The law practice has as its most relevant goal to secure people's rights. It protects social interests and minimizes injustices in order to ensure the full functioning of the Democratic Rule of Law and our justice system. Although we live in a predominantly black country, the law practice takes place in a mostly white environment.
The prevalent white aesthetic induces the black professional to seek fitting in the Eurocentric standards, thus suffering a "whitening", which can lead him to move away from certain spaces, due to the certainty of non-belonging.
In this context, it is worth asking the question: is it possible to exist justice without black protagonism in advocacy? How many black lawyers do we need to do justice?
The gulf between black and white populations in Brazil is latent, and would be no different in the largest law firms. In 2019, CEERT (Center for the Study of Labor Relations and Inequalities), in partnership with the Legal Alliance for Racial Equity and the Getulio Vargas Foundation, listened to 3,624 people from nine of the largest legal offices in São Paulo. The research showed that black people accounted for 1% of the lawyers they hired.
The long-aforedreamed offer of promising opportunities in law still encounters racial barriers, and the chance to occupy prestigious spaces in law is predominantly restricted to white people. Factors such as the lower presence of blacks in renowned universities or even the lack of an English course add up to the skin color to exclude this group from so-called golden opportunities.
Although, currently, the laurels of law are mostly destined to a single portion of society, law has been and has been a huge ally in the fight against racism and the reflections of enslavement that lasted more than 300 years in Brazil.
Historical figures such as Esperança Garcia (1751 - ?), considered by the OAB-PI to Piauí's first lawyer, and Luiz Gama (1830 – 1882), who, with the help of law, managed to free hundreds of enslaved people and is popularly known as one of the greatest abolitionists in Brazil, are examples of resistance and the practice of advocacy by blacks as a tool for protection and guarantee of rights, at a time when the weight of racial inequality was even more brutal than today.
Historical evolution of racism in legal norms – racist and anti-racist laws
From the time when people, due to their color, were treated as private property, or moving goods, until the criminalization of racism, a long normative path was traveled, and the action of social movements and great lawyers, such as the aforementioned Luiz Gama, was paramount to enable change.
In addition to allowing slavery, the order guaranteed and strengthened the structures of power, upgrading to the category of law the privileges of the white population, in norms such as the Free Womb Law (1871), which in article 1 determined that "the children of a slave woman who were born in the Empire since the date of this law, will be considered free", but predicted that "[...] the mother's master will have the option, or to receive compensation from the State or to use the services of the minor up to the age of 21 years complete." The Sexagenarians Act (1885) granted freedom to enslaved people over 60 years of age, although life expectancy at the time was 19 years for the enslaved, in addition to forcing them to indemnify their slaveholders for a period of three years, due to their care.
The Aurea Act (1888), signed just over a hundred years ago, is known as the act that abolished enslavement. But its sanction was not enough for black people to be treated as human beings and subjects of law, since they only transferred these people from the slave quarters directly into poverty. Indeed, from 1888 until today, it is impossible to leave the condition of enslaved if human dignity is and the most basic rights are not guaranteed.
After being transferred from the slave quarters to the streets, the enslaved were imprisoned. The power of the right continued to aim at the systemic maintenance of racism. At the same time, the project of whitening of the population prevailed, founded on the idea that white skin color was associated with progress. Law, as a mirror of society, reflected this image in norms that sought the marginalization of black people. Some examples:
- Criminal Code of the Empire of Brazil (1830): it was justified the crime of punishment to enslaved. Although the provisions contrary to the Aurea Act were repealed with the imposition of this rule in 1888, the code considered the insurrection for the freedom of enslaved, begging and loitering a crime. Thus, due to the last two typifications, those who were narrowed and began to be homeless began to be criminalized for their condition.
- Decree 528 of June 28, 1890: determined that the entry of people specifically from Asia and Africa depended on the authorization of the National Congress.
- Decree 145 of June 11, 1893: determined the arrest of strays, vagrants and capoeiras. Therefore, wandering around the city in idleness and holding cultural demonstrations were also crimes. Loitering is still considered a criminal misdemeanor, pursuant to Articles 13 to 15 of Law 3,688 of 1941.
- Decree-law 7.967/1945: it was set out in Article 2 that "it will be addressed, in the admission of immigrants, to the need to preserve and develop, in the ethnic composition of the population, the most convenient characteristics of their European ancestry, as well as the defense of the national worker".
However, if law can serve oppression and racism, it can also be an instrument of justice, its most intrinsic characteristic. The following norms are examples aimed at curbing racial discrimination in Brazil:
- Afonso Arinos Law (1951): included "[...] among criminal misdemeanors the practice of acts resulting from prejudices of race or color."
- 1988 Constitution: it has as its principle the repudiation of racism and has made the crime of racism unineable and unforecable.
- Law 9.459/1997: typified racial injury in the Penal Code.
- Law 10.639/2003: establishes the guidelines and bases of national education, to include in the official curriculum of the school system the mandatory theme "Afro-Brazilian History and Culture", and provides other measures.
- Law 12.288/2010, known as the Statute of Racial Equality: aimed at guaranteeing the black population the realization of equal opportunities, the defense of individual, collective and diffuse ethnic rights and the fight against discrimination and other forms of ethnic intolerance.
- Law 12.711/2012, known as the Quota Law: provides, in article 3, that "in each federal institution of higher education, the vacancies that art. 1 of this Law deals with will be filled, by course and shift, by self-declared blacks, browns and indigenous people, and by people with disabilities, in accordance with the legislation, in proportion to the total number of vacancies at least equal to the respective proportion of blacks, indigenous people and people with disabilities in the population of the Federation unit where the institution is located, according to the latest census of the Brazilian Institute of Geography and Statistics Foundation (IBGE)."
Therefore, that anti-racist laws end up reflecting, as a social phenomenon that they are, the social thought of their time. For example, the Quota Law, whose origin dates back to India in the 1930s and which has as beneficiaries the Dalits (considered the lowest caste in the country).
Such a law eventually influenced other countries, such as the United States in the 1970s, when a demand from the black civil rights movement eventually induced universities to adopt quotas as a social affirmative action policy, although there is no national law that requires them to do so.
It means that both social movements and the normative fight against racism are necessary, because they feed back and enable the creation of a context that allows more and more black jurists to move towards racial equity inside and outside the judiciary.
The laws mentioned, however, are not enough for us to have the justice we desire, because the application of justice, often selective, continues to reproduce the racism that exists in our society.
Our role as operators of law
As operators of law, in general, we are an integral part of the legal system, not only as passive recipients, but as instruments capable of bringing restlessness, change and development to the sector, since we are spokespersons for the people we represent and who yearn for justice and a response to their transgressed rights.
It is notorious that advocacy should combat institutionalized racism, both in the judiciary and in society in general. This can be done directly, with proposals for actions and demands aimed at this confrontation, or using theses and foundations of black and anti-racist jurists in actions that do not necessarily aim to combat racism, but whose concepts constructed by such jurists are used at least in the same proportion as those of white jurists.
According to Professor Adilson José Moreira, in his book "What is discrimination", the Brazilian legal system and most doctrinators only recognize the existence of direct discrimination, since the interpretation of the legal standard carried out by these jurists is intrinsically linked to the understanding that discriminatory acts offend the principle of formal isonomy. By this constitutional commandment centered on the notion of symmetrical justice, in order to configure a discriminatory act rejected by justice, there must be elements of intentionality and arbitrariness.
Justice advances in the recognition of racism and the punishment of direct discrimination. In a recent trial, the Supreme Court (STF) recognized racial injury as a kind of the genre of racism, in HC (habeas corpus) 154,248 in the case in which a black attendant in the Federal District (DF) was called disgusting ignorant and sassy. In this way, crime becomes unprescriptive and indefinable. In addition, ADI 6987 is in the process of being processed on the same issue, and the outcome of the action will be in effect erga omnes, i.e. it can be applied against everyone.
In order to prevent the practice of anti-discriminatory actions and for justice to punish and prevent these practices, it is necessary, however, that the same justice understands that there is more than one type of discrimination. In addition to direct, there is indirect, intergenerational, institutional, structural, intersectional and organizational discrimination.
By understanding and being able to identify the types of discrimination that exist, the law firm will be able to guide its theses and requests in a reasoned manner and, thus, instigate the legal system so that it also understands and applies such reasons in its decisions. This is one of the ways advocacy can contribute to combating racism and racial discrimination and other social groups so marginalized by society.
As operators of law, we can also act in the articulation and representation of groups to combat this system that excludes so many Brazilians. For example, we can cite the racial equality committees of the majority of the OAB's sections, the Legal Alliance for Racial Equity, the black collectives existing in undergraduate courses in legal sciences, among many other groups and entities that come together to promote a more egalitarian society in formal and material terms.
Articulating, influencing, and acting in various ways and in various public and non-public spaces of political, economic, cultural and social power is what makes advocacy a very important factor for change to happen.
The history of justice in Brazil will not be complete if there is no inclusion. For the little, but significant, advance to materialize, several social movements led by both anonymous and the first black lawyers, Esperança Garcia and Luiz Gama, were needed.
If the transformation movement is integrated by an expressive contingent, its strength will obviously be unquestionable. This means that, in order to do justice, it is necessary to have not only lawyers in the professional sense of the word, but also in the context of social movements, in the original Latin, ad.vocare (together with = interceding in favor of), that is, we need as many lawyers as enough to eradicate racism, a struggle to be embraced by all.
 MOREIRA, A.J. What is discrimination. Belo Horizonte-MG: Literacy, 2017. Page 17 and 18.