By Lincoln Ellis (April 2, 2010)
On Wednesday we met with Claudete Alves, former City Councilwoman for the PT (Worker’s Party) and author of this book: http://www.scortecci.com.br/lermais_materias.php?cd_materias=4669. She has argued persuasively that the Brazilian Government should pay reparations to decedents of slaves (not to Afro-Brazilians, which she says is a misleading term that could include White South Africans who migrated to Brazil, of which there actually are some). Her theory is based on the same legal argument that resulted in reparations to victims of torture and Brazil’s 40 plus year military government (see http://www.alertnet.org/thenews/newsdesk/N16153239.htm). A National Commission has been set up by the government to study the matter.
The reparations proposal raises several legal issues. First, is Brazil really the right defendant? Maybe Portugal is the better defendant? Coffee and sugarcane were the main cash crops during slavery in Brazil, and most of those profits went to Portugal. Certainly the Brazilian economy as a whole expanded under slavery, but it seems that Portugal benefited more than Brazil.
The other interesting issue is whether reparations, if paid, would foreclose other race conscious remedies under some sort of res judicada/ claim preclusion theory. I don’t know if this concept exists in Brazilian Law, but if so, it might be worth thinking carefully about how such a lawsuit was brought.
This also raises the issue of whether reparations theories could be used in conjunction with affirmative action proposals (either to bolster the affirmative action claims or to advocate for the continued need for affirmative action after reparations are paid, as a rebuttal to the claim preclusion concern above). Reparations tend to be a stronger rationale for affirmative action than promoting diversity or creating equal representation. Diversity as a rationale is suboptimal on the grounds that it construes Affirmative Action as a benefit (that can be taken away at the majority’s will), rather than a right. Equal representation is vulnerable on the grounds that groups may not have the same preferences. For example, White Brazilians may not choose to enroll in (admittedly imaginary) hip-hop schools at the same rate as Black Brazilians, so requiring equal representation might not make sense.
Some Black Brazilian activists have opposed reparations on the grounds that no dollar value can approximate the harm done by slavery. This is true, but it seems like civil law approximates harm all of the time, and we live with those approximations. And since the authors of slavery are mostly dead and cannot be criminally prosecuted, civil courts (either in Brazil or Portugal), seem like the most appropriate legal venue. I say that the authors of Brazilian slavery are mostly dead, because forced labor persists in parts of Brazil, so any judgement against the Brazilian State could affect civil claims against Employers who continue to engage in slavery-like practices (see http://www.alertnet.org/thenews/newsdesk/N16153239.htm).
