Legal realism and political corporatism in Brazil under Vargas: Oliveira Vianna and the organization of the labor courts in the Estado Novo

• Grant number: 16/07980-9
• Support Opportunities: Regular Research Grants
• Duration: September 01, 2016 - February 28, 2019
• Field of knowledge: Applied Social Sciences - Law
• Principal Investigator: Thiago Reis e Souza
• Grantee: Thiago Reis e Souza
• Host Institution: Escola de Direito de São Paulo. Fundação Getúlio Vargas (FGV). São Paulo , SP, Brazil
• Associated researchers: Airton Lisle Cerqueira Leite Seelaender ; Eduardo Zimmermann ; Giovanni Cazzetta ; Gustavo Silveira Siqueira ; Hans-Peter Haferkamp ; Thorsten Keiser ; William J. Novak

Abstract

This research proposal investigates the relationship between law and authoritarian rule in Brazil under Vargas (1930-1945). It analyzes the specific contribution of legal thought to the dictatorial regime established during the Estado Novo. By assuming that law plays a specific role in legitimizing authoritarian regimes, this project attempts to differentiate itself from traditional ac-counts that either emphasize political (authoritarian State, bureaucratic centralization), economic (State intervention, development policies) or social (labor) aspects of this important period of modern Brazilian history. The working hypothesis is that law as a normative order might well react to, but is not necessarily functional to politics or the economy. Thematically, the project focuses on the transformations of public and private law in Brazil in the early 20th Century, with special reference to the rise of authoritarianism between 1930 and 1945. Key aspects of change include (i) the inter-national diffusion of anti-formalist, increasingly "realist" and functional approaches to law in legal thought; (ii) the widespread adoption of corporatist forms of political and economic organization as institutional alternatives to liberalism and communism; (iii) the circulation of normative solutions to socially sensitive issues relating especially to labor law and social security. Methodologically, the project combines (i) a contextual approach that analyzes legal change in view of specific economic and political conditions to which the legal system reacts and/or conforms to, with (ii) a comparative approach that comprises the international circulation of ideas, normative solutions and institutional designs during the indicated time frame. By drawing on these lines of inquiry, the project expects both to offer an innovative take on one of the most significant chapters of modern legal history and to contribute to current-day debates on the connections between law, authoritarian regimes and social change. The specific focus of the project is the relationship between legal method and institutional design in the work of Oliveira Vianna (1883-1951). As a legal consultant to the Ministry of Labor between 1932 and 1940, Oliveira Vianna produced a series of published studies and legal opinions on the then ongoing organization of labor courts and union regulation. In an attempt to legitimize a new form of conflict solution, Vianna turned both to American Realism and European corporatism, in the latter case especially to Italian fascism. The way he read and adapted the works of European and American jurists to the Brazilian context is an important aspect of his thought that remains to be studied. The working hypothesis here is that there is a close link between Vianna's historical and sociological diagnosis of the problems faced by early 20th Century Brazil published in "Populações Meridionais" (1920) and the institutionalized form of solving conflicts between capital and labor he envisaged in "Problemas de Direito Corporativo" (1938). The link between diagnosis and institutional design would be his "realist" approach to law and social thought. The result of his "objective" account of "Brazilian reality" results not only in his assessment of "insolidarity" as a major feature of Brazilian society, but also in a corporatist approach to law as an institutional attempt to produce solidarity in industrial capitalism. Arguing constantly between sociological description and normative prescription, Vianna attempts to secure an organization of the labor courts that is adequate both to the specific traits of Brazilian societies and to the imperatives of authoritarian modernization in the Estado Novo. (AU)