Source: Folha de S. Paulo, February 12, 2004
By Joaquim Falcão
It is said that, in the 70s, a teacher was doing research on the law
property in the favelas of Rio de Janeiro. At one point, interviewing a
resident, asked him: “But you don't think it's illegal to build your house in
another's land? ”. The favelado, with the tranquility of hopelessness, would have
replied: “Doctor, illegal here is not my shack. I am illegal ”.
He probably didn't have a formal contract, didn't pay taxes, didn't
received basic education as required by the Constitution, electricity from
his shack was cat, and that was where his existence went. As a resident,
worker, consumer or taxpayer, he was illegal. The shack synthesized the
wide illegality that constituted him as a citizen.
Makes sense. Folha recently published a UFRJ study proving that
48,5% of Brazilian workers, now employed, do not have a formal contract
nor do they collect for Social Security. They are informal, in the economists' calculations.
Illegal, in the opinion of jurists. This illegality is no longer the privilege of
slum or worker. It is stigma for everyone, middle class and elite too.
Whether for poverty or other reasons, we are a country of illegal people.
Open the newspapers. In São Paulo, Folha itself recently reported that 80% of
private higher education establishments do not comply with the Law of Guidelines and
Bases of Education. In Rio, the headline “O Globo” said there were more than 2
million cars traveling without complying with the rules of the National Code of
Traffic. Not to mention the obvious - in large cities, it is estimated that more than
30% of the population lives in irregular subdivisions and in areas
Illegality is no longer the privilege of the favelado or the worker. IS
stigma of all. We are a country of illegal
Minister Márcio Thomaz Bastos points out a dramatic situation: no one or
almost no one can close a company, end a company,
records or cease to exist legally, such are the requirements
bureaucratic. The illegality of the legal entity survives and drags with it
businessmen, partners, tax authorities and creditors. For these, the future has already begun and it is
A culture of disguised, diffuse and agreed illegality permeates the
national life. We are not "we are". We are just evidence of bad income
distributed and non-compliance with ideal, but unrealistic laws. Are
deconstructed as citizens and rebuilt as hostages of the law. The law, made in
name of the common good, paradoxically it established the evil of all.
The traffic guard does not perceive us as citizens helping, collaborating and
support. We are, a priori, opponents and offenders. In minutes of inspection, he
you will encounter a number of unfulfilled legal requirements on the car, behavior or
driver's license. The entrepreneur is not the citizen who produces: it is, rather, the
possibility of the right notification, of the inevitable fine by the city hall, government
state or federal. So many and unsustainable are the requirements
The submission of the illegal citizen to the legal authority is fertile ground
for authoritarianism. The authoritarian political regime is over. The bias
authoritarian administrative does not. With rare exceptions, the bureaucrat does not guide or
helps the citizen, but condemns him for taking time, washing his hands and doing
unnecessary requirements. How, then, to survive?
There are two ways. The first, short-term, is autophagic. Under Brazil
legal and formal, illegal and informal Brazil grows stronger every day. In this
coexistence of opposites, the law is disregarded and the authority is corrupted. That
path does not make us a productive, supportive and democratic nation, but
on the contrary, divides us into two Brazils, suspicious and suspicious, mutually
The second, longer term, more difficult, is that of institution building
viable democratic institutions. It goes through the experimentation of new relations between State and
society. It presupposes that it is understood that the illegality that matters today in Brazil
it is not the individual. It's the collective. It is measured by the millions. It does not result from the action of the
citizens, but the structural poverty of most Brazilians and the relationship
autophagic between the State's ambition to be independent and control society
civil society and the escapist disorganization and alienation of all, especially young people.
Legal or illegal is not the citizen.
The solution is not to fine, sue or blacklist all
Brazilians, one by one, or even to fight individually in the late Justice for a
right that belongs to everyone. The solution will have to be mass.
There was a time when Brazil adopted a program to reduce bureaucracy;
now, it is time for us to adopt a regular citizenship liberation program. With the
mission to undo unfair records, legalize plausible reality and revoke
ineffective laws. Focused on the systematic and permanent “delegalization” of
daily, political and economic authoritarianisms. With political leaders and
together, it's time to try to make each Brazilian what he genuinely
wants to be: a legal and free owner of himself. Legal citizen.
Joaquim Falcão, 60, Master in Law from the University
Harvard (USA), is director of the Law School of Fundação Getúlio Vargas do Rio
de Janeiro and professor of constitutional law at UFRJ.
Article: The precariousness of the rule of law
Stability and clarity are minimum requirements for law enforcement. This is not what you see in Brazil. Standards are changed frequently, often with deplorable technical quality. The interpretation given to the norms also changes continuously, without plausible justification.