Is There No True Justice or Rule of Law in Brazil? If So, How Can There Ever Be Economic Freedom??

http://www.brazzil.com/articles/193-june-2008/10072-in-brazil-rule-of-law-is-for-the-birds.htmlzil.com/articles/193-june-2008/10072-in-brazil-rule-of-law-is-for-the-birds.html

In Brazil, Justice is For the Birds

By Augusto Zimmermann

Brazzil Magazine

June 17, 2008

(Translation: 'Picture of Brazil')

This article is based on a paper presented at the annual conference of the Australian Society of Legal Philosophy, June 13-15 2008.

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 that 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.

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Comments (2)
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Dr.Zimmermann strikes again! written by João da Silva, June 17, 2008

A splendid article and my kudos again. We do need more Brasilians like Augusto and Ricardo to write such articles, questioning the lack of commitment to law in this country, not disregarding the fact that there are several hundreds of thousands of Brasilians that share their views. Let me cite a few examples from my own experience.

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).

I am not wealthy at all, but just a middle class person.But I obey all the laws, including the traffic rules. When I stop my car at a pedestrian crossing to let the people cross teh street, I get harassed by other drivers some of whom call me a "babacão" and some others (especially the lady drivers) show me fingers! Lately I have seen that evern the cops dont give a damn about pedestrian crossings. Because they are "autoridades maximas" (The highest authorities) and above any blooddy 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.

Spot on again, Dr.Zimmermann. 100% correct. He becomes not only isolated but a "pariah" (because "ele não tem jogo de cintura")!!

"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.

Augusto is brutally blunt again". Even the "Zelador" of a building becomes arrogant, when occupying power.Imagine the "doutores" in the justice system. They are beyond any control!! Have experienced this too.

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.

100% correct again.

Indeed, Brazil does not have the rule of law because Brazilians have not yet developed this kind of culture.

Sadly, it will take many more years to develop this culture. I enjoyed reading the article and kudos again to Zimmermann.

Spot on written by jakob, June 17, 2008

Ditto about rules and laws in Brazil... When I try to cross the street, it's amazing how EVERY motorists cuts into my path, and does NOT stop to let me pass... Sometimes, even when I'm already 2 meters into the street, they STILL do not stop ... I am amazed every time at this insensitivity, rudeness and lack of civility. As if I, a "mere" pedestrian, have absolutely no rights with respect to car drivers ... Stunning, this lack of upbringing. But hey, it's "culture"!

Universalizing the U.S. Constitution and its Accompanying Bill of Rights, Which Together Remain the Only Truly Enforced Declaration of Human Rights

http://www.opiniojuris.org/posts/1210866222.shtml


ITSSD Response to:


Global Governance vs. Liberal Democracy? We are Going to Have to Choose, by John Fonte


OPINIO JURIS


May 18, 2008


Global Governance vs. Liberal Democracy? We are going to have to choose
by John Fonte


I want to thank Peter for inviting me to participate in this discussion. It has been very useful and clarifying. I will close with a few thoughts. Peter's book addresses what will become the major issue of world politics in the 21st century and I'm grateful for his efforts. He has made a strong descriptive case (as has Alex and others), but, in the end, we are all moral human beings interested in the normative.


What we are talking about is the ultimate normative question of politics going back to Plato and Aristotle: who shall govern? For many among Western elites the big idea of the coming century will be how do go beyond the nation-state and national citizenship and create some new form of global governance. In my view (and I realize I'm in a minority in this discussion) global governance (as it has been articulated to date) presents a direct challenge to the legitimacy and authority of the liberal democratic nation-state in general and to American constitutional sovereignty in particular. It is not possible, in my view, to have the new forms of post-national global governance (that have been described in our exchanges) and have, at the same time, constitutional democratic government. At the end of the day, we must choose global governance or liberal democracy?


I choose liberal democracy and its only real historical home, the liberal democratic nation-state as the highest political authority, above any international institution or laws. This is a universal principle and American foreign policy should apply this universally, speaking not simply for American democratic sovereignty, but for the democratic sovereignty of other liberal democratic states as well in arguments over, for example, the International Criminal Court (ICC). Particularly, we should speak up for and protect those democratic nation-states that are under pressure from transnational institutions and forces such as Israel and the Czech Republic (non-ratifiers of the ICC). I will be addressing these issues in my forthcoming (2009) book, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? (Encounter Books). Thanks Peter. 05.15.2008 at 11:43am


(link)Ron Moss (mail) (www):

Of course global governance presents a direct challenge to the nation-state, just as the formation of tribes presented a challenge to clans and the formation of nations presented a challenge to tribes. It does not present a challenge to democracy. The question is how are Human Rights best served? Individual Human Rights must be the foundation of all governance. The world has become globalized but is not governed globally. We are a world community, like it or not. How can we address climate change other than on a global basis? How can we allow the free flow of capital without global accounting and disclosure standards? How can we protect oppressed peoples other than on a global basis? As the US Constitution says, each human being has rights that no government can take away. No sovereignty, global or local, should be recognized that deprives human beings of their rights.

5.15.2008 2:17pm


(link)nightstallion:

Absolute nonsense. There is no single good reason why the US, Israel and Czechia should not ratify the ICC Statute, period.
5.16.2008 6:39am


(link)Lawrence Kogan (mail) (www):

I believe that Mr. Fonte is correct in his assertion that Americans are not ready or willing to concede the obsolecence of the nation state in furtherance of greater global governance. In fact, they are more likely to object to such a movement than is being represented by the globalists.


I previously engaged in a dialogue with Peter Spiro about the hierarchy of law within the US. I insisted that a treaty is of the same legal significance within the US as is a federal statute (i.e., a legislative promulgation of Congress), and that both are lesser in legal significance than is the U.S. Constitution. In other words, in the case of a conflict, the US Constitution trumps both a federal statute AND a treaty. This truism is absolute insofar as the Supreme Court has ruled that a treaty, like a federal statute, cannot contravene the Constitution and its Bill of Rights and remain legally valid for purposes of US law.


Of course, Peter, being a revisionist, disagrees with this outcome. And, based on his prior statements to me, he endeavors to reinterpret US case precedent and the original intent of the US Constitution (particularly its federal treaty-making clause) for the purpose of facilitating greater US legal harmonization with foreign national and international laws.


There are a number of reasons why the citizens of the U.S., boasting the world's oldest functioning representative democracy, truly a republic, should be reluctant to subject themselves to the evolving bureaucratic institutions of global governance that lack significant checks and balances and public accountability. Chief among the reasons why Americans should resist integration within such institutions, is that such institutions do not recognize, reflect and embody the primacy of natural individual rights, as embodied and incorporated within the U.S. Constitution, its accompanying Bill of Rights and the U.S. Declaration of Independence.


The ICC, like most other international institutions, is at best a compromise between the competing common law vs. civil law institutions of Anglo-American and Continental legal systems. And, we can all see how 'well-functioning' and respectful of individual rights the emerging EU regional Continental legal system is, especially considering how the European national and regional politicians have handled the EU Constitution/EU Treaty issue. In a nutshell, the politicians along with the national and regional governmental bureaucrats trampled on the individual rights of European citizens by misrepresenting the nature of the new treaty, following the prior failed public referenda in 2005. Fortunately, Giscard D'Estaing publicly admitted that the Treaty was merely a subterfuge - a restated and reorganized EU Constitution that the politicans and bureaucrats were trying to cram down the national legislatures without public consent - rule BY law (or rule of MEN).


This continuing disrespect for the rule OF law is symptomatic of European Continental law. While they give lip service to the Universal Declaration of Human Rights and other lofty instruments, they do NOT practice what they preach. For example, European scholars readily admit that under the Continental legal system, guilt is presumed before innocence in the event of an alleged violation of civil or criminal law (e.g., one need only review the bases and modus operandi undertaken in the recent antitrust raids in Europe), whereas under the Anglo-American system, the opposite is true (i.e., the government must show 'probable cause' to issue a warrant). Also, European scholars readily admit that exclusive private property rights are 'negative' rights under the Anglo-American legal system (i.e., contra the rights of other property holders and of the government,) whereas, under the Continental legal system, property rights are deemed as 'positive' rights subject to governmental override when government considers them to be inconsistent with the public/social interest. Hence, European scholars acknowledge that property rights in Europe are ATTENTUATED. I would be pleased to provide Peter with the growing scholarship in this area if he requires a bit of persuasion.


The UN/EU philosophy of climate change as the sin qua non justification for greater global goverance perhaps reflects the greatest attempted mass fraud on the human race ever conceived since the Marxist and Nazi eras. When one looks closely at the emerging regulatory instrument of choice i.e., the nontransparent and overly complex GHG emissions cap &trade system, one can clearly see how no specific emissions reductions achieved by particular emitters can be guaranteed, how the major GHG brokerages on Wall Street and in London's financial district will be the ones to make most of the money, and how energy, goods and services prices of consumers on both sides of the Atlantic will significantly rise, all in the name of 'global governance'. The whole purpose behind a nontransparent regulatory instrument such as this is 'burden sharing' - UN/EU speak for wealth redistribution.


While the world has become more integrated and the interests of diverse peoples have become more closely aligned than ever before, this does NOT suggest that only ONE analyis, ONE solution and/or one set of 'standards' is called for. Nor does it suggest that the only model of governance to address global issues is that of a massive supranational global regulatory welfare state that incorporates values found within EU Continental law and cultural preferences that place the individual secondary to society. Despite my disagreement with Mr. Moss's and Mr. Spiro's proposed global governance prescriptions, I do agree with Mr. Moss' statement concerning the US Constitution. "As the US Constitution says, each human being has rights that no government can take away. No sovereignty, global or local, should be recognized that deprives human beings of their rights."


Now, if globalists wish cover up these and other distinctions in order to 'sell' their brand of Global Governance, they should be well aware that there a number of us out there who will continue to point out and press them on issues that must first be resolved before the US engages in any further global integration. Americans must be educated by Congress about what is at stake. If the globalists are as confident about their new world system as they claim to be, then they should be willing to put their words on the public record for Americans to see. Americans must be ensured that they are to retain at the very least the same rights and opportunities to which they are entitled under the US Constitution and its accompanying Bill of Rights, which was and remains the only truly enforced Declaration of Human Rights. Nothing less would be acceptable.

The U.S. Constitution and its accompanying Bill of Rights remains the only bulwark against the creeping international laws and bureaucratic institutions of the supranational global governance movement. Since that movement seeks to establish the primacy of the global public good over the private good, it would behoove us all if we were to help Americans to quickly become reacquainted with these founding documents and the European history (i.e., the Enlightenment Era) from which they arose.

5.18.2008 12:39pm