2010, p. __.
[xiv]FLAG DE MELLO, Celso Antônio. Administrative Law Course, 33rd edition. São Paulo: Malheiros, 2016, p. 1019.
[xv]FUMAGALLI, Andrea. Sweet thesis on income from citizenship. In: PISARELLO, Gerardo; DECABO, Antonio. The basic rent as nuevoderechociudadano. Madrid: Trotta, 2006, p. 40.
[xvi]BASCETTA, Marco; BRONZINI, Giuseppe. Universal rent in the crisis of sociedaddeltrabajo. In: PISARELLO, Gerardo; DECABO, Antonio. The basic rent as nuevoderechociudadano. Madrid: Trotta, 2006, p. 171.
[xvii]ROMAN, Diane. Ledroitpublic face à la pauvreté. Paris: LGDJ, 2002, p. 423.
[xviii]FUMAGALLI, Andrea. Sweet thesis on income from citizenship. In: PISARELLO, Gerardo; DECABO, Antonio. The basic rent as nuevoderechociudadano. Madrid: Trotta, 2006, p. 62.
[xx] PARIJS, Philippe van; VANDERBORGHT, Yannick. basic income: the radical proposal for a free society and a healthy economy. Cambridge, Massachusetts: Harvard University Press, 2017, p. 24.
[xxx]Professor Jaime Rodríguez-Arana rightly defends the concept of “freedom in solidarity” (RODRÍGUEZ-ARANA, Jaime. Administrative law and fundamental social rights, 2nd ed. Sevilla: Global Law Presse, 2006, p. 161).
[xxiii]STANDING, Guy. Basic Income. London: Penguin Books, 2017, p. 79.
[xxiii]COLLINS, Chuck. Billionaires are getting even richer from the pandemic. Enough. Available in: https://www.cnnbrasil.com.br/business/2020/05/01/os-bilionarios-estao-ficando-ainda-mais-ricos-com-a-pandemia-basta
[xxv] Original excerpt: “serait une erreur de demander au Droit plus qu´il ne peut donner, c´en serait une autre de ne pas lui demander tout ce qu´il peut donner” (RIVERO, Jean. Intérêtsviatux de la nationet fins humainesdupouvoir. In: Licéitéendroitpositifetréferénceslégalesauxvaleurs: contribution to l´étudedurèglementjuridiquedesconflits de valeurendroitpénal, publicetinternational. Bruxelles: Bruylant, 1982, p. 545).
