In the year the CLT (Consolidation of Labor Laws) turns seventy, Brazilian labor judges gathered in Washington, United States, to participate in yet another edition of the Anamatra International Congress. A bold move, some would say, given the enormous differences between our system, associated with the German-Romanesque model, and the North American system, founded on common law. Exotic, others would say, guided by the certainty of the near-uselessness of gathering knowledge unrelated to the Brazilian judicial reality. Fortunately, however, the other side of the coin prevailed. The Congress was a success, beginning with the congressmen's openness to the new reality they were being introduced to. The interest shown in the debates and questions posed was a good indicator of everyone's engagement.
Specifically, the experience can be summarized by noting that the American labor protection system is based on collective bargaining, where unions played a leading role—yes, the verb "to have" is used in the past tense because, starting in 1947, with the change in legislation, this framework began to profoundly change—in establishing working conditions that, on the one hand, positively impacted wages and, on the other, sought to establish a certain correlation between workplace democracy and politics, understanding that strengthening the former would inevitably have repercussions on the latter. Thus, the status of social actor par excellence, granted to unions, was simultaneously pragmatic and strategic to the American development model. However, over time, the number of union members has declined considerably, and with it, the scope of worker protection. This does not mean, however, that the current situation allows us to conclude that there are no standards that guarantee rights to the working class. Proof of this is the judicialization of conflicts arising from labor relations.
Indeed, the North American system reveals several formulas for resolving these conflicts, embodied in both the administrative and judicial spheres. In the administrative sphere, there are many mediation and resolution bodies for workers' claims, or even those of unions. In the strictly judicial sphere, it is noteworthy that both the State and Federal Courts can adjudicate labor matters, with jurisdiction differing fundamentally according to the type of law governing the dispute, whether state or federal. The collective nature of lawsuits reveals a broad spectrum of possibilities for making legal action more effective, meaningful, and, why not say, democratic, instigating greater reflection among us on possibilities that have not usually been explored in Brazil.
Another revealing aspect of particular importance: the judge. Comparisons were inevitable. Starting with the main role of the American judge, which consists of procedural management, has little to do with the meaning of the manager role in our country, as it is limited to the procedural relationship in the strict sense. This occurs because a large proportion of trials are handled by jury trials. Management, therefore, focuses on gathering evidence and legally formatting the documents pertaining to the case, with the corresponding presentation to the jury. Thus, the judge's managerial role is not oriented toward resolving structural issues affecting the administration of judicial services, which allows for greater dedication of their time to the trial itself.
Another interesting point is the political affiliation of judges there. Since the entry process into the profession does not follow a competitive selection process, access is granted through the endorsement of candidates through a political party, making it unclear whether judges can truly be independent given this connection. Indeed, the entry formula ultimately closes the doors to the profession to younger judges, with the North American judiciary being known for its older members. However, it was not possible to conclude on the impact of this judicial profile on the content of decisions rendered. In any case, legal scholars say that, today, there is no exclusively customary or positivist system. Proof of this is evident in the growing prominence of so-called jurisprudentialism in systems like Brazil's.
Although the two approaches are closely aligned, the 7th Congress revealed the distinct realities of legal practice between our countries. It also demonstrated the importance of law and the judiciary in shaping a country. Regarding this, Dr. James Apple, President of the International Judicial Academy, stated that in every American city, there will be a judicial branch in the central square, a feature that harks back to long-ago times when the habit of people attending trials was established. This led him to conclude that "the courts and the law play a fundamental role in the development of the United States and American society."
Among us, it was no different, even though it was. It's true that in Brazil, the popular habit of attending trials and court sessions hasn't developed. However, we have a Labor Law system built on the firm action of a judiciary committed to reducing inequalities, aware of the fundamental role of the decisions it makes within the society in which it operates. It's no coincidence that, when the 70th anniversary of the CLT is celebrated, what we're celebrating is the existence of work with rights. It seems small—but it's not—to have a system for protecting human labor, equipped with a high-quality doctrine, as well as a branch of the Judiciary dedicated to giving life and concreteness to this complexity. The attacks on the CLT, paradoxically more intense during its anniversary celebrations, essentially constitute an attack on the protection system it ultimately embodies.
It is no coincidence that the reflection that the 7th International Anamatra Congress invites us to make is, essentially, the importance of law and the judiciary for a society that seeks to be truly democratic. We don't have a courthouse or a courthouse in every town square. But we do have a Labor Law that must be present in all of them and in every part of this immense Brazil.
May 2013.
The Editorial Board