Overcoming Discrimination:
Color and the Rule of Law

Chair: Rebecca Cook, University of Toronto
Paper: Peter Fry, Universidade Federal do Rio de Janeiro, Brazil
Discussant: Joan Dassin, Inter-American Dialogue

The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996

Color and the Rule of Law In Brazil

Ninety-four percent of all Brazilians have no faith in the rule of law. There is a recognition that the wealthy receive better treatment than the poor. In this regard, it is significant to note that Brazil is the world leader in inequality. In surveys, 68 percent of Brazilians assume that blacks receive worse treatment than whites. Academic research confirms what Brazilians believe.

In his research, Sergio Adorno notes that blacks are more persecuted and receive more vigorous penal treatment. Color is a powerful instrument of discrimination in the distribution of justice. Adorno's findings regarding the present also hold true for the past.

Costa Ribiero, in his research, found that the determinative factor in conviction was the color of the defendant. Ribeiro noted that at the turn of the century "scientific racism" played an important role in Brazil. It was at this time that Raymond Nina Rodrigo argued that criminal responsibility decreased from the white race to the black. These ideas, while never part of the legal system, informed the moral judgment of those drawn into the criminal justice system.

The Brazilian constitutions remained neutral on the issue of race. The first race-related legislation, which punished racial discrimination, was passed in 1951. The 1958 Constitution incorporated racist practices as a crime. Later, Federal Deputy Cao presented new legislation which would deny bail to those accused of "crimes resulting from racial or color prejudice" and stipulated prison sentences from one to five years for those found guilty. This law further provides that crimes resulting from racial or color prejudice may never lapse. All evidence points to the fact that the new law has been no more effective than the old, either in stemming racism or in punishing racist practice.

During the early part of the century, Brazil was seen as the cradle of racial democracy. After World War II, UNESCO promoted a series of studies on race relations in Brazil-this opened a Pandora's box and has systematically proven the degree of discrimination in Brazil. Studies show that discrimination has the effect of forcing non-whites into positions of least privilege. Ricardo Paes de Barros argues that racial discrimination is responsible in itself for the inequality of wealth and income in Brazil.

The Paradox

Recent surveys show that everyone in Brazil is aware of discrimination; they also reveal a contradiction, in that Brazilians continue to believe in racial democracy. Thus, the paradox lies in the fact that Brazilians deny racism, yet practice it. The demonstration and recognition of racism did more than deny the myth of racial democracy; it suggested that the myth had the powerful function of masking discrimination and impeding the formation of a large-scale black protest movement. In this way, racism has become more insidious because it is officially denied.

What is being done to reduce prejudice and discrimination against the poor and, in particular, people of darker color? In the past, black groups emphasized the establishment of a black identity. Recently, a shift has taken place, with growing emphasis being placed on addressing concrete issues of inequality in the workplace, the educational system, in relation to health, and in religious organizations. Parts of the movement have become more inclusive, recognizing that not all Brazilians favor the bipolar model.

Various anti-discrimination measures have been taken. The National Human Rights Program's goal proposes a strengthening of the bipolar model and policies in favor of black Brazilians. These actions differ from the de-racializing ones mentioned earlier. Instead of a denial of "race," there is a celebration, recognition, and formalization of race as a criterion for defining and targeting policy. In this spirit, the Brazilian government promoted a conference on "Affirmative Action and Multiculturalism" in 1996. Affirmative action consolidates the belief in racial difference by celebrating race as a legitimate criterion for public action.

Conclusion

Brazil is at a crossroads-either it can continue to pursue "de-racializing" policies or it can turn towards affirmative action. Recent surveys show that all Brazilians share the same basic values, regardless of race. Variations in education and income levels constitute the great divide.

 

Discussant's Comments (Joan Dassin)

Fry, in asking how color interacts with the rule of law and the underprivileged, holds up several paradoxes. Firstly, racism is pervasive. However, it is hard to recognize. Where it is recognized, there is no recourse, no sustained attention. Even in cases where it is redressed, the delay causes great personal sacrifices. Racism is everywhere but nowhere in Brazil; it is as difficult to prove or identify as it is to redress.

Secondly, the potential for corruption by power and wealth is exacerbated by the Brazilian situation, where there is a great disparity in wealth. Economic and social inequality are of extreme importance (e.g., class as opposed to race). This is particularly true of the law. At the same time, race can be separated as an independent and the apparently dominant factor in the biased treatment accorded to blacks and mulattos by the law. Fry does not decide whether class or race takes precedence. Rather, it is implicit that the relationship between class and race is the bedrock of Brazilian social relations.

Thirdly, there is a culture which admires those that take advantage of the law. However, formally, there is equality before the law. Manipulation of the law by those who have the privilege and status to do so (i.e., whites) is seen as a positive value, while on the other hand, there is a provision of formal equality. The picture is further complicated by the thought that the penal system ought to provide unequal treatment for unequal individuals. Fourthly, despite increasingly punitive legislation to prosecute racial crimes and the acknowledgment by most Brazilians that racism exists, there is a general reluctance to seek remedies. Fry notes that recent research denouncing the myth of racial democracy and the active role taken by the relatively small black community has helped create a reversal in Brazil's self-image.

The central paradox is that although most Brazilians agree that racism exists, most claim not to suffer from it. This suggests that the real debate should center around the myth of racial democracy. The question is whether the myth does not mask discrimination or neutralize racial identification among non-whites. Fry takes the view that racial democracy is an aspiration of such strength that it impedes the recognition and subsequent punishment of those who would deny it. For him, this explains why legal instruments are of such limited use in remedying racism in Brazil. Fry summarizes the changes in Brazil's black movement over the past three years. There has been a growing emphasis on concrete issues of inequality in those areas of social life where they have been best documented-in the workplace, educational system, and health and religious organizations. This has given blacks real targets in the struggle against economic and social consequences of discrimination.

Fry ends his paper with a warning regarding affirmative action. He dislikes the idea of formalizing race as a criterion for defining and targeting policy. He is shocked that the government would contemplate passing legislation recognizing the existence and importance of distinct racial communities in Brazil. Drawing from US experience, he states that while affirmative action may result in real gains, it also polarizes those falling on different sides of the divide.

Fry reaffirms that the belief in racial democracy is a valid aspiration. According to him, the government should limit its actions to exposing and punishing the evils of racism and racist thought. However, the underlying problem should be targeted-super inequality. Poverty is the fundamental issue. What separates Brazilians is their educational qualifications and income. Accentuating their racial divides could be highly destructive. He lays down the gauntlet for broader debate on the issue.

 

Floor Discussion

Margaret Crahan (City University of New York) commented that one should look at the myth of racial harmony not only as an integral part of social structuring, but also political and economic structuring in the nineteenth century. Fry noted that, throughout the literature, the bipolar system was seen to be more efficient and modern.

Tom Farer posed the question as to what the least insidious form of inequality is, racial discrimination being the most insidious. Regarding affirmative action, he asked whether you reduce the insidious character by allowing those already the most advantaged in a system of disadvantaged to benefit in order that they may assist those unable to exploit the situation. This might have the effect of breaking down the class movement. It is clear that affirmative action is only beneficial to a small percentage of people. Fry commented that in the United States blacks remain loyal to the black community, regardless of whether they are rich or poor. This is not so in Brazil. Thus, in societies where there is segregation, it makes sense to talk about affirmative action. However, perhaps in the case of Brazil there is another way out. Dorothy Q. Thomas suggested introducing anti-poverty programs targeting the poor. This would inevitably target a large number of blacks.