The rights dimension of social citizenship

Since the 1980s, citizenship has become a frequent issue in Brazil’s political discourse, used by social movements in struggles as a ‘right to have rights’ against social and economic exclusion, inequality and in the broadening of dominant conceptions of politics (Dagnino, Reference Dagnino and Kabeer2005).Footnote ¹ In Brazil, the social elements of citizenship are established in Article 6 of the 1988 Constitution. This includes social rights to housing, education, health, work, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute. In countries with persistent inequality like Brazil, however, citizenship cannot be only understood by focusing on formal attributes. Earle’s (Reference Earle2017) work on transgressive citizenship – the way São Paulo’s housing movements shape their relationship with the state through acts of civil disobedience and a politics of rights – helps to understand the pursuit of ‘substantive’ citizenship based on social, economic political and cultural rights. This understanding constitutes the material conditions for survival, an adequate living standard, and the intangible notion of dignity (Earle, Reference Earle2017).

Within this debate, the right to the city is inevitably linked to social citizenship. As Davy (Reference Davy2009: 231) notes, ‘by taking rights into account,’ planners ‘shape the allocation of land uses and the distribution of the benefits and burdens of property; they define the citizens’ right to the city.’ Therefore, drawing up a new political contract of social citizenship – thereby widening citizenship rights – requires a recognition of citizens’ rights to full and active participation in political and civil society, a precondition for deepening democracy. As Fernandes (Reference Fernandes2007a) explains with reference to Brazil and other Latin American countries more broadly, Lefebvre asserted a notion of social citizenship expressing contemporary social relations, or new relations between individuals and society. This reading draws on Lefebvre’s later notion of a ‘contract of citizenship,’ driven by the search for transformative potential within existing rights frameworks (Huchzermeyer, Reference Huchzermeyer2018).

Brazil’s experience finds resonance with Marshall’s (Reference Marshall1950) conception of social citizenship (Holston, Reference Holston2008; Earle, Reference Earle2017). Indeed, Marshall (Reference Marshall1950) notes that citizenship is based on ensuring everyone is treated as an equal member of society, making citizenship a rights-based result of the politics of belonging (Davy, Reference Davy2012). In Citizenship and Social Class, Marshall (Reference Marshall1950) establishes three elements making up the notion of citizenship – the civil, political, and social. Within each of these elements are a number of basic rights, the fulfilment of which is key to acquiring full citizenship. For Marshall (Reference Marshall1950: 8), the social element meant ‘the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society.’ Based on the British case, Marshall (Reference Marshall1950) argued that civil rights would lead to political rights, followed by social rights. Critiques of Marshall’s work include the role of struggle in acquiring citizenship, the rigidity of his citizenship model, and the determinism of his argument. Some have noted that prioritising social rights could depoliticise citizenship (Roche, Reference Roche1987). A detailed reading of Marshall, however, reveals social rights as significant in expanding citizenship, illustrating that it is not only a political category. This decouples citizenship from its entirely formal and legal aspects (Earle, Reference Earle2017; Brøgger, Reference Brøgger2019). Therefore, by expanding the legal conception of citizenship beyond the political, Marshall suggests how citizenship mediates the state and society, which helps to characterise the practices, institutions and bureaucracies by which citizenship became substantive (Holston, Reference Holston2008)

Referring to the Gétulio Vargas dictatorship years – the Estado Novo – starting in the 1930s, Santos (Reference Santos1979) referred to ‘regulated citizenship’ (cidadania regulada) to designate the first systematic recognition of social rights by the state in Brazil through an ‘idealized’ form of citizenship (Fischer, Reference Fischer2008).Footnote ² This version of citizenship was ambiguous given its combination of a recognition of workers’ social rights with state control over workers. It also promoted an exclusionary approach to citizenship, facilitating an urban underclass among people for whom economic prosperity nor citizenship was fully within reach (Dagnino, Reference Dagnino and Kabeer2005; Fischer, Reference Fischer2008).Footnote ³ Because social rights in this era were conferred in a period with little political participation, they were understood as ‘favours’ instead of rights, a process inexorably linked to informality as a precursor to such rights.

A gradual process of political liberalisation from authoritarian rule – the abertura (or political opening) – began by the mid-1970s as an elite, top-down project (Mainwaring, Reference Mainwaring1986). By the late 1970s and early 1980s, neighbourhood-based social movements emerged in the urban peripheries of Brazilian cities affirming a ‘right to have rights,’ a struggle against an omnipresent culture of social authoritarianism (Dagnino, Reference Dagnino and Kabeer2005).Footnote ⁴ While the movements did not initiate the return to democracy, ‘the ensuing outburst of popular mobilization’ certainly increased the momentum of this process (Earle, Reference Earle2017: 108). By reinventing the political contract through specific struggles and concrete practices, this established an environment for the urban social movements to redefine citizenship as a more egalitarian framework for social relations, implying the embodiment of citizens as active social subjects in rejection of the populist model under Vargas (Paoli and Telles, Reference Paoli, Telles, Alvarez, Dagnino and Escobar1998; Dagnino, Reference Dagnino and Kabeer2005). With a wider arena for debate, there was therefore a growing perception of the notion of citizenship and its constituent rights as the objective of their struggles, leading these emerging movements to embrace a discourse advancing needs as social rights (Earle, Reference Earle2017). As Holston (Reference Holston2008: 241) notes, these rights-based arguments ‘constituted their proponents as bearer of the right to rights and as worthy of that distinction as any other class of citizen.’ In 1982, the National Movement for Urban Reform (Movimento Nacional de Reforma Urbana, MNRU) was formed, composed of popular movements, neighbourhood associations, NGOs, unions, and professional organisations to develop a proposal for a rights-based approach to urban development with the recognition that urban reform requires legal protections for citizen rights (Fernandes, Reference Fernandes2007a; Friendly, Reference Friendly2016).

These events ultimately culminated in the movements’ participation in crafting the new Constitution in 1988, grounded in discourses of rights and citizenship. The Constitution that resulted following the 1986–87 Constituent Assembly (Assembléia Constituinte) expressed both a social demand and the legal foundation to fulfil these demands, constituting a guarantee that Brazilians could use to establish new dimensions of citizenship through mechanisms of popular democracy (Fischer, Reference Fischer2008). According to Earle (Reference Earle2017), the social movements have developed a powerful rhetoric linked to the progressive aspects of the 1988 Constitution, which established the social function of property, and explicitly recognised the right to the city as a collective right. As Fernandes (Reference Fernandes2007a) notes, the right to the city would involve the right of all city dwellers to fully enjoy urban life – the right to habitation – and to take direct part in the management of cities – the right to participation.

Tracing the construction of social citizenship in Brazil also requires an understanding of the way the right to the city has been both understood and appropriated. Indeed, Huchzermeyer (Reference Huchzermeyer2015) points to the importance of Lefebvre’s writings – and even visits – between the late 1960s and early 1980s in Brazil which inspired a rights and legal focus in the work of the social movements that later aligned with the Workers Party.Footnote ⁵ Lefebvre’s ideas provided considerable resonance across Latin America (Machado, Reference Machado2008; Omena de Melo, Reference Omena de Melo2017). As Fernandes shows (Reference Fernandes2007a), these actors in Brazil and other Latin American countries came to understand that urban reform is possible only with legal-political reform asserting a new set of citizenship rights. While the social movements had been able to incorporate two principles into the Constitution – the democratic management of urban policy and the social function of property – these were subordinated to the requirement of elaborating a master plan. Following a thirteen-year battle over the content of the urban policy directives, the law that became known as the Statute of the City was adopted on July 10, 2001, formally incorporating the right to the city into national law (Bassul, Reference Bassul2005; Friendly, Reference Friendly2013). Interpreted in the Brazilian context, the right to the city means a combination of the principles of the social function of property and the democratic management of cities (Fernandes, Reference Fernandes2011). Thus, cities were provided with the tools to regulate the Constitution’s two articles on urban policy, and its commitment to reducing urban inequality. In the next section, I explore the idea of the social function of property in urban legislation.

The social function of property in urban legislation

In some contexts, such as in Brazil, constitutional provisions include social obligations within property rights, known as the social function of property, or the obligation to use property in ways contributing to the common good (Fernandes, Reference Fernandes2007a; Ondetti, Reference Ondetti2016). Originally put forward by French jurist León Duguit of the late nineteenth and early twentieth centuries, Duguit argued that property is not a right but a social function; therefore, the owner has an obligation to make it productive because property should enrich not only the owner, but society.Footnote ⁶ This view recognises that the wealth controlled by owners should be available for the community through economic transactions (Foster and Bonilla, Reference Foster and Bonilla2011). As a result, the state should protect property when it realises the social function as owners should not use their property to harm others. This idea, part of a broader critique of an absolute right to property, was based on a social reality recognising solidarity (Foster and Bonilla, Reference Foster and Bonilla2011; Ondetti, Reference Ondetti2016). Although the idea does not imply a rejection of private property (Mirow, Reference Mirow2010), it stems from a belief that the interdependence between people requires limits to be placed on private ownership

In Brazil, as in other parts of Latin America, the social function of property has played an important role, entering the Brazilian legal system with the 1934 Constitution with the objective to democratise access to the goods and services produced in cities (Bassul, Reference Bassul2005). As Ondetti (Reference Ondetti2016) notes, the idea of the social function was adopted across Latin America because it fit with demands to divide large landholdings, often driven by a combination of economic and redistributive motives. Brazil’s 1934 Constitution protected the right to property, provided it did not exercise against social or collective interests. In this understanding, the social function became an external limitation that the government imposes on the exercise of property rights (Cunha, Reference Cunha2011). Subsequent Brazilian Constitutions since that time have included statements about the social function of property.

Following the 1986–87 Constituent Assembly, the 1988 Constitution – ratified three years after the return to civilian rule – recognised that private property has a social function, included an explicit discussion of what realising the social function entails and tools to promote the social function. Thus, local governments can advance the use of urban land through expropriation, forced subdivision, and progressive taxation to fulfil the social function. Cities of more than 20,000 inhabitants were required to define an approach to enforce the social function within their municipal master plans. Although the social function principle had been included in Constitutions since 1934, the 1988 Constitution established a consistent formula: private property was recognised as a fundamental right if it accomplished the social function, which would be defined by municipal master plans and other urban and environmental laws (Fernandes, Reference Fernandes2007b). This result, however, came following heated debates over the principle of the social function. Effectively, this meant that the social function was subordinated to elaborating a master plan (Friendly, Reference Friendly2013). While ironically the idea of the master plan was absent from the urban popular amendments submitted to the Constituent Assembly, the urban social movements were forced to accept that the enforcement of the social function would be subject to municipal master plans, despite rejecting it as totalising and elitist, a conservative strategy to make it merely rhetorical (Fernandes, Reference Fernandes2007b; Caldeira and Holston, Reference Caldeira and Holston2015).

The constitutional provisions regarding the social function of property required complementary legislation to define it more precisely, and to create mechanisms for its implementation. The approval of the Statute in 2001 thus defined the social function through substantive guidelines as the Statute’s conceptual dimension, including a list of tools available to enforce it (Caldeira and Holston, Reference Caldeira, Holston, Ong and Collier2005; Friendly, Reference Friendly2013). To that end, like the 1988 Constitution, Article 39 of the Statute stipulates that ‘urban property fulfils its social function when it meets the basic requirements for ordering the city set forth in the Master Plan, assuring that the needs of the citizens are satisfied with regards to quality of life, social justice and the development of economic activities.’ The Statute establishes that the objective of urban policy is to realise the principle of the social function by following a set of guidelines (Article 2). The most important include guaranteeing ‘the right to sustainable cities’ (para I), the ‘democratic management by means of participation by the population’ (para II), using planning ‘to avoid and correct distortions caused by urban growth’ (para IV), producing a ‘fair distribution of the costs and benefits resulting from the urbanization process’ (para IX), and ‘tenure regularization and urbanization of areas occupied by low income populations’ (para XIV). The Statute thus establishes the production of social equality in urban space as a key objective of urban planning and policy and additionally, makes planning an instrument to equalise social disparity and to realise social equality (Caldeira and Holston, Reference Caldeira, Holston, Ong and Collier2005).

Given that the idea of the social function in Brazil has unfolded since the 1930s, this evolution did not stop with the approval of the Statute. Indeed, the approval of the 2002 Civil Code – which replaced the 1916 Civil Code that had reinforced the long-held tradition of individual property rights – enabled the concept of the social function of property to gain strength, permeating the Brazilian legal system (Cunha, Reference Cunha2011). The 2002 Civil Code broke with mainstream Brazilian legal thought by connecting the exercise of property rights to economic, social, and environmental goals. As Cunha (Reference Cunha2011: 1180) notes, ‘the Code internalizes the social function of property by imposing a duty of solidarity upon the owner.’ While the implementation of the social function of urban property has been modest (Ondetti, Reference Ondetti2016), Pimentel Walker and Arquero de Alarcón (Reference Pimentel Walker and Arquero de Alarcón2018) show that the Brazilian Supreme Court has interpreted the 1988 Constitution and the 2001 Statute of the City in ways that limit the profits of real estate developers and landowners. Overall, while an understanding of the social function in urban legislation is critical to appreciate the social obligations within property rights, also important is the role of insurgent planning in Brazil’s social movements, which I turn to next.

Insurgent planning in Brazil’s social movements

The idea of insurgent urbanism gained currency through the idea of Holston’s (Reference Holston and Sandercock1998) notion of insurgent citizenship and work in Brazil, referring to new sources of legitimacy in opposition to a modernist political project, further articulated by others within planning (Friedmann, Reference Friedmann2002; Miraftab and Wills, Reference Miraftab and Wills2005; Miraftab, Reference Miraftab2009). In introducing insurgent citizenship, Holston (Reference Holston and Sandercock1998) highlighted the development of new kinds of practices and narratives referring to belonging and participating within a society. Likewise, insurgent urbanism referred to the spatial mode of insurgent citizenship. For Sandercock (Reference Sandercock1999), the calls for insurgent urbanism were part of a radical planning for the twenty-first century, acknowledging the socio-cultural and economic aspects of globalisation. Such an understanding calls attention to the varied citizenship spaces and the insurgent urbanism practices emerging in response to neoliberal urbanism (Purcell, Reference Purcell2002; Miraftab and Wills, Reference Miraftab and Wills2005).

The differentiated citizenship articulated by Holston (Reference Holston2008) produces inequalities, vulnerabilities and destabilisations and the means to confront them through ‘insurgence.’ This distinctly Brazilian version of differentiated citizenship is inclusive in membership, yet extremely unequal in distribution due to income inequalities (Watson, Reference Watson2012). For Holston (Reference Holston2008: 34):

Inspired by discussions of insurgent urbanism, insurgent planning practices are counter-hegemonic in that they disrupt the normalised order, and transgressive and imaginative, meaning that they transgress time and place by positioning historical memory and transnational consciousness at the centre of their practices (Miraftab, Reference Miraftab2009). Such a perspective offers material evidence of citizens’ insurgencies to both plan and address their livelihoods through situated citizenship practices (Miraftab and Wills, Reference Miraftab and Wills2005), which theorise insurgent practices as forms of planning (Friedmann, Reference Friedmann2002; Meth, Reference Meth2010). Indeed, this response reflects a scaffold to understand how people manoeuvre outside formal planning practices through resistance and counter-hegemony (Friendly and Stiphany, Reference Friendly and Stiphany2019), and a theoretical construct to support planning in the face of spatial injustice (Miraftab, Reference Miraftab, Gunder, Madanipour and Watson2018). Such insurgent practices emerge through processes of peripheral urbanisation highlighting the role of residents in producing urban space as a mode of urbanisation. While this process operates inside formal modes of planning, it works in transversal ways through which people ‘make themselves into citizens and political agents, become fluent in rights talk, and claim the cities as their own’ (Caldeira, Reference Caldeira2017: 3).

Given these diverse meanings of insurgence from a range of contexts, calls have emerged for empirical analyses to understand strategies within diverse political and economic environments (Meth, Reference Meth2010; Watson, Reference Watson2012). As Irazábal (Reference Irazábal2008) shows, cities across Latin America function as the site in which insurgent planning practices and claims to citizenship increasingly take place in response to contemporary urban problems. In Brazil, Holston’s (Reference Holston2008) work in peripheral neighbourhoods of São Paulo shows how residents organise to defend their rights to land and property in the face of disputes over ownership through tactics of resistance and appropriation based on manipulating a rights-based discourse to claim urban land and services. Thus, practices of insurgent planning can be seen in the social movements and grassroots organisations from the peripheries that generated new discourses of rights and made demands. These practices are central to the rise of new forms of citizenship, the new Constitution, experiments with new forms of local administration, new approaches to social policy, planning, law, and citizen participation (Holston, Reference Holston2008; Caldeira and Holston, Reference Caldeira and Holston2015). Such insurgent practices, in fact, bolstered the early radical transformation of Brazilian urban reform (Klink and Denaldi, Reference Klink and Denaldi2016). Indeed, Souza (Reference Souza2006) refers to insurgent spatial practices as ‘critical planning agents,’ a genuine grassroots urban planning of social movements based on examples of favela activism of the 1960 and the sem-teto (literally ‘roofless’) movement of the early 2000s.

Earle (Reference Earle2017) adds to this ongoing debate, showing that what is impelling the mobilisation among some of Brazil’s poorest populations is a demand for equality, to be achieved through constitutional rights, and especially social rights. Based on research on São Paulo’s housing movements, Earle (Reference Earle2017: 7) calls this ‘transgressive citizenship,’ the ability of the movements ‘to promote, defend and implement this right’ to the city. In this view, insurgent planning refers to the ability to expand citizenship rights for vulnerable groups. In that sense, it is clearly aligned to the right to the city debate, especially given the scepticism towards capitalist modes of urbanisation, and the move towards spatial justice and social transformation.

Insurgent planning in Brazil has also been evident in the protests that began in June 2013 around the issue of rising bus fares and ultimately, the ‘urban question,’ or the nature of the social process of production of urban space in Brazil (Fernandes, Reference Fernandes2014; Maricato, Reference Maricato2017). The protests – initiated long before 2013 – included reminders of forgotten promises and demands for basic social rights with a distinctly urban dimension, which continued well beyond the first protests around transportation (Friendly, Reference Friendly2017; Vicino and Fahlberg, Reference Vicino and Fahlberg2017). The protests raised issues in the public debate regarding citizenship, including listening to the ‘voice of the street’, taking the grievances of everyone seriously, and improving the quality of democracy (Braathen et al., Reference Braathen, Mascarenhas, Sørbøe, Viehoff and Poynter2016). Although the future of such insurgencies is unknown in Brazil’s current climate, they represent a legacy with the possibility of both strengthening collective action and stimulating political debate about the future of Brazil’s cities (Friendly, Reference Friendly2017). As Swyngedouw (Reference Swyngedouw2018: 130) notes in reference to a range of urban insurgencies that sparked around the world in response to discontent with the state of affairs, ‘a much more politicized if not radical mobilization, animated by urban insurgents, is increasingly choreographing the contemporary theory of urban politicized struggle and conflict.’