ANN ARBOR—What constitutes slave labor in Brazil? What does it mean to say that a worker has been enslaved?
That's a topic of current debate between Brazilian officials and human rights advocates, and their war of words could have a devastating impact on the nation's laborers, according to a new University of Michigan study. The research may help clarify how the term "slavery" is applied and what's at stake for workers in Brazil if that legal definition changes.
"Brazilian authorities have developed a powerful and effective set of tools for identifying the modern imposition of 'a condition analogous to that of a slave,'" said Rebecca Scott, U-M professor of history and law and one of the study's authors. "And many lives have been improved as a result of the work of these inspectors, prosecutors and labor judges."
But all that can change.
This October, a new government decree—now temporarily suspended—narrowed slavery's definition in Brazil to focus specifically on "restrictions on the freedom of movement" of workers. The revised language, said Scott, could interrupt the progress that human rights advocates and the legal system have made to protect workers and to eliminate oppressive labor practices.
"It also would reverse a public policy that has been built on careful enforcement and observation for more than two decades, across the terms of several presidents," she said.
Scott wrote the article "How does the law put a historical analogy to work?" with two Brazilian co-authors—Leonardo Barbosa, a staff attorney at the Chamber of Deputies, and Carlos Haddad, professor of law at the University of Minas Gerais. They analyzed detailed inspection reports generated over the past two decades, during which Brazilian authorities have identified and prosecuted occurrences of what they deemed slave labor, rescuing more than 50,000 workers from oppressive conditions.
But with new legal language pending, future workers may not enjoy the same protections. The precise wording of domestic legislation is important, co-author Barbosa says, because "there is no universal definition of slavery."
The existing Brazilian Criminal Code uses two crucial concepts to identify slave labor, the authors argue: degrading conditions and debilitating workdays. Official since 2003, this definition grew from day-to-day observations of working conditions by labor inspectors. It is based on the protection of "human dignity" and is considered a model campaign against slave labor for other nations.
That doesn't seem to matter to the government, which, experts say, is responding to pressure by the nation's agribusiness lobby to ease the definition. The lobby, which comprises about 40 percent of the Brazilian Congress, supports embattled President Michel Temer. In 2016, Temer narrowly avoided facing trial on charges of obstructing justice and racketeering by virtue of a close vote in the lower house of the nation's Congress.
One of Scott's co-authors, Haddad, describes the current debate over the changing legal language as a setback for labor rights in the country. "Restrictions on the freedom of movement" is too narrow a definition, he says, to identify the range of abuses faced by Brazilian laborers working in slave-like conditions.
"If the new decree becomes valid again, victims of slave labor in Brazil are less likely to be rescued," said Haddad.
In their research, the authors identified cases from the mid-1990s through 2016 in which workers were rescued from rural and urban workplaces because inspectors determined they had been reduced to "a condition analogous to slavery." As a result of these interventions, contracts were canceled and victims received back pay and unemployment insurance.
In one 2008 incident, labor inspectors discovered two groups of migrant workers housed in filthy and "deplorable barracks" with fewer beds than occupants. The laborers were not registered as farm employees and had not been paid on a regular basis. The inspectors cited an immediate risk to the workers' health and safety, closing the barracks and releasing 16 laborers from the farm. The farmer was required to compensate the workers, and the workers received unemployment benefits to tide them over to another job.
According to Haddad, this resolution would be different if the new decree goes into effect and slave labor is defined only as "constrainment."
"If a worker has to provide to the family, avoid starvation and has no other resources, it is not simple to just leave the job behind," he said. "Even though the conditions of those farm workers were poor, just one of them wanted to quit. This is not freedom."
The article appears in Volume 13 of the Duke Journal of Constitutional Law & Public Policy (Fall 2017).