Scott, Barbosa, & Haddad, "How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to that of a Slave’ in Modern Brazil”

Rebecca J. Scott (University of Michigan Law School), Leonardo Augusto de Andrade Barbosa (Center for Continuing Education and Professional Development), and Carlos Henrique Borlido Haddad (Universidade Federal de Minas Gerais) have posted “How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to that of a Slave’ in Modern Brazil.” The article appears in Volume 13 of the Duke Journal of Constitutional Law and Public Policy (2017). Here’s the abstract:

Over two decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as the imposition of “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity with an interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors have obtained hundreds of consent agreements and convictions in the labor courts.

This article – co-authored by a legal historian, a staff attorney at the Brazilian Chamber of Deputies, and a federal judge – draws on a massive archive of work site inspection reports to explore the ways in which inspectors and prosecutors give specific meaning to the analogy with chattel slavery. The authors find that the term “slave labor,” in this context, does not depend upon the international law definition of slavery as the exercise over a person of “any or all of the powers attaching to the right of ownership.” Instead, it identifies specific behaviors that are no longer permissible as between employer and worker, and which reproduce elements of what was once imposed by masters upon slaves. Intermediate normative terms introduced in the 2003 revision of the penal code– which prohibits the subjection of workers to “degrading conditions” and “debilitating work days” – have through the inspection processes taken on specific meaning. Rather than representing subjective notions in potential conflict with the principal of legality, as critics argue, their interpretation has unfolded through careful processes of documentation, negotiation, and prosecution.

In Brazil’s current situation of political polarization and institutional fracture, this remarkable campaign against slave labor is coming under fierce attack from large-scale landholders and from elements within the executive, a development which adds urgency to the task of explicating the campaign’s legal bases and operational practices.

The full article is available here.