domingo, julho 09, 2006

The Silence of the Cowards

Plínio Gustavo Prado Garcia*

Do you cherish your freedom? Do you cherish your professional conquests? Do you cherish your physical security and the security of your family and your assets? If your answer is yes and nonetheless you remain silent when confronting anyone whose thoughts and acts do not match yours but rather think that your freedom is worthless, that your professional conquests mean nothing, that your physical security is irrelevant and that your assets belong not only to you but also to someone else, then I can say: you are a coward.

Perhaps the worst cowardice is that of those persons who bow themselves to ideological arguments purported by those individuals with utopical views concerning material equality who take advantage of such arguments in order to deprive you of your freedom and of your assets. When not of your life.

Under this line of thought, the use of expressions such as “the social function of the property” carries an evil purpose designed to break down the sense and meaning of the term property and is aimed at eroding the sheer meaning of property and to change the landlord or owner into a slave, a servant of those depriving him or her of their rights.

Most of the time, this deprival of rights comes about surrounded by purportedly good intentions that at the end solely conduct to social disaggregation and to the enthronement of their agents in command posts wherefrom they start acting as sheer dictators or tyrants, thereby transforming each and one of us into their mere subordinates deprived of freedom of action and of decision.

I have sustained that the guarantee of the property rights is not of my sole interest, as it matters to you too. It does matter to all and to each one of us. The protection of the property rights has to do with the peaceful existence in society. And this is not in effect an individualistic or an egotistical view of the meaning of property. Rather, it is a view that puts the public interest in a privileged status, as something that concerns the direct interest of each person in his or her individuality. This is easy to understand when you have in mind that no social exists without the individual. This is why socialism is not compatible with freedom and with private property. As an ideology, socialism aims at an utopia, as -- while it gets away from reality -- it crushes the individual on behalf of the social.

There is an evident factual impossibility of individual equality in the material field. Even in the intellectual field. Perhaps, our greater richness is in this same diversity, where the individual will may be a factor for the development of creativity for those who seek for opportunities for individual and social progress. It will be up to the society and to those in the Government to create conditions for these opportunities to be available to a growing number of individuals. Talent alone is not enough without the simultaneous will to take advantage of it, and the will to take advantage of it is not enough if we miss in creating opportunities for its development.

I am in favor of generating richness as a means to improve the individual and social standards of living. But the generation of richness may not dismiss the convergence of individual effort and financial capital, notwithstanding the fact that one will hardly generate richness without the individual asset represented by talent and the will to become successful and by the actions required for the this will to materialize. Luck may help but it only helps those who are in the right place at the right moment, as we are also the product of our actions and our circumstances.

Returning now to the issue of the “social function of the property” as a theme and as an element of socialist inspiration introduced into the Brazilian Federal Constitution, what sort of considerations could we extract there from? The first one is the weakening of the concept of property as something that belongs to someone and to no one else. The second consideration it the subordination of the holder of the property and of his or her property to the will of strangers. These strangers, may they be the Government or not, take to themselves to tell you what you must do or must not do with your property or in your property. A dividing line must be established therein, between what you do that may be to the detriment of your neighbor and what you lack doing to prevent harming your neighbor, and what you feel like doing and should do on your own behalf and without any harm to others. It is evident, therefore and therein, the distinction that must be made between the regular exercise of one’s right and the abuse of right, so as to assure the former and to condemn the latter.

I do not ignore the fact that private property may be submitted to expropriation for reasons of public interest. As the protection of private property is also a matter of public interest, the previous payment of a fair market price to the owner or landlord as compensation therefor is a requirement in order to safeguard the financial and juridical balance of this exchange.

There may be public interest even in an eventual expropriation for the purpose of land reform. But imposing upon the land owners farm productivity levels to be met as a requirement for keeping their property safe from expropriation for land reform (despite the fact that this is allowed under the Brazilian Constitution where it refers to “the social function of property”) is something clearly unacceptable and subject to raising an unconstitutionality issue before the Courts.

One cannot find any reasonableness, the minimum it may be, in this kind of demand. Who would dare to require from any public servant that he or she should meet any level of productivity? We, the taxpayers who pay their salaries, would in thesis be entitled to do so. Who dares to ask for the dismissal of any one in the Government based on his or her poor performance? We, voters who elect them, may, at least in thesis, not reelect them. And if we present to any public servant these requirements for compliance, which of them would accept his or her dismissal for failing to meet such performance levels?

I have just read in the newspapers, as the Minister of Agriculture is leaving his post, that land owners are afraid that a new Minister may increase the legal productivity levels for the agribusiness to meet, in order to avoid the threat of expropriation upon their lands for the purpose of land reform.

These farm owners are not public servants! They have not been hired by the Government to work in Government farms. They are people like you and I, who undertake risks in their free enterprise activities. Free enterprise that, in this country, is still protected by the Constitution of the Republic. And who undertake risks while farming their own farms or farms rented out from other farm owners. Risks in working on the land and in working the lands. There is, in addition, no reasonableness in expropriating their farms under the pretense that they have not met the productivity levels or performance levels. One should note that the Government Bonds (TDA) to pay for the expropriation (rather than payment in cash to the expropriated owner) shall nonetheless be born by us, taxpayers or not, while the land -- expropriated for land reform and divided and delivered to third parties, who shall also be required to meet such productivity levels– shall be delivered to them at no cost whatsoever.

If the omission of these cowards shall persist, it will not take long for those who like to take advantages – while waving the flag of the “all for the social” (and consequently nothing for the individual) -- to determine that each and any private business or enterprises in the cities shall be required to meet such productivity levels, under the penalty of being taken over by the incumbent government.

Let me reaffirm my initial statement by saying that to the coward submission is all that remains, as he who have rights and do not exercise upon their rights deserve no rights. Today, he will be deprived of his rings. Tomorrow, of this properties. Then, of his freedom. And finally, of his life.

It is the privileged “stateship” stepping upon the deprived citizenship.


Plínio Gustavo Prado-Garcia is a Brazilian attorney, senior partner and founder of Prado Garcia Advogados – Lawyers and Consultants in São Paulo,SP, Brazil; Master of Comparative Law (American Practice) G. Washington University, USA; Professor of Civil and Tax Laws, member of the Brazilian Bar Association, the Lawyers’ Institute of São Paulo (IASP), the Brazilian Institute of Tax Law (IBDT), author, consultant and lecturer.