The right and the reverse

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By FÁBIO KONDER COMPARATIVE*

The persistence of the slavery and anti-democratic past in the current political regime

The sad historical reality is that this country was born sick ever since the Portuguese landed here at the dawn of the XNUMXth century. Unfortunately, however, we only become aware of this fact when the disease leaves, so to speak, its usual parameters. This is exactly what is happening at present, with the political, economic and social debacle of recent years, making the great mass of the poor and even the middle class dissatisfied. If so, perhaps it will have some effect applying the method that medical science has always used to deal with illnesses, composed, as is known, of two major stages: diagnosis and surgery, or clinical treatment.

I propose, in this brief essay, to suggest just one diagnosis, suggesting that medical treatment be carried out by a more competent team of social scientists.

 

a dual society

in the tale The mirror, by Machado de Assis, the narrator assures his astonished listeners that each of us has two souls. An exterior one, which we show off to others, and by which we judge ourselves, from the outside in. Another interior, rarely exposed to external gazes, with which we judge the world and ourselves, from the inside out.

I think that something similar happens with regard to national legal orders. In each country there is a consecrated official law, and there is also an unofficial law, hidden from the eyes of the outside, and which regulates the facts pertaining to the intimate life, so to speak, of the nation.

Effectively, after analyzing things well, outside of academic dogmatisms, it is necessary to recognize that a Constitution is not just, as the American and French revolutionaries of the late XNUMXth century thought, the solemn document that organizes a country politically. Behind this form, or, if you like, on the other side, there is another reality, equally normative, but which does not enjoy the official seal. like the politeia of the city-states of classical Greece, it is something akin to an unwritten but incontestably valid constitution. It is formed by traditional uses and customs, the prevailing values ​​in society and the complex field of private powers, intertwined with public competences.

If we cast our eyes to Brazil, we will have to recognize, without further effort of analysis, that the Constitutions enacted here invariably present themselves, when seen by the external soul that the narrator of The mirror, as gala attire, proudly displayed to foreigners in proof of our civilized character. They are liturgical vestments, worn by doctors and magistrates in official worship ceremonies. For domestic day-to-day life, however, we prefer, naturally, to wear simpler and more comfortable clothes.

Thanks to this institutional duplicity, corresponding to the two faces of the national character, we managed to live without major mishaps, throughout our entire history, with a succession of “regrettable misunderstandings”, according to the famous expression of Sérgio Buarque de Holanda to qualify democratic experiences among us. In all of them the people remained absent, and the conflicts aroused between the ruling classes were resolved, for the most part, by agreement or conciliation of opposing positions.

Independence did not arise from a revolt of the Brazilian people against the king of Portugal, but from a rebellion of the Portuguese people against the king in Brazil. In the famous painting by Pedro Américo, O Grito do Ipiranga, the artist, without knowing it, symbolized our people in the figure of that cart driver on the side of the road, barefoot and naked torso, fascinated to contemplate the heroic scene, as if asking himself what was the meaning of all that apparatus.

Soon after the dissolution of the Constituent Assembly in 1823, the Emperor declared himself determined to grant the nation a Constitution "doubly more liberal" than the one being drafted. The Constitutional Charter, thus given to the Brazilian people from the top down, completely omitted the reference, albeit indirect, to slavery. Care was obviously taken to institute a liberalism from the big house, to which, for reasons of elementary decency, the “vile nameless vulgarity” of which Camões spoke could not have access.

The military revolt in Campo de Santana, on November 15, 1889, which the people watched as bestialized, according to the famous expression of Aristides Lobo, did not aim to abolish the monarchy, but simply to dismiss the Ouro Preto Ministry. It was not in the minds of any of the intellectual leaders of the movement, all positivists, to fight against the centuries-old custom, already denounced by Friar Vicente do Salvador at the beginning of the XNUMXth century, by virtue of which “no man on this earth is a republic, nor does he watch over and deals with the common good, if not each one with the particular good”.

The Revolution of 1930 was launched with the objective of putting an end to the distortion of the representative system, caused by coronelismo and the halter vote. It ended, however, after a few years, in a dictatorship with wide popular acceptance.

The peaceful transition from authoritarianism to the constitutional regime, both at the end of the Getulist Estado Novo and the twenty-year-old military regime forty years later, was ensured with the enactment of amnesty laws for political opponents. It was the official right. Behind it, however, there was the implied right that this amnesty also applied to public agents and their accomplices, responsible for torture, summary executions and disappearance of political opponents, among other unspeakable abuses.

What was seen, therefore, in all these historical episodes, was not the succession of one legal regime by another, but the amalgamation of the new with the old, of the revoked law with the revoking law. The former, forced to withdraw from the proscenium, did not disappear from the legal theater: he was simply relegated to the backstage, to reappear on stage at the opportune moment, as a revived character.

It seems that the bifrontal Janus, the Roman god of the passage, has been the great protector of our ruling classes. When official law does not oppose its interests, it is considered and proclaimed as the only legitimate and valid one. It is enough, however, for the slightest contradiction to arise between the norms, contained in the Constitution or in the laws, and the power that such classes hold and effectively exercise in society, for the doors of communication between official law and the other order to be automatically opened, hitherto hidden, which legitimizes and enshrines traditional domination. In some cases, moreover, as will be pointed out below in terms of slave ransom, along with rigid official law, a more flexible and generous customary law was created.

It was certainly for this reason that the capitalist system so quickly took root among us. It is that one of the main characteristics of the “spirit” of capitalism, not pointed out by Max Weber in his famous essay,[I] it's their chameleon-like nature, their ability to cover up real facts with the cloak of ideology. The invocation of individual freedom always serves as a justification for the submission of workers, consumers and the State itself to the dominant power of entrepreneurs in the market. The principle of isonomy (everyone is equal before the law) hides the systematic domination of the rich over the poor, of the producer over the consumer, of the large service provider company over the ignorant and reckless user. So Napoleon was right - not the famous French general and emperor, but the swine dictator of Animal Farm, by George Orwell – when he warned: “all animals are equal; but some are more equal than others.”

To discover the origins of the dual nature of Brazilian law, we undoubtedly have to go back to the period of Portuguese colonization in these lands.

Written law – the Ordinances of the Kingdom, added to later laws, provisions and permits – all came from the metropolis; that is, it had the flavor of imported rules, foreign to our milieu. Such rules were due respect, but not necessarily obedience. Here, too, the maxim widespread throughout Hispanic America prevailed: las Ordenanzas del Rey Nuestro Señor se acátan pero se cummplen.

For the construction, year after year, of this system of authentic trompe l'oeil, as the French would say – as official law is artificially highlighted, creating the illusion of corresponding to reality –, the senior officials sent from Portugal contributed a lot, who, when they arrived here, often joined together, through the ties of compadrio and even from marriage, to the families of rich local lords; when they did not acquire land and began to carry out, themselves, the agro-export activity.[ii]

It is understandable, under these conditions, how great was the pressure exerted to give the metropolitan right of origin a less literal interpretation and more adequate to the defense of the economic interests of the settlers settled here. In a letter to D. João IV, dated April 4, 1654, Father Antonio Vieira already complained: “Everything in this State has destroyed the excessive greed of those who govern, and even after it was so finished, the means continued. to consume more. Maranhão and Pará is a Rock of Portugal, and a conquest to be conquered, and a land where VM is named, but not obeyed.”[iii]

Since Independence, two examples perfectly illustrate what I have just stated: the slavery of Africans and Afro-descendants, as well as the reaction of our leading groups, to the idea of ​​establishing a democracy among us.

 

The two faces of slavery

The Constitution of 1824 declared “flogging, torture, branding with a hot iron and all other cruel punishments to be abolished” (art. 179, XIX).

In 1830, however, the Criminal Code was enacted, which provided for the application of the galley penalty, which, according to the provisions of its art. 44, "will subject the defendants to walk with calceta on the foot and iron chain, together or separately, and to be employed in public works of the province, where the crime was committed, at the disposal of the Government". It goes without saying that this type of penalty, considered non-cruel by the 1830 legislator, actually only applied to slaves.

And there was more. Despite the express constitutional prohibition, the captives were, until the eve of abolition, more precisely until the Law of October 16, 1886, branded with a red-hot iron, and regularly subject to the penalty of flogging. The same Criminal Code, in its art. 60, fixed a maximum of 50 (fifty) lashes per day for slaves. But the legal provision was never respected. It was common for the poor devil to suffer up to two hundred lashes in a single day. The aforementioned law was only voted in the Chamber of Deputies, because, shortly before, two of four slaves sentenced to 300 lashes by a jury court in Paraíba do Sul died.

All this, not to mention the crippling punishments, like every broken tooth, severed finger or pierced breast.

It is curious to see that this harsh reality was never recognized by our so-called “elite”. When writing his treatise on slavery in Brazil in 1866, Perdigão Malheiro made a point of stressing the “recognisedly compassionate and humanitarian nature of Brazilians”, our “proverbially kind” temperament.[iv] Gilberto Freyre, for his part, supported by the testimony of foreigners who visited our country in the early XNUMXth century, maintained that, in these parts, slavery was more benign than that practiced in the English colonies.[v]

Despite being constantly kept in check, it is undeniable that the unofficial right of slavery never ceased to exist. A good example, in this respect, was the permanence of the slave trade for many years, in a situation of blatant illegality.

A charter of January 26, 1818, issued by the Portuguese king while still in Brazil, in compliance with a treaty signed with England, determined the prohibition of the infamous trade under penalty of forfeiture of the slaves, who “will immediately be freed”. Once the country became independent, a new convention was signed with England, in 1826, by which trafficking carried out after three years of the exchange of ratifications would be equated with piracy. During the Regency, under pressure from the English, this prohibition was reiterated by the law of November 7, 1831.

But all this official legal apparatus remained a dead letter, as it had been edited solely “for the English to see”. As the great black lawyer Luiz Gama recalled, himself sold into slavery by his father when he was only 10 years old, “the shipments were unloaded publicly, at selected points on the coast of Brazil, in front of the fortresses, in full view of the police, without modesty or mystery. ; it was the Africans, without any embarrassment, taken along the roads, sold in the villages, on the farms, and baptized as slaves by the reverends, by the scrupulous parish priests!...[vi]

The same Luiz Gama recounts an episode, which occurred in the mid-50s, and which perfectly illustrates the widely accepted dubiousness of Brazilian law in this matter.

At that time, a farmer from the interior of the province came to São Paulo, bringing letters of recommendation from political leaders, in search of two runaway slaves, who, because they were boçais, that is, incapable of expressing themselves in the native language,[vii] they had been apprehended by a block inspector and declared free, in application of the Eusébio de Queiroz Law of 1850.[viii]

Having achieved nothing with the local authorities, the farmer then went to the Court, and there he had an interview with the Minister of Justice, the respected Senator and Counselor Nabuco de Araújo. Shortly afterwards, the President of the Province received a “confidential notice” from the Minister, in which His Excellency acknowledged that the blacks had been “very well apprehended and declared free by the chief of police, as Africans illegally imported into the Empire”.

However, the Minister continued: “It must, however, be considered that this fact, in the current circumstances of the country, is of great danger and seriousness; frightens the farmers, it can cause the damage to their credits and become the cause, due to its reproduction, of incalculable damage and damage to public order”.

The law was strictly enforced; there are, however, great interests of a higher order that cannot be forgotten and that should preferably be considered. If these blacks disappear from the establishment where they are, without the slightest damage to the good opinion of the authorities and without their responsibility, what harm will result?”[ix] And effectively, it happened like this: “without the slightest prejudice to the good opinion of the authorities and without their responsibility”, the poor devils were returned to their owner as mere slaves.

In a perceptive study on manumissions in the imperial period,[X] Manuela Carneiro da Cunha makes us penetrate the slippery ground of the most complete ambiguity. Throughout the national territory, the custom of obligatorily manumissioning slaves was consolidated, with the offer, by them or by third parties, of the conventional ransom price. There was never, however, formal recognition by law of this right of forced manumission of the captive. In his 1866 treatise on slavery, Perdigão Malheiro, when discussing the thesis constitutionality of a law that recognized among us the mandatory manumission by offering the master the redemption value of the slave, makes it clear that at the time we had no law to this effect. respect.[xi] It was only with the Free Womb Law, of September 28, 1871, that the right of the slave to have his own savings was admitted, with which he could redeem himself.

For Manuela Carneiro da Cunha, two legal regimes coexisted in Brazilian society in the XNUMXth century: one of written law and the other of unwritten law, “dealing with particular relations of dependence and power”. Both these systems coexisted, because they cut out basically different fields of application: “essentially the law is for the free poor; to the powerful, their slaves and their clients, customary law”. And he concludes: “that [the law] is also the external face, international, but not necessarily false, of a system that, domestically, is different”.

A better example could not be given of the typically bovarist quality of our ruling classes. Like Flaubert's tragic character, they always try to escape our clumsy and backward reality, which shames us, in order to sublimate in the imagination, for the whole country and each one of us in particular, an identity and ideal conditions of life, which we pretend to possess, but which are in fact completely foreign to us.

In this regard, we embody Fernando Pessoa's pretending poet to perfection: we pretend so completely that we come to think that the ideal right that appears in our Constitution and in our Codes exists and is regularly obeyed.

Let us now look at another notable case of social schizophrenia: the notion of democracy.

 

The “lamentable misunderstanding” of democracy

When we split from Portugal, the idea of ​​popular sovereignty was considered anathema to our ruling strata.

In May 1811, in the pages of Mail Braziliense, edited in London, Hipólito José da Costa made a point of launching an emphatic warning:

“No one wants useful reforms more than we do; but none annoy more than we do, that these reforms should be made by the people; for we know the evil consequences of this mode of reform; we want reforms, but carried out by the government; and we urge the government to do them while there is still time, so that they are avoided by the people”.[xii]

More than a century later, we have an echo of this statement in the warning that the then President of the State of Minas Gerais, Antonio Carlos Ribeiro de Andrada, made public at the end of the Old Republic: “let us make the revolution, before the people make it” !

In the Speech from the Throne addressed to the constituents of 1823, our first emperor referred with contempt to the enemies of Brazil, ensconced “in the democratic Portuguese courts”.[xiii] The monarch then declared that he hoped that the Constitution to be drawn up would place “inaccessible barriers to despotism, whether real or democratic”.[xiv]

Shortly afterwards, on July 19 of the same year, when he felt the wind of rebellion from the “peoples”, that is, from the Municipalities, D. Pedro I launched a warning cry in proclamation: “Some Chambers of the Northern Provinces gave instructions to its Deputies, where the democratic spirit reigns. Democracy in Brazil! In this vast, large Empire it is absurd; and it is no less absurd that they intend to prescribe laws, to those who must make them, ordering them the loss, or derogation of powers, which they had not been given, nor is it up to them to give”.

It is true that the movement that led to the abdication of Pedro I, on April 7, 1831, was an attempt to reconcile liberalism with democracy. But, shortly afterwards, the Liberal leaders took a step back and put things back in their proper places. The abjuration of Teófilo Ottoni was, in this particular, paradigmatic. Justifying himself by his liberal-democratic pretensions of the past, he clarified that he had never aimed for “anything but peaceful democracy, middle-class democracy, democracy with clean ties, democracy that with the same disgust repels the despotism of mobs or tyranny of one”.[xv]

It turns out that after the end of the Paraguayan War, the idea of ​​democracy, or rather, of a democratic republic, quickly purged of its subversive connotations, began to be publicly invoked, not as a regime of popular sovereignty, but as a justification for political autonomy in the local plan. Democracy and cognate expressions such as democratic solidarity, democratic freedom, democratic principles or democratic guarantees appear no fewer than 28 times in the 1870 Republican Manifesto. One of its topics is entitled democratic truth. But, symptomatically, not a word is said about the emancipation of slaves. It is known, moreover, that the leaders of the republican party were opposed to the Lei do Ventre Livre, and only accepted the abolition of slavery in 1887, when it was almost a fait accompli.

On June 27, 1878, a young bachelor, still unknown on the national scene, gave a speech in the Provincial Assembly of Bahia, which could, today, be attributed to any member of a conservative party. His name was Ruy Barbosa. He stated emphatically that “liberty and equality are diametrically opposed and go together only in the mouths of demagogues and tyrants”. For him, the greatest threat to freedom would consist of the “tyranny […] exercised by democracy against the individual”. Underlining the importance of the “human molecule, of the vigorous, educated and free individual”, he asserted that political equality was always relative, dependent on “the inequality of social conditions” and the “inequality of natural aptitudes”. The demand for equality for all, he concluded, was nothing more than a reflection of “the corruption arising from socialist error”.[xvi]

We were then at the beginning of the movement for the reform of the electoral system, with the abolition of indirect elections. The Sinimbu cabinet tried to approve it in the Chamber of Deputies and, to reassure the ruling class of large rural landowners, proposed eliminating the vote for illiterates and raising the census, that is, the minimum annual income required for registration on electoral lists. .

It was then that the then deputy José Bonifácio, the Moço, professor at the Faculty of Law of São Paulo and, certainly, the greatest parliamentary tribune that this country has ever known, rose. When he went up to the tribune of the Assembly, on the afternoon of April 28, 1879, the House was at a standstill and the session had to be interrupted several times due to pressure from the public, who wanted to enter the enclosure and were barred by the service of order.

“The supporters of the project,” he said to loud applause, “after half a century of constitutional government, repudiate those who sent us to this chamber, those who are the true creators of national representation. Why? Because they can't read, because they are illiterate! Really the discovery is astonishing! This sovereignty of grammarians is an error of political syntax (applause and laughter erupt in the plenary). Who is the subject of the sentence? (Prolonged hilarity). Is it not the people? Who is the verb? Who is the patient? Oh! They discovered a new rule: don't use the subject. They divide the people, get themselves elected by a small minority, and then shout with enthusiasm: Here is the national representation!”[xvii]

Faced with the failure of the Sinimbu Cabinet to see the constitutional change necessary to abolish indirect elections approved, the Emperor appointed Councilor José Antonio Saraiva, known as the Messiah of Ipojuca, as Prime Minister. The latter had no doubts: he concentrated his persuasion efforts on rescuing the democratic idea. In a session of the 1880 legislature, he declared: “We enjoy full democracy in Brazil. (...) We live with anyone; we put freedmen at our table and trust trustworthy freedmen more than many Brazilian citizens”.[xviii]

It only remained to say that, once slavery was abolished, we would create a perfectly egalitarian society here. Which did not take long to be officially proclaimed. In Message to the Legislative Congress of São Paulo, in the quadrennium 1912 – 1916, Francisco de Paula Rodrigues Alves, who had been President of the Republic from 1902 to 1906, was able to declare and passant, as if it were a self-evident truth: “Between us, in a regime of frank democracy and complete absence of social classes…”[xx]

We left in the shade the uncomfortable fact that in the last elections of the Empire, in 1886, the number of voters represented less than 1% of the total population of the country, and that in the election of the successor of Rodrigues Alves to the presidency of the Republic, this percentage had barely reached 1,4. After all, despite the tiny electorate and the consolidated practices of fraud, we had elections. Soon we had democracy. “A Brazilian-style democracy”, as said by the General who ordered the arrest of the great lawyer Sobral Pinto in 1968. To which he replied: “General, I only know Brazilian-style turkey”.

Effectively, when seeking to justify the 1964 coup d'état, the military leaders did not hesitate, in the so-called Institutional Act No. 1, of April 9, 1964, to declare themselves representatives of the Brazilian people, to exercise constituent power in their name.[xx]

Then, in institutional act nº 2, of October 27, 1965, Marshal Castello Branco and his ministers condemned the action of “agitators of various stripes and elements of the eliminated situation”, which “threaten and challenge the revolutionary order itself, precisely at the moment when this, attentive to administrative problems, seeks to put the people in the practice and discipline of the democratic exercise”. “Democracy”, the coup supporters continued, “supposes freedom, but it does not exclude responsibility nor does it mean a license to contradict the very political vocation of the Nation”; This political vocation is not made explicit in the document, but it is supposed to correspond to the regime established with the coup d'état of March of the previous year...

This rhetoric of intransigent defense of democracy to cover up all crimes reaches its culmination with the infamous institutional act nº 5, of December 13, 1968, which opened the doors to State terrorism: “Considering that the Brazilian Revolution of March 31 of 1964 had, according to the Acts with which it was institutionalized, foundations and purposes that aimed to give the country a regime that, meeting the requirements of a legal and political system, would ensure an authentic democratic order, based on freedom, on respect for dignity of the human person, etc.”

If we now turn our eyes to current reality, it is painful to recognize the permanence of the “regrettable misunderstanding”.

 

The persistence of the democratic mistake in the current political regime

The 1988 Federal Constitution opens with the solemn declaration that “the Federative Republic of Brazil [...] is a democratic State based on the rule of law”, in which “all power emanates from the people, who exercise it through elected representatives or directly , under the terms of this Constitution” (art. 1).

It turns out that this Constitution, like all those that preceded it, was not approved by the people. Those who drafted it called themselves representatives of the One from whom all powers emanate. But the represented, in whose name the Constitution was made, had not the slightest conscience, when electing them, that he was doing it for this greater purpose.

Worse: said representatives of the people, when drafting the Constitution – as invariably happened in the past – arrogated to themselves the exclusive power to modify it, without consulting the represented. The fact is that, in the first decades of its validity, the 1988 Constitution was amended (or mended) an average of three times a year. On none of these occasions was it thought to consult the sovereign people...

Now, by achieving – without the slightest protest from anyone – this exclusive self-attribution of the power of constitutional change, parliamentarians became, needless to stress, the true holders of sovereignty. We constitutionalize, in this way, a double political regime: the effective one, of a traditionally oligarchic nature, and the symbolic one, of democratic expression.

An analysis, albeit superficial, of other provisions of the 1988 Constitution confirms the existence of this duplicity of regimes.

Article 14, for example, declares that popular sovereignty will be exercised not only through electoral suffrage, but also through plebiscites and referendums and through popular legislative initiative. In art. 49, item XV, however, the Constitution includes in the exclusive competence of the National Congress “to authorize a referendum and call a plebiscite”.

According to the prevailing understanding, such acts of authorization and summons are indispensable conditions for the beginning of the process of manifestation of popular sovereignty. That is, the sovereign mandate cannot manifest his political will, unless with the permission of the mandate; which undoubtedly represents an original creation of the Brazilian legal spirit!

All this, not to mention the fact that the representation of the people in the Chamber of Deputies is carried out in extremely disproportionate state portions, and based on an electoral system linked to parties, today totally devoid of programmatic identity and popular trust. Not to mention, either, the absurdity of giving the Senate greater political power than that of the Chamber, when it does not represent the unity of the sovereign people, but the division of the Brazilian State into units considered formally equal, despite its enormous geoeconomic disparity.

In the face of this, should we be surprised if the National Congress functions as a closed club, with its back to the people, who ignore and despise it, at least there sovereignly? Is it surprising to see that this alienation of political representatives has consolidated in their consciences the conviction that the legal sanctions of prevarication, corruption and administrative impropriety do not apply to them?

It will be objected to this unfavorable view of our political life that I have just presented that the 1988 Constitution made a great advance in terms of the protection of human rights. Undoubtedly, it would be foolish and unfair to deny this ethical progress at the level of written law. But would he perhaps have eliminated the traditional duplicity of legal regimes?

Let us consider, for example, private property, declared by the Citizen Constitution not only as a fundamental right, but as a basic principle of the economic order (articles 5, XXII and 170, II). Now, according to news recently released, 33 million Brazilians live in a situation of food insecurity, that is, they have no guarantee of not going hungry.

How to overcome this radical antinomy between official law and the reality experienced in our country for centuries?

The replacement of one legal system by another is not a simple matter of normative change. Legal norms only have effective validity, that is, they only acquire force or social vigor (according to the meaning of the Latin etymum vigeo, -ere), when imposed by a legitimately constituted and maintained power; which implies its effective acceptance by the people.

Everything revolves, therefore, around ownership of sovereignty. It is possible to replace, in our country, the minority traditionally in charge of the State, by the people as a whole, so that political power is exercised in terms of the common good (res publica) rather than private interests?

The answer to this question must start from an analysis of the social phenomenon of power. As Max Weber had occasion to show, it is not reduced to brute force, but always includes the voluntary obedience of those who submit to it.[xxx] This obedience, as history has abundantly demonstrated, is based on a judgment of legitimacy, that is, the adequacy of the power relationship with the collective ethical feeling. When society becomes aware of the irremediable injustice of the installed power system, this power organization already has its days numbered.

This is, therefore, the action program to be taken on urgently and primarily by us intellectuals: relentlessly denouncing the absolute illegitimacy of the Brazilian political organization, in the light of the great ethical principles.

 

Conclusion

In the funeral oration he delivered in honor of the memory of his compatriots killed in the first year of the Peloponnesian War, Pericles praised Athenian democracy. He asserted, among other things, that in Athens those who participated in the government of the city could also attend to their private affairs, and those who engaged in absorbing professional pursuits always kept abreast of public affairs. And he concluded: “We are, in fact, the only ones to think that a man alien to politics deserves to be considered, not a peaceful and orderly citizen, but a useless citizen”.[xxiii]

I dare say that Pericles' judgment needs to be expanded today. Nowadays, everyone who stays away from politics to take care of their private interests represents a real public danger. For it is precisely on the indifference of the majority towards the common good of the people, at the national level, or of the group of peoples, at the world level, that the modern regime of voluntary servitude is built.

* Fabio Konder Comparato He is Professor Emeritus at the Faculty of Law of the University of São Paulo (USP) and Doctor Honoris Causa of the University of Coimbra. Author, among other books, of the capitalist civilization (Hail).

 

Notes


[I] Die protestantische Ethik und der Geist der Kapitalismus, originally published in 1904/1905.

[ii] On this whole argument, the study by Stuart B. Schwartz, Sovereignty and Society in Colonial Brazil; the High Court of Bahia and its judges, 1609-1751, published here in a bad translation under the title Bureaucracy and Society in Colonial Brazil by Editora Perspectiva, São Paulo, 1979.

[iii] Foot. Antonio Vieira, Selected Works, volume I, Letters (I), Livraria Sá da Costa – Editora, Lisbon, p. 173. I remember that the city of La Rochelle, mentioned by Vieira, was in France a bastion of Protestant resistance to the imposition of Catholicism as the official religion of the kingdom.

[iv] Slavery in Brazil, Historical-Legal-Social Essay, Rio de Janeiro, Typographia Nacional, Part 3 – Africans, Title I, Chapter V, Title II, Chapter III.

[v] See Interpretation of Brazil - Aspects of the Brazilian social formation as a process of amalgamation of races and cultures, Livraria José Olympio Editora, Coleção Documentos Brasileiros nº 56, 1947, pp. 108 and ff.

[vi] Quoted by Sud Menucci, The Precursor of Abolitionism in Brazil (Luiz Gama), Companhia Editora Nacional, Brasiliana collection, vol. 119, p. 171.

[vii] The opposite of the boçal negro was the ladino, that is, the one who could speak Portuguese.

[viii] As is known, this law was voted by the Assembly of the Empire five years after the approval, in the British Parliament, of the Bill Aberdeen, which, reiterating the qualification of the slave trade as piracy, authorized the seizure of tumbeiros and their cargo, even in Brazilian waters, with the judgment of the crew by the Admiralty Courts, in London.

[ix] Quoted by Sud Menucci, op. cit., pp. 184/185.

[X] About the silences of the law: customary and positive law in the manumission of slaves in Brazil in the XNUMXth centuryin Brazilian Anthropology - myth, history, ethnicity, Brasiliense/EDUSP, 1986, pp. 123 and ff.

[xi] Op. cit. t. I, §§ 93 et ​​seq.

[xii] Cf. Barbosa Lima Nephew, Anthology of Correio Braziliense, Editora Cátedra – MEC, 1977, pp. 79/80.

[xiii] Fallas do Trono, from the year 1823 to the year 1889, Rio de Janeiro, National Press, 1889, p. 6.

[xiv] Ibidem, P. 16.

[xv] In Paulo Bonavides and Roberto Amaral, Political Texts in the History of Brazil, vol. 2, Federal Senate, 1996, pp. 204/205.

[xvi] Quoted by Richard Graham, Patronage and Politics in Nineteenth-Century Brazil, Stanford University Press, 1990, pp. 184/185.

[xvii] Apud Sérgio Buarque de Holanda, General history of Brazilian civilization, tome II, 5th volume, São Paulo, European Book Diffusion, 1972, p. 206.

[xviii] Apud Richard Graham, op. cit., p. 32. Note that those freed from slavery did not enjoy full citizenship.

[xx] See Gallery of the Presidents of São Paulo – Republican Period 1889 – 1920, organized by Eugenio Egas, S. Paulo, Official Publication of the State of S. Paulo, 1927.

[xx] “The Leaders of the victorious revolution, thanks to the action of the Armed Forces and the unequivocal support of the Nation, represent the People and in their name exercise the Constituent Power”.

[xxx] Wirtschaft und Gesellschaft – Grundriss der verstehenden Soziologie, 5th revised edition, Tübingen (JCB Mohr), 1985, pp. 28, 541 ff.

[xxiii] Thucydides, II, 40.

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