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  • Writer's pictureAlexandre Mask

Urban law and the growing housing deficit: how Capital and the legal form make impossible the right to the City unfeasible.

Roberto Alexandre Levy

 

The 21st century has been shaping up as the period of expansion of neoliberalism worldwide. In Brazil, the effects are more devastating, as it is a country on the periphery of world capitalism. The constant withdrawal of rights, gained by social movements and the struggle of the working class, continues to escalate under the guise of the need for economic and productive reorganization, motivated by the crisis of the capitalist mode of production. These fiscal and social adjustments to ensure the profits of the increasingly super-rich are implemented to the detriment of the minimum subsistence conditions of the vast majority of the population that effectively produces wealth without being able to access it.


According to the IPEA, the eleventh goal of the UN Sustainable Development Goals suggests ensuring universal access to adequate and decent housing by 2030, as well as to basic subsistence services, and fulfilling the purposes assumed in the National Housing Plan, especially for the most vulnerable.


Meirelles (2008, p. 525-526) defines Urban Law as a branch of public law that emerged to meet the growing urbanistic demands of modern societies, providing legal solutions for the organization of habitable spaces, encompassing both urban and rural areas that impact urban life. Essentially, this field of law covers the regulation of land use, infrastructure, and activities that sustain the four vital functions of the community: housing, work, mobility, and leisure. It only excludes areas dedicated to agriculture, livestock, or extractive exploitation that do not directly influence the urban environment. The breadth of Urban Law, therefore, is not limited to the organization of cities but also extends to rural areas, encompassing ecological and environmental protection issues essential for urban quality of life.


In this broad perspective, Urban Law manifests its essence by aligning directly with the principles of the social function of property, the social function of the city, the obligation of participatory planning, and the fair distribution of the burdens arising from the urbanization process and dynamic cohesion. The main guideline of the City Statute concerns the fair distribution of burdens and benefits arising from the urbanization process. A just city is one that offers equal opportunities for access to infrastructure, public and community services, and housing, thus satisfying the basic survival needs of all inhabitants. Equality, justice, and solidarity are basic principles of the 1988 Federal Constitution.


Between 2016 and 2019, there was a growth in the housing deficit of over 4% in the period. Faced with this scenario, we are confronted with one of the great contradictions of our time. How is it possible to have a significant increase in the housing deficit, contrary to the goal of SDG 11 and in the face of the various legal provisions that supposedly exist to ensure the successful fulfillment of the Right to the City?

Firstly, we must understand that the right to the city addressed here does not stem from the common idea of "appropriate use" of cities. As proposed by Knebel (2018), we will address here an empirical and theoretical Right to the City intertwined, in a plural and dialectical composition, thus allowing an ontological critique of the legal form as a category that composes the capitalist system.


As mentioned earlier, in the 21st century - more specifically from 2016 onwards - Brazil is experiencing a moment of usurpation of labor and social rights, and it is precisely in the metropolises that social struggles gain strength, giving greater visibility to the social ills in turmoil. This movement is part of the empirical Right to the City, of the path that constitutes it. According to Tavolari (2015), "not having a home is not only not being able to remain in the city physically, but not being able to belong to the social ties that shape cities", i.e., the Right to the City follows a path "from empty signifier to the common denominator of social struggle". The city in the capitalist model is inherently composed of inequality and constitutive violence, legality and illegality tensioned and reproducing increasingly inequality and the growth of statistics, in the opposite direction to the objectives of legal tools, which should seek to maintain the fundamental rights of every citizen.


As can be seen, the advances made in recent decades in Urban Law through principles of effective urban reform are inexorable, however, the lack of past interdisciplinarity directed legal perspectives towards the incorporation of urban issues into Law. The growing demands of the city and the scenario of growing housing deficits corroborate its lack of effectiveness and its unfeasibility for progress.


According to De Mello (2009), the limits imposed by capitalism need to be challenged, even if there are structural barriers of legal solutions. Therefore, the social function of property, as one of the most important principles of Urban Law, must be associated with the Right to the City in order to avoid socio-environmental conflicts, considering the scenario of high expression of inequality in Brazil, even though it is not capable of encompassing all the bases that cause this social anomaly.

Urban planning in the country comprises a historical process. Legal mechanisms are part of this tension, but insufficient, since political, cultural, and social issues also compose this process. Reality is a social battlefield for space and socialization, a constant struggle for survival in the face of the lack of minimum conditions for existence and the permanent state violence to prevent the inclusion of a large part of the citizens. Social movements such as the MTST (Homeless Workers' Movement) understand the Right to the City as a consequence of an effective social function of property.


In the empirical layer, the field of social struggles that produce urban demands in society, even though they encounter limits imposed by the structure, aims to tension the correlation of forces, adding power and means to confront the capitalist class. It is through the Right to the City that urban needs are revealed, fostering the increasingly larger eruption of organized social movements in search of urban reform. According to Benjamin (2021), what seems like a state of exception for the dominated class produced by the truth of the winners is actually the general rule, and this concept needs to be consolidated, therefore, the real state of exception will take shape as a force to confront barbarism.


It is in the empirical dimension of the Right to the City, in permanent transformation and in an interdisciplinary way, that the potential for emancipation of the working class emerges and becomes the common denominator of social struggle, under the cut of class, race, gender, and sexuality. Tavollari (2016, p. 77) argues that progress in the debate on the right to the city will remain stagnant as long as the literature persists in seeking definitions, instead of advancing in deeper analyses. He criticizes the simplistic approach that divides discussions into categories of "original/deviation" and "true/corrupted", stating that these divisions not only are insufficient to advance understanding but also obstruct the formation of a comprehensive diagnosis of how the right to the city is mobilized in its various manifestations.


For an ontological critique, the division of the Right to the City into empirical and theoretical dimensions is a sine qua non condition to understand the root of the housing deficit problem within the set of norms and goals established to combat it, as well as the various contradictions existing in Law as the legal form of Capital.


Hegel (2022, p.138), a prominent German philosopher of the 19th century, immortalizes one of his most well-known phrases in his writings on the Philosophy of Law: “What is rational is effective; and what is effective is rational,” a conception of Law as that which is realized, that has effectiveness. The struggle for the Right to the City is strictly speaking the quest for a new model of society where the principles of equality, justice, and solidarity find effectiveness and do not rest on potential letters of intent, i.e., contrary to the legal consensus of the academy that composes current Urban Law.


The theoretical dimension of the Right to the City lies in the quest to overcome the Bourgeois State, constituted from the legal form to perpetuate capitalist production relations. These relations, by their nature, intensify social inequality by allowing a small fraction of society to accumulate Capital infinitely, while the living conditions of the majority deteriorate. In other words, the sociometabolic order of capital (cf. Mészáros, 2015).


Law as the legal form of Capital was addressed by Evgeny Pachukanis (1988), who defined the legal form as a fundamental part of the capitalist mode of production for the reproduction of Capital and its dynamic and metabolic composition of production relations. According to the author, the legal form mediates social relations based on the exchange of commodities, reflecting the abstraction of value in a capitalist system. For Pachukanis, it is inconceivable to exist a socialist law, and its overcoming is necessary together with the capitalist mode of production. Only an ontological critique of Law makes such understanding possible, dialectically analyzing its multiple faces and social forms, conceiving an absolute idea of Law.


Sartori (2014) argues that, in capitalism, the subject is subjected to the legal form, since its existence is predetermined by capital. To overcome it, a qualitative leap is necessary to project it beyond, through the suppression of alienation imposed by the prevailing mode of production, allowing the elimination of the objective bases of the subject constituted by the capitalist system. According to Engels, it is not possible to find a solution to the housing issue in the capitalist system, where cities inherently treat housing as a commodity.


The legal mechanisms of urban organization of the City Statute and the Federal Constitution of 1988 represent contents of legal ideology of pragmatic urban planning, the Right to the City as a "democratic management of cities," reducing it "to the perspectives of rights enclosed in housing, transportation, sanitation, health, among others" (Bonfigli; Knebel, 2017). The result is the reproduction of alienation that covers up the contradictions and conflicts of production relations in the city.


It is reiterated the recognition of the advances achieved by state planning taking into account the urban scenario from the 19th century to the present day, however, the gains were and always will be merely quantitative. It is impossible to achieve qualitative gains in urban life through a truly effective Right to the City. This must be a revolution in urban management and the daily life of citizens, an urban space produced dialectically in social, economic, and political dimensions, in opposition to the structure of commodity city forged by the capitalist system. Indeed, the gaps left by urban planning and legal instruments in tension with inequalities and gentrification are explicit, precisely because they are part of the legal form determined and constituted by the sociometabolic composition of the capitalist mode of production.


The Right to the City is a political task of a utopian nature impossible to be conceived by any non-revolutionary thought. To ontologically analyze urban legal form - Urban Law and City Statute -, as well as the totality of social fabric, seeking to understand and obliterate urban problems is the only path towards solutions for the permanent increase in the housing deficit and all other social contradictions, allowing the realization of a more egalitarian, just, and solidarity-based society. Only through a radical critique of the political economy of the prevailing mode of production will it be possible to envision a new social organization, under new production relations focused on life and the effective social well-being of society as a whole. A society where life will be entirely above profit and "cares not for Gross Domestic Product, but for Liquid Social Happiness".


Notes:



[2] Planning and development must go hand in hand and have a historical interrelationship according to Milton Santos, where "the list of causes of underdevelopment and poverty in the Third World cannot be complete before due emphasis is given to the importance of the role played by planning. Nor does it become necessary to qualify planning as capitalist, since underdeveloped countries do not know any other. Without planning, it would have been impossible to achieve such a rapid and brutal intrusion of big capital into these nations" (SANTOS, 1977, p.86).


[3] The latest study by the João Pinheiro Foundation, in 2019, showed that Brazil had a housing deficit of 5,876,699 million dwellings, without taking into account the increasing evictions that occurred during the Covid19 pandemic, which had a growth rate of almost 400%. Retrieving data from previous years, housing deficits were in 2016 of 5,657,249 households, in 2017 of 5,970,663, and in 2018 of 5,870,041 households. See Habitat Brazil reference.


[4] "The entire capitalist system of infinite accumulation, as well as its related structures of class exploitation power and the state, must be overthrown and replaced. Claiming the right to the city is an intermediate station on the road leading to this goal. This can never be an end in itself, although it increasingly seems to be one of the paths to follow" (HARVEY, 2014, p.23-24).


[5] Evgeny Pachukanis (1891-1937) was a prominent and the most important Soviet Marxist theorist of the 20th century (cf. NAVES, 2009).


[6] In 19th-century Europe, philosophical and sociological studies were influenced by the ideas of Hegel, focusing on thought and its importance in social transformation, as seen in the works of Bruno Bauer and Ludwig Feuerbach. Bauer emphasized the need for consciousness to shape reality, while Feuerbach saw the need for consciousness to adapt to reality. Marx, in turn, transcended this dichotomy of "world x nature" by developing historical and dialectical materialism, establishing a method in which philosophy promotes an interaction between subjectivity and objectivity, thus allowing for concrete intervention in reality (cf. CHASIN, 2009). Marxist dialectics finally allowed the objectification of the subjective, making the concepts of universal and particular inseparable and indispensable for a better understanding of reality. For further information, see The German Ideology, "First Part" (MARX; ENGELS; 2007, p.25-120).


[7] Hegel describes the idea as the union between subjective and objective idea, forming the concept of the idea itself, where the idea becomes both the subject and the object. This confluence of determinations results in absolute truth, representing the idea that understands itself. In this context, he emphasizes the idea as an entity that thinks, characterizing it as logical essence (HEGEL, 2012, §236, p.366).


[8] "[...] the way in which Law is objectively shaped is that of the 'formal democracy of liberalism', with legal categories being of great importance for the revolutionary citizen of yesteryear to become a mere 'subject of rights', inseparable from the mercantile sphere and the vicissitudes arising from the private ownership of the means of production" (SARTORI, 2014).


[9] Marx addresses alienation in four dimensions: (i) the alienation of the worker from the product of their labor, which simultaneously impoverishes the creator and enriches the capitalist; (ii) in the production process, where one becomes alienated from their own work; (iii) in human existence, by distancing oneself from their generic essence and potentialities, resulting in isolation; (iv) in interpersonal relationships, losing the meaning of life through individualization (MARX, 2015, p.311-314).


[10] Engels argues that it makes no sense to attempt to solve the housing problem without transforming modern cities. According to the philosopher, these will only disappear with the end of capitalism. Once this transformation begins, housing issues will radically differentiate, focusing on different issues than the current ones, especially regarding the individual ownership of homes by workers. (ENGELS, 2015, p.80).


[11] Interview with Professor José Paulo Netto for O Globo/Cultura on 28/11/2020. See at:


REFERÊNCIAS


ALVES, G. A. As centralidades periféricas: da segregação socioespacial a direito à cidade. In: Carlos, Ana Fani A.; Simoni, Cesar; Alvarez, Isabel A. P.. (Org.). Geografia urbana crítica: teoria e método. 1ed. São Paulo: Contexto, 2018, v. 1, p. 109-124.


BENJAMIN, Walter. O anjo da história / Walter Benjamin; org. e tradução de João Barreto. 2ª ed., Belo Horizonte: Autêntica, 2021.


BONFIGLI, Fiammetta; KNEBEL, Norberto Milton Paiva. O Direito à Cidade enquanto prática jurídica no neoliberalismo. In: XXVI Congresso Nacional do Conpedi, 2017. São Luís – MA. Anais do GT Direito Urbanístico, Cidade e Alteridade. Florianópolis, 2017. Avaiable at: http://site.conpedi.org.br/publicacoes/27ixgmd9/m4wql6h3/5jh3YpqSN6Q35dsI.pdf. Acessed on: 06 abr. 2024.


CARMONA, P. A. C. Qualidade de vida e princípios do Direito Urbanístico. Revista Brasileira de Direito Urbanístico | RBDU, Belo Horizonte: Fórum, v. 4, n. 6, p. 147–157, 2018. DOI: 10.55663/rbdu.v4i6.583. Avaiable at: https://biblioteca.ibdu.org.br/index.php/direitourbanistico/article/view/583. Acessed at: 06 abr. 2024.


CARVALHO, Cláudio Oliveira; MORAES, Ariana Ferreira Alencar. Políticas públicas e movimentos sociais no planejamento e gestão urbanos brasileiros. Panóptica, vol. 11, n. 2, pp. 571-605, jul./dez. 2016.


CHASIN, José. Marx: estatuto ontológico e resolução metodológica. São Paulo: Boitempo, 2009


CRAWFORD, Colin. A função social da propriedade e o direito à cidade: teoria e prática atual. Textos para discussão – IPEA, n. 2282, 2017. DE MELO, Tarso M. Direito e ideologia: um estudo a partir da função social da propriedade rural. São Paulo: Expressão Popular, 2009.


ENGELS, Friedrich. Sobre a questão da moradia. Tradução: Nélio Schneider. 1. ed. São Paulo: Boitempo, 2015.


HABITAT PARA A HUMANIDADE BRASIL. Déficit habitacional no Brasil – Entenda os números. Avaiable at: https://habitatbrasil.org.br/deficit-habitacional-brasil/. Acessed on: 06 abr. 2024.


HARVEY, David. Cidades rebeldes: do direito à cidade à revolução urbana. São Paulo: Martins Fontes, 2014.


HEGEL, G. W. F.; Enciclopédia das ciências filosóficas: em compêndio (1830): volume I: a ciência da lógica. 3ª ed. São Paulo: Edições Loyola, 2012.


HEGEL, G. W. F.; Linhas Fundamentais da Filosofia do Direito: direito natural e ciência do Estado no seu traçado fundamental. 1ª ed. São Paulo: Editora 34, 2022. 736p.


IPEA. Objetivos de Desenvolvimento Sustentável: 11. Cidades e Comunidades Sustentáveis. Avaiable at: em: https://www.ipea.gov.br/ods/ods11.html. Acessed on: 06 abr. 2024.


KNEBEL, Norberto. “Por que ocupamos?”: O clamor por direitos do movimento dos trabalhadores sem-teto sob a perspectiva da teoria crítica marxista da legalidade. Revista Reflexão e Crítica do Direito, v. 4, n. 1, 2017.


KNEBEL, Norberto. Duas dimensões para o Direito à Cidade: luta social e crítica ontológica ao Direito. REVISTA BRASILEIRA DE DIREITO URBANÍSTICO , v. 04, p. 133-146, 2018.


LIMONAD, E. . Em busca do Paraíso: Algumas considerações sobre o desenvolvimento. Revista Brasileira de Estudos Urbanos e Regionais (ANPUR) , v. 15, p. 125-138, 2013.


LEFEBVRE, Henri. O Direito à Cidade. Tradução: Rubens Frias. 5ª ed. São Paulo: Centauro Editora, 2001.


MARX, Karl; ENGELS, Friedrich. A Ideologia Alemã: crítica da mais recente filosofia alemã e seus representantes Feuerbach, B.Bauer e Stirner, e do socialismo alemão em seus diferentes profetas (1845-1846), São Paulo: Boitempo, 2007.


MARX, Karl. Cadernos de Paris; Manuscritos econômicos-filosóficos. Trad. José Paulo Netto e Maria Antônia Pacheco. 1ª ed. São Paulo, SP: Expressão Popular, 2015.


MEIRELLES, Hely Lopes. Direito Municipal Brasileiro. (atualizada por Márcio Schneider Reis e Edgar Neves da Silva). 16ª ed. São Paulo: Malheiros Editores, 2008.


MÉSZÁROS, István. Para além do capital: rumo a uma teoria da transição. São Paulo: Boitempo Editorial, 2015.


NAVES, Marcio Bilharinho. (Org.). O discreto charme do Direito burguês: ensaios sobre Pachukanis. 1ª ed. Campinas: IFCH/Unicamp, 2009. 172 p.


PACHUKANIS, Evgeny. Teoria geral do direito e o marxismo. Tradução por Paulo Bessa. Rio de Janeiro: Renovar, 1988.


SANTOS, M. Planning underdevelopment. Antipode, Volume 9, Issue 3, pages 86–98, December 1977. (publish on SANTOS, M. Planejando o subdesenvolvimento e a pobreza. In: Economia Espacial: Críticas e Alternativas. São Paulo: EdUsp, 2003).


SARTORI, Vitor Bartoleti. Direito e socialismo? A atualidade da crítica de Marx e Lukács ao Direito. Revista Direito e Práxis, v. 5, n. 9, 2014.


TAVOLARI, Bianca. Direito e cidade: uma aproximação teórica. 2015. 195f. Dissertação (Mestrado em Direito) – Faculdade de Direito, Universidade de São Paulo. 2015


TAVOLARI, Bianca. Direito à cidade: uma trajetória conceitual. Novos Estudos, n. 104, p. 92, 2016.


TRINDADE, Thiago Aparecido. Direitos e cidadania: reflexões sobre o direito à cidade. Lua Nova: Revista de Cultura e Política, 2012. "

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