BEYOND NAIRU: NUTS AND BOLTS OF CURRENT SOCIO-LEGAL RESEARCH CONCERNING BRAZILIAN LABOR LAW^*

Antonio Rodrigues de Freitas Jr

By means of a preliminary overview we can assume that the major subjects in present socio-legal research, focusing on Brazilian labor law, are closely related to structural unemployment, as well as to the emerging centrality of job scarcity, both often perceived as side-effects of globalization.

Similarly, based upon cross-country comparative legal studies (Treu, 1993; id 1997; Arrighi, 1998; Tiraboschi, 1996; Van Dijk, 1995; Rojo Torrecilla, 1997, Liso-Vareso, 1997; Ichino, 1997, Leite, 1997; Supiot, 1999; Freitas; 1999), it is possible to state that this is not a peculiarity of semi-peripheral economies. Even in core economies, most of the recent efforts devoted to promote legal changes, as well as to draft social patterns for financial support settled by regional trading blocs, have been increasingly legitimized as devices carried out in order to address job scarcity and unemployment. If we consider, for instance, the EU average unemployment rate at 10 % of the EAP, it seems reasonable to choose the fallen demand for human work as a pervasive phenomenon, affecting both mainstream and peripheral economies.

1. It could be interesting to remember that some respected observers of globalization, writing from the early nineties, asserted that it has been characterized by "reflexivity" and by a sort of generalized change acting as "mutually opposed tendencies" (Giddens, 1990:64). This not entirely explained relation could be summed up by an often quoted example: "The increasing prosperity of an urban area in Singapore might be causally related, via a complicated network of global economic ties, to the impoverishment of a neighbourhood in Pittsburgh whose local products are uncompetitive in world markets"(ibid.).

Ten years later we feel ourselves allowed to suspect that sociological explanation of society sometimes looks even more complicated than social reality itself. It seems that the most recent decade of globalization turned out to be, in certain aspects, more predictable than some social analyses thought it would. As I see it, most of the predictions regarding globalization neglected the persistence of some national trade-off, apart from the global process of expanding inequalities and concentrating surplus.

Notwithstanding the forecast of the globalization phenomenon as an asymmetric process, the sociological analyses lost sight of the fact that "transnational and supranational arenas involve competition between nation fields seeking dominance". Similarly, many of them had underestimated the likelihood of the process of transnational construction as being "both partial and hierarchically ordered" (Trubek-Dezalay-Buchanan-Davis, 1993:5)

By taking this into account, I intend to emphasize that the announced decline of sovereignty did not bring about the decline of the state as a political unit. Besides, recent changes in the sovereignty and in the shape of nation-state did not even bring about the emergence of a global economy full of competitiveness, as one should expect. On the contrary, the recent growth of the global economy seems to have been governed by a sort of an over-sovereignty, based upon adjustments that even strengthened asymmetries among the states. As I should say: stimulating, rather than blocking national or regional economic inequalities.

This could probably explain the puzzling performance of the US economy during the past decade. At a time when the rest of the world focussed on job scarcity as a point of departure for legal changes and welfare compensatory policies, the US economy has exhibited a controversial but apparently sustainable growth, side by side with an unemployment rate below 4%. Meanwhile (or I should say, paradoxically ?), instead of exulting in its extraordinary low unemployment rate (at least under present international averages), US economic authorities rehabilitated the old NAIRO excuses for keeping job policies separate from priorities on the political agenda.

It’s far from the ambitions of the present material to bring under discussion the complex reasons for such paradoxes, though I’m convinced they must be faced elsewhere. Incidentally, though, I could not neglect the importance of fixing some boundary lines that apparently act towards enlarging the distance between the central issues of US labor law, and the current agenda guiding socio-legal research in other countries, including Brazil. Such absence of thematic coincidence could be better explained by economic asymmetries, rather than methodological differences.

2. Taking this framework for granted, let us turn our attention to what is going on in current socio-legal studies concerning Brazilian labor law.

Broadly speaking, I aim to identify five main significant thematic fields, that separately could be considered specific branches of research, beyond the already mentioned issue of law and its relation to job scarcity. My purpose in the next topics is to draft each one’s guiding focuses, before returning to talk about the centrality of job scarcity in relation to Brazilian law.

2.1. In contrast to what occurs in the Anglo-American legal tradition, Brazilian legal doctrine, closely following Italian, Spanish and Portuguese tradition, places under the general notion of labor law not merely subjects concerning the statutory legal protection of worker against employer power (so-called "individual labor law"). On the contrary, in these legal systems labor law also includes legal issues regarding industrial relations ("collective labor law", "union law" and so forth). To a certain extent, not rarely labor law exhibits characteristics of a fully comprehensive legal discipline, which comprises procedural law, administrative law devoted to conflict-preventing/resolving policies, to ergonomics and even to some environmental issues.

Put this way, it’s hardly possible to identify, without dispute, a small list of central topics that should be assumed to be sufficiently representative as to sum up the guiding themes of legal doctrine. Notwithstanding the persistence of a certain amount of arbitrary choice, I mean to state that certainly, as far as socio-legal research is concerned, the controversy is quite reduced. Unfortunately, as I must admit, this apparently easier consensus should not be seen as a sign of maturity, but probably quite the reverse.

2.2. Regardless of its quantitative or qualitative nature, we can sum up current socio-legal research by the following thematic fields: 2.2.1. formal and informal unionism (union system of institutional organization, hitherto based upon legal devices brought out at the emergence of thirties state-corporatism) ; 2.2.2. labor court vis-à-vis other systems of labor-dispute-resolution (adjudication – including adjudication concerning strikes and unsolved collective bargaining - administrative mediation, step-by-step grievance procedure, the latter settled by means of a recent federal law; 2.2.3. precarious/illegal/non-paid and atypical forms of job recruitment, in close connection to child labor and to gender-discrimination labor practices; 2.2.4. cultural patterns in personnel management, corresponding to anthropological research regarding space-power allocative disputes within work environments; and finally, 2.2.5. post-Fordist emerging trends of restructuring corporations, with striking reference to lean-production, down-sizing, sub-contracting, re-engineering, quality-control circles, kaisen, just-in-time production; all together challenging traditional patterns of statutory rules regarding worker protection, still formally enforced.

It is not my purpose to offer a detailed report of what is going on with each one of these thematic fields. However, considering the characteristics of the Brazilian system of labor law, I must jot down a couple of peculiarities which we should not lose sight of.

2.2.1. Regarding the union system, it seems to me important to emphasize that it still keeps earning a significant amount of its budget by means of a compulsory and universal system of taxation. In the most developed regions of Brazil, such as São Paulo and Rio the declining comparative importance of compulsory support for the biggest unions is taken for granted. On the contrary, taking into account the situation in the rest of the country, the comparative importance exhibited by compulsory incomes should be just about the opposite. Among other reasons, this phenomenon can be explained by the inefficiency – or even by the complete absence - of spontaneous processes of associative recruitment.

Incidentally, we can even see the budgetary characteristics of Brazilian unionism as capable of summing up other singular features of unionism in this country. Namely that official unions, launched and registered according to the extensive legal requirements still enforced, are the only ones: 1. procedurally legitimized to sue in labor courts over collective claims; 2. legally considered formal representatives of both labor and employers (as regards industrial relations issues), respectively, by means of their universal and compulsory placement under random shaped social groups named "categories"; 3. assigned to receive tax incomes.

Such a prodigiously non spontaneous system of associative organization, built during the thirties authoritarian rule and settled under the influence of state-corporatism doctrine, still exhibits an impressive persistence in Brazil, in contrast to what happened in Italy, Portugal and Spain after political democracy was restored. Here are some of the reasons why, in spite of the decline of union strength, that is taking place all around the world, the union system continues to exhibit considerable scientific importance for socio-legal research devoted to Brazilian reality.

2.2.2. With reference to labor courts it is interesting to point out that a recent Amendment to the 1988 Constitution revoked the seats reserved for the temporary judges elected by labor and "employer" unions. On account of this change, judges of labor courts are presently recruited strictly by the same process adopted to fill other specialized units of the federal judiciary system. Even of more importance seems to be the recent approval of Federal Law n. 9958/00, authorizing the existence of a private commission for mediation of individual labor conflicts. Once created, the mentioned units will be enabled to assign judicial enforcement of agreements. Publicly assumed to be a measure to supposedly withdraw from the labor courts a huge amount of emotion-ridden claims, it is hardly possible to neglect the outstanding similarity with the US step-by-step grievance procedure. In contrast to the latter, however, the Brazilian "conciliatory commission" does not derive necessarily from the collective bargaining process, unless the length of its jurisdiction bypasses the limits of one corporation.

Another recent change enacted by Federal Law 9957/00 aims to simplify the legal rules regarding labor procedures, according to the guiding principles of small-claims courts. Though only assigned to claims involving up to forty minimum-wages (approximately US $ 3500), at any rate avoiding claims against public administration, the small-claims labor courts are allowed to adopt a fast-track procedure in order to achieve a conclusive decision within "no more than fifteen days". Notwithstanding its praiseworthy purpose, it is hardly likely to meet the ambitious goal of achieving a final decision in such a short length of time. If we take under consideration, for instance, the hugely formal tradition as well as the strongly orthodox principals that govern Brazilian legal procedure, which are even remarkable in the field of labor law, the reasonable forecasts are far from what was promised by the Federal Law.

In any event, the two recent legal innovations mentioned allow us to assert that the problems concerning dispute resolution, though far from issues regarding exclusively labor law, do have great importance for comprehensive socio-legal research concerning Brazilian political debate.

2.2.3. Turning to the thematic field of the precarious and atypical forms of job recruitment, I share the widespread intuition that it does not consist of something peculiar to the Brazilian labor reality. Under both analytical and phenomenological stand points, precarious and atypical job recruitment has been increasingly relevant, I suspect, even (probably et pour cause), focusing on economies without huge unemployment rates.

On the contrary, it has been widely reported that, concerning openly illegal forms of work exploitation, something occurs in Brazil that demands particular focuses on its labor market. Due to the hugely contrasting means by which the Brazilian economy combines high-tech development with pre-industrial craft and informal sectors, the research devoted to illegal work (child work, non-paid, etc.) must take and, in fact, has been taking into account the broader scenario of deep inequalities and wide social exclusion that separates the Brazilian phenomenon from what happens in core countries, even in the majority of the other semi-peripheral ones.

Even though it has been quite often to assume that socio-legal research underestimates the peculiar scenario of the Brazilian economy, which can be partially explained by the absence of reliable statistical data, as well as by the core-biased stain that still marks social research on employment and labor relations. Gradually, however, studies have been increasingly devoted to place illegal work, in Brazil, as a phenomenon qualitatively different from those precarious and atypical forms of job recruitment, also largely present in core-country economies. To sum up: though precarious and atypical job recruitment can be closely related to job scarcity and unemployment, illegal work – at least focusing at the Brazilian economy – would be better placed under a broader field of research devoted to inequalities and to social exclusion.

2.2.4. The themes concerning cultural patterns of personnel management, most of them carried out by an anthropological or a political science approach, have been frequently related to empirical or case-studies focusing on local justice criteria, institutionalizing processes, and comprehensive authority disputes, regarding human rights and privacy rights within the work environment.

Not yet widely explored, this issue can be seen as an instigating field of research, which arose along the seventies and since has been increasingly stimulating, to the extent it has been capable of bringing new insights to labor relations by means of multidisciplinary studies.

2.2.5. Finally, considering the huge changes in the shape and structure of corporations, I don’t identify characteristics that differentiate studies on the current Brazilian scenario, from studies on the rest of the world. Quite the reverse, the ongoing process of restructuring corporations is clearly in correspondence to what is going on in other economies, on account of the increasing expansion of the global market. Not surprisingly we find in the Brazilian economy some very competitive sectors where this process of restructuring had been widely adopted. By contrast, however, the Brazilian economy at the same time exhibits some other sectors still deeply organized under Fordist and even pre-Fordist management principals. Once more, by turning our focus to Brazilian economy’s peculiar features we come across the cited enormous inequalities.

Still talking about this thematic field I see of great importance, concerning socio-legal research, the contrasting relations between the recent changes in the shape and size of firms, on the one hand, and on the other hand, the persistence of a legal doctrine insistently trying to rule current labor relations by means of the old legal devices established at the emergence of the Fordist industrial enterprise. It could be useful to illustrate the tension between legal devices and the reality of labor relations, by comparing the conventional idea of the "work place" (close to the notion of the assembly line) and the present trend towards the physical isolation of workers, linked exclusively by virtual networks. The space at the core of present enterprises is no more the same physical one that labor law is used to recognizing and dealing with. Consequently, the authority does not follow the same physical chains it once did. At the same time, the current signs of worker counter-power, even the ones still not completely perceived nor precisely identified, show themselves by different shapes and in different ways.

Closely following the changes in the physical nature of the work place, we can also recognize the declining physical nature of the employer himself. Once strongly characterized by the personal leadership of one-man upper authority, and later by highly institutionalized corporations, the now emerging employer has been increasingly abstract and impersonal. I’m not focusing merely on the well-known and spreading out phenomenon of impersonal property and the growth of professional management as two outstanding features of rationality-driven corporations. That is to say, I have in mind the existence of widespread cross-country legal arrangements, in particular trade-marks and copy rights, which come close to being virtual enterprises. I mean enterprises deprived from direct connection to personnel management affairs, by means of a progressive sub-contracting process with a great variety of small suppliers spread out all over the world. Consequently, the abstractness of this sort of cross-country "employer" weakens traditional labor law, by threatening to deprive the enforcing power of its legal devices, exclusively based upon nation-state sovereignty.

3. At this time we can return our focus to the role of job scarcity and unemployment in current socio-legal research in Brazil.

First of all I aim to assert that job scarcity or unemployment is not exclusively a central issue for socio-legal studies concerning labor law and labor relations. On the contrary, it has progressively assumed enough importance as to demand attention from all major disciplines that deal with social policies.

Until the mid nineties, the main issue regarding public policy debates consisted of controlling inflation by means of stabilizing public accounts. Similar to what happened in other semi peripheral countries, at that time inflation arose as a Pandora’s-box: the dominant if not the only cause for every economic and social misfortune.

Once the acquisitive power of currency was under control, and the threat of surrounding hyperinflation was put aside, social exclusion and economic inequalities returned to the core of political debate by means of a veil-lifting performance of wizardry.

Progressively, the inflation-avoiding agenda was displaced by strict social issues. Among the latter, not surprisingly, was included job scarcity and all of its social and political effects.

As I see it, the changing priorities of social research can be explained as closely related to the changes in political agenda, rather than by means of a mere scientific decision. For example: the ability to hold inflation under control has been widely assumed to be the main reason why governors were re-elected in countries such as Brazil and Argentina. In both cases, that is to say, re-election demanded even amendments revoking prior constitution prohibitions. Considering the scenario that supported their candidacies it is not hard to understand the causes for their current declining popularity. The larger currency stability lasts, the more social inequalities and job scarcity become strikingly visible, which consequently tends to undermine the political popularity of governments guided by the promise of economic stability.

By the way, not a few economists point out that inflation shifts job scarcity and unemployment to a blind spot, similarly to what happens to surplus concentration, the decrease in nominal wage acquisitive power, and so forth.

On the other hand, as inflation is brought back under control, strengthening the visibility of the distributive conflict, there arises the perception of income concentration. thus the distributive conflict itself, to a great extent, seems to be intensified, in particular by means of increasing productivity and lessening unnecessary work expenditures.

In other words, inflation seems to act on distributive conflicts as a subtle tool devoted to granting political legitimacy to the process of income concentration, including by shifting productivity strategies to a secondary place. The more productivity is replaced as a central issue, the more structural unemployment turns out to be at the same time increased and perceived.

3.1. At first glance it is plausible to assert the existence of two different branches of current socio-legal studies about job scarcity and its relation to labor law.

The first one attempts to discuss innovative public policies devoted to enlarging work demand, by means of improving flex-time, part-time work and other forms of precarious jobs including informal ones. In this way, it has been made a central issue the lessening of legal standards concerning statutory labor rights, in particular under the influence of legal doctrines named "de-legalization", "flexibilization", and so forth. Not surprisingly, this sort of thematic field has been deeply marked by ideological disputes, as well as by controversies concerning efficiency and budgetary effects from state intervention in labor market.

For the purpose of this material it is not necessary to give much attention to this branch of research. To a great extent it follows the same hypothesis and methodological patterns we find as we turn to what is currently going on in many other countries. Besides, it could be seen as a conventional approach, which brings back the well-known disputes concerning the crises and dilemmas of both neo-liberal and social-driven welfare policies, and the ethical out-puts of a free-trade-ruled labor market. That is to say: the limited fiscal resources of nation-state, which brings pressure for improving foreign-trade policies, instead of enlarging internal expenditures for social welfare.

3.2. Turning to the second branch of research, which emerges as a promising and fruitful one, there has been a great variety of studies devoted do estimating the extent and qualifying the systemic importance of the non-profit sector to the economy and labor relations.

Even if we put aside the hoopla surrounding the social-aid program launched by the Brazilian first lady, the non-profit sector has been largely assumed to demand scientific attention.

First because there have been few accurate statistical data regarding the economic extent of the non-profit sector.

Incidentally, as we can see considering the literature available, the non-profit sector still demands a broad effort in order to receive a precise socio-legal definition. Though widely controversial, the most accepted definitions are the ones provided by the team of the Johns Hopkins Comparative Nonprofit Sector Project, mainly those selected by Salamon-Anheier (1996).

In addition, the recent scientific literature on the Brazilian non-profit sector, in spite of the absence of precise definitions (Santos, 1998), has been

sufficiently assertive concerning its growing economic weight. I have in mind, among others, the studies focused on the Brazilian experience from Landim-Beres (1998), and regarding the puzzling issue of legal definition, also in the case of Brazil, the studies organized by Merege-Barbosa (1998).

Landim-Beres, for instance, point out that the number of jobs offered by non-profit organizations, in Brazil, grew by 45,16 %, between 1991-1995 (775.385 to 1.125.545). This is particularly significant in comparison to what happened to the total EAP increase rate, during the same period (19,86% of).

Similarly, according to Barbosa (1999:16), taking into account formal applications offered only to one Office for Public Registration, located in São Paulo City, there have been officially created 6649 NPS organizations between 1981-1990, in contrast to the 1451 NPS orgs. created between 1941-1950.

Source: 3º Cartório de Títulos e Documentos e Registro Civil de Pessoas Jurídicas de São Paulo, cf. Barbosa,1999.

Source: Barbosa, 1999.

Source: 3º Cartório de Títulos e Documentos e Registro Civil de Pessoas Jurídicas São Paulo; Barbosa, 1999.

4. These are just some examples of the non-profit sector’s increasing importance for social legal studies in Brazil. To a certain extent, this is due to the close relationship between third sector organizations and educational public policies.

More than that, however, there is significant evidence that its persistent growth tends to be progressively more important as an issue for social legal research on labor rights. In particular, if one take for grant, as I do, the centrality of unemployment and job scarcity.

All the conventional measures devoted to fighting unemployment and improving demand for human work seem to exhibit short efficacy. In addition, it has been widely assumed that the current paradigmatic transition, that is taking place in the realm of work, should move social-legal research towards new fields of interest.

Moreover, the growing importance of the non-profit sector seems to be a broad cross-country phenomenon. As a result, there must be much more to be considered as regards the possible interrelations between third sector and globalization.

I mean not only promising ones. Some of them are possibly even capable of bringing about different and yet unknown colonizing effects. As Santos has already pointed out elsewhere (1998), some of the fruitful qualities of the third sector derive from lessening the rule of profit while stimulating the autonomous solidarity. On the other hand, most of its danger, consequently, could be brought about by the same ambiguity that makes it deprived from public control: selfish goals. As a matter of fact, it would not be the first time to realize selfish ruling solidarity, what makes me think of it as an interesting theme to be explored elsewhere.

ARRIGHI, Giovanni. (1998). "Globalization and the Rise of East Asia: Lessons from the Past, Prospects for the Future". International Sociology. Vol. 13, n.1 (march); 59-77.

BARBOSA, Maria Nazaré Lins. (1999). Dinâmica do Terceiro Setor no Município de São Paulo: tendências quantitativas setoriais. MM-Dissertation offered to Fundação Getúlio Vargas; not ed.

ELSTER, Jon. (1992). Local Justice. The allocation of scarce goods and necessary burdens. New York: Russel Sage.

ENGELSTAD, Fredrik. (1994). VV.AA. ENGESLTAD et.al. Id.ed. Layoffs and Local Justice. Oslo: Institutt for Samfunnsforskning.

FIGUEIREDO, Argelina Cheibud (1994). "Layoff procedures in a Country with Massive Unemployment: the Case of Brazil". VV.AA. ENGELSTAD ed. Layoffs and Local Justice. Oslo: Institutt for Samfunnsforskning; 134-159.

FREITAS Jr., Antônio Rodrigues de. (1999). Direito do Trabalho na era do Desemprego: instrumentos jurídicos em Políticas Públicas de fomento à Ocupação. São Paulo: LTr.ed.

________ (1994). "Legal norms, local norms and Bargaining Procedures in Layoffs: The Case of Brazil". VV.AA. ENGELSTAD ed. Layoffs and Local Justice. Oslo: Institutt for Samfunnsforskning; 16-173.

GIDDENS, Anthony. (1990). The Consequences of Modernity. Cambridge-UK: Polity Press.

ICHINO, Pietro. (1997). "Il lavoro interinale e gli altri varchi nel ‘muro’ divieto di interposizione". Giornale di Diritto del Lavoro e di Relazioni Industriali. Anno XIX, n. 75; 503-518.

LANDIM, Leilah. BERES, Neide. (1998). Pessoal Ocupado no Terceiro Setor: alguns dados e questões preliminares. Rio de Janeiro: draft version (quoted with permission)

LEITE, Jorge. (1997). "Flexibilidade Funcional". Questões Laborais. Ano IV, nrs. 9/10; 5-37.

LISO, Francesco. VARESI, Antonio.(1997). "Legge Treu: atti del Convegno". Diritto & Pratica del Lavoro, n. 50; III-XXIII.

MEREGE, Luiz Carlos. BARBOSA, Maria Nazaré Lins. (1998) Terceiro Setor: reflexões sobre o Marco Legal. São Paulo: Fundação Getúlio Vargas Editora.

RIFKIN, Jeremy. (1995). The End of Work. New York: Putnam’s Sons.

ROSANVALLON, Pierre. (1995). La Nouvelle Question Sociale: Repense l’État-Providence. Paris: Seuil.

ROJO TORRECILLA, Eduardo.(1997). "Pasado, presente y futuro del derecho del trabajo". BERGALLI and MERLOSSI edts.. The emergence of Law through Economy, Politics and Culture. Oñati: Oñati Papers – 1; 103-132.

SALAMON, Lester. ANHEIER, Helmut. (1996). Ther emerging nonprofit sector. Johns Hopkins Nonprofit Sector Series. Manchester and New York: Manchester University Press.

SANTOS, Boaventura de Sousa (1998). "A Reinvenção Solidária e Participativa do Estado". Seminário Internacional Sociedade e Reforma do Estado – São Paulo; march, 26^th-28^th. (mareonline.gov.br)

SUPIOT, Alain et al. (1999). SUPIOT (under direction of). Au-delà de l’emploi. Rapport pour la Commision européenne sur "Transformations du Travail et Devenir du Droit du Travail en Europe". Paris: Flammarion.

TIRABOSCHI, Michele (1996). "Lavaro atipico e rappresentanza degli interessi". VVAA. BIAGI, Marco, SUWA, Yasuo. Il Diritto dei Disoccupati – Studi in onore di Koichiro Yamaguchi. Milano: Giuffrè; 547-569.

TREU, Tiziano. (1993). "Italy". VVAA. BLANPAIN, Roger, ASSCHER-VONCK, I.P. orgs. Temporary Work and Labour Law of the European Community and Member States. Deventer: Kluwer Law and Taxation Publischers; 201-210.

_____________. (1997). "Lineamenti per una Riforma dello Stato Sociale". Revista Giuridica del Lavoro e della Previdenza Sociale. Anno. XLVIII, n. 1 – gennaio/marzo; pp. 3-16.

TRUBEK, David. DEZALAY, Yves. BUCHANAN, Ruth. DAVIS, John. (1993). Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas. Madison: Global Studies Research Program – Working Paper Series.

VAN DIJK, Meine Pieter. (1995). "The Internationalization of the Labour Market". VVAA. SIMAI, Mihály et al., SIMAI edictor. Global Unemployment. London-New Jersey-Tokyo: United Nations University – World Institute for Development Economics Research; vol. I; 219-243.