Right to Development in the Rule of Law: citizenship, justice and reduction of inequalities, co-authored by Caio Medici Madureira and Lúcia Helena Polleti Bettini.
Abstract: This article studies and analyses the role of FALP – Federation of Lawyers of the Portuguese Language in maintaining the Rule of Law as a condition for development, since growth must focus on some policies that have global repercussion, all with attention to sustainable development. In this sense, as one of the Federation’s missions, the strengthening of Portuguese Language Advocacy in the world and citizenship through knowledge, which is imperative and objective of present study, with the reference of the work of the Federation’s work committees, in particular, Mediation and Arbitration and Diversity and Inclusion. The deductive methodology was used based on the document analysis.
The Federation of Portuguese-speaking Lawyers – FALP plays a fundamental role in the practice of law in times of a globalized world, as there are countless tasks to be carried out when it comes to the right to development throughout the globe and, currently, we are more than one million two hundred thousand Portuguese-speaking lawyers spread over the four continents, American, African, Asian, and European. The mission of strengthening citizenship and decreasing or removing discrimination and stigmas also affects Portuguese-speaking lawyers in their performance and importance, even though we know they are responsible for the effectiveness of justice and citizenship.
Protecting and concretizing in a plural world the removal of barriers arising from these negative discriminations, without a doubt, is a developmental and singular factor to reduce inequalities with respect to the particularities that involve socio-political and cultural issues in the practice of law. Seeking to strengthen the practice of law in the Portuguese language allows the strengthening of citizenship and justice and brings the respect and dignity deserved also to Portuguese-speaking lawyers and their clients.
In the globalized world, the rupture of time and space barriers and the access to places, previously marked by isolation, became effective due to the advent of the digital era, which identified countless inequalities with worldwide reach. Minimizing such inequalities demands knowledge by means of information that is educational in nature and by the activity of the legal profession as indispensable for the maintenance of the Rule of Law. Faced with countless contents that are made available to an indeterminate number of people on a daily basis, the great concern today is the search for reliable contents that correspond to the factual plane and not to the post-truth context. What is taken from the current moment is the need to access the protection of rights with specialized help from lawyers and, in this sense, the importance of the Federation.
Besides the fact that we represent more than 20% of the world’s legal profession, our work is still not recognized, which requires organization in order to reach this status. This is what the FALP proposes. The aim of this article is to organize knowledge and recognize the importance of Portuguese-speaking lawyers, oriented towards the strengthening of citizenship and the removal of negative discrimination through the use of extrajudicial means of conflict resolution.
1. Advocacy and the strengthening of citizenship
Recognizing the practice of law as indispensable to the strengthening of citizenship has not been an easy task in our times, especially due to the multiplication of discrimination and stigmas that extend to an undetermined number of people through the delivery and access of content in the digital age and in times of post-truth. In this context, it is essential for such strengthening and the removal of weaknesses and vulnerabilities, the creation of tools for access to organized, technical and true knowledge on the exercise
of citizenship and access to justice, which is what the FALP – Federation of Portuguese-speaking Lawyers proposes.
It should be noted that there is a pressing need for recognition in the world of the organization of the Portuguese-speaking legal profession, as it also exists and is a place of diminishing and pejorative stereotypes, even though we are more than twenty percent of the world’s lawyers.
The Federation, through working groups, especially the Diversity and Inclusion Committee, aims to create conditions for the centralization of dialogue between Portuguese-speaking lawyers who, due to their multicultural condition, make it possible to eliminate negative discrimination arising from a plural society marked by cultural and structural racism1, also present in the professional practice of law and citizenship in a broad sense for groups that bear the marks of diminution or exclusion.
With the Universal Declaration of Human Rights, in 1948, and the international treaties resulting from it in 1966, the Covenant on Civil and Political Rights and the Covenant on Cultural, Social and Economic Rights, we now have the obligation to respect the values of freedom, equality and human dignity, which also appears prominently in the post-declaration Constitutions, as they were positive at the domestic and international levels. The post-Declaration Constitutions also bring this inseparability of democratic values, but this is not what happens on the concrete level, in people’s day-to-day lives, many are still unable to feel like citizens to the point that there are differences and marks that make them invisible.
Transforming a factual situation so far removed from what is described in the guiding norms of human coexistence, whether ethical norms or legal norms, requires countless decisions and urgent measures and we understand that the Federation enters alongside other policies or governmental actions with the purpose of reduce such distance and stigmatization of part of citizens and lawyers.
The recognition of the inequalities narrated by history, in which discrimination occurs due to a power structure that attributes disadvantages to a certain group, has in several ethical and legal documents the affirmation of the necessary action directed to the implementation of measures to remove inequalities, discriminations, and stigmas that exclude and give the feeling of absence of citizenship.This requires constant action not only from the public authorities, but also from private institutions and people in private life.
We understand that the delimitation of rights that support non-discrimination is not enough to remove inequalities, so much so that in our State it appears as goals to be implemented in the list of Fundamental Principles2, among them, the construction of a free, fair and solidary society, the reduction of inequalities and the pursuit and promotion of the good of all, removing any and all forms of discrimination, points to tasks that need to be carried out and implemented by the Brazilian State and by several others, in this case, through the commitments also described in the Agenda 2030 Objectives of Sustainable Development, undertaken by the Portuguese-speaking countries. Acting oriented to such ends is imperative.
The proposal is the use of electronic means to disseminate and organize the strengthening of advocacy as an indispensable practice for justice and citizenship, therefore, with the creation and performance of FALP as a center for the production of specific knowledge and research to support the Portuguese-speaking lawyers, with centralized organization of knowledge for global action endowed with intentionality, that is, fulfilling the mission of the profession and giving effect to the human and fundamental rights that derive from equality.
It is important to identify and highlight the two work commissions aimed at strengthening the advocacy of the Portuguese language and citizenship, as a way to make the right to development viable by removing inequalities and diminishing the social fundamental right to development, which are specifically the Diversity and Inclusion Committee and the Mediation and Arbitration Committee, as a way to diminish prejudices and stigmas and give effectiveness to the fundamental social right of equality.
1 Cf. ALMEIDA, Silvio Luiz. Racismo Estrutural. São Paulo: Sueli Carneiro; Editora Jandaíra. 2020. (Feminismos Plurais/coordenação Djamila Ribeiro) Pg. 27 and ss. The author highlights the Enlightenment as the philosophical foundation of the liberal revolutions and the referential of universal man, through which it was intended to bring civilization to those who did not participate in the benefits of freedom and equality delimited by the rule of law and also by the market. This culminated in the process of colonialism, which involves plundering, destruction, slavery, and death in a brutal way, and is the context for race to be defined as the central concept of contemporary society, in which there is the racial inferiority of colonized peoples. It concludes that biological characteristics added to ethno-cultural identity are important elements of discrimination, even with scientific advances and the removal of biological differences. Even with scientific advances and the removal of biological differences, it recognizes race as a political element used to legitimize inequalities and discrimination.
2. Inequalities and the Rule of Law
One of the characteristics of the Rule of Law, which today is inseparable from democracy, is the attention given to the fulfillment of its social purpose, which must necessarily meet the pursuit of the common good, according to the concept proposed by Pope John XXIII in the encyclical “Pacem in Terris”3. This purpose describes the creation and maintenance of all social conditions that are conducive to the full development of the human personality. Despite the fact that this concept supported discussions on State Theory in the 1960s, we have reached the 21st century with the same difficulties when it comes to inclusion and non-discrimination of those who are different, still by reason of sex, color, age, religion, among others. The proposal of solidarity continues as a goal to be reached by our State and others that nowadays assume the condition of State of Law.
States under the rule of law, through their respective constitutions, assume the commitments outlined in 1948 in the Universal Declaration of Human Rights not to depart from indispensable values for the realization of democracy and citizenship, which are, among others, freedom, equality, and human dignity. The constitutions’ raison d’être is the power structures being delimited in it, with limits to everyone, be they citizens or those who are in the State Power’s functions, and the protection of fundamental rights. In this sense, one identifies not only the meaning of a Constitution4, but also the need for everyone to respect it, under penalty of not making several of its meanings valid.5, among them the normative force of the Constitution, according to Hesse, from which it follows that the active germ of the Constitution is in social experiences and needs.
From these theoretical references, from which we cannot move away or act against the Constitution, because they organize the States of Law and are the representation of our pressing social needs, we must always ratify constitutional commitments to be respected, among them is Among them is the reduction of inequalities and the consequent removal of negative discriminations that distance us from the condition of citizenship and human dignity that are the foundations of the Democratic States of Law.
In this sense, it is worth repeating Hesse6 about the need to exist alongside the will to power, the will to Constitution and identification with its active germ, which for the present study is clearly shown and delineated by the objectives of the Brazilian State in the Constitution. To talk about a free society comes next to fair and solidary, and these references can only be reached with education and knowledge that are able to bring such goals to concrete life. We affirm and reinforce the need to strengthen citizenship, which only happens when there is knowledge and education as a process that involves everyone to prepare for the exercise of citizenship and the integral development of human personality.
Always important to remember Sampaio Doria7 with the statement that “Education is the basic problem of Democracy”. We agree and reinforce the need to take care of education as a very broad process that involves many actors.
The Federation, through the working commissions, assumes this commitment to strengthen the educational process8 with specialized knowledge to enforce the will of the Constitution, with special appreciation for the legitimacy in decision-making power that are really capable of fulfilling what was presented in 1988 as one of the social needs, that is, the reduction of inequalities and the removal of so many prejudices that result from a power structure that, despite not being compatible with the fundamental principles of the Brazilian State, still treats some people as inferior and without the reach of the condition of citizenship and human dignity, foundations of the rule of law.
It is worth quoting the thought of Adilson Moreira9 on anti-racist legal education as a means of achieving justice by removing the vulnerabilities of innumerable social groups, which is in line with the Constitution. This description is expressed in the fundamental objectives that integrate the fundamental principles and, therefore, sustain the Democratic State of Law, which presents itself as plural and multicultural. It is urgent and necessary to listen and give voice to these groups, to recognize the mechanisms of discrimination that exist in our reality so that we can effectively eliminate them, because we must seek to build a fair, free, and solidary society.
Brazil and the other member countries of the Portuguese-speaking community have reinforced the commitments made in Agenda 203010, from which we highlight the discussions on the reduction of inequalities, with special attention to the use of electronic media to multiply and increase the reach of governmental actions described in the sustainable development goals so that, ultimately, we can strengthen citizenship and social justice.
2 Cf. Constitution, Art. 3 The fundamental objectives of the Federative Republic of Brazil are
I – building a free, fair and solidary society;
II – to guarantee national development;
III – to eradicate poverty and marginalization and reduce social and regional inequalities;
IV – to promote the good of all, without prejudice of origin, race, sex, color, age, and any other form of discrimination. 3 Cf. DALLARI, Dalmo de Abreu. Elementos de Teoria Geral do Estado. São Paulo: Editora Saraiva, 2012. Pg.
4 Since the bourgeois revolutions, especially in France and the Declaration of 1789, the State that does not ensure citizens’ rights and does not protect the Separation of Powers, does not have a Constitution.
5 We can cite the various meanings of the Constitution, such as legal, philosophical, sociological, and normative force, all of which are important to achieve its real reach, and all of these aspects or meanings must be respected.
6 HESSE, Konrad. A Força Normativa da Constituição. Translated by Gilmar Ferreira Mendes. Porto Alegre: Sergio Antônio Fabris Editor, 1991. Pg. 19 ss.
7 DÓRIA, A. de Sampaio. Comentários à Constituição de 1946. São Paulo: Max Limonad, 1960. p. 765 and ss.
8 It is worth mentioning the triple mission of education described in our Constitution, in its Art. 205. Education, a right of all and duty of the State and of the family, will be promoted and encouraged with the collaboration of society, aiming at the full development of the person, his preparation for the exercise of citizenship and his qualification for work. (our emphasis)
9 MOREIRA, Adilson José; ALMEIDA, Philippe Oliveira de; CORBO, Wallace(coauthors). Manual de Educação Jurídica Antirracista: direito, justiça e transformação. São Paulo: Editora Contracorrente, 2022.
10 This is a global plan established in 2015 by the United Nations to implement the Sustainable Development Goals in the years 2020 to 2030. There are 17 SDGs, and relevant to the present study are those related to the reduction of inequalities.
11 It is worth remembering that the 1988 Constitution indicates some people with certain characteristics as recipients of the comprehensive protection system, such as children and adolescents, the elderly, and people with disabilities. Such constitutional treatment is found in Title VIII – Social Order, in which the primacy of labor, with the objective of social welfare and social justice, stand out, and are implemented through various social policies with the participation of society, which reinforces the need to respect the meaning of the normative force of the Constitution.
3. The Federation, Citizenship and the Right to Development
With the recognition of the innumerable inequalities, vulnerabilities and hypervulnerabilities that result from certain personal characteristics11, permanent or seasonal, that affect people’s lives at the individual level as well as in social interrelations, the Federation appears with the mission of bringing recognition and respect to Lawyers and Portuguese-speaking lawyers, with the expansion of assistance in the world by them, with a main focus on reducing inequalities, access to the right to development.
The use of technological resources and intangible supports, such as, for example, electronic means, which support and allow the multiplication of information and knowledge organized and created by the Federation, aimed at reducing inequalities and with the use of extrajudicial means of conflict resolution, is presented as a very important measure and with a unique meaning, insofar as the effectiveness of fundamental social rights, among them, those that derive from equality, need not only recognition by the various legal and ethical documents, but development and implementation, that is, of democratic action that takes place through various inclusive actions.
The Federation presents itself as a center that irradiates technical knowledge and is totally detached from that derived from post-truth12 and fake news13, capable of bringing autonomy and freedom to those who have no voice and no representation, by overcoming the limits that remove them from invisibility, through access to care and knowledge oriented towards the removal of the inequalities that still remain today. In parallel, and no less important, it also seeks to give visibility to its members from the nine Portuguese-speaking countries and to remove the discriminations that exclude.
Strengthening the Portuguese language lawyers is the first step, because for a long time the references of the Enlightenment, which allowed, within the paradigm of freedom and equality, the structuring of power according to the rules of colonization, which marked many for their race to be diminished or dominated in the process of slavery, which despite its abolition still spreads its deleterious effects. This historical, cultural, and political finding, in the midst of 2021, presents itself as a reference of reduction that affects, albeit indirectly, the more than 20% of the legal profession in the world, which are the Portuguese-speaking lawyers.
It is necessary to remove this stigma and the Federation will help in this strengthening that allows and engenders the member countries’ right to development, which according to the aforementioned Agenda 2030 should be sustainable and closely related to the reduction of inequalities. To this end, highlighting and recognizing SDG 10 and 16, respectively, “Reduction of Inequalities” and “Peace, Justice, and Effective Institutions”, are necessary ways to achieve the strengthening of the legal profession of the Federation’s members. Both with respect to the removal of stigmas and stereotypes that diminish and exclude people14, as in the search for the promotion of peaceful and inclusive societies for sustainable development that enable access to justice for all15, are goals that the Federation also assumes. For sure, such planetary-level governmental actions, for their implementation, demand action from governments, from people and, in the present study, from the institutions responsible for the development and strengthening of the United Nations. In this case, the Federation of Portuguese-speaking Lawyers, as the mission is not only to take care of development, but to transform it into sustainable, which translates into for a social project in which democracy and its practices are a constant, or for the inclusion and use of extrajudicial means of conflict resolution, with special attention to actions aimed at achieving justice and citizenship.
12 The neologism “post-truth” was the most used term in 2016, according to the Oxford dictionary, and became well known for its political use in the BREXIT referendum and the American election with victory by Donald Trump’s election, which brought as a hallmark the manipulation of information with entirely or partially false news.
13 Fake news has been a constant in recent years, especially because of the ease of its dissemination made possible by the electronic media and because there is a great expansion of the actors who deliver the information. Everyone becomes a potential creator or disseminator of content, assuming a role previously reserved for a few, and with identification, as a sender of information.
14 Cf. Sustainable Development Goals, SDG 10, which seeks to reduce inequality within and between countries:
10.1 – By 2030, progressively achieve and sustain income growth for the poorest 40% of the population at a rate higher than the national average
10.2 – By 2030, empower and promote the social, economic and political inclusion of all, regardless of age, gender, disability, race, ethnicity, origin, religion, economic or other status
10.3 – Ensure equal opportunities and reduce inequalities of outcome, including through the elimination of discriminatory laws, policies and practices and the promotion of appropriate legislation, policies and actions in this regard
10.3.1 – Proportion of the population who reported feeling personally discriminated against or harassed in the past 12 months on grounds of discrimination prohibited under international human rights law
15 Cf. Sustainable Development Goals, SDG 16, by which it seeks to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”
16.3 – Promote the rule of law, nationally and internationally, and ensure equal access to justice for all
This paper aims to establish ways to strengthen citizenship by removing discriminatory practices through the creation of the Federation of Portuguese Language Lawyers – FALP. These practices affect not only people in their private lives, but also those who practice law in the Portuguese language, in the search for justice and citizenship, but who do not have the same recognition and status as other lawyers, and are often exposed to discrimination.
In this context, recognizing and strengthening the practice of advocacy of the Portuguese language through the Federation is absolutely indispensable to achieve development in a sustainable way that aims especially at the reduction of inequalities.
The Federation and acting through its work commissions, “Diversity and Inclusion” and “Mediation and Arbitration”, aims to centralize dialogue between Lawyers and Lawyers from the 9 (nine) member countries, in the search for the reduction of practices that exclude and are contrary to the Democratic State right.
In addition to the Constitutions of the respective countries, the International Treaties and the 2030 Agenda – Sustainable Development Goals, all inspired by the Universal Declaration of Human Rights, the inclusive and democratic practices that
implement and give effect to them are far from being unanimous, at least On the contrary, there is much to accomplish within your reach.
What is intended is the centralization of knowledge that is indispensable to reduce inequalities and negative discrimination and to build a free, just, and solidary society. The theoretical and normative, ethical and juridical referential are plentiful, but the “Will of the Constitution” and of Democracy are lacking.
The proposal presented in the present study is to strengthen the Advocacy of the Portuguese Language, through the Federation and its work commissions in action for the multiplication of the results of its studies in the search for justice and citizenship and removal of discriminatory practices and consequent reduction of inequalities.