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For This Brazilian Harvard Law Professor Rule of Law is Fraud

Harvard Law Professor Roberto Mangabeira UngerAn academic who occupies a prominent place in Brazil’s politics is Roberto Mangabeira Unger, professor at Harvard Law School. He has long been very influential in his native country as a political activist, candidate, and close advisor to important politicians.

It was Unger for instance who drafted in the 1980s the ‘manifest of foundation’ of the then Brazil’s largest party, the Party of the Brazilian Democratic Movement (PMDB).

A few years later, he became associated with the Democratic Workers’ Party (PDT) and its leader Leonel Brizola, a populist who died in 2005, and was broadly seen as mainly responsible for the radicalization process that led to the army intervention in the 1960s and the end of Brazil’s democratic period of 1945-1964.

Apart from being one of the most distinguished founders of Critical Legal Studies, in the United States, Unger helped to found the contemporary leftist movement in Brazil, a country where his political writings are much appreciated.

Indeed, it is hard to imagine any U.S. newspaper providing an individual the same space that they in Brazil have given him to develop his political analysis and program.

Unger’s journalistic pieces can be described as a theoretical effort to portray ideas as revealed in his academic works on ‘constructive social theory’. They are part of his political program for “reconstructing the basic institutional arrangements of society”.

Unger himself explains the goal of this program of “political and cultural revolution”: “The social ideal and the view of the relation of law to social life that I have just described can be translated into a program for the reconstruction of the state and the rest of the large-scale institutional structure of society. They can be taken as the basis for a vision of transformed personal relations.”

To achieve such level of transformation, Unger confers to the State the power of promoting the re-orientation of interpersonal relations. In arguing that people can only control their destiny through the power of the state, the state is transformed into the new absolute, the new god of being.

Indeed, Unger believes the State is the only social entity with “capacity for [such] transformative action”. Only the State, Unger maintains, can be powerful enough to promote “the occasions and the means to challenge and revise every aspect of the basic institutional structure of society”.

For this reason, law professor Jefferson Powell has commented that Unger has created for those who assent to his program, “a text that claims authority parallel to that enjoyed by the Bible in traditional Jewish and Christian thought”.

He explains: “Unger’s message of redemption shares with traditional Christianity belief that the locus of salvation is in community. However, Unger’s community, his ‘church’, is a curious photographic negative of the Christian vision of the Church as a community of reconciliation and peace.

“The outward and institutionalized form of Unger’s community is a state armed with the power to intervene in almost all aspects of human life. Its authority is coercive, and oriented toward exacerbating rather than reconciling conflict. Its central and characterizing activity is the tearing down of existing relationships, not their loving constitution.”

Even if Powell’s interesting opinion can be seen only as an overstatement, the fact is that Unger’s ‘statist’ postulations are not just ‘statist’ but openly hostile to the rule of law, since this Harvard University law professor describes the impartial administration of justice by means of an independent judiciary as a mere stratagem of economic ruling groups to hide social hierarchy and exploitation; i.e., a mere ‘mask’ to hide the hegemonic, economic, and political underpinnings of government under law.

Professor Unger’s main objective, explains law professor Brian Z. Tamanaha, is “to de-legitimate the entire system of rather than to find ways in which it might work better by ameliorating the flaws they identified”.

Likewise, the late political philosopher Judith Shklar commented: “In his writings, Unger has come to adopt an indignant tone in denouncing the Rule of Law. He sees it as a pure ideological cloak that must be ripped off to expose the fraudulence of the entire ideology of the Rule of Law.

“As one of the spokesmen for ‘Critical Legal Studies’, he regards formalism, the belief in… impersonal legal system as the chief ideological screen behind which a ‘shameless’ liberalism hides. In fact it is the servant of sinister interest groups, and its talk of rights is merely hypocrisy…

“The word ideology is used by him as a term of abuse that is meant to reveal the hypocritical and egoistical character of legal liberalism [i.e.; the rule of law]. A hierarchical and atomizing policy is the reality of liberalism, fairness, and legal impartiality. The object of legal scholarship is [in Unger’s opinion] to find the weak spots in the system and to put forward claims and to demand ever-new personal rights that will destabilize the whole system”.

Unfortunately, many Brazilian intellectuals share with Unger the same disregard for the rule of law. They agree with Unger’s about the necessity of a strong ‘popular government’, concentrated around the person of the executive leader. Advocating for this view, Unger suggests that only such president could provide “the route to power less susceptible to plutocratic management and more open to national and structural concerns”.

In Unger’s opinion, a “decentralized parliamentary context” as well as a constitutional system of checks and balances ‘only’ serves to “secure property rights against populism”.

Thus, in an effort on his part to totally reorganize politics and civil society, he suggests that a strong leader could “break the power” of so-called “conservative forces”, guiding “the masses” toward a revolutionary process in which the power of the State becomes “an agent of economic rebellion and reconstruction”.

Thus Unger postulates that a presidential regime introduced “with nationalizing and subversive effect” could “be a source of unpredictability and a lever of change in a society where everything conspires to prevent surprise”.

In practical terms, Unger actually advocates a form of populism which is historically responsible for many problems affecting democracy and the rule of law, not only in Brazil but in Latin America as a whole.

However, ‘progressives’ like him are the heirs in that region of the old tradition of personal power, whereby populist leaders have been playing the role of traditional caudillos, dispensing all sorts of clientelistic favors and patronage to supporters.

As good evidence that the tradition of caudillismo replicated in the form of populism, it is always important to consider that Brazil’s first populist leader was a caudillo who began his political career with the support of rural oligarchs from his southern state.

The caudillo in question, Getúlio Vargas, was nonetheless wise enough to perceive that the process of urbanization would reduce the power of landowners, and, accordingly, decided to develop his ‘strong’ presidency on the basis of populist policies of national-statism and welfare-state laborism.

Arguably, one may for this very reason suggest that the current popularity of President Lula, the head of a notoriously corrupt administration, also constitutes a quite compelling evidence that, in Latin American countries like Brazil, any process of ‘mass mobilization’ by the chief-executive, such as the one currently suggested by Unger and other Brazilian intellectuals, can easily increase the existing problems of personification of power and lack of legal accountability, particularly on the part of the President of the Republic.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2006). His e-mail is: augzimmer@hotmail.com.

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