Accepted Paper:

Consensus facit legem: legal pluralism and the MST  

Author:

Alex Ungprateeb Flynn (University of California, Los Angeles)

Paper short abstract:

This paper explores the legally plural situation regarding agrarian reform in Brazil and the Landless Workers' Movement's (MST) response.

Paper long abstract:

The MST is the largest social movement in Latin America and its struggle for agrarian reform is premised upon the 'occupation' of land by encampment. Depending on one's political stance, this action is either termed 'ocupar' (to occupy) or 'invadir' (to invade). The two differing terms illustrate the pluralistic and contradictory nature of the Brazilian legal system, as in civil law, what the MST does is illegal, as it violates statutes surrounding the right to private property and therefore constitutes trespass. But under constitutional law, the MST claims legality, due to Articles 184 and 186 of the Brazilian constitution of 1988. Article 184 requires the Brazilian government to 'expropriate for the purpose of agrarian reform, rural property that is not performing its social function', while the key details of Article 186 surround how this criteria is to be met and how to define 'social function'. In this way, the MST argues that it is justified in occupying unproductive estates, as they are not fulfilling 'adequate use'.

Much confusion results from this legally plural situation and repression of the movement's activities often varies depending on the relevant state governor's personal stance. However, alongside the legal ambiguities that such a system creates, there are also more personal uncertainties. Once appropriated, movement members can enjoy free use of their land and pass it to inheritors. However, the land remains the property of the government and therefore cannot be sold or traded, which causes problems, for example, when a married couple wishes to divorce. As any children generally stay with the parent who has access to means of earning, such decisions can have life-changing consequences. What is of interest in this situation is how the movement has developed an uncodified quasi-legal system to determine outcomes, a system that is entirely parallel to Federal Brazilian law and more located in personal moral spheres.

Panel W077
Legal pluralism and the uncertainties of responsibility (EN)