The Public Sphere and the Anti-Racism Legal Protections in Brazil


The Public Sphere and the Anti-Racism Legal Protections in Brazil


Machado, Marta and Melo, Rurion S. and Silva, Felipe, The Public Sphere and the Anti-Racism Legal Protections in Brazil (April 15, 2008). Open access article available at SSRN: or

This paper starts from the analytical theoretical presupposition that a better understanding of the issue of the effectiveness of rule of law in constitutional democracies depends on the analysis and reconstruction of the internal connections between rule of law, the dynamics of the public sphere and democracy itself. The most general assumption is that there is a close link between the dynamics of the public sphere and the democratic rule of law both in terms of its legitimization and the conditions for its effectiveness. The thematization and public controversies over problems that already are or should already be regulated by the existing laws - and that end up raising questions as to the political self-understanding of the citizenry - can trigger judicial processes that envisage the more concrete configuration of the prevailing system of rights, imposing rule of law and bridging the existing gulf between legal norms and social practices. Taking recourse to this analytical theoretical premise implies going beyond mere diagnosis of non-rule of law in Latin American countries in general and in Brazil in particular. This framework guides an empirical research about anti-racist measures in Brazil - a key question to a Democratic State and still a real problem in Brazil.

Brazil has nowadays an important punitive anti-racist legislation, but the general and common feeling regarding its enforcement is really negative. A common and largely brought about interpretation of this lack of enforcement says that Brazilian judges, mostly whites, are insensible to the racial problem of Brazilian society and, going even further, that they are themselves racists. Seeing in this way, we had a really serious problem in one of the most important institution of a Democratic State.

Our hypothesis asked us to look into this very negative diagnosis to see what is really happening and then try to see if the growth of discussion about racial problems in the public sphere, as well as the increase of organization of the black movement, produced in the last years some changes in the legal institutions. This research project is still going on, but this paper brings some very interesting results. In the first place, it shows that the evolution of punitive anti-racism legislation in Brazil was very influenced by the continuous deliberative processes running outside the institutional forums of legislative power. The second part of this paper will summarize the results of an empirical approach into how that punitive legislation is applied in the Sao Paulo Court of Justice. The data collected here put into question the common-sense hypothesis of the Brazilian judiciary being insensible or racist.

Keywords: rule of law, public sphere, racism, anti-racism measures









Sergio Costa, “The Public Sphere and the Anti-Racism Legal Protections in Brazil,” Antiracism Digital Library, accessed June 25, 2024,