The Misrule of Law: Land and Usurpation in Brazil

Abstract

How do we conceive of law if litigation does not aim to settle conflict, if it is a means to perpetuate and obscure rather than resolve disputes? In this essay, I shall demonstrate the power of an unsettling norm: The Brazilian legal system aims neither to solve land conflicts justly nor to decide their legal merits through adjudication. My argument stresses intention and norm because land law in Brazil is so confusing, indecisive, and dysfunctional in its own terms that one suspects that the cause of these characteristics is not incompetence or corruption alone but rather the force of a set of intentions concerning its construction and application different from those aimed at resolution. Thus, I argue that Brazilian law regularly produces unresolvable procedural and substantive complexity in land conflicts; that this jural-bureaucratic irresolution dependably initiates extrajudicial solutions; and that these political impositions inevitably legalize usurpations of one sort or another. In short, land law in Brazil promotes conflict, not resolution, because it sets the terms through which encroachments are reliably legalized. It is thus an instrument of calculated disorder by means of which illegal practices produce law and extralegal solutions are smuggled into the judicial process. In this paradoxical context, law itself is a means of manipulation, complication, stratagem, and violence by which all parties—public and private, dominant and subaltern—further their interests. It therefore defines an arena of conflict in which distinctions between legal and illegal are temporary and their relations unstable.