Legal policy: models of legal services in Brazil and the U.S.A.

• Author: Junqueria, Eliane
• Position: Abstract

Abstract

One should not compare oranges and apples nor the Instituto Apoio Judridico Popular (IAJUP), the most important Brazilian "alternative" legal service,(2) and the Center for Public Representation (CPR), a well-known legal organization in the United States. Despite some common characteristics--both are nonprofit organizations, both focus on lower classes' legal demands and both aim to change their social and political environments--IAJUP and CPR represent distinct answers to specific problems of Brazilian and American societies. Both respond to different demands and intellectual debates, to specific traditions of justice, citizenship and ethics, and to their own political context. Nevertheless, although their characteristics make the comparison of the Instituto Apoio Juridico Popular and the Center for Public Representation difficult, doing so can provide many useful insights for a future analysis of legal services concerned with social demands.

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The Construction of Ideal Types

Although ideal-types are theoretical constructions not found in the real world, this analysis aims at testing a model based on two legal services' ideal-types that are related, for this analytical purpose, to the modern and postmodern paradigms.

The distinction between modernity and postmodernity is related to the collapse of old political ideologies that occurred under late capitalism. While the paradigms of modernity, which characterizes the first period of capitalism, focuses on a radical transformation of social reality, in the paradigm of post modernity, which begins in the second period of capitalism, this ambitious project is substituted by the emergence of two more >realistic' promises: "the promise of a fairer distribution of material resources and the promise of a greater democratization of the political system"(Santos, 1993: 87).

Taking into account differences between modernity and postmodernity, the construction of legal services' ideal-types is based on four variables: the organizing matrix that justifies their project of social transformation, the social demands supported by these legal services, the theoretical affiliation of their discourses, and their political orientation.

The organizing matrix of social transformations

When contemporary social scientists point out the importance of "social movements" as an "important stimulus to sociological reflection today" (Giddens, 1987: 48), they reinforce social sciences' ethnocentric bias. (3) Rather than referring to any social movement, social sciences in core countries focus specifically on the so-called "new social movements," that is, feminist, pacifist, and environmental movements. Nevertheless, despite the globalization process, which crosses national boundaries, these new social movements are predominantly an American and European phenomenon, that is, a phenomenon of societies in transition to postmodernity.

New Brazilian social movements came about in the 1980s, after two decades of military repression that demolished strong social movements of the early sixties (especially those in the Northeast, known as Ligas Camponesas). Although chronologically recent (new), these movements, strictly committed to socialism, do not share core countries' perspectives (i.e., the criticism of contraculture and left discourse). Rather than focusing on women, peace and/or environmental issues, they focus on rural and urban property redistribution, problems whose solutions were interrupted during the authoritarian period.

Although different variables (such as political strategy and organizational model) distinguish "old" and "new" social movements, (4) they differ primarily in their organizing matrix. "New" and "old" social movements reflect different moments of contemporary social organization. On the one hand, class, which is a structural analytical category that defines the social identity, represents (like in Latin America (5)) the organizing matrix of social transformations during periods of liberal and organized capitalism. On the other hand, the transition to postmodernity pointed out that capitalism also produces "racial and sexual differences and that these can also be nodal points for social struggle" (Santos, 1993: 97).

More specifically, Boaventura de Sousa Santos observes that "the relative weakening of class practices and of class politics has been compensated for by the emergence of new agonistic spaces that propose new social postmaterialist and political agendas (peace, ecology, sexual, and racial equality) to be acted out by new insurgent groups and social movements" (1993: 97). By consequence, rather than correct or incorrect, the idea of "classes struggle" is insufficient to describe these contemporary social movements (Laclau, 1986: 42). Thus, while feminist, pacifist, and environmental movements are organized around such issues as race or gender (i.e., they are "coded in categories taken from the movement's issues"), "old" social movements "rely for their self-identification either on the established political codes (left/right, liberal/conservative, etc.) [or] on the party's corresponding socioeconomic codes (such as working class/middle class, poor/wealthy, rural/urban populations)" (Offe, 1985: 831). In other words, in the postmodern paradigm, identity is based on noneconomic factors that explain new forms of social conflict.

In the name of diversity and plurality, the main concern of postmodern narratives is to "give a voice to the >silenced' minorities, to the voiceless," as part of the process of "deconstruct[ing] popular culture texts which reproduce stereotypes about the powerless." By consequence, this movement is strictly connected to the transformation of the sites of struggle, which migrated from the macro level to the micro level of personal troubles, of specific problems related to small groups (Denzin, 1992:153).

As Barry Smart summarizes, the postmodern approach goes "beyond the traditional socialist project by recognizing that all social struggles are partial struggles and that their objectives are specific emancipations rather than the >global emancipation of humanity.' The universal subject was replaced by a proliferation of subjects, each one engaged in his specific struggle, although all of them articulated in complex ways" (Smart, 1993: 29).

Social Demands

Different social demands distinguish modern and postmodern societies. Centered on a specific social group, social demands in modern societies are related to the production process or, according to Alain Touraine's terminology, to a society of production where "[t]he worker is defined, first and foremost, by his place in the division of labor and the social relations of production" (Touraine, 1992: 129). By consequence, labor rights and the redistribution of means of production are considered the main steps to any social transformation.

In contrast to modern societies, three types of social demands characterize postmodern societies (i.e., societies of consumption). First, demands are either "strongly universalistic" or "highly particularistic" (Offe, 1985: 835). None of them focus on labor rights or means of production, but rather on consumer demands. Besides demands related to the autonomy and identity of specific groups (the elderly, the children, the environment, gender, minority status, etc.), which are "centered on the individual himself, on his desire to affirm himself, to please or to be attractive to others, to develop his experience of time and space, to ensure his health and the education of his children" (Touraine, 1992: 129), postmodern societies defend universal values, such as peace and environment.

Second, postmodern demands are strictly connected to the crisis of the welfare state. Unlike modern societies, which do not have a welfare system in charge of basic needs (such as housing, health, and education),(6) postmodern societies' model is based on greater participation of the civil society in roles traditionally performed by the state.

Third, unlike modern society's criticism about the political system, which is regarded as the locus of bourgeoisie domination, societies in the transition to postmodernity challenge classical dichotomies (such as state/society) and make a claim for a wider participation in the political system (the so-called welfare society).

Theoretical Affiliation

In terms of discourse, the distinction between modern and postmodern legal services is based on their relationship to "grand narratives" and epistemological foundations belonging to the Enlightenment project of the eighteenth century, especially liberalism and socialism.

On the one hand, the modern paradigm is centered on a "grand narrative" that theorizes societies as totalities. One of the best examples is Marxism, a metanarrative that advocates a structural social change in its attempt to formulate a totalizing explanation of social and historical development based on economic factors. Accordingly, socialism is seen as the emancipatory politics able to redeem humanity from capitalism.

On the other hand, the disillusionment with the prospects for radical politics led the postmodern paradigm to reject global and universalist discourses, which are seen as mechanisms that reproduce hierarchy and discrimination. According to the postmodern paradigm, Marxism emphasizes social classes and bipolar categories, and, by consequence, does not recognize heterogeneity, difference, and the daily discourse of common people. Seidman, for example, states that "Marxism had to be debunked as a local project tied to the particular interests of labor, a project that was not compatible with the struggles of women, gays, people of color, students, or the differently disabled" (1988: 50).

Instead of "abstract proposals for reform" (Seidman, 1988: 74), the postmodern model defends micro and local revolutions, which emerge from daily practices and "recuperate, recycle, and reinvent...