The right to strike



Who makes the story? Those who go on strike or those who remain aloof, living their “normal” lives in parallel to social mobilizations?

In the last session of the Congregation of the Faculty of Law, the students' strike was the central point of the demonstrations, the analysis of which is very useful for understanding how, in terms of argument, a consensus against the strike and the right to strike is constructed.

For those whose job it is to teach Labor Law classes, this is a necessary effort, even more so when the strike involves law students and professors in the legal field.

The fundamental lesson: liberal order x social rights

Let's start with the main lesson that should be drawn from what happened: how right the authors were who, at the time of the proliferation of labor legislation, spoke of the need, based on this fact, to conceive a change in the theoretical conceptions of Law as a whole and not the mere opening for the constitution of a new branch of Law.

They were, as they warned, moving from the liberal order, based on contractual freedom based on a presupposed formal equality, to an order guided by new social rights, guided by the collectivization of relationships, solidarity and the union of efforts to establish a society that was fair, integrative and guaranteed a dignified subsistence for all people.

This labor legislation and its objectives could not coexist with the individualist and meritorious postulates of the liberal order, which had already shown signs of bankruptcy, including the enormous social and political conflicts, in addition to the high degree of human degradation observed. , with greater intensity and scope, throughout the XNUMXth and early XNUMXth centuries.

There was talk, then, of the formation of a “new civil law” or even of the need to view the law as a social right. Therefore, there was no demand for a new right, a “work right”.

In Brazil, authors such as Evaristo de Moraes (1905), Sampaio Doria (FDUSP-1922), Pedro Xisto (FDUFPE-1923), Clóvis Beviláqua (1937), Albertino Moreira (FDUSP-1938), Orlando Gomes (1941) were defenders of this idea. ), Cesarino Jr. (1943) and Alberto Moniz da Rocha Barros (FDUSP-1953).

But, as we know, civil law remained in force and reproduced the liberal logic, imposing the formation of a new branch of law that would encompass the ideas necessary to give effectiveness to labor legislation.

This was, therefore, the origin of Labor Law and its institutes. It turns out that, as the aforementioned authors said, the risk that was run, with the creation of a new Law of a social nature in parallel to Civil Law, was that the predominance of institutional mechanisms and valuation methods that reproduce immediate interests would be maintained. of the ruling class and, thus, invasions of the labor field were promoted, in order to weaken the commitment that, in that historical period, had been established around the recognition of inequalities; the limitation of freedom in relationships between unequals; the need for state intervention to correct inequalities; the instrumentalization and reinforcement of the political mobilization of the working class; in order to create minimum conditions for social dialogue between capital and labor; the democratization of work relations; promoting solidarity; the incessant search for social justice; the necessary visualization of the process of collectivization of conflicts; and the implementation of an effective policy for the distribution of socially produced wealth, which required the complete overcoming of a legal order aimed at preserving “status quo".

It was, therefore, imperative to conceive a legal theory with progressive content and which, therefore, could be seen as an effective instrument to promote the construction of another social reality.

Well, when listening to the arguments that professors linked to liberal legal rationality launched against the right to strike, which is, it is worth repeating, one of the established principles of Labor Law, it becomes clear that the authors cited were completely right.

In a reduced form, what was witnessed was a series of invasions of liberal, individualist and reactionary legal rationality, on the field of Labor Law and, more directly, on the right to strike. What we saw was an attempt to deconstruct the right to strike by other branches of law.

It is in this line, in fact, that one should listen to the preambles of the demonstrations in which the interlocutor made a point of saying that he was not against the strike, but that, considering the principles of consideration and reasonableness, other values ​​should be considered, but that he always arrived to the result of the concrete elimination of the right to strike, transposing classical liberal values ​​and all the logic of reactionism that these values ​​transmit to the legal order, especially when the object of analysis is social justice and real democracy.

So let's see. The arguments (once again) used.

“Damages caused by the 'chair' to the image and reliability of the College”

(a) Damage to whom?

When it is said that a photo with piled up chairs is a form of damage to public property, even if nothing has actually been vandalized, as it causes damage to the image and “reliability” of the Faculty, the only possible conclusion that can be drawn of this speech is that its author is addressing, exclusively, the people and institutions that make up the ruling class, who are interested in keeping things as they are, which translates, rhetorically, as the need to “maintain order” .

But if the dialogue is carried out with social movements, with collectives fighting for better living conditions and with the working class in general, the most likely hypothesis is that the same photo greatly improves the image of the Faculty, even having the potential to generate in people excluded from the model of society or inserted only into the logic of submission a sense of belonging and an aspiration to integrate into this space of social transformation.

(B) Abstraction from the image (historical reality)

Another problem with the concern of looking at a photo and drawing conclusions from it is the absolute lack of commitment to the production of knowledge, which is very serious, especially within the scope of an educational institution. There is no minimally valid process of understanding that can be extracted from reasoning detached from a method. Basically, it is an authoritarian attitude, through which an ideologically constructed and rhetorically camouflaged worldview is sought to be imposed on reality.

A photo is nothing more than a photo and its image can only be well understood if the entire historical process that preceded it is known. In this specific case, the photo of the piled-up chairs is the result of a historical process and not the starting point. The photo is the result of countless historical experiences that demonstrate that the strike, in Brazil, has never been admitted or even recognized as a right by those for whom the change in social relations does not matter.

There are countless initiatives to maintain social relations within “normal” standards, even during strikes, precisely to reduce the transformative power of the mobilization. So, those who go on strike need to defend themselves from the violence of those who stand up and act against the strike. The photo, therefore, reflects not the violence of those who go on strike, but the violence of those who are against the strike.

It is, therefore, a demonstration that our society has not yet learned to live peacefully with the manifestations of dissatisfaction of those who suffer in this same society.

In fact, the history of the Largo de São Francisco Law School itself is full of situations like these. Fighting against one of the most spurious manifestations of authoritarianism in our history, students, after deliberation at the Academic Center assembly, XI de Agosto, on June 23, 1968, occupied the Faculty and walled up its doors, also calling for university reform. Would it be permissible to reprimand such conduct simply by interdicting the House? Isn’t the political method legitimized by its content? In itself, can the constructed barricade be an object of reprimand?

The fact is that, like the French walls of May 1968, the “barricades open paths”…

(C) Match events from image

Without attachment to the challenges of building scientific knowledge and producing knowledge aimed at valuing the human condition and improving social life, that is, without any minimally valid method of analysis, one ends up making a serious mistake (although not is, from the perspective of those who use the figure, actually a mistake but rather a strategy to create an argument that justifies their particular desire) to equate, as identical realities, two photos in which chairs appear out of place.

Put more directly, saying that a photo that portrays a “chair” in a strike is no different from another photo in which the STF chairs are piled up, produced in the context of an explicit attack on democratic institutions, says more about the purposes of who makes the comparison than a formulation committed to the construction of knowledge.

Now, it is enough to consider the historical processes of each of the photos and the intentions of the respective movements, to reach the inevitable conclusion that the events are not very different and that the photos are not equivalent, in any sense.

“It is necessary to guarantee the right to come and go” – or “the right of one is limited by the right of another”

A strike is a political act that the law has perceived as an institute that is exercised through collective deliberation, taking into account the assumptions of representation and democratic participation. Thus, as a collective right, once a strike is triggered, other personal interests remain suspended, even if legally qualified, first, those who found themselves defeated (or did not want to participate) in the deliberation and, second, those who are affected by the strike.

The interests of both parties cannot override the right to strike, as, if so, the concrete effect will be to disregard the existence of the strike itself, hindering its effectiveness. The strike, as a mechanism for establishing a dialogue around the demands formulated by those who, otherwise, would not be seriously heard and listened to, even presents itself as a minimum condition for the construction of a democratic society.

And the strike, it is necessary to understand, aims to break the routine and remove “normality”, even so that one can understand how “normality” is not normal at all but rather oppresses and suffers for many people.

Given this cut, one may have the false impression that the strike is causing disruption, but this is only for those whose maintenance of “normality” matters because they benefit from it or because they are already so comfortable with suffering and injustices. that indignation no longer reaches them. In fact, the disorders were already present and, often, for a long time in the daily reality of those who mobilized collectively to act and demand concrete changes in their lives.

One cannot, therefore, talk about the right to come and go, typically individual and selfish, during the strike period. In fact, people continue to have their right to come and go, but not to go to the workplace, work “normally” and leave there, as if a strike were not underway.

The attitude in question, misidentified as the exercise of the right to come and go, as no right is in the abstract and its existence requires a concrete relationship, is, in fact, a volitional act of destroying the strike, even if it is promoted for fear of receiving punishment from the boss (which is meaningless, as strike is a constitutionally guaranteed right), or of obtaining some personal advantage from the employer or even from the judgment of bourgeois society and its institutions.

Even when it comes from the perspective of someone who is not part of the category on strike, that is, those who are affected by it, the restriction of rights remains. In the case of a student strike, it is not up to teachers to invoke the right to continue teaching, as their professional category is not on strike.

First, it is important to realize that this is not a mere conflict of rights, considered abstractly. The conflict posed is located at the level of interests at stake. When saying that the act of wanting to continue teaching classes is justified by the right to come and go, one is not effectively presenting any legally valid justification, because, as stated, the right is not summed up in the abstract, so much so that Civil Law itself encompasses the notions of abuse of rights and legitimization verified based on the social and economic purposes of the exercise of a right, it being certain that the denial of the legal validity of the act can occur even without inquiring about the will of the agent, when the effects are harmful to the interests of others, legally qualified.

So, the questions to be asked are: why, after all, would a teacher want to continue teaching during a student strike? And what are the concrete effects of your attitude on the right to strike and the rights of strikers?

The answers given to the first question almost always reveal the absence of legal support for the postulation, as, in general, in a tautological way, they turn to the legal norm seen in the abstract. This is when, for example, one says: “Because I have the right to come and go”.

Other times, the responses demonstrate total detachment from formal legal regularity itself. This is when one says: “Because I don’t agree with the aim of the strike”, or “because the strike doesn’t seem opportune to me”, or even “because, although the demand is fair, I think it could be done differently and not through a strike.”

Now, the professor does not even have a legal norm in the legal system that he can invoke in his favor so that, based on these arguments, he is legitimized to “break the strike”. His personal perception does not prevail, in any respect, over the right to strike legitimately exercised by its effective members.

“The teacher is obliged to teach classes”

When it comes to a public institution, some teachers always argue that, as a public servant, they are obliged to teach. The argument, however, proves too much.

The teacher, as a public servant, will only be obliged to teach classes if the necessary conditions are met. If, for example, classrooms do not offer safe or healthy conditions, teachers may refuse to teach, citing the prevalence of their fundamental right to the preservation of life.

Thus, if the students are on strike and if the act of teaching classes is made impossible by the picketing carried out by the strikers, which, I repeat, only exists as an effect of the act of those who believe that they are obliged to teach classes during the strike or who, simply, They want to continue their normal lives, acting as if the strike didn't exist, they don't have the obligation to fight with the “picketers” or climb the “chair” to get, in an even heroic way, to enter the classroom.

“We need to be accountable to society”

The argument of the need to satisfy society would not be worthy of any analysis as it is completely outside the legal framework. In any case, as mentioned above, it is necessary to investigate which social layer the teacher, who uses such an argument, is referring to. If the interlocutors are those who feel wronged and who see the strike and other social mobilizations as a form of struggle to improve their reality, the act of breaking a strike will only serve to confront the largest part of society and give satisfaction , within a logic of alliance or even subservience, to the few people who make up the privileged group.

It is curious that, to attract the argument in question, these teachers put themselves in the position of workers, but, often, they do not join the union, do not participate in union assemblies and much less respect the collective deliberation reached in union assemblies.

“The student’s obligation is to study, especially in a public school”

The argument does not challenge any legal debate, as it lacks factual support. Now, the students, in this specific case, are precisely fighting to be able to study, given that, given the current conditions, I am not taking enough classes and, without an effective retention policy, especially for those entering through affirmative actions, They are unable to support their subsistence on their own while they study, and are thus driven to sell their workforce in exploratory internship contracts that consume all their time and energy, resulting in a transposition of the condition of students for the “status” of workers.

“Modernity demands that we think of another, more reasonable and considered form of demand, overcoming the radicalism of the strike”

There is no argument to combat the strike that is more old-fashioned and more conservative than this. Since the beginning of the strike mobilizations, conservatives, that is, those who do not want the strike to promote any change in reality, especially because of the balance of consciousness that the achievement would generate, inspiring new mobilizations, this has always been advocated.

But, concretely, only when normality is disrupted – and this is the effect of the strike – do conservative forces find themselves forced to establish social dialogue.

Delegitimizing the strike with this argument, knowing, as we know, or should know, that no concrete change in reality for the benefit of the working class was promoted without tension, and, furthermore, without even envisioning that an effective form of struggle would not radicalized this would be, it serves only to keep things as they are and still place the blame on the oppressed because they have not found a way of fighting that “doesn't bother anyone, much less the oppressors”.

“Students must understand the budgetary difficulties that prevent something from being done abruptly and immediately”

The argument is based on a legally correct assumption. There are, in fact, budget limitations. But the budget “deficit” is not a legal determination but rather the reflection of enormous management variations, which begin, including, with the broader policy, at national and state level, of breaking ties of solidarity and the social security system. that characterize the Social State, covered by the Federal Constitution of 1988.

In recent years, since 2014, public universities have been induced to solve the problems of budgetary “deficit” through management shocks of a neoliberal nature, promoting, above all, the reduction of personnel and increased outsourcing, which has generated unequivocal worsening of working conditions and poor education.

The students on strike are denouncing how much these policies are causing them concrete harm and, therefore, trying to delegitimize the mobilization for the very reasons that generated it makes no rational and logical sense.

The students are making the complaint, as, moreover, the teachers' and civil servants' unions had been doing for years – and they were not solemnly ignored (perhaps due to the absence of strike mobilizations ). It is up to administrators to listen, dialogue and seek solutions that begin with an express break with the neoliberal policies adopted until then.

The solution may not be simple, but this does not delegitimize the strike and does not undermine its opportunity, because without it none of this would be publicly and widely discussed. The fact is that without the strike this process of precariousness and implementation of neoliberal management techniques contrary to the objectives and purposes of a public education institution, would continue, silently, following its normal course and deepening ever more, for the benefit of interests of private investment and its capitalist rationality.

“Social rights are programmatic, that is, they can only be fulfilled if the economic order allows it”

A reading of the 1988 Federal Constitution would be very useful for those who, based on postulates established in the period from 1945 to 1966, still express this view.

The Federal Constitution of 1988, although it maintained the capitalist society model, did so with the assumption of the consolidation of an authentic Social State, which, basically, at least in terms of program, changes this logic.

The Brazilian Federal Constitution, promulgated in 1988, as a result of the political struggle of workers against the dictatorial regime and the economic and legal degradation of which it was a victim in the 60s and 70s: (a) elevated labor rights to the level of Fundamental Rights (Title II); (b) expressly and unequivocally made a commitment to building a “free, fair and supportive” society; (c) aimed to “guarantee national development”, “eradicate poverty and marginalization and reduce social and regional inequalities” and “promote the good of all, without prejudice based on origin, race, sex, color, age and any other forms of discrimination”; (d) established as the foundation of the Republic “the dignity of the human person” and “the social values ​​of work and free enterprise”; (e) subordinated the economic order to the “valuation of work”, in order to “ensure everyone a dignified existence, in accordance with the dictates of social justice”.


(i) The intention to continue classes and abuse of rights.

Having removed the supposed legal bases to support the arguments, what remains is only the revelation of the true intention of its proponents, which is, precisely, to impose their individualist and conservative worldview, and to do so, it is imperial to prevent the success of the strike, which is often situated in the very ability to perceive reality and in the balance of the collective organization. Destroying the validity of the movement, calling strikers irrational, violent, undemocratic, “criminals”, is a mechanism to prevent this emancipatory effect that every strike, whether successful or not in its postulates, has the great potential to produce.

This intention even attracts a new legal dimension, which is that of abuse of rights, as without serving the protection of any legally qualified interest, it ends up serving, solely, to cause harm to those who join the strike. In the case of a student strike, the effect of continuing classes, as stated, represents a way of punishing the strikers, denying them the right to access information transmitted in the classroom, which can only be denied by the teacher or a teacher who defends this continuity, denying the very quality and usefulness of her teachings in the classroom.

(ii) False legalism

When all these rhetorical resources seem to fail, still, the argument of strict legality. This is when one says: “I am against the strike because the legislation so provides and I must submit to the strict terms of the law”.

It is interesting to note that the speech is never accompanied by a specific normative quote, other than the already mentioned “right to come and go”.

It turns out that, from the point of view of strict legality, even if the terms of the Strike Law (Law no. 7.783/89) are considered, which is, it is worth remembering, a law that reprises neoliberal ideas and was drawn up with the clear purpose of reducing the scope of the fundamental right to strike, as set out in art. 9th of the Federal Constitution (“The right to strike is guaranteed, and it is up to workers to decide on the opportunity to exercise it and on the interests that they must defend through it”), being, therefore, unconstitutional, there is no enshrinement of the primacy of individual interest over the collective.

On the contrary. What we have is an evident inhibition of individual rights in the face of the triggering of the collective right to strike. In effect, article 9 of Law no. 7.783/89, the Strike Law, which “During the strike, the union or the negotiation committee, by agreement with the employer or directly with the employer, will maintain teams of employees in activity with the purpose of ensuring the services whose stoppage results in irreparable damage, due to the irreversible deterioration of assets, machinery and equipment, as well as the maintenance of those essential to the resumption of the company's activities when the movement ceases”.

In article 11, it was defined that “In essential services or activities, unions, employers and workers are obliged, by common agreement, to guarantee, during the strike, the provision of services essential to meeting the urgent needs of the community”, clarifying in the sole paragraph that “The community’s urgent needs are those that, if not met, place the survival, health or safety of the population in imminent danger”.

It remains evident, therefore, that once a strike is launched, an environment of dialogue is necessarily established, complying with the strike command and the entity affected by the strike seeking, by mutual agreement, to define how the urgent or essential activities will be carried out.

“Contrario sensu”, in general, there is no determination for strikers to fulfill obligations aimed at continuing the urgent activities, which include teaching, however important it may be.

Thus, what can be unequivocally drawn from the strict terms of the law is that there is no legally valid possibility for the entities affected by the strike to define, by act of power, how they will remain fully active during the strike, even more so by enticing and harassing workers( as) and people to break the strike.

In fact, when the targets of the strike refuse to negotiate and resort to acts of violence against the strike and the strikers, which also happens through arguments launched to disregard the demands and personally attack those who are in the struggle, the movement feeds back its own reason for being based on indignation and the need to react to the aggressions suffered and the democratic “deficit” observed, including to protect itself against reprisals. The dynamics of the strike constantly redefines its paths and the way it relates to the movement concerns the strike itself, that is, it is also an act of strike.

(iii) Denial of the legitimacy of collective deliberation in the assembly

It is important to highlight that all the arguments launched turned a blind eye to the fact announced at the beginning of the meeting that the teachers' association had, a few days before, decided, in an assembly, to stop teaching activities, in support of the students' strike, until the the following Monday, when a new meeting would be held to deliberate on the initiation of an indefinite strike for the category, with the points of demand having even been fixed.

Furthermore, nothing was said about the call made by representatives of the association at the unit, to participate in an assembly on the same Monday, to deliberate on the various issues surrounding the strike.

The debates took place in a body that was not representative of the category of teachers, as workers, and, even outside the agenda, resulted in a deliberation in support of a “Charter” formulated by the unit's management.

(iv) Who makes history?

As can be seen, the procedure adopted and the arguments expressed to attack the strike do not have legal support and, in fact, unfortunately, they do not constitute an effective novelty in the national social, cultural, legal and political scenario.
Experience provides us with another important lesson: the realization of how easy it is to be “reasonable”, “considerate”, defender of “formal democracy”, supported by equal treatment for everyone, regardless of the assessment of people's concrete reality, advocate progressiveness linked to the possibilities provided by the economy, speaking of the programmatic nature of social rights, when one does not have a comfortable social position.

All of this leads us to inevitable questions. Who, in historical movements, built democracy, social constitutionalism, fundamental rights? Those who went on strike or those who remained aloof and lived their “normal” lives in parallel to the social mobilizations?

Or, in other words: after all, who makes history?

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors). []

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