Zeitschrift Aufsätze

Rafael Lamera Giesta Cabral*

The 1934 Brazilian Constitution and the regulation experience of labor in Brazil (1930-1934)

1. Introduction

1In the handbooks of Brazilian constitutional law, it is not uncommon to find references to the 1934 Constitution as the first in its time to innovate by introducing the phenomenon of social constitutionalism. This model's essential characteristic is the so-called constitutionalization of social rights, exemplified in the regulation of issues such as welfare and social security, labor rights, education, and health. On the other hand, few investigations in the history of law assess how the political context of the time fostered this inclusion of social rights in the constitutional text and what were the conditions for their featuring in that Constitution.

2By ignoring this context, the handbooks end up perceiving a hybrid performative level in the 1934 Constitution. This level goes with the narrative that the social achievements of that time were the result of a social project by the provisional government of Getúlio Vargas, which was mainly responsible for managing the interests of an amorphous civil society. The focus on the evolutionary State that began in the post-1930 period ended up substantiating some myths that, surprisingly, have survived since then.1 Maintaining these myths imposes unnecessary risks because they do not allow us to understand the causes and effects that produced the inclusion of regulation in the political and constitutional agenda between 1930 and 1934. Also, they suppress the struggles for labor rights that marked the first republican phase.

3Furthermore, there is a more problematic perspective: crediting this Constitution with an effect it did not have. It may sound false to consider the 1934 Constitution as an instrument with enough normative power to give course to the innovations it enunciated for social rights. Therefore, building new interpretations on that context becomes fundamental: in a country where the main decisions are taken by a select group and then established by law/decree, what would be the function of a constitution, in the middle of the 1930s, for the general understanding of rights? This question is crucial because it sheds light on a profound problem that the work in the field of constitutional history has challenged: a history of this magnitude is not limited only to the legal text, nor to the political area carried out within the framework of the constituent discussions. The general understanding of constitutionalized rights is the outcome of long-standing institutional struggles and developments. With social rights, which had been observed since the 1926 constitutional reform and later inserted in all other Brazilian constitutional experiences, this constitutionalizing development is very representative.

4From this viewpoint, the emphasis that underlies this analysis is on labor regulation. The 1934 Constitution was the first in Brazilian history to incorporate workers' rights into its text. However, this statement needs some caution. Labor regulation was not established broadly, for all classes of workers. For example, rural workers were the object of a “special inclusion”,2 exemplifying the limits of the changes in course. The main labor innovations in the 1934 Constitution were not built within the Constituent Assembly since decrees of the Executive Branch had already incorporated many. These decrees established working hours, assistance and retirement funds, regulation of women's and children's work,3 expensive laws, work permits, and the implementation of a restrictive model of union.

5One cannot ignore that a historical moment allows numerous interpretations. What is proposed in this study moves in a broad but well-located sense: if the Constitution marks this process of assuring warranties, how did the pre-constitution context foster these innovations? This question has, in a way, allowed a research reconfiguration. The revolutionary movement of 1930 sought to dictate and guide State and society towards social change through discourse and the introduction of modern mechanisms to bureaucratize the regime. Viewed in this way, it became necessary to investigate how the legitimization of the 1930 Revolution created a set of experiences that projected a range of future expectations that could overcome the past.

6The first Republican experience in Brazil lasted 40 years (1889-1930). The replacement of this experience began with the Revolution of October 1930, when the defeated candidate in the national elections of the same year, Getúlio Dornelles Vargas, was led to the presidency of the Provisional Government, after the fall of President Washington Luís by the military.

7Getúlio Vargas was the main political leader in this process of reorganizing the national state. Vargas' centrality in the history of Brazil is still the subject of disputes. For those who defend his actions, who bequeathed to the country a modernizing reform in the bureaucratic functions of the State, with control over economic and social development, Vargas was a statesman. On the other hand, Vargas was responsible for the implementation of the Estado Novo dictatorship (1937-1945) and installed authoritarian actions in Brazil that affected the functioning of the institutions, culminating in the violation of fundamental rights. Despite these disputes, the period was responsible for reorganizing the very structure of civil society and the State, as a long-term model in the Brazilian constitutional experience.

8The first years of the 1930s set a tone for social change that mirrored both politics and economics, drawing complex conflicts of interest from the resignification of the position of various political and social actors who entered the arena of social dispute. Among them were lieutenants, oligarchs, urban workers, unionists, entrepreneurs, and industrialists.

9In the name of constitutional status quo, as the Constitution was the source of power that guaranteed the oligarchic pact during the First Republic, the struggle for the legal text and the dispute for control of the Constituent Assembly (1933-34) formed a space of significant experience for political and constitutional history. Still, it did not necessarily portray what is currently thought to be the function of a constitution.

10Understanding this context is fundamental for two reasons. First, due to the effect that the constitutions assumed in the West, especially after World War II, a period which invoked a centrality to the national political and legal systems (an effect that, at first, was absent in the 1930s in Brazil and can relativize the meaning this Constitution had in 1934). Second, because of the opportunity, when revisiting the political and constitutional history, to unveil how the struggles for rights were established relatively independently of their inclusion in legal texts. Thus, this research proposal bases on the need to verify how the institutional articulation of the provisional government sought to control the political process by drafting a constitutional plan regarding labor rights configuration.4 The timeframe goes from the Revolution of 1930 until the installation of the National Constituent Assembly in 1933. The research sought to ascertain the political context in which social rights and the workers' union organizations were inserted and highlight how this institutional design promoted changes in the constitutional idealism forged in the post-1930 period.

11The research will follow two paths that mark the post-Revolution period from 1930 to the 1934 Constitution to achieve this goal. First, i) a brief mapping of the social changes implemented since the Revolution. Second, ii) the government articulation concerning the elaboration of a constitutional draft including the labor law regulation on a different basis than the experiences before the 1930 movement: the corporate project incorporation in the relationship management between capital and labor.

2. The 1930 Revolution’s promises unveiled in a double process: from the legitimization to the institutionalization of social change

12At the onset of the October 1930 Revolution, the November 11th Decree n. 19.398 installed the provisional government. A revolutionary military junta gave Getúlio Dornelles Vargas its head office.

13The Brazilian political, economic, and social background at the beginning of the 1930s was highly fragmented, due partly to social changes in constant transformation. Regarding the political landscape, the government was the result of a coup d'état, as President Washington Luís was deposed from power before the inauguration of elected president Júlio Prestes, from São Paulo. In the economic field, the country felt the effects of the crisis of world liberalism. Also, internally, there was a transition from the agrarian-exporting market to industrialization. In the social field, new issues presented themselves, requesting solutions, among which were the conflict between capital and labor, which demanded regulation in their labor and union relations.

14The centralization of power promoted by the provisional government prolonged a tense discussion on new organizational models for the country. This tension was due to the practice of federalism. During the First Republic (1989-1930), it became the object of an unprecedented reorientation-conduction; in practice, a transformation that, at the same time, followed an authoritarian and conservative path.

15This particular situation of centralization of power also brought into play another vital benefit for revolutionaries. At the same time that the revolution instituted its discretionary powers, it also «assumed a commitment to reviewing the legislation in force with the reintegration of the nation into a legal regime, through the political process of a constituent«, as explained by Angela de Castro Gomes.5

16The institutional support provided to maintain the regime itself conditioned the establishment of the provisional government. As already pointed out, the historical moment demonstrated a political process in constant fragmentation, which materialized in the general incapacity of the dominant groups or even the elites to take control of the State with a coherent and robust political project for the nation. Thus, to maintain the government, it would be necessary to re-establish legitimacy, including sustaining the revolutionary purpose, possibly at risk, with the commitment of political openness to be consolidated in the reconstitution. At that time, the bases supporting the government were the Army,6 especially those linked to tenentismo (October 3rd Club)7 and the regional oligarchies' dissidents. They, during the period of the First Republic, were excluded from the central power. According to Weffort,

17None of the participating groups can offer the State the basis for its legitimacy. Not the middle classes, because they do not have autonomy from traditional interests in general. Not the interests of coffee, because their strength and political representativeness have been diminished by the revolution, by the second defeat in 1932 and by the economic depression that has lasted for almost a decade. Not the other agricultural sectors, because they are less developed and less linked to export activities that are still basic to the balance of the economy as a whole.8

18Faced with this imbroglio, the idea of a «power vacuum« began to be politically exploited by dissidents and opponents of Vargas, thus accelerating the idea of an immediate reconstitutionalization in the country.

19According to the thesis of Francisco Weffort9 and the analyses of Boris Fausto10, the alternative found by the revolutionaries was the establishment of a compromise, which would be able to bring about the numerous confrontations, co-optations, and negotiations necessary to impose institutional changes. On the other hand, the conception of a compromising State, in some respects, was precariously forged, precisely because it did not allow for greater political stability in the post-constitution outcome of 1934.

20Another relevant possibility would be establishing a specific compromise state (and not a compromising State like the one enshrined in Weffort's thesis) since it is better suited for the period under the effect of troubled hybridism. Thus, compromise solutions through consultation were necessary because

21The Revolution had created a break, but due to its autocratic character (the suspension of legal norms brought about by the dawn of the revolutionary government) found resistance (such as the uprising in São Paulo) or difficulty in creating political stabilization mediated by the legitimate legal instruments.11

22The historic moment was a hybrid system between consultation and combat. The military sector was part of the revolutionary forces from the provisional government's beginning to its closure, with the enactment of the 1934 Constitution. Nevertheless, there was no free space for the government to impose state forms and structures.12

23The realization could only satisfactorily happen on a condition of constant trading. Albeit, an attempt to find harmony between the main political forces in action and their interests represented this political period's instability, considering the heterogeneous forces participating in the movement. At times, the effects of harmonization were considered unsatisfactory by most government members (for example, convening the National Constituent Assembly in 1932). Getúlio Vargas often acted directly to alleviate internal crises, sometimes with requests for «voluntary resignations« from his ministers, sometimes with internal pressures from members of the government, contrary to the course of negotiation established.13

24The measure of the revolutionary government's commitment to representative democracy is another point to consider, especially because workers – and the majority of the people – were on the fringes of this commitment. The compromising solutions, indirectly, also promoted a political openness and, consequently, numerous problems arose and awakened the stumbling steps towards the modernization that was beginning in the country. Vera Cepêda states that

25This imbroglio was accompanied by the aggravating tensions inherent to the process of economic and political modernization and by the emergence of a framework of upheaval and conflict never witnessed in national history. It was not only the oligarchies that were moving to be included in the power pact or its reversal to its previous control; it was a variation of actors and fractions that emerged in the bulge of the ongoing modernization, all disputing space, and representation. New interests linked to the capital - external market sector (agrarian-exporter) versus internal market sector (industrial and diversified); disputes among the various segments of commercial and industrial capital; agrarian-exporter latifundium versus minifundium focused on supplying the expanding domestic market. On the labor side, the same scenario was reproduced as workers were incorporated into unequal processes of hiring and remuneration, besides being linked to one or another of the productive sectors mentioned above. Still important in the period are the urban middle-class sectors, the civil service, the liberal professions, and regional inequalities.14

26With the aggravation of the abovementioned tensions, the first years of the provisional government were destined to neutralize these boiling social forces. To that end, the expedients used were instrumental in suspending the rule of law and, in some cases, in coercion itself, mainly by undermining the right of free expression of thought with censorship of newspapers. On the other hand, an extensive regulation of labor rights was also implemented as an instrument of intervention in the relationship between capital x labor. In this respect, the State would achieve a large part of its initial objectives.

27At the same time, the State's actions would also become responsible for creating a narrative heading towards the political praxis of legitimacy for the Revolution. According to Getúlio Vargas,

28The Revolution was an uncrushable and elaborate march towards nationhood, the impetuous torrent of the will of the people breaking down all resistance, dragging all obstacles, looking for a new path in the crossroads of past mistakes.15

29The proposed narrative was not only linked to the promotion of measures that would rebuild the nation and also sought to create a historical moment that posed the memory of the past as a burden to be overcome, by representing political practices that marked political and economic backwardness. This narrative also projected a new horizon of expectations to be implemented by the Revolution, which was legitimately responsible for the changes underway.

30In this sense, one can highlight the State's actions concerning conflicts between capital and labor and the provisional government. As the latter was at the center of the crisis, the drafting of an intervention pact aimed at not triggering the conflict eventually became an essential topic on the political agenda of the period, thus avoiding the general strikes that marked the 1910s and 1920s. The regulation of urban labor is closely related to the experiences of workers' struggles. These struggles set the tone for the expansion of worker protection with general strikes, organization of feminists fighting for better living and working conditions for women, pressure for the creation of pension and retirement funds for some sectors and organization in trade union associations recognized or not. The regulation between capital and labor carried out by the government would be understood as one of the main milestones in the modernization process established by the country's new constitutional and institutional order, a definite and specific promise of revolutionaries with social justice. Thus, with the inclusion of labor rights, the government demonstrated a departure from previous government inertia.

31Among the legal instruments that mirrored the conflict between the productive sectors, it is worth mentioning the performance of the National Labor Council since 1923, that was totally transformed, especially after the creation, in 1931, of the Ministry of Labor, Industry, and Commerce in the composition of conflicts between employees and employers. In the Superior Labor Court's archive, it was possible to rescue part of the labor administrative processes from 1927 to 1945. When analyzing these sources, it became feasible to elucidate the strategies used by workers, such as the letters sent to the Minister of Labor denouncing abuses committed by employers, and the uses they made of politics, law, and the Constitution to expand the recognition of labor rights.

32The regulation had been established to attenuate differences between urban sectors and pacify moods between employers and employees who were in sharp conflict since the 1910s, especially after the evolution in the industrial economic structure that would mark the 1930s. The struggle for rights regulating working conditions – primarily urban – marked the First Republic's last years. The social question became the object of political dispute in the 1930s presidential elections, in which the worker, a marginal actor, became central to this new configuration. The regulation would be a way out so that the industry segment could control the production process. At the same time, regulation, by creating parameters to be complied with by employers, opened space for more direct intervention by unions (controlled by the State since the new union law in 1931) in the whole process of negotiation between capital and labor.16 And, with the development of unions,

33[...] also exemplifies the civil rights movement, from the representation of individuals to the representation of communities. This collective representation of the economic interests of union members arises from the inability of workers to safeguard their interests individually. [...] These practical outcomes of trade unions have a far-reaching effect on the position of workers as citizens.17

34This way, trade unions were in a special position for allowing workers to organize and give these social and political actors in training a voice. Still, regulation, in a way, also represented the strategy of maintaining the conservative agrarian structure, since rural workers did not experience regulation as such remaining on the sidelines of the regulation project.18

35The regulation also represented a systematic way of legitimizing the State, since the used instruments could count as a means to resolve potential social conflicts between the workers and the entrepreneurs. Meanwhile, it legitimized the provisional government as a regime that, unlike past practices, included this social issue as one of its political guidelines.

36The government’s actions led to the welcoming of a “program of social legislation, in which the protective State while absorbing society’s intents and incorporating social questions, defines the strategy of compromise in the relations between labor and capital”.19

37The agreement around the strategy of a compromise in the relations between these sectors expressed a Brazilian singularity regarding the social issue. The latter, which at that time was constituted by the appearance of new actors, terrible living conditions and the deterioration of urban sociability, shaped a social actor (mostly represented by urban workers), whom, although could not be idealized as a social class,20 already forged a class consciousness ready to manifest.

38However, workers' demonstrations were controlled/suffocated throughout the post-revolution period. With the Ministry of Labor's creation in 1931, the model of unionization implemented in the country imposed limitations on union autonomy, and, in this context, unionists' actions were controlled and supervised by the government.

39Trade unions were only formed as workers' representation after approval and prior registration with the Ministry of Labour, which prescribed various requirements for workers' organization into trade union associations. Thus, without autonomy, the unions were dependent on state actions, and could even lose their registration if they committed acts considered illegal (acts that were analyzed in the administrative sphere and not in the judicial one).

40In the same sense, the workers also underwent a restructuring in their careers, an opportunity in which citizenship was extended only to those professions classified by the Ministry, through the signature of the Work and Social Security Registry – CTPS (Carteira de Trabalho e Previdência Social). The CTPS is an instrument created in 1932 by the Vargas government and still in force until the present day.

41The government’s initiatives to regulate labor in Brazil, on the other hand, were also due to international pressures. During the transition from the 19th to the 20th century, the social issue was beginning to become a permanent agenda for government debates, since labor was already the subject of discussion in the most industrialized societies (Europe). Among the main talks and specific acts, we can mention Pope Leo XIII’s Encyclical Letter Rerum Novarum, which historically contextualized the terrible working conditions of the workers, at a time when the Church was assuming a conduct aimed at softening the severities of capitalism; or the creation of the International Labor Organization - ILO, established by the Peace Conference (1919), right after the First World War, which directly influenced the country for the creation of the National Labor Council, in 1923.

42In Brazil, findings from Angela de Castro Gomes21 and Werneck Vianna22, among others, highlight that, in pre-1930 moments, the workers became marginal actors, ceasing to be the subject of the problem. In the post-1930 period, workers became not necessarily marginalized, but objects of a kind of conservative regulation, with the conquest of minimum rights and under strong State presence.

43In this unpredictability, resistance arose, especially with the time spent without the government promoting the return to the constitutional State.23

44The crisis faced by the interim government could be

45[...] understood as the transition to modernity and triggered by changes in the economy, the emergence of new actors, and social dilemmas. It is the scenario that mirrors the breakdown of the arc of alliances and the hierarchy of basic social forces for the political architecture of the previous period. [...] The revolution of 1930 and the provisional government would reveal, in turn, the positioning of the new social forces and the pattern of planning of a new pact of alliances. We can observe this characteristic in the strategies and governmental engineering adopted by Getúlio, anchored in dialogue, co-optation, and negotiation among the various sectors of the economy and society, as well as in the transfer of conflicts to the mediating and metamorphic arena of the State.24

46The gap resulting from the distance between the political order and the legal order of the early 1930s aggravated socio-political conflicts. In this sense, since the State was at the center of the crisis, along with other interests, it was up to it to promote a reliable platform for conciliation and institutional arrangements capable of sustaining the provisional regime.

47In that timeline, the social and political forces searching for the immediate re-constitutionalization of the State became more latent. If, on the one hand, re-constitutionalization could be analyzed as an imminent risk to the Revolution's interests, it could provide oligarchies removed from power in 1930 with a legitimate return to power through the popular vote. Viewed in this way, the most valid argument was that of the tenentista wing, which supported and collaborated directly in sustaining the provisional regime and was opposed to the immediate re-constitutionalization.25 On the other hand, the delay in the re-constitutionalization process could also be a serious problem for two other specific reasons. First, it diminished the provisional government's legitimacy, which was committed to the constitutional normality of the country. Second, it allowed enough time for a more active re-articulation of the oligarchy for the constituent process.

48Conversely, all the discourses radicalized regarding re-constitutionalization. The tenentes' version and the effects produced by the Constitutionalist Revolution of 1932 referenced the Constitution as an instrument and not necessarily as an indispensable element for the structure of the State. The discursive and appealing use of the Constitution was necessary to foster mechanisms of control over the political process, which were opened by the Revolution. Controlling the political process became essential for both the government and the opposition since it would guarantee to be able to establish the limits and advancement that the (inevitable) social changes could set.

49The struggle for control of the themes in the changes in the political, economic, and social order (that the Constitution could or could not contemplate) would be forged in a specialized arena: the National Constituent Assembly, whose election of constituents took place in May 1933. Faced with this movement, the provisional government created a special subcommittee whose function was to encapsulate the agenda of the time to promote a constitutional draft to be presented by the government to the constituents. The Minister of Finance, Oswaldo Aranha, made it clear that the primary function of the commission would be “to reveal the tendencies of the Government concerning the pact, because the Government that came out of the Revolution of 1930 has responsibilities that originated from that Revolution and those concern the program duly promised by the men who are the governists of today”.26

50In the regulation of labor rights, it is possible to highlight that the main innovations were in the Itamarati subcommittee work,27 but which reflected a link to the decrees issued by Vargas since the beginning of the Revolution. The constituent debates and the 1934 Constitution itself did not deviate from the principles established in the draft. This fact does not mean that it was not the subject of controversy in the Constituent Assembly. Although the labor issue was a painful issue at the time, various sectors of the political and social communities gathered their desired regulation.

51The following section will address how the government's constitutional draft included the proposal to regulate labor rights in the future Constitution and what parameters established this regulation.

3. The preliminary constitutional design by the provisional government, the theoretical influence, and the Labour Law regulation proposal

52After the electoral reform of 1932, the provisional government summoned general elections to form the National Constituent Assembly (ANC) in 1933. Concurrent to the summoning act, Vargas determined the creation of a commission responsible for preparing a constitutional draft to be presented to the elected constituents.

53The activities of this commission became known as the Constitutional Draft of the Itamarati Subcommittee, as they were produced in successive meetings at the official residente (Itamarati Palace) of the Minister of Foreign Affairs of Brazil. Vargas objective was to include and maintain the main actions of the provisional government within the new constitutional arrangement. Thus, innovations would be limited to the government’s achievements, expanding Varga’s leadership in the constituent process.

54This constitutional draft, produced by mens of notorious legal knowledge, in fact, instituted the main characteristics of the social rights of the future Constitution of 1934, especially in the area of labor regulation. In 51 sessions, the Itamarati Subcommittee ended up constitutionalizing the ongoing labor regulations, focusing on the world of urban work to the detriment of rural workers.

55In charge of the economic and social order in the studies for the draft, José Américo, João Mangabeira, and Oliveira Vianna were responsible for the most significant innovations in the field of constitutional regulation of social rights. These issues, hitherto unpublished in Brazilian constitutional language, are precursors of the social constitutionalism movement when they were incorporated into the 1934 Constitution, as Antônio Carlos Wolkmer28 points out.

56The main issue in this regulation concerns labor rights. In this institutional design, since the creation of the Ministry of Labor, Industry, and Commerce in 1931, the regulation of capital and labor relations did not occur without the touch of «modernizing centralization» so characteristic of the time. In this particularly regulation, it was possible to identify the theoretical matrix that points to a possible corporate project within the government’s actions. The leading exponent was Oliveira Vianna.

57The corporate State matrix was based on its organic conception of society, in which social bodies were privileged. Because it was organic, this model of State moved away from liberalism. The organic perspective

58[...] it represented a set of formulations that emerged in the first decades of the 20th century that rejected partisan-electoral representativeness and the appreciation of individual interests of liberalism as the basis of national political organization. More than merely corporate (close to the European connotation) or authoritarianism, the organic thought postulated a particular social interpretation (production classes), social groups (municipal bases), and, consequently, another principle for representation and another function for State action.29

59There was no support to build the best political decision from the dispute of several projects that were anchored in the perception of individuals about their interests. On the contrary, in the corporate State, the holders of interest would be the social groups and not individual citizens.

60The observation made by Bolívar Lamounier30 of the First Republic's critical intellectuals with the functionalism of the State would also be valid for Oliveira Vianna. The author dedicated a significant part of his life to the public service and intellectual production and, from the 1920s to the 1950s, integrated himself into the great nucleus of thinkers of Brazilian social reality.31 Author of several analyses, such as the categories of organic idealism and constitutional idealism, Oliveira Vianna would eventually recover and, at the same time, project a relevant debate for the knowledge of the relations between State, society, and nation. To think of organic idealism and constitutional idealism already assumed the recognition of the centrality given to the State throughout Brazilian constitutional history, mainly in its social formation. These conceptions of idealism strengthened Vianna’s interpretations of the national reality.

61This dichotomy generated by these idealisms referred their analysis to the previous understanding that organic idealism would relate to “the very organic evolution of society and would [be] nothing else but anticipated visions of future evolution. [...] organic idealism is that which only forms reality, which is based solely on experience, which is guided only by the observation of the people and the environment”.32 Nevertheless, the constitutional or utopian idealism would be the result of a false organic perception of society, consisting, for Vianna,

62[...] any and every doctrinal system, any and every conjunction of political aspirations which is in intimate disagreement with the reactive and organic conditions of the society it intends to govern and direct. What really characterizes and denounces the presence of utopian idealism in a constitutional system is the disparity between the greatness and the impressive concert of its structure and the insignificance of its effective income - and this when its complete sterility is not verified.33

63From this observation, Oliveira Vianna intensified his criticism of the Constitutional Charter of 1891 with the formulation of an alternative political model that could promote the approximation between the legal country and the real country.34 That is, a model whose expression would be the national reality.35

64The foundation of the corporative State would be the “[...] organized social groups, the corporations, as to become the expression of their economic interests and the cultural forces that guide them”.36 In that case, the political system, particularly the parliamentary system, would be made up of professional corporations. The corporate State refuses the individual as a bearer of interest because of social groups with an identity - hence the preponderance of organicism.

65With this new political dimension, which would necessarily bring changes to the political entire system, it was noticeable that the nationalist theses present in the period were enshrined. In the strong conception of nationalism, the State should be the instrument that directed itself to the interests of the national ideal. There was no room for segmented interest groups, many of them in total disarticulation with the common good (a category that already creates a certain discomfort, given the difficulty of defining the sense of the common good, and also because it identifies with liberal logic), to exercise control over the country, to the detriment of the others.

66According to the aforementioned conservative authors,37 these disarticulations would be immediate correlations of the parochial practices of the oligarchic elites that would have distorted the ideals of the Republic, radically separating the reality from the political institutions in force.

67The corporate State's proposition came about through a direct opposition to the liberal State (a model in which the source of power was not the State but individuals).38 According to Vieira39, the logic of this opposition would present itself as follows: “the liberal State has only one source of public power, itself, while the corporate State opens itself in the plurality of sources of such power, represented by corporations”. Despite this observation, it is not credible to affirm that, in the liberal State, the source of public power is found in the State itself. Determining the State as the source of its power would represent a totalitarian State, for example, and not a liberal State, as Vieira alleged. Oliveira Vianna’s reaction to the corporate state was a response to the liberal democracy practiced in Brazil in the First Republic.

68In this theoretical context, much of the social rights were formulated in the tension between capital x labor. Although regulation foresaw this corporate experience, in practice, this action’s weaknesses did not allow pacification between the two productive sectors to take place in ways other than the conception of modernization from above.

69The main proposals for social regulation were aimed at establishing minimum standards to be observed by the constituent body concerning labor legislation. The innovations would allow the federal State, by law, to define working conditions in the city and the countryside, intervening in the relations between capital and labor, in an attempt to balance the always conflicting labor relations.

70Part of these discussions can be revisited from the main historical source used in this section, the debates between members of the Itamarati Subcommittee, published in an edition organized by José Affonso Mendonça de Azevedo.40

71There was concern among the members of the Itamarati subcommittee to define beforehand the norms that should guide the future Assembly at the exact moment of establishing state intervention in the relationship between capital and labor. This concern was evident in the writings of Castro Nunes, who offered substitute amendments to the main articles presented by the subcommittee, to delimit the bases of this regulation, contemplating a second intervening objective: the social protection of the worker and the interests of the country (linked to capital).

72In this regard, Castro Nunes intended to

73[...] stress that its objective in labor legislation is for the legislator to consider, on the one hand, the protection due to the worker, and on the other, the economic interests of the country. This is not Bolshevik legislation intended to favor only the proletariat, but [it is] that of a country with high economic interests to be safeguarded.41

74While considering the ideological proposals that circulated and manifested in the subcommittee members' political and social thinking, João Mangabeira also demonstrated his direct concern with the absence of objectivity in the definition of guiding criteria that should mirror the social issue in Brazil.

75Mangabeira's first manifestation in this sense ratified his initial concern of establishing a norm that could have immediate application in the social body, with the support of the Constitution's validity. This concern was intertwined with the possibility of relegating to the law the establishment of intervention measures in the relationship between labor and capital, to prevent the worker from being helpless if the Assembly did not promptly vote on the law.

76Mangabeira announced that

77So that these [labor protection measures] will only be established after the ordinary law has been voted by the Assembly, which may happen 20 years later or even not, leaving the worker destitute. In the bill, however, there are a series of articles and guarantees that will come into force immediately after the Constitution is enacted. To replace a constitutional guarantee, which comes into force immediately, with the hypothesis of future legislation, which Congress may or may not vote on, is the same as leaving the worker without that guarantee. The change seems substantial to him because it becomes a constitutional guarantee, which can only be altered by a constitutional amendment, an ordinary law that depends on the National Assembly, a law that may take time to come or not, a law that depends on the majority of the Assembly.42

78It remained clear that Mangabeira would prefer the solution of giving constitutional character to the principles of labor regulation so that they could have an immediate application with the enactment of the Constitution. On the other hand, the subcommittee opted only to recognize that the caput of the article to be enshrined would record that the fundamental principles of labor legislation are those already established, in addition to other measures that were deemed useful.

79The Castro Nunes amendment intended to establish a minimum wage, without distinction of sex and age, to be set following the conditions of each region and the typical needs of the worker’s family, with working hours set at eight daily hours,43 to be established according to the nature of the work.

80The defining of the working day would lead to a deadlock among the committee members regarding its applicability to all urban and rural workers. Castro Nunes did not understand the limitation of the working day to rural workers since there could be unforeseen events that would determine the work in more than eight hours. João Mangabeira, on the other hand, explained that the purpose of the regulation was to avoid going back to the recent past, in which slaves worked up to 24 hours: “every time one demands more than eight hours of work from a man, one demands more than what the individual can physiologically give and tires them”.44

81Attempting to minimize the deadlock, the subcommittee’s president, in solidarity with Oswaldo Aranha and recognizing that work could not be excessive for the worker, intended to establish a measure of prudence, granting an elasticity to these principles: “Our social legislation must progress, based on international achievements, but in such a way that the organization of work is not in a sense that makes it practically inferior to other competing countries”.45

82Mello Franco aimed to allow Brazil to develop its technical and industrial sectors, taking into account the needs of the trade issue, just as did other countries that had ratified international agreements such as Versailles and the International Labour Office. Counter-arguing this orientation, Oswaldo Aranha claimed that Brazilians should not follow these same guidelines, which were “difficulties created by a commercial situation, fructed by capitalist errors, profoundly harmful to the country itself and humanity”.46

83The solution found was to limit the working day to eight hours and, in the industries deemed as unhealthy, to six hours, which may, in extraordinary cases, exceed up to three hours a day in a period not exceeding three consecutive days. In this sense, in these debates, it was possible to observe that the regulation of labor relations always presented a limitation when the objective was to extend labor rights to rural workers. This tendency represented the underdevelopment of social rights in force, and the idea that labor regulation in the countryside would be one more regulation to turn ineffective was suggested. The interests of rural workers were not adequately represented in the subcommittee, so much so that the initial concern was to establish public standards that would balance labor rights and economic development.

84Therefore, many opinions, such as Solano da Cunha’s, when discussing the proposal to limit the working day for the rural worker, “consider[ed] the article in the Constitution dead for the interior of the country. Only those who do not know the countryside can believe that it has been fulfilled”.47

85The subcommittee’s tendency to present a draft bill that would address the social issue – and, in this case, specific to an organization of social security relations – was proved by the discussion of the article that sought to ensure the worker, as well as the pregnant worker, the necessary assistance in case of illness. Here, the law would be able to institute compulsory insurance against sickness, old age, unemployment and risks, and accidents at work. The approval of this article was unanimous, without debate.

86In the social organization of labor, one of the main expedients used by the subcommittee would be to regulate the right of each individual and all professions to organize themselves for the defense of working conditions and economic life.

87The permission of the constitutions of both employers’ and workers’ organizations would continue to be recognized under the law.48 It is essential to point out that these transformations were already the object of intense administrative regulation by specific organs of the Ministry of Labor, Commerce, and Industry, created by the provisional government of Vargas.

88The restrictions imposed by administrative regulations on the functioning and operation of trade union organizations limited workers’ actions thanks to pre-established rules and were always closely monitored by commissions from the Ministry of Labour. An example of this is the establishment of solutions in labor disputes between employees and employers who submitted concrete cases to a collegiate composed of employer and employee representatives (class judges). Hence the initial recognition that the Labor Justice49 was an administrative justice, as it was linked to the direct bodies of the Executive Branch.50

89The analysis of labor complaints within the National Labor Council is very representative of how workers responded to social legislation promoted by the government, as well as using this administrative/legal instrument for the recognition and expansion of activities linked to the exercise of citizenship.

90Social order should be supervised by the Public Prosecutor’s Office of the Union and of the states so that they may ensure strict application of the protective rules of urban or rural workers, as well as the provision of free assistance, without prejudice to the attributions belonging to the specialized organs created by the law for this purpose.

91In general terms, the proposal presented by the Itamarati subcommittee to regulate the economic order and especially the social order would be an attempt to contemplate, to a greater or lesser extent, issues related to the political-constitutional structure. This structure was marked by conservative, authoritarian and reformist liberal legality, but also “an innovative and no less revolutionary declaration of social rights, which protected the masses of workers in the large urban and industrial centers and the workers of the agrarian interior”,51 according to Wolkmer.52

92At that time, countless models of constitution were in dispute, and these limitations, for the time being, could even have created a constraint to the actions of the subcommittee’s effective members. This fact does not mean that the subcommittee was more concerned with form than content, on the contrary. After all, it was noticeable that the real concern of the members was to elaborate a draft constitution in synthetic form, without allowing thematic restraining, that is, to provide ample space for the exercise of Vargas’ governability in parliament.

93The arrival of the constitutional draft to the constituent deputies in 1933 was not peaceful. Despite the resistance of the congressmen, the preliminary project ended up being used as a starting point for the constituent discussions. The success of this adhesion to the draft is directly related to the ministers of the provisional government of Getúlio Vargas, who acted directly in the negotiations between the parliamentarians.

94The regulation of urban work ended up being welcomed with occasional changes, as they already reflected the current government policy. Rural workers, on the other hand, would have their rights regulated by a future law, to be produced by Congress after the promulgation of the 1934 Constitution. This law was only drafted in 1963, after two Constitutions (1937 and 1946), with the Statute Rural Worker; the rights of urban and rural workers were only equated with the Constitution of 1988.53

4. Concluding remarks

95In general terms, it is possible to emphasize that, from the Revolution of 1930 until the Constitution of 1934, the provisional government established numerous strategies that were subdivided into broad and specific layers for the legitimation of the regime established. The regulation of labor rights may reflect one of these layers.

96The social question, infiltrated in the national political agenda since the end of the 1920s, innovatively appears for the conflictive agreement between (urban) labor and (industrial) capital at the beginning of the Vargas government. These issues are of extreme relevance to the analysis of that time. However, it is always possible to envisage a gamble. The provisional government’s work internalized, in national political culture, a new relationship between State and society, as to fix it in a constitutional language. It did so by promoting the corporatization of interests, the nationalization of social relations, the building of a bureaucratic-administrative apparatus of intervention, regulation, and control that organizes on new bases the “general interest” and “social domination”.54

97By giving institutional form to a wide range of changes in the political, economic and social order, it has made possible to redefine and update the actions of the State in the name of nationhood, of a new commitment to progress, of structural development and diversification in the modus operandi of understanding reality. These issues added exponential value to the conduct of politics, the economy, and the social question that would be organized on transparent but constitutionally uncertain bases after 1937.55

98By invoking all the forces of the nation, linked to the principle of solidarity and national unity, the government’s actions promoted cooperation between the interests of urban workers and the urban employer sectors. The reason can be listed by the intense movement and organization of the urban proletariat, which, in boiling heat, each day more combative to the violations of its newly inaugurated labor rights, could repeat the strikes that shook the structures of the country in the 1910s. Thus, as much as some authors may explain government actions as the model of ‘Revolution from above,’ the very trajectories of urban labor sectors show that labor warranties reflect a maturing of interests charged by political struggles for recognition and expansion of their warranties.

99Thus, one cannot ignore the contribution of Wanderley Guilherme dos Santos56, when he characterizes the period, specifically concerning social policy from the Vargas administration, as the unfolding of “regulated citizenship”. In the name of the harmonious relationship that should be constituted between capital and labor, the regulation of the rights of urban workers was organized within the State, which presented itself as the leading regulating agent and arbitrator of conflicts. The National Labor Council, the predecessor of the Labor Justice, through its boards of conciliation and trial, forged in the model of class judges, is the primary example that marked that time. This model lasted throughout the Vargas government, which would extend until 1945. Classist judges perpetuated themselves in time, even going through to the 1988 Constitution, closing their actions in 1999.

100Vargas’ social policy, as Carvalho57 explains, “appears as a privilege and not a right. If it was conceived as a right, it should benefit everyone in the same way”. The reference here is to the non-extension of rights to rural workers. The Revolution of 1930 did not reach the gates of the large estates. Rural workers were excluded and, at the time, they formed the majority of Brazilian workers.

101These changes generally indicate two significant movements. The first refers to the unionizing maturity of urban workers and the political pressures that were established until the recognition and expansion of labor rights. The second refers to the political use of the provisional government to control the political process of recognition and expansion of these warranties through the constitutional draft of the Itamarati subcommittee. The latter, by incorporating social rights already recognized and established in the laws in force into the Constitution, encapsulates the tone of change, in a way that is not necessarily democratic, but that imposed advances and limits on Brazilian workers’ citizenship in that period.

Aufsatz vom 29. April 2021
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