In Brazil, Many Laws are for Englishman’s Eyes Only

By Augusto Zimmermann

 

Thursday, 25 September 2008

http://www.brazzil.com/articles/196-september-2008/10116-in-brazil-many-laws-are-for-englishmens-eyes-only.html

Brazzil Magazine, Los Angeles/CA

 

 Due to the chasm in Brazil that exists between law on paper and "law" in practice, anyone wishing to understand how the country works in reality will need also to consider the ways in which people are able to excuse themselves from submission to laws.

In order to understand the reasons for problems blocking the rule of law from taking hold in Brazilian society, this article explains three curious expressions that are quite important in helping reveal crucial aspects of Brazil's legal culture: 'a lei não pegou' (the law did not take hold); 'para inglês ver' (for the English to See); and 'jeito'.  

A lei não pegou (The law did not take hold)

One would be quite right in asserting that many laws have been introduced in Brazil with the almost certain knowledge that they will never be respected. Thus, as law professor Keith S. Rosenn points out: "Brazilians refer to law much in the same manner as one refers to vaccinations. There are those who take, and those who do not".

He gives the insightful example of a Minister of Justice, Francisco Campos, who in the 1930s responded to criticisms about the enactment of a new law that was identical to another enacted by the same government only a year earlier by saying: "There is no harm done, my son. We are going to publish this one because the other não pegou (did not take hold)".

A lei não pegou (the law did not take hold) is the phrase that Brazilians commonly apply to the numerous instances in which positive laws can exist in theory but never in practice. Such laws are ineffectual despite their putative validity. They do not take hold when they supposedly contain unrealistic provisions related to such things as price controls, labour laws, or interest rates.

A good example of unrealistic provision is found in the original text of the Brazilian Constitution, which contained a section fixing the level of interest rates in the country at 12% a year. The provision was never truly enforced, because doing so would completely paralyse the country's economic activities.

But one of the best examples of a well-known legislation not taking hold involves the prohibition of a popular gambling racked called jogo do bicho (animal's game). The law was enacted more than one hundred years ago, but this illegal activity currently employs more than 700,000 people and grosses more than $150 million dollars a month.

Although the game still remains illegal, candidates for public office have normally sought support from gambling bosses, "who are known to contribute heavily to political campaigns". In Rio de Janeiro , gambling bosses sponsor official events, such as the world-renowned Carnaval, as well as the electoral campaigns of numerous politicians, including high-ranking government authorities. 

Para inglês ver (For the English to See)

Para inglês ver (for the English to see) is another curious expression of Brazil 's culture. It was coined in the first quarter of the nineteenth century, and now refers to any situation where something on the surface appears for all intents and purposes to have been done, while beneath nothing has, in actual fact, changed. Since it is quite an illuminating expression, it is worthwhile giving a proper account of its origins. 

Under pressure from Great Britain , which had effectively helped Brazil in its negotiations for independence from Portugal , the Brazilian government signed a treaty in 1826 promising to abolish the slave trade within four years. On 7 November 1831, the pledge appeared to be honoured, with the enactment by the Brazilian Parliament of a statute declaring the freedom of all Africans entering the country as slaves.

But what the British government did not know was that the 1831 statute, as Brazilians started saying amongst themselves, was only "for the English to see". The members of the Brazilian elite did not really wish to stop the much profitable business of slave trade, as they thought its end would eliminate the supply of labour.

Behind the large façade, over a twenty-year period following the enactment of the 1831 legislation, around one million Africans were illegally brought to Brazil as slaves. In the 1880s, most of the slaves were actually people, or relatives of people, who were illegally brought to the country after 1831. Slaveholders bypassed the law by registering the slaves as having been imported before the enactment of that legislation.

Africans who disembarked on the coast of Brazil found no one to set them free as the law required. According to Joaquim Nabuco, the great leader of the Brazilian anti-slavery movement, "the only pleas on their behalf were made by British ministers and were heard in the British Parliament". Thus, in 1845 the Parliament of Great Britain decided to enact the Aberdeen Bill, authorising the British admiralty courts to judge and condemn any Brazilian ship involved in slave-trading.

The British action was legally justified on the basis of a treaty signed by both countries in 1826 condemning the slave trade as a form of piracy. Under huge pressure from powerful Great Britain, the Brazilian Parliament, on 4 September 1850, rushed to pass new legislation establishing harsher penalties for anyone involved with the slave trade. This law was much better applied, being not merely, in this case, just "for the English to see". Nevertheless, in 1851 alone, more than 3,000 Africans were still illegally brought to the country as slaves.

The Brazilian government has ever since been enacting many laws that are just for the English (or anybody else) to see. In such circumstances, a law is enacted so as to confer the false impression that authorities are really willing to do something about the matter of concern, while in practice nothing is done at all. The 1988 Constitution contains many legal provisions that are only for the "English to see".

One amongst many of them is Article 196, which declares: "Health is a right of every citizen and a duty of the state, which shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery".

In practice, however, public hospitals are overcrowded, understaffed, badly equipped, and poorly maintained. "They often provide indifferent care and more than occasionally subject patients to additional risks, such as infection from contaminated blood".

"Jeito" (or "Jeitinho")

American historian Robert M. Levine, director of Latin American Studies at the University of Miami , has made the comment that Brazilians are a kind of people who "pride themselves on being especially creative in their array and variety of gambit suitable for bending rules". In fact, they have so much pride in this that they have actually elevated the bending of legal norms to the status of a highly prized institution: the jeito.

This term can be roughly translated as a "knack" or a "clever dodge". Jeito, explains law professor Joseph A. Page, "is a rapid, improvised, creative response to law, rule, or custom that on its face prevents someone from doing something". As such, it always involves a conscious act of breaking formal rules so as to personalise a situation ostensibly governed by an impersonal norm.

According to the Brazilian sociologist Fernanda Duarte, jeito is inherently personalistic. As she explains, "it requires a certain type of "technique" involving the conscious use of culturally valued personal attributes (eg: a smile, a gentle, pleading tone of voice); it seeks short-term benefits; it is explicitly acknowledged and described by Brazilians as part of their cultural identity... So deeply entrenched is this practice in Brazil that it has become intertwined with constructions of Brazilianess".

One must become aware of the reality of jeito in order to properly understand the Brazilian legal system. Whereas the bending of legal norms for the sake of expediency occurs, to a certain degree, in any country of the world, Brazil has curiously institutionalised it. The institution of jeito is, therefore, the uniquely Brazilian way of achieving a desired result amid the adversities of the formal legal system.

The social mechanism known as jeito can be adopted in legal and non-legal situations. A jeito can be applied, for instance, when the queue in a bank is too long and a person argues that he cannot wait for his turn. Lawyers can also apply it in the form of a "favour" (legal or illegal) requested to court employees. Finally, it can also be granted by a public inspector who condones the failure of a company to comply with a statutory provision which is somehow considered to be uneconomic, unjust or unrealistic.  

Because of the many instances in which jeito can be applied, the bypassing of legal norms has become more the rule rather than the exception. In fact, the bending of laws bears no stigma in the country if it acts as a solution to unfair laws or absurdities of bureaucracy.

Jeito means, in this situation, figuring out a fair solution over such inconveniences, acting as a tool by which people can avoid the many obstructions and barriers the convoluted legal system places in their path. It is, therefore, seen by Brazilian society as a "fair" solution in the face of the unreasonable barriers created by the highly complex and convoluted legal system. 

Although jeito has such understandable justifications, it nevertheless produces very undesirable consequences. There is no doubt that a system that features such an endemic and astonishing level of informality is obviously inimical to the generation of the rule of law.

As Rosenn points out, "once the principle that officials and private citizens may reinterpret or ignore laws they deem overly restrictive or unwise is condoned, its limitation is extremely difficult. Unjust, discriminatory law enforcement and the breakdown of legitimacy may well be the result".

Although anybody can request a jeito, one might deduce that a rich person has obviously more jeito than a poor person, in the sense that it is far easier to obtain a jeito if one can somehow reward the person who is providing it. Moreover, jeito is very often entwined with corruption, because "some civil servants become aware of a law's uneconomic and unjust aspects only after their palm has been greased".

Bribery is indeed the common recourse to jeitos not otherwise provided by personal acquaintance. As Levine points out, "jeitos fall halfway between legitimate favours and out-and-out corruption, but at least in popular understanding they lean in the direction of the extralegal. Favours, in addition, imply a measure of reciprocity, a courtesy to be returned. One never pays for a favour, however; but a jeito, which is often granted by someone who is not a personal acquaintance, must be accompanied by a tip or even a larger payoff.

Unfortunately, the realization of the rule of law requires generality, certainty, and respect for the law. But when Brazilians simply ignore laws they deem restrictive or unfair, unjust discriminatory law enforcement and breakdown of legitimacy may well be the result. The cost of the constant resort to jeito is therefore widespread disregard for the rule of law in Brazil

Augusto Zimmermann is a Law Lecturer at Murdoch University, Western Australia .

 

This paper is based on his article "Law and Society in Brazil : Prevailing Perceptions of Law in Brazilian Society", which is due to appear in a forthcoming issue of the International Journal of Private Law.