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Looking back over a half century, the CLT stands out as among the most important policy initiatives identified with Vargas and his regime. As sociologist José Albertino Rodrigues noted in 1968, the CLT would come to occupy a unique status as Brazil's "most widely divulged legal document," far "better known than the federal constitution" promulgated in 1946.[3] And the CLT's mandated working papers (carteira do trabalho), observed Brazilian scholar Wanderley Guilherme dos Santos in 1979, emerged as far more than a legal record of a worker's employment history. In the workers' relation to the state, the carteira constituted a "certificate of civic birth."[4] As for the CLT itself, hundreds of editions have been published since 1943, in multiple forms, and the wider legal literature on the CLT system constitutes the majority of the published works related to labor in Brazil.[5]

In a 1942 book, Brazil under Vargas, political scientist Karl Loewenstein offered an acute assessment based on an exploratory trip to Brazil, a U.S. ally during World War II. The Vargas regime, he suggested, had proven capable of combining "two seemingly conflicting or overlapping policies": (1) the vigorous encouragement of "private capitalism … unfettered by state regimentation"; and (2) the implementation of "progressive paternalism in social policy for the benefit of the laboring classes."[6] Put in more analytical terms, Vargas moved the country decisively down the road to capitalist industrialization, shifting from the plantation (fazenda) to the factory as the symbol of Brazil while implanting an "advanced" program of social reform aimed at urban working people. As Brazilian historian Angela de Castro Gomes aptly put it in 1979, one of the ironies in the history of Brazilian labor legislation is the contrast between the 1920s and the 1930s. During the 1920s, urban industrialists easily stymied attempts at labor legislation despite industry's relative political marginality. In the 1930s, by contrast, these industrialists were unable to prevent labor's gains despite their emergence for the first time as important contenders for national power.[7]

Attuned to Brazil's wry form of truth telling, Loewenstein went on to offer a summary judgment of the Vargas regime that many later observers would echo. The government had the support of the rich, which was not difficult to achieve as long as their privileges were defended. The Vargas regime's special talent, however, was to have succeeded simultaneously at the "more arduous task … of winning the sympathy of the nameless masses of the toilers."[8] In its colloquial Brazilian variant, Vargas had positioned himself as both the "mother of the rich" and the "father of the poor."[9]

Approaches to the CLT: The State of Play

As an enduring monument to the political genius of the Vargas regime, the CLT represents a lasting challenge to analysts of modern Brazilian social and political history. A limited number of themes have served as touchstones for the "lawyers, judges, politicians, historians, political scientists, and sociologists [who] have dedicated tens of thousands of pages to analyzing … the CLT and its adjacent legislation."[10] Almost all these observers see this body of labor law as a singular and decisive feature of the statecraft of Getúlio Vargas, the architect of the centralizing state that stands at the core of a modernizing Brazil. Most commentators echo the varguista claim that the 1930s marked a symbolic shift away from liberal laissez-faire, while some see the advent of legislation as the end of an exclusively repressive handling of workers' grievances and popular demands. No longer would social agitation be treated solely as a police matter (caso de polícia), as was said to have been the case during the First Republic (1889-1930).

There are also recurring references to the unique style of anticipatory and co-optive statecraft that brought the new labor relations regime into effect as a gift bestowed on the Brazilian populace (outorga). Rightly characterizing the Vargas regime as paternalistic in posture, most observers link the CLT to the emergence of a new style of mass electoral politics that blossomed after Vargas's fall from power in 1945. This shift is most closely identified with Vargas's Brazilian Labor Party (Partido Trabalhista Brasileiro, or PTB), founded by labor ministry functionaries, which served as the vehicle for his triumphant 1950 return to the presidency "in the arms of the people." Although officially described as "laborite" (trabalhista), the PTB is more often glossed as populist and would grow in strength in the two decades leading up to its extinction in 1966, when the antipopulist military regime abolished the party but left untouched the CLT's fundamental structures.

Not surprisingly, many of these commonplace observations originated in the universe of self-representations and propaganda that characterized Vargas's twenty-four years at the center of national politics after 1930.[11] Other statements are more caught up in polemical controversy, although even supporters recognize Vargas's tenuous commitment to electoral democracy as such, at least in comparison to what the Estado Novo's apologists sometimes called "social" democracy. (The term had little substantive kinship with its European analogue.) When the CLT was decreed in 1943, Vargas was the outright dictator in an anticommunist regime, explicitly inspired by Portuguese, Spanish, and Italian corporatism, that had begun with a self-administered coup against elections in 1937 and ended with Vargas's ouster by the military in 1945. Even sympathizers appreciate this simplest of paradoxes: the systematization of rights and benefits for working people took place under a right-wing regime that explicitly outlawed strikes in its 1937 constitution outorgada and mandated jail sentences and worse for those responsible for agitation.

In discussions of the CLT, the debate over origins inevitably broadens into larger disagreements about philosophy, essence, and legacy. Although the discussion has become somewhat hackneyed from repetition, no one denies the role of foreign ideologies and corporatist discourse in the CLT's creation; there is, however, less agreement regarding their significance. Reporting on a 1958 mission to Brazil, the representatives of the anticommunist International Confederation of Free Trade Unions judged, as have innumerable others, that the CLT was "inspired by (and in some regards a faithful copy of) the Italian corporatist laws and the fascist Carta del Lavoro." The CLT was, in essence, a "fundamentally totalitarian law adapted to a democratic country."[12] The CLT's carryover through successive political regimes highlights another general sentiment: surprise at its remarkable durability. From a broader international perspective, as labor lawyer éfren Córdova noted in 1990, few similar labor relations systems from the interwar years survived their creators. "Other regimes which had followed the corporatist system"—for example, Italy, Vichy France, Spain, and Portugal—disappeared, but the Brazilian system remained intact. The labour systems of the other countries of the [Western] hemisphere tended progressively to resemble one another, but Brazil retained, without great change, the main lines of a very different regime." As a result, Brazil remains, even under its democratic constitution of 1988, one of the few countries in the Americas, along with the United States, not to have ratified Convention 87 on freedom of association of the International Labour Organization (ILO).[13]

The CLT's survival over the next half century is especially striking given the far-reaching socioeconomic changes that transformed an agrarian and rural country of 41 million people in 1943 into an overwhelmingly urban and industrial one. Although Brazil is known abroad only superficially, the regulatory regime and labor struggles of this medium-developed country should be of wide interest given that Brazil possesses the world's fifth-largest population (176 million in 2003) and tenth-largest economy in gross domestic product.[14] If the legal framing of class struggle in Brazil is a peculiarity of that nation's system of rule over those who work, interest should be further piqued by the country's unique political trajectory over the past twenty-five years. The rise of a powerful labor-based Left began with the popular insurgencies of the 1970s against the military dictatorship (1964-85), including a militant "New Unionism" that harshly criticized the CLT system of labor relations. In 1979, the charismatic leader of the dramatic metalworkers' strikes of 1978-80, Luis Inácio "Lula" da Silva, called for a new Workers' Party (Partido dos Trabalhadores) to bring together a wide gamut of social movements, including Catholic practitioners of liberation theology and much of the Left. Over four successive presidential campaigns, Lula and his party built a powerful leftist political party that brought him to presidency in 2003 with 63 percent of the national vote in the second round. The rise of Lula and the Workers' Party offers interesting parallels to class formation in Western Europe in the nineteenth century while speaking to analogous developments within other newly industrializing countries of the developing world in the late twentieth century.[15]

Going beyond the Corporatist Consensus

The CLT's anomalous origin and ubiquitousness as a legal and cultural reference within the country has prompted endless debate among participants, contemporary observers, and later scholars. Profoundly shaped by what has been called the "corporatist consensus,"[16] the many social scientists who wrote about the CLT concentrated largely on "the repressive and centralized union laws" that were thought to "set the limits and potential of working class organization and militancy."[17] With few exceptions, as Maria Célia Paoli noted in her 1988 dissertation, these scholars "seldom consider[ed] the significant role that the legal provisions designed to protect rights at work have played in the cultural and political formation of the Brazilian working class."[18] After all, the "constitution of the working class as a collective actor," as Angela de Castro Gomes emphasized in her influential 1988 book, A Invenção do Trabalhismo (The Invention of Trabalhismo), "is a political-cultural phenomenon" that articulates "values, ideas, traditions, and models of organization through a discourse in which the worker is at the same time subject and object."[19]

The emerging analytical breakthroughs that gathered momentum in the early to mid-1990s were connected to the reestablishment of civilian rule in Brazil in 1985, capped off by an advanced democratic 1988 constitution that failed to abolish the CLT system. Deeper subsequent empirical investigation has slowly but surely transformed our understanding of the history of workers, industrial relations, and mass politics in Brazil.[20] With historical distance and sufficient density of research, the time is ripe to historicize the CLT, with its many spheres, constituencies, and possible contemporary and retrospective meanings. We can now ask questions that were previously invisible and formulate more definitive solutions to older conundrums.

If the foundational myths of varguismo once needed repudiation, it is now abundantly clear that simple negation does not in and of itself resolve apparent paradoxes or dispel rhetorical fog, whether for or against Vargas and his legacies, including the CLT. To achieve a durable new understanding of these labor laws and practices requires engagement with the mythologies surrounding the CLT, the wider discussion within Brazilian society, and the evolving interpretations in the historiography across all disciplines, including law and sociology. Thus, chapters 2 and 3 of this volume reconfigure debates about the origins of the labor laws in the 1930s to clarify questions of causality while moving beyond simplistic ideological attributions and doctrinal discussions. Likewise, chapter 4 pays special attention to the specificity of law within the Brazilian social formation while explaining how the CLT, viewed comparatively, represents an approach to lawmaking that diverges from the norms and assumptions of North Atlantic observers.

Yet even a dynamic sociology of knowledge is insufficient without the use of different tools—those of legal history—to address the old questions in new ways. In approaching law, legal historian Cynthia Herrup notes, most scholars "give either too much or too little consideration to the interrelationship of law and society. Sometimes, social and cultural influences appear as intrusions extrinsic to an otherwise self-referential law. More frequently, authors bring their broader knowledge to bear" in such a way that "the legal setting fades to background, to an occasion which happens to produce historically relevant materials." In its attention to the grammar of the law, this book approaches the legal arena of the CLT as a frontier, an area of exchange among those who rule, those who obey, and those who lawyer. My objective, in Herrup's words, is to move back and forth between "the rule-bound unreality of the law" and "the unruliness of life" to grasp "how completely interwoven are the legal and the cultural ambiguities within the law."[21] Law must be examined, as legal historian William Forbath suggests, as language and discourse, on one hand, and as "institutional practices, constraints, and legitimated violence" on the other. In his 1989 study of U.S. labor law, he explored how "the centers of power and the language could be directly linked to the "experiences of labor in local contexts and conflicts."[22]

Embracing a social-historical approach to the study of law, this book examines the creation and functioning of legal instruments and institutions that deal with workers as well as the words generated by and about the CLT. I ask why and how these institutions have functioned and evolved through time and explore the dynamics of social interactions with and within these institutions. After introducing the reader to the CLT and its background, the book focuses on the relatively open political era known as the Populist Republic (1945-64). In particular, chapter 3 surveys how this surprising and profoundly problematic body of law was administered—or, some would say, misadministered—in greater São Paulo, the heart of modern industrial Brazil. Using the chasm between law and reality in São Paulo as a fulcrum, the book then examines how both academics and nonacademics have discussed the CLT system while criticizing those who have sought to explain Brazilian labor law in terms of corporatism, whether understood as a cultural predisposition or a bourgeois fraud. In chapter 5, this volume also enters into debate with more recent interpretations that have sought to present the CLT as an integral part of a wider state project of nation building and inclusionary citizenship (the trabalhista thesis identified with Castro Gomes).

Throughout, the book takes a holistic approach that encompasses the structural as well as the conjunctural, the institutional as well as the discursive. While keeping an eye on the regularities of conduct by social actors, I focus on the discourses and practices of those who write the laws, staff the government ministries and labor courts, operate within these institutions as lawyers, or enter into those institutions as supplicants in pursuit of practical interests. Although the voices of the CLT's architects are abundantly represented, Drowning in Laws also pays close attention to the discourses of workers and labor activists in a country with a long tradition of protest against a labor relations system that violates union autonomy and freedom while failing to deliver on its most basic promises of rights and benefits for workers. Operating within a discursive universe not of their own making, workers internalized these dominant discourses and practices, which thus helped to shape—without unilaterally determining—the interiority, cultural, and intellectual life of a working class in formation. This process also gave birth to certain unique but characteristic forms of social critique, protest, and mobilization among workers. What is it about the Brazilian labor law system that simultaneously produce deep bitterness and cynicism on the part of working-class labor activists as well as an unprecedented hopefulness and utopian militancy?

This sustained reflection on the CLT places varguismo within the sweep of Brazilian history as an integral part of long-standing traditions of rule by the dominant classes. Unlike those who focus single-mindedly on the labor law and its surrounding rhetorical penumbra, I also examine yet another vital state institution that shaped the lives and impacted the struggles of Brazilian workers: the police. To fully understand Brazilian political culture, our analysis must encompass the violent arm of the state as well as the labor laws, both of which figured into varguista mythology—the former as "the social question as a police matter [caso de polícia]" and the latter as a gift (outorga). The examination of the repressive interface between the state and workers will allow us to better understand the proven wariness of Brazil's working people as they interacted with an ostensibly benevolent state toward which they were expected to feel loyal and grateful, whatever its shortcomings. In wrestling with the "politics of aphorism," chapter 7 also illustrates the fundamental continuities that marked Brazil before and after Vargas's rise to power in 1930. In the end, workers had to reckon with the state as both a bestower of rights and benefits, however uncertain, and a force for the repression of worker rights and the denial of the effective enjoyment of those benefits.

The ambiguous role played by the Brazilian state that drafted such ambitious labor laws can be understood only in terms of the legal and political culture of Brazilian elites as they were shaped by an ideological inheritance of authoritarian paternalism. From the outset, the labor law was as much imaginary as real for both the government bureaucrats who drafted the CLT and the workers who sought to use the law to advance their interests. For the former, the law's visionary and even utopian promises could be tolerated precisely because they were never meant to be real. As a result, Brazilian workers developed a complicated—indeed, fundamentally conflicted—relationship with the CLT system. Working-class activists needed the law, with all its flaws, yet could not afford to entertain any illusions about the CLT, its creators, or its enforcers. In the end, the labor laws became "real" in Brazilian workplaces only to the extent that workers struggled to make the law as imaginary ideal into a practical future reality.

In offering this interpretation of the legal consciousness of Brazilian workers and labor activists, Drowning in Laws adds substance to Paoli's 1988 hypothesis that "the formation of the Brazilian working class cannot be understood without considering the legal intervention by the State in daily work relations, [which] served to shape workers' demands for justice [while constituting] a common cultural horizon as to what dignity and fairness in labor issues should be."[23] At the same time, this proposition in no way lessens the bitter but powerful insight offered by the trade unionist quoted at the outset of this chapter: only a limited freedom is accorded the majority of the population in a wage-dependent capitalist economy, particularly in Brazil, where basic survival is not a given for tens of millions of people.[24]