Brazil is a nation suffering from a substantial lack of commitment to the rule of law. As a result, most of what happens in Brazil lies outside the statute books and law reports. In that country there is indeed a very sharp contrast between, on the one hand, statutes and the written texts of the constitution, and, on the other hand, the daily life as demonstrated in the dealings between individuals and public authorities.
In an important survey conducted by DaMatta in the mid 1980s, citizens in Brazil were asked how they classify a person who obeys the law. The common answer was that such a person must be an individual of “inferior” social status. But when asked about a wealthy person who wishes to obey the law, the common answer to this situation was that this person is simply a babaca (fool). DaMatta then concluded from this empirical research that, in Brazil, “compliance with law conveys the impression of anonymity and great inferiority”.
In Brazil, social status is far more important than any protection of the law, because laws are generally perceived as not being necessarily applied to everyone. Unlike a typical North American citizen who would use the law to protect him-or-herself against any situation of social adversity, a citizen in Brazil would instead appeal to his or her social status.
Respecting the law in this country implies a condition of social inferiority and disadvantage that renders one subject to it. As the late historian José Honório Rodrigues observed: “In Brazil, personal liking is above the law”. And so the familiar Brazilian maxim: “Para os amigos tudo, para os indiferentes nada, e para os inimigos a lei” (For my friends, everything; for strangers, nothing; for my enemies – the law!).
Since Brazil’s society stresses direct relations based on personal liking as opposed to formal relations which are based on the law, the greatest fear of Brazilians is that of eventually becoming an isolated citizen. The isolated citizen is an inferior who is reduced to the condition of being merely “under” the law.
Accordingly, people without the necessary ability to develop such relationship ties have “only” the law on which to depend, whereas a citizen with “good” friends can also obtain any “special” treatment from the state and other institutions of prestige.
A phrase that is typically applied by people who expect such “special treatment” is “Você sabe com quem está falando?” (“Do you know whom you are talking to?”). It is often used by those who wish to somehow disobey formal rules, and as such it can be applied to a vast range of situations. A common application is when a police officer is “daring” to apply a fine for parking infringement. In such a case it is the officer himself who risks being punished if he tries to enforce the law.
It is not so much that the individual declaring personal exemption from the law necessarily views it as being wrong or unfair; it is just that he or she believes the law does not apply to a person like him or her. To obey it would be beneath him or her. The premise is that he or she possesses the privilege of being “more equal” than others, and so exercises the prerogative to ignore the law with impunity and utter arrogance. This sort of behaviour, argues history professor José Murilo de Carvalho, might be provoked by the mixed nature of the Brazilian citizen which he describes in the following terms:
“Master and slave live together inside him. When occupying positions of power he exhibits the arrogance of a master, when outside power he oscillates between servility and rebelliousness. A true citizen conscious of his (legal) rights and mindful of the rights of others did not develop… This cultural trait may help to explain the persistence of (social) inequality whose major victims are the descendents of the former slaves.
In reality, the fact that many people in Brazil often consider themselves above the law might be a legacy of the institution of slavery infecting contemporary Brazilian society. The hypothesis posits that slavery might have contributed to a low value being placed on compliance with law. While slavery was abolished a long time ago, in May 1888, a master-slave mentality might still permeate Brazil’s social relations. According to Joseph A. Page,
“There are… societal ills that can be traced at least in part to slavery. For example, the slave owner could do as he pleased with his slaves without having to answer to anyone for the consequences of his actions. The master-slave relationship replicated the medieval relationship between Portuguese king and his subjects, and it came to define the link between the powerful and the powerless in Brazil… Indeed, a sense of being above the law became a prerogative of the nation’s haves. The notion of impunity – the avoidance of personal responsibility – became deeply ingrained in Brazilianness and has proved a barrier to development.”
To understand the reasons for problems blocking the rule of law from taking hold in Brazilian society, we need to investigate these patterns of social behaviour that inhibit the normal respect for legal norms and principles.
The abysmal difference in Brazil between legal provisions and reality, bears a good testimony to the fact that “good laws” might be important, but what really matters is individual, straightforward conduct, which in turn is the natural result of a culture of legality entailing the willingness by all citizens, including judges and politicians, to honestly respect legal obligations.
Indeed, Brazil does not have the rule of law because Brazilians have not yet developed this kind of culture.
Augusto Zimmermann, LLB, LLM, PhD is a Law Lecturer at Murdoch University, Western Australia. This article is based on a paper presented at annual conference of the Australian Society of Legal Philosophy, June 13-15 2008.