Anyone wishing to understand how Brazil really works will need to also consider the ways in which people can exempt themselves from the content of laws. An observation of the reality in Brazil reveals a society that is deeply regulated by contra-legem (anti-legal) rules.
These are not the rules taught in the law schools but are rather socially defined rules that are remarkably different from the state codes and statutes and the decisions of the courts.
Due to the extent to which positive laws are not always respected, Roberto DaMatta, an anthropology professor at Notre Dame University, has argued that Brazilian society is pervaded by a “double ethic”. Thus, in theory people seem ruled by general and abstract rules of law, but in practice they are actually far more regulated by unwritten social norms which, as DaMatta puts it, “promulgate and protect the ethic of privilege and those who act on it”.
Accordingly, ways around the law can be eventually obtained through a range of factors related to conditions of wealth, social status, and ties of family and friendship.
The non-legal rules of Brazilian society are based on historical and cultural precedents. They lead to extra-legal practices where some people can easily regard themselves as above the law.
In contrast to the rule-of-law conception of citizenry in countries such as the United States, social relations in Brazil are established according to more informal and clientelistic rules of society itself.
The greatest fear held by people in the country 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. The basic Brazilian personality, however, stresses direct personal relations based upon personal liking rather than formal relations.
Thus, people without the ability to develop such ties of relationship are regarded as inferior citizens. They have “only” the law to obey, 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 the law, and as such can be applied to a vast range of situations.
A traditional application is when a police officer is trying to fine a parking infringement. It is also a favourite phrase for “filhinhos de papai” (daddy’s little boys) – an expression which implies nepotism and abuse of influence – who like to use it especially when cheating at school or ignoring a queue.
Basically the phrase is adopted when someone is trying to impose their will above others and the law. It is not so much that the person declaring personal exemption from the law in question necessarily views it as being wrong or unfair; it is just that he believes the law does not apply to a person like him.
To obey it would be beneath him. The premise is that he possesses the privilege of being “more equal” than others, and so exercises his prerogative to ignore the law with impunity and utter arrogance.
Indeed, the social status of individuals is more important than legal protection in Brazil, because law is perceived as not being necessarily applied to everyone. Unlike a typical American citizen who would use the law to protect himself against situations of social adversity, a citizen in Brazil would instead appeal to his social status. This is because to respect the law in this country would be to imply a condition of social inferiority and disadvantage that makes one subject to it.
In an important survey conducted by DaMatta in the mid 1980s, citizens in Brazil were asked how they would classify a person who obeys the law. The common answer was that such person must be an individual of “inferior” social status.
But when asked about a wealthy person who wishes to obey the law, then the common answer for this situation was that this person is a babaca (fool). DaMatta concluded with his empirical research that in Brazil, “compliance with law conveys the impression of anonymity and great inferiority”.
The idea that laws should be applied indiscriminately clashes with deeply rooted values in Brazilian society. It is universally known there that some bureaucratic “inconveniences” can only be solved through the extra-legal “favours” that are provided by public servants in state agencies.
Part of the importance given to ties of relationship stems from the failure of the bureaucratic sector to work satisfactorily. State agencies can of course work quite well, but only for those with the right connections.
Brazilians need to place a stress on direct personal relations that are based upon liking rather than on the formalities of the law.
As the late historian José Honório Rodrigues observed of the country, “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!)
This weak condition of legality comes as a historical by-product of the clientelism practiced by the Portuguese colonizers. These colonizers, explains law professor Keith S. Rosenn, “bequeathed the Brazilians a weak sense of loyalty and obligation towards the body politic, and a strong sense of loyalty and obligation towards family and friends”.
Unlike a country like the United States where its first settlers possessed a strong commitment to the rule of law, the first settlers in Brazil in contrast tried to disrespect the law and did not acknowledge basic notions of public service and public trust.
When the powerful uphold the law only when it suits them, other members of society will endeavour to do the same. People, feeling themselves less morally compelled to obey laws, therefore start resolving social conflicts by “parallel” means, such as through social influence, corruption, and even violence (e.g. vigilante justice, lynchings, and land invasions).
These alternative responses to the lack of legal protection end up undermining all the more prospects for the realization of the rule of law.
The survival of the rule of law depends on a culture of legality that regards the compliance of laws as a “public good”. Unfortunately, many people in Brazil respond adversely to the ideal of the rule of law, as they view law always in terms of a mere commodity to be manipulated.
Due to this absence of social regard for legality, extra-legal practices have the potential to destroy even the most basic aspects of the constitutional order, including separation of powers and political accountability.
The risk is that the extra-legal practices of the society may eventually bring about the final collapse of current democratic (legal) institutions.
If both democracy and the rule of law ever become a reality in Brazil, then it will be due to its people having finally learnt to close the sundry gaps separating positive law and the way most Brazilians behave.
A legal system where many of its formal rules are so often ignored cannot possibly lead to the realization of the rule of law.
Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitutional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: email@example.com.