Religion in Brazil has played a prominent role in people's lives and society's design and one might say even a strategic one since the beginnings of the European occupation of the land by the Portuguese. As Darcy Ribeiro—one of Brazil′s leading twentieth-century intellectuals—explains “Brazilian society and culture have been shaped as variants of the Portuguese version of traditional western European civilization, differentiated by tones inherited from American Indians and African blacks. Brazil thus emerges as a renewed mutant, expressing its own characteristics but generically tied to its Portuguese origins, which involved unsuspected potential for existence and growth that would only be fully realized here”. D
The two institutions naturally suited for organizing the colonization of Brazil were the State and the Catholic church. […] In principle, there was a division of labor between these two institutions. The state had the fundamental role of guaranteeing Portuguese sovereignty over the colony […] This task presupposed that settlers in Brazil recognized the authority of the state—because they were forced to, because they agreed to, or for both reasons.
This is where the church came in. Since it was in charge of people′s behavior and “in control of their souls” in daily life, it was a very efficient means for conveying the idea of obedience and, strictly speaking, obedience to the power of the state. But that was not all the church would do. It was present throughout people's lives – in the decisive episodes of their birth, marriage, and death. F
According to journalist Sarah Brown, “Brazil is the most religious country in Latin America, with approximately 90 percent of all Brazilians associating themselves with some religion.” Sarah Brown, IBGE,
Moreover, “it is also the most religiously diverse nation on the continent, thanks to African influences from slavery 500 years ago, and more recent migration from Asia, Europe and the Middle East.” Brown,
Due to its Portuguese heritage, it is the case that most Brazilian people are linked to the Roman Catholic Church and there are more Roman Catholics in Brazil than in any other country in the world. “The Catholic Church is deeply enmeshed in Brazil's culture, beliefs, and institutions. The Church arrived with the Portuguese conquest in the sixteenth century and has since been the dominant religion. From 1500 to 1889, Catholicism was the official state religion. Even after disestablishment and the efforts at secularization that began under the First Republic (1889–1930), the Catholic Church retained its property holdings and continued to play a significant role in public ritual and private social life.”( The endorsement of human rights, democracy, and religious freedom by the Second Vatican Council provided an official theological language within which to frame such concerns. The catalyzing event for the Church was the rise of military dictatorships between 1964 and 1980, which deepened Brazil's economic woes and ushered in a dark era of suppression, censure, torture, and killings, including those of Catholic priests, nuns and bishops. In response, the Catholic Church in Brazil underwent a transformation from conservative buttress to the state in the 1930s to a prominent critical voice against capitalism and political policy, becoming the most radically progressive of the Latin American Catholic Churches. Priests and bishops joined the struggle for labor and land rights and in coming decades worked to expose abuses committed by the military junta. The Church organized community groups meant to address basic concerns among the poor, but which later became politicized under the military dictatorship. Underpinning these changes was the development of Latin American liberation theology, a set of ideas which emphasize the role and rights of the poor and marginalized, and social justice as salvation. Ultimately, the Church emerged as the primary oppositional voice against the military and facilitated the transition to democracy in the 1980s by allying itself with grassroots movements, trade unions, and opposition political parties. H Reinaldo Azevedo, Pentecostalism is the fastest growing sector of Brazilian Protestantism. It is made up of Classic Pentecostalism, founded by European and American missionaries during the first half of the twentieth century, and Neo-Pentecostalism, a later generation of indigenous churches that emerged after 1970. The first group includes such significant denominations as the Christian Congregation, the Assembly of God, Church of the Foursquare Gospel, Brazil for Christ, and God is Love. Major Neo-Pentecostal churches include Sara Our Land Evangelical Community, Universal Church of the Kingdom of God, the International Church of the Grace of God, and Reborn in Christ. H Typically, evangelical Protestant Christianity in Brazil is characterized by a strong opposition to Catholicism in terms of socio and political economics. Over the past two decades, it has successfully played an important role in modifying the lives of the educationally and economically disadvantaged. In fact, evangelical Christianity and Pentecostalism in particular have provided significant stability in the lives of many of its followers in terms of social and economic progress by penetrating lives at the cultural level. Neil Turner, “Pentecostalism entered politics in the 1990s, with large voting blocs throwing their substantial weight behind Pentecostal and church-endorsed candidates, oftentimes church pastors and bishops running for office. Though Pentecostal churches initially lacked the organized political networks that the Catholic Church cultivated during the military dictatorship, they successfully leveraged their evangelical structure, processes, and culture. Many Pentecostals perceive political participation as a religious duty, another battleground in the ongoing spiritual war against demonic influences, with individual and communal health, wealth, and salvation at stake. This belief forges a fervent commitment to candidates and cause.” H The Pentecostals are increasing political participation, but they are doing so in a conservative way. Their leaders have sought not to alter but simply to adapt to Brazil's socioeconomic structure and political system. Pentecostal politicians are especially known for seeking patronage and privileges. In Brazil the poor do not want to revolt but to ascend the social ladder. The Pentecostal churches reflect this hope. Especially among the newer churches the primary concern of the leaders is power, and often their theologies are attuned to economic interests. The new churches have little notion of social justice on a national scale. Kenneth P. Serbin, Significant changes at the social level have necessitated the development of political interests and incorporated followers into the democratic political process. As a result, evangelical Protestants have become an increasingly powerful segment of the voting bloc in which presidential, congressional and senatorial candidates are courting them for support. As more evangelical candidates are elected to office in the house and senate, many vow to oppose attempts to legalize issues such as abortion, the death penalty, or homo sexual unions which they consider a breach of their faith. While these issues are important, many evangelical voters are more concerned with social issues such as reducing poverty, crime and unemployment. Turner, African-derived religions in Brazil “[…] today's practices represent an amalgam of various traditions, which continue to evolve in conversation with practitioners in Nigeria and elsewhere in West Africa. Though statistics report that Candomblé and other African-derived religious participants are few in number—under 5% of the population—this fails to reflect the many Brazilians who are not initiates but who nonetheless may visit a practitioners [ As suggested by the common Brazilian saying, “if one does not come due to love, one comes due to pain,” solving the problems of life, particularly physical healing, is central to both Candomblé and Umbanda. Illness, diagnosis, and cure all have a supernatural aspect and many of the religious rituals are strategies for maintaining or restoring physical, mental, or social well-being. Possession is another characteristic of African-derived religion, locating liminality within the physical being. For more about syncretism in religions, especially regarding the theoretical debate around the category,
According to Wagner Kuhn,
The African people who were sold to colonial Brazil brought with them their religious beliefs and traditions. In order to survive the inquisitorial atmosphere of the Portuguese colonizers, many of the African slaves needed to mask their deities and saints or ancestors with Roman Catholic names. This process gave birth to the Afro-Brazilian religions —a form of dual allegiance that blends together various elements of Roman Catholicism, African Religions, and Kardecist spiritualism. Wagner Kuhn, This tension is described by Leopold and Jensen: “Other syncretistic formations have emerged as the consequence of a dominant culture forcing on or “interpenetrating […] a culture of minority its own religion such as to make it the official religion. In those cases, syncretism may be seen as a result of a resistance to power and a means to preserve indigenous gods in the clothing of the gods of the dominant culture. In certain cases, this form has been called “creolization” with reference to the dominance of the Christian culture upon Afro Caribbean or Afro-American cultures.” Leopold & Jensen, From different communities and religious backgrounds, the slaves were mixed aboard the ships and then, at the final trade centers they were bought and also sent to different places of Brazil. This created a big impact upon the new environment in which they were placed. It transformed their reality. For they were lost, they were weak, and they wanted to survive, so they found a way to maintain their religious tradition: they masked their deities with Christian names—Roman Catholic ones. […] Religious life in the slave communities was very difficult. The African slaves could not have their own religious services in a normal way. They were baptized into the Catholic faith without any regard of their will. There “they were obliged to camouflage their cults and saints with Christian names” and so they gradually learned to adapt themselves to the new system. Van Rheenen commented that “although the slaves were forced to outwardly embrace Catholicism, the gods that they brought from Africa were intertwined with this new religion.” Wagner Kuhn, This scenario described changed drastically during the twentieth century in Brazil, with the emergence of many more forms of spirituality and religious life. In practical terms, religion has been more effective in the transformation of the Brazilian society than science. Moreover, many elements of Roman Catholicism, Evangelical and charismatic Pentecostalism, spiritualism, and African religions have blended together; and science, mysticism, parapsychology, and new age occultism have been added to these syncretistic neo-religions in an unprecedented way. The result is a dual allegiance within the context of a religious pluralism where the believer can seek for both God and the world of spirits at the same time.
This religious landscape is also showcased in popular language in many different situations. There is also a national joke to the effect that “God is Brazilian” which reveals, amongst other possible interpretations of the humorous statement, the level of divine worship and confidence in the supernatural of the society in general.
This paper is part of a broader body of research in which we are seeking various interpretations of human rights in Brazil and trying to establish their discursive significance and social representation through the use of legal lenses, especially those crafted by the courts. Here we aim to understand how the opinions of the Supreme Court Justices are constructed when deciding cases concerning freedom of religion in Brazil, considering the boundaries above stated. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which has symbolically reinstalled democracy in the country after the military rule that took place in Brazil since 1964) up to 2019 with the presentation of the seminar
To accomplish this, first we will present briefly the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion and then we will discuss our project, stressing the methodological approached we have adopted and showcasing our data findings.
As noted by anthropologist Professor Paula Montero, “the principle of religious freedom became naturalized in public discourse as a condition indispensable to peace. Its protection remains at the base of the concepts of emancipation, democracy and prosperity that guide contemporary liberal states”. Paula Montero,
Contemporary Brazil But this status of freedom has not always been part of Brazilian history. “The first Brazilian Constitution, dated 1824, enacted after the Brazilian declaration of independence from Portugal, stated in its article 52 that the Roman Catholic Church religion was the religion of the country. Other religions were allowed in private or in temples, yet not in public. At the time, church and state were practically one and the King protected and governed the church in his vast domains, by divine right. On November 15th, 1889, Republic was proclaimed and, as a consequence, a second Brazilian Constitution came to light in1891, recognizing religious freedom in its article 72, sections 3, 5, 7, 28 and 29, allowing individuals and religious organizations to publicly worship, and the separation between the State and the Catholic Church was declared.” Marcelo Moscogliato, An English version of Brazil's Constitution of 1988 (with Amendments through 2014) is offered by Constituteproject.org with content generously provided by Keith S. Rosenn. For the purposes of this Article we will assume that when human rights are included in the internal legal order, they are called fundamental rights. They can be provided for in the Constitution or even in fragmented laws. In Brazil, they are provided for in the text of the 1988 Constitution, especially in article 5. Regarding the way statutes are cited, the Brazilian ‘article’ would be equivalent to ‘section’ in the United States. We have opted to use the Brazilian term ‘artigo’ simply translated as the English ‘article’, though without implying an intercultural approach to the meaning of the words in both legal cultures. Article 5: All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms […]
VI - freedom of conscience and of belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed There are other constitutional provisions that deal with religion too, such as art. 150, III “b” (“Art 150 - Without prejudice to other guarantees assured the taxpayer, the Union, States, Federal District and Counties are prohibited from: […] VI. levying taxes on: […] b. temples of any religion”) for example. But in this paper we are dealing only with art. 5, VI which is the principal clause to provide for fundamental rights.
The effect is to guarantee a pluralist approach and is understood as a way of recognizing different faiths within Brazilian society, at least in the normative domain.
Within this framework, Brazil has in place specific laws and policies that contribute generally to the free exercise of religion. The criminal code secures protection of religious freedom, as does CAÓ Act (Law 7716/1989, of Jan. 5) which defines the crime of racism as the different and disparaging treatment of a person exclusively because of his “race, colour, ethnicity, religion or national origin”, which has the effect of preventing him or her from gaining access to certain goods, services or places because of his or her condition. The crime of racial injury is provided for in article 140, paragraph 3, of the Brazilian Criminal Code (Law DL 2848/1940, of December 07). It is defined as the offense against the dignity of an individual, using references to elements of “race, colour, ethnicity, religion, origin or the condition of a person being elderly or disabled”. Dr. Eric Kramer provides an interesting review of a criminal trial held in São Paulo in 1995 when the State of São Paulo prosecuted an evangelical minister on the grounds of verbally and physically assaulting a plaster statue of Our Lady Aparecida (
This legal design has been considered by some as quite a satisfactory legal framework. Due to this pluralist religious alliance, one might think that Brazil would exist as a more tolerant society. In fact, the country has been portrayed by some as a peaceful society regarding religious conflicts. This sugarcoated view can be seen in U.S. official documents, such as the B
The Brazilian Supreme Court (STF) is the highest court in Brazil with national jurisdiction over constitutional matters and its rulings cannot be appealed. The language of the Constitution states that the STF has “primary responsibility for safeguarding the Constitution”.
Article 102 of the 1988 Constitution provides for the court's jurisdiction; and regarding matters of constitutionality, the court decides on extraordinary appeal, cases decided in sole According to the way jurisdiction is designed in Brazilian courts, “decided in sole” refers to a decision made by a higher court at first and in respect of which there is no provision for appeal, meaning that the case starts and finishes at the same court. It is important to bear in mind that the court has jurisdiction over other criminal and civil cases too which could be considered as non-core duties compared to its position as the defender of the Constitution. Altogether, article 102 has three subsections with 22 items. For example, in subsection I, “n”, the Court has original jurisdiction over cases in which all members of the judiciary have a direct or indirect interest, and those in which more than half the members of the originating tribunal are disqualified or have a direct or indirect interest. In subsection I, “o”, the court is the mediator of tribunals, arbitrating conflicts of jurisdiction between Brazilian national Higher Courts, such as the Superior Tribunal of Justice and any other tribunals, between Superior Tribunals, or between the latter and any other tribunal. On the other hand, in subsection I “b”, the court has original criminal jurisdiction to try charges of common criminal offenses against the President of the Republic, the Vice-President, members of the National Congress, the Tribunal's own Ministers, and the Procurator-General of the Republic.
Judicial review in Brazil, as Professor Keith Rosenn explains, “combines the decentralized, incidental form of judicial review of a common law country like the United States with the centralized, abstract form of judicial review of civil law countries such as Germany and Italy. Brazil's Constitution provides for both forms of judicial review.” Keith S. Rosenn,
In terms of membership, the Court has 11 Justices, who are addressed in Portuguese as
Every two years, members of the Supreme Court elect by secret ballot from within their membership a Chief Justice (who is called the President of the Court). Even though all the Justices as eligible for the presidency of the court, traditionally the Justices always select as president the most senior member of the court that has not yet served as President. And the Vice-Minister is generally the minister who will be elected president in the succeeding term. It is also expected that the ministers who are to be elected never cast their votes for themselves. They would choose the most senior member of the court – the “ The duties of the CNJ are prescribed in art. 103-B, para. 4 of the 1988 Constitution.
The caseload of the Federal Supreme Court is extremely heavy. According to the CNJ's https://www.cnj.jus.br/wp-content/uploads/2017/06/fd55c3e8cece47d9945bf147a7a6e985.pdf.
Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in performance of their duties can contribute to conflict developing into outright violence that will be beyond the management of law and the courts. This circumstance alone indicates the need for investigations into the decision-making processes of the judiciary and the impact that these may have on maintaining the effectiveness of the rule of law.
The object of our academic investigation has always been based on an attempt to understand what the elements that form judicial decisions are and how they are articulated, especially when dealing with constitutional themes. In other words, we work from a political concept of constitutional jurisdiction, which is conceived as the field of disputes concerning the legitimating force of institutions and citizenship rights. This has presented us with the problem of understanding what the role of the Brazilian Federal Supreme Court as custodian of the Constitution might be and the discourses that their decision-making construct. That is, we aim to explain the decisionional grammar As we have stated before, the proposal for a grammar of judicial decisions presupposes the recognition of the discursive dimension of judicial decisions that has its own semantics of language, materialized in the speeches of the actors / interpreters of the law. And we are calling the grammar of judicial decisions the structures and rules used by the judges in their decision-making speech, constituting what Discourse Analysis calls discursive formation. Grammar is the set of individual rules used for a particular use of a language, here specifically, for the use of the judges’ decision language. It is the system that organizes thinking and imposes recurrent mental structures when speaking, so that the speeches make sense to those socialized in this same sense system. Fernanda Duarte & Rafael Mario Iorio Filho, Fernanda Duarte & Rafael Mario Iorio Filho,
Rational consistency is taken here to be the discursive weight of the arguments produced by the Court which prevail because their rationale is convincing and persuasive and able to establish precedents to be followed by lower courts and citizens. The strength of the Court relies upon the quality of its rationales and not on the sole fact that the Court and its Justices have the power to decide. A strong level of rationality here implies that the opinions of the Justices have legitimacy because of the quality of their reasoning as opposed to relying on appeals to respect (as arguments of veneration) or the These promises can be identified in Guillermo O’Donnell's work: “the legal system is supposed to texture, stabilize, and order manifold social relations, the rule of law” […] “establishes networks of responsibility and accountability that entail that all agents, private and public, including the highest placed officials of the regime, are subject to appropriate, legally established controls of the lawfulness of their acts”. Guillermo O’Donnell,
Through the methodology of semiolinguistic analysis of political discourse, using Patrick Charaudeau's semiolinguistic theory as a methodological guide, this article now considers the discursive procedures and categories articulated by the Justices of the Brazilian Supreme Federal Court.
Amongst the different possibilities that discourse analysis (DA) methods offer, Charaudeau's semiolinguistic discourse analysis can help identify and clarify a grammar of judicial decisions. It enables us to understand how legal discourse is constructed, what the intentions of its enunciator are and what the organizing structures might be. This enables us to glimpse the intentions in the discourses, through what is said and unsaid, the “relations between text and context”, C C
One of the various academic challenges we face when dealing with judicial decisions is how to define a relevant corpus for analysis that is significant enough to answer the research question, supporting valid conclusions and at the same time feasible to be handled considering constraints of time, resources and personnel that often stress research initiatives. For challenges faced in defining the corpus for analysis,
In Brazil, all judicial decisions are published in daily official reports called Also, each state member of the Brazilian Federation publishes its own To check the D.O.U. website, see
So other reliable sources needed to be found. In this sense, in common with many other researchers in Brazil, we have resorted to the Supreme Court's official website where the cases and their decisions are available for public consultation, amongst other historical and institutional information.
The STF website offers a good range of searching possibilities with different entries, such as the parties’ names; the register number of the case; the type of proceedings; the Justices’ decisions; thematic topics; the legal provisions; etc. Amongst the possibilities we have opted to use a combination of the keywords and entries.
For the entry ‘
For the entry ‘ The Constitution and the STF:
The general data results revealed a total of 49 cases (25 +16 +8) as shown in the following chart.
Entry | Keyword1 | Keyword2 | Keyword3 |
---|---|---|---|
pesquisa de jurisprudência | 25 | 16 | - |
a Constituição e o STF | - | - | 8 |
In order to refine the cases, we have excluded those that we have found to be irrelevant bearing in mind our timeframe and our objective. We have excluded cases that were decided before 1988, those that were thematically irrelevant and those which have appeared more than once. So, eventually 38 exclusions were made and our final number of cases was 11: ADI 5.257, ADI 2.566, ADI 4.439, ADPF 54, RE 494.601, RHC 146.303, RHC 134.682, RE 859376 (tema 953), RE 979742 (Tema 952), ARE 790813 (tema 716), and STA 389 Unlike the United States where the names of the parties as plaintiff v. defendant are used to designate a case, in Brazil, judicial cases are cited as the type of the proceedings (e.g.
The idea of semantic field is related to the set of different meanings that a word (or a group of words) presents through the contexts in which it is used, revealing that words can refer to different realities within the same concept. A semantic field does not just reflect the ideas, values and perspectives of contemporary society; it crystallizes and perpetuates them too, socializing to future generations an already elaborated analysis of the experience through which the world will be understood.
In our research, considering the 11 cases we have studied, we identify the following terms that integrate the semantic field which informs the concept of freedom of religion in the Brazilian Supreme Court: As possible development of this research, for instance, would be to focus on discussion of the meaning of these words in context, revealing the values, perspectives and representations adopted by the Supreme Court that could disclose the court's attitude towards religion and the law. the Bible - paramount book - religious behavior – secularism - freedom of religious belief – proselytism - freedom of religious expression - religious tolerance - confessional religious education - religious prejudice (discrimination/“religious racism”) - the Sabbath - religious ornaments - constitutional value balance - religious sentiment – boundaries for religious rights
As we have mentioned earlier this project is a work-in-progress so the set of three conclusions we are proposing as a closing for this paper should be taken as preliminary results signaling the need for further investigation to confirm these early impressions.
1. Even though the purpose of the project is to understand how the opinions of Federal Supreme Court Justices are constructed when deciding the cases concerning freedom of religion (as written in art.5, VI of the 1988 Brazilian Constitution), the first aspect that immediately calls attention is the fact that the number of cases is very small, almost “invisible” if compared to the overall docket of the Court. And even though the Constitution is almost 31 years old, all the cases have been discussed in the last decade. In a certain way, the fact that most Brazilians associate themselves with Roman Catholicism might confirm this low level of judicial litigation. Even though the data finding confirms, from the litigation perspective, that religious “conflicts are rare in Brazil” as some affirm,
2. Regarding the dimension of ideas and attitudes, freedom of religion is associated with beliefs, behavior and sentiment. Tolerance and prejudice are also concepts that can be found in the decisions as opposites, reflecting the common sense meaning. But secularism and proselytism are polysemic concepts for the Supreme Court which has shown difficulties in establishing semantic consensus. The lack of a clear definition of these categories impacts on the capacity of the Court to establish boundaries for acts which would be protected as the regular exercise of the religious freedom, setting them apart from those that could be considered abusive. There is a certain tendency towards the rationale of balancing values when the Court faces conflicts between freedom of religion and other fundamental rights. In this sense, we can see that the Court is aware of the legal debate, but there is no clear acknowledgment of the social (religious) conflicts which are reduced to a mere legal dispute to be solved by reference to the Justices personal view on the issue.
3. Last but not least, we could identify one category of the Brazilian decision-making grammar which reinforces our previous works on the subject, already referred throughout the text: the lack of consensus which produces what we call the The
In this way all the opinions of the judges can be considered to be
If socialization is a process of adaptation of the individual in society, to be achieved by the internalization of social norms (including legal ones), the absence of shared meanings leaves members of society with no direction or clear instructions. Thus, the predictability of the legal consequences of human expectations and conducts is reduced and the prospects for reducing disputes and/or conflicts before they arise are diminished. The consequence for judges lower down in the hierarchy is that once they find no safe grounds to follow the precedents set by the Supreme Court, in the absence of clear hermeneutic constraints the effect of the
Finally, the lack of consensus concerning legal meaning has the potential to manifest itself in the unequal distribution of justice among those who are constitutionally entitled to be subjected to the “equal protection under the law” clause in Brazil. When a constitutional guarantee becomes empty rhetoric in practice, the legitimacy of the rule of law as understood by western modern societies is seriously compromised.