By ALESSANDRO OCTAVIANI*

Considerations on the teachings of Oswald de Andrade on the legal issue

O homo ocdenomicus

Numerous reforms of the legal discipline of economics among us proudly bear their origin in recommendations from international organizations, which, in their reports and texts, suggest “best practices” or conventional wisdom.

The constitutional amendments that reshaped the Constitutional Economic Order chapter during the 1990s claimed to be based on World Bank recommendations; Law 14.286/21, which reforms the legal discipline of the exchange rate, claims to be close to IMF recommendations; Law 13.874/2019, which is intended to be the code of economic freedom, postulates in its introductions the search for an “open society”, which, ultimately, would be the implementation, on national soil, of the Ricardian circulation that the World Trade Organization Commerce aims and proudly discloses in its popularization materials.

There was even an important deputy who, forgetting that the infraconstitutional legislator implements the Constitution, affirmed the mental and moral predominance of multilateral bodies, which would even require the approval, by the Brazilian Parliament, of the curious “OECD day”.

This search for inspiration, for a cognitive and utopian horizon, in the organs of multilateral orthodoxy generates a peculiar actor in the operation of law: the homo ocdenomicus, for whom reading the “best practices” precedes that of the Constitution and for whom economic law, instead of being the legal technique of economic policy for overcoming underdevelopment, becomes the support for deepening the trajectory of cultural mimicry that Brazil has been carrying out for decades, with results puny practices, which, at this point, bequeathed us four decades of economic stagnation, under the yoke of economic orthodoxy – even if, from time to time, it comes with rosy tones and minimum income programs.

O homo ocdenomicus look outside hoping to find the way out that can only come from within. They are the “lazy people on the world map of Brazil”. About them, and beyond them, Oswald de Andrade wrote: “Against the vegetable elites. In communication with the ground”.

The gimmicks of Galli Mathias

This colonized way of seeing the law generates its own language, (i) which seeks, for example, to make central, in the legal discipline of state-owned companies, the compliance of Law 13.303/16, while refraining from objectively modulating criteria to control the compliance of the State's business action with the objectives of the Republic, provided for in art. 3rd. of the Federal Constitution; or (ii) who spend hours discussing, under the aegis of Law 12.529/11, whether the structural remedy is Fix it First or if the buyer can be considered a Up-Front Buyer, while the technological linkages generated at Embraer or Petrobras are fading away, under strict foreign control, in direct contravention of art. 219 and his determination that the internal market would enable the country's technological autonomy.

This subaltern way of knowing and operating economic law, typical of “importers of canned conscience”, has led us to live “through sleepwalking law”, a fertile ground for gibberish, self-references and circularities of the homo ocdenomicus.

But it's good that the homo ocdenomicus remembers his not-so-distant ancestor, the liberal jurist, admirer of exact systems, cosmopolitanism, free trade and Brazil's subaltern position in the social division of world technological work, when he met the legal cannibal: "I asked the a man what the law was. He replied that it was the guarantee of the exercise of possibility. This man was called Galli Mathias. I ate it.”

From 1822 and 1922 to 2022: the unfinished independences

The political independence organized by José Bonifácio and D. Pedro I in 1822 is an unfinished project, as well as the cultural independence advocated by the modernists of 1922: “Our independence has not yet been proclaimed”, perhaps because “we never admitted the birth of logic between us".

The logic of contemporary capitalism is far from being that of the OECD: it is that of the Chinese five-year plans seeking, for the 150.000 Chinese state-owned companies, preeminence in the main world technological chains, and that of DARPA financing nanotechnology that will keep the USA ahead.

Closer to the logic of the real economy than the delusions of homo ocdenomicus are, among others, Decree-Law No. 4.352/1942, which creates Vale do Rio Doce to structure a vertical mining industry, Law No. 2.004/1953, which creates Petrobras to guarantee energy sovereignty, and Law No. 2.874/1953, which, by instrumentalizing the move of the capital to Brasília, led one of Oswald de Andrade's beloved successors, Lucio Costa, to state that, from that point on, Brazil would not only export raw materials, but also high culture .

This legal discipline, unlike the law of the homo ocdenomicus, is the anthropophagous economic law, which reinstalls “a participating consciousness, a religious rhythm”.

A legal discipline with such petulance authorizes the cannibal dream: “We want the Caribbean Revolution. Bigger than the French revolution. The unification of all effective revolts in the direction of man. Without us, Europe would not even have its meager declaration of human rights”.

* Alessandro Octaviani Professor of Economic Law at the USP Law School and former member of CADE's Tribunal. Author, among other books, of Studies, opinions and votes on economic law (Ed. Singular).