Florisa Verucci. Feminist Studies. Volume 17, Issue 3. Fall 1991.
We live our lives not so much in the inner spaces of our individual selves as in the public arena, where from birth to death those selves are shaped. Among the shaping forces of individuals and of society as a whole, one of the most active is the body of legal principles and practices by which a society’s public and private affairs are structured. This truism about the importance of the law was brought home to me in the early 1980s when I began working on an oral history of contemporary Brazilian women. For this project, I conducted lengthy interviews in several parts of Brazil with sixty women of different ages, races, and socioeconomic conditions. Very quickly I saw that if I wanted to understand women’s lives, I had to know how the law constrained or facilitated their activities, what possibilities it afforded them for pursuing their goals, how it framed their everyday experiences, and how it directed their relations with the state and with other individuals.
In the course of the interviews, women told me about their pregnancies and their efforts to act on the labor legislation that protects officially registered women workers from dismissal because of pregnancy. Widows talked about their husbands’ pension, which provided their only income, and how they would lose these if they remarried. Domestic servants spoke of their limited rights compared with those of other women workers: their unspecified work week and lack of protection by minimum wage laws. Black women spoke of their restricted job opportunities and of their experiences of racial prejudice in employment, even though these are prohibited by law. Political activists described their participation in clandestine organizations during the military dictatorship of 1964-85, their fear of the police, and the denial of due process when arrested. I heard many stories about abortions — illegal in Brazil except to save the mother’s life or when the pregnancy results from rape — how they were paid for, who did them, how, and with what consequences. Prostitutes spoke of being harassed by the police, even though not prostitution but only pimping is illegal in Brazil. Workers told me about receiving unequal wages, which is prohibited by law, and about women’s economic dependency. Other women mentioned the difficulty of finding places for their children in Brazil’s inadequate public school system, although public education is free and indeed compulsory for children between the ages of seven and fourteen. They described racial discrimination going on in the classroom. They told me what it meant in practice for the husband to be defined as the legal head of the household and about their fathers’, husbands’, and boyfriends’ insistence that a woman’s place was in the home, without access to an independent income. They remembered childhoods spent in the backlands, working in the fields — a notoriously unregulated and exploited form of labor — and they explained why better regulated factory work in the city was preferable, even though in the city one had to buy many things that in the countryside could be raised or made. They told me about the importance attributed to virginity for women, and some women knew that lack of a maidenhead was sufficient ground for husbands to seek the annulment of a marriage.
I also heard about the delay of years before a divorce (legalized only in 1977) was finalized and learned that the law allowed only one divorce per lifetime. Women described legal battles with husbands over access to the wife’s earnings. They told me about employers who refused to grant maternity leaves, although these are guaranteed by law to registered women workers. And they told me how childcare provisions, legally mandated for firms employing more than thirty women of childbearing age, were in fact not usually honored.
But women also spoke exultantly of maternity leaves won by confronting employers with copies of the law in hand, of employers successfully challenged on other workers’ rights, of court cases resolved in women’s favor, often with the help of feminist attorneys — small victories, but precious gains that reduced the wide gap between the protections afforded in principle and their enactment in reality.
In order to put these stories in context, I had to gather information about women’s legal position in Brazil. A key text in this endeavor was Florisa Verucci’s A Mulher e o Direito. And, naturally, I also grew interested in feminist efforts to use and change the law in Brazil, efforts that have been highly successful in some important respects, most spectacularly in the new Constitution promulgated in postmilitary Brazil in October 1988.
Having gone through several decades of rapid urbanization, Brazil has seen its population shift from predominantly rural to predominantly urban. Although Brazil possesses enormous natural resources, 70 percent of its people, according to recent estimates, presently live in poverty. Regional divergences — especially between the developed southeast (the Rio/S…o Paulo area) and the underdeveloped northeast — are extreme; but in the south, too, poverty is ever-present, notably in and around large urban centers.
Imperatives of gender, class, and race still organize life options in Brazil. However, Brazilian women, like many other Latin American women, possess legal rights that go far beyond those available to women in the United States. Since the Constitution of 1934, which also granted women the vote, they have been presumed equal under the law. This 1934 Constitution prohibited discrimination in employment, but — in characteristic contradiction with principle — when the first minimum wage was set in 1940, women’s wages were fixed at a lower level than men’s. The Consolidated Labor Code of 1943, written during the populist authoritarian regime of Getúlio Vargas and inspired by Mussolini’s labor law, among other provisions, prohibited the termination of employment of pregnant women, granted registered women workers in urban areas twelve weeks paid maternity leave, guaranteed “job stability” of three months after this leave, and gave time off during the work day for breastfeeding.
All this in theory. In practice, women in the labor market have continued to suffer discrimination. In a society in which the majority of female agricultural and domestic workers are still not officially registered as workers, such progressive legislation as does exist excludes millions of the women who need it most. Although women now constitute 37 percent of the Brazilian labor force, this large segment is concentrated in the lowest paid and least prestigious jobs. In addition — as is obvious to even the casual observer — the darker their skin, the worse off the women are likely to be. Violence against women is still routine, and men have traditionally been exculpated in the murder of wives and lovers on the principle that one must act in “legitimate defense of one’s honor.” Despite its lack of foundation in law, this claim constituted a successful defense until women’s groups began to challenge it in recent years. This culminated in a 1991 decision by the Brazilian Supreme Court, which finally outlawed such defenses in murder cases. Its ruling stated that “homicide cannot be seen as a normal and legitimate way of reacting to adultery” and that “what is defended is not honor, but vanity, exaggerated self-importance.”
Women’s current struggles in Brazil cannot be understood without consideration of the country’s recent history. Following the military takeover in 1964, virtually all political participation, including women’s activism, was suppressed. Only two political parties were allowed. With the passage of a particularly repressive Institutional Act in 1968, what little political opposition remained was driven underground. This was a period of censorship and torture, the excesses of which have by now been well documented. Merely to demand compliance with the government’s own laws (for example, regarding employers’ obligations to provide childcare facilities) was to expose oneself to charges of subversion. This was also the time of the Brazilian “economic miracle” (1968-74), when the government policy of attracting foreign capital by offering high returns on investments meant a massive redistribution of wealth from the poor to the rich, leaving the majority of Brazilians more impoverished than ever and the country as a whole facing an increasingly unmanageable external debt. Leftist groups led a clandestine and precarious existence, and no separate women’s groups survived.
But in the late 1970s, the political abertura (opening, or thaw) began. Censorship eased, an amnesty (for which women had agitated) was granted, exiles returned, including women who had meanwhile been exposed to European feminist movements. Political prisoners were freed, and, although authoritarianism continued, the restoration of democracy could at least be openly discussed.
During this same period the present wave of the women’s movement came into existence. The 1975 United Nations Women’ Year had acted as a stimulus to feminist activities throughout Latin America, as in other parts of the world. In Brazil, however, feminism had constantly to be framed by the necessity of struggling against the dictatorship. An issue such as reproductive rights, for example, could be talked about only in the context of pro- or antigovernment positions. In this climate, it is not surprising that the early women’s congresses in Brazil in the late 1970s were the sites of heated debates. On the one hand, discussion of women’s specific problems was seen by many activists on the Left as “divisive,” drawing attention away from the “main goal” of fighting the dictatorship and challenging the existing class structure. On the other hand, political opponents of the government were often suspected by feminists of being co-opters, attempting to use the growing women’s movement for their own political purposes. The return to democracy in 1985 meant an end to this phase of the struggle, and the possibility arose at last of a more united front for pursuing women’s demands.
In the November 1986 elections, more women were voted into public office than the total number of women politicians in Brazil’s past history. Benedito da Silva, a member of the PT (Workers’ Party), from Rio de Janeiro, became the first Afro-Brazilian woman ever elected to Congress. In 1988, another socialist woman, Luiza Erudina de Souza, also a member of the PT, was elected mayor of South America’s largest city, S…o Paulo. Police posts staffed entirely by women and serving the female population were created, beginning in 1985, and their activities have confirmed feminist perceptions that there had long been a high incidence of unreported violence against women. Today there are municipal and state councils of women, as well as a National Council of Women’s Rights. But all these structures, which were a great achievement of the women’s movement, are now, after the return to civilian government and the ensuing decline in political activism, in need of reorganization and reconceptualization. Furthermore, at the moment it is hard to predict how Brazil will emerge from the drastic economic policies introduced by President Collor in an effort to control inflation.
In the complacent way of traditional legal thought, “the law” has always been taken to express and exemplify a nation’s conscience, at least over the long run. To try to determine whether this is in fact true in the case of a given country is to ask some fundamental questions about that country and to discover some important things about it. In our day social thought has to take its cue from the problems of law-as-legislation, for it is almost universally agreed that law, and not philosophy or religion, is today the indispensable mechanism of social change — whether the aim is to promote, inhibit, or channel it.
The law provides a framework for understanding both the possible and the actual. Considered along with a society’s routine behaviors, the law and its operations reveal the distance between a society’s declarations of what it wants to be and its real commitments. Political and social discourse cannot exercise much force beyond moral suasion until they are set in positive law and until that law is put into action. Thus, what is actually going on in a society can be usefully grasped by gauging the difference between what the law says on a given issue and what is done in practice — by evasion and disregard of the law, official nonenforcement, defiance, governmental impotence, and so on.
The new Brazilian Constitution, like all constitutions, reflects its historical and political moment. This is evident in the Constitution’s very structure: unlike all preceding Brazilian constitutions, whose opening chapters dealt with the organization of the state, the first chapter of the 1988 Constitution declares particular fundamental rights. It includes such provisions as: “No one shall be subjected to torture or to degrading or inhuman treatment” — a poignant reminder of the abuse of human rights that occurred during the twenty-one-year-long dictatorship that ended in 1985. It is also in this first chapter that, as we shall see, the principle of equal rights and duties between women and men is articulated.
Constitutions are part of a complex political process, and they need to be read as such. However imperfect the new Brazilian Constitution, like all basic laws, is, it does validate important progressive and feminist positions. It thus provides a foundation for further building and organizing.
Women and the New Brazilian Constitution
Brazil is no different from many other countries in the discrepancies that exist between the law in theory and its working out at the level of everyday life. But in order to grasp the extent of contradictions within the Brazilian legal situation, one must first understand the type of constitution that Brazil has. Brazilian constitutions in general, and the one of 1988 in particular, exemplify what are called analytical constitutions: they are extensive and detailed and include material that pertains to issues other than strictly constitutional ones. Thus Brazilian constitutions have always included articles concerning such matters as the family, the work force, social welfare, education, and the utilization of natural resources.
The very prolixity of Brazilian constitutions increases the possibility of contradictions between constitutional provisions and positive law. A telling example concerns the principle of isonomy — equality before the law without distinction of sex, race, profession, religion, or political beliefs — which has been inscribed in Brazilian constitutions beginning in 1934. Despite the constitutional incorporation of this principle, discrimination has existed not only in custom but also in law. Adequate legal instruments have not been available to enforce isonomy, and women have not until now been organized into movements capable of insisting upon implementation of the law. Above all, in relation to employment and the family, the two areas on which I shall concentrate in this essay, the principle of equality has consistently been ignored by many existing laws. The result is that articles of law bestowing equal rights on women and men have only rarely been applied or even invoked by the concerned parties.
Although labor law has for decades been explicit on the issue of equal pay for equal work, discrimination occurs in the application of the law, as is apparent in the salary differentials between women and men doing the same job. Similarly, despite constitutional affirmations of equality before the law, positive laws still exist that maintain the inferiority of women, as is the case, within family law, of the concept of the husband’s leadership (chefia) of the conjugal unit.
The Constitution of October 5, 1988, profoundly alters the legal status of women by reinforcing the principle of isonomy and introducing into the chapter on fundamental rights a specific statement affirming the formal equality of rights and duties between women and men. This achievement is the result of the concerted efforts of many feminist and nonfeminist individuals and groups, including the National Council of Women’s Rights, the state and municipal councils, jurists (female and male), and women deputies in the Constituent Assembly who formed the first united front transcending party affiliations for the specific purpose of defending women’s rights. The Constituent Assembly, demonstrating its respect for the massive campaigns carried out by these groups starting in the 1970s, inserted for the first time the statement that “the law shall punish any discrimination that violates fundamental rights and duties.” Any citizen who considers her or his constitutional rights infringed can now appeal directly to the courts for compliance with the constitutional norm, even in the absence of enabling legislation, for the Constitution states that these principles “go into effect immediately and can be invoked by means of injunction.” Thus, the new article affirming the equality of women and men has direct repercussions on all other laws, decisions, and behaviors relating to the legal status of women.
The new juridical status of women must now be incorporated into the whole range of ordinary legislation, altering or revoking articles that contradict that status and introducing articles necessary for consistency into the Civil Code, the Penal Code, the Consolidated Labor Laws, social welfare laws, and others. These legal changes are important not only in themselves but also because they are the result of social movements at various levels. Specific groups — the women’s movement, the Black movement, the labor movement, the ecology movement, the Indian rights movement, among others — energetically lobbied both before and throughout the Constituent Assembly’s deliberations and had significant impact on them. Thus, although the Constituent Assembly (in which less than 5 percent of the members were women) was, for the most part, politically conservative, the results were far more progressive than could have been expected.
Starting with the Constitution of 1934, the general tendency in Brazil has been toward ever greater social protection. The new Constitution broadly extends these benefits: (1) it increases paid maternity leave from 90 to 120 days; (2) it moves toward a fundamental restructuring of family roles by creating paternity leave, without fixing its duration; (3) it promises women protection within the labor market by means of specific incentives for the hiring and retention of women; (4) it allows women access to night work and to work in unhealthy conditions (while stipulating that every effort shall be made to diminish unhealthy work conditions for both women and men); (5) it increases the social benefits and workers’ rights available to domestic servants; (6) it extends provisions for childcare beyond the already existing obligation of employers so that it is now the general responsibility of the state to provide “free care to children from zero to six years of age, in nurseries and preschools.”
Some rights that are not specifically aimed at women will also ultimately benefit them. This is the case, for example, with the equalizing of the status of rural and urban workers. Before the new Constitution, rural workers, especially, were the least protected category of labor. In Brazil, workers’ rights are closely interwoven with the social welfare system, which includes medical care, maternity provisions, unemployment insurance, and social security. Thus, it is not individual firms that bear the cost of maternity leaves and nurseries, for example, but rather the social welfare system which reimburses individual firms. All these benefits henceforth will be open not only to registered workers but also to any person who makes appropriate contributions into the program. This of course includes housewives — another victory for the women’s movement.
Women’s advances in the arena of work and social benefits are, then, significant. What remains to be resolved is the problem of implementation. In the past, women encountered great difficulty in gaining access to the labor market. Their new advantages, at least while they have not yet been fully assimilated into the country’s economic life, may create further obstacles to women’s work, despite the Constitution’s prohibition of discrimination and its affirmation of protection. To give an example: shortly before the promulgation of the new Constitution, some firms, above all, small companies, fearful of the inconveniences resulting from the anticipated legislation, dismissed their female employees. As anxiety diminished, the frequency of such measures decreased. A continuing problem, however, is the absence of a legal provision that obliges a firm to employ women. There has been some discussion among women’s groups regarding proportional representation of women in different work categories, but this is a highly controversial issue, in view not only of the difficulty of establishing fair proportions, but also of the problem of formulating legal and political rationales for this demand.
Although the extension of paid maternity leave to 120 days involved a quantitative change only, it caused more dissension than did the granting of paid paternity leave, which was a major innovation. In an effort to avoid causing greater hardship at the workplace, the supplementary provisions covering the period of transition until the new Constitution becomes fully effective have restricted this paternity leave, as expected, to a short time (five days); still, the inclusion of such a provision is a notable step, for it writes into the Constitution the modern concept of the family in which the father is expected to be more responsible for his offspring than ever before. In so doing, it adds an important ideological element to the new image of the family.
The increase in the length of maternity leave and the introduction of paternity leave are of particular importance for low-income working women, and the storm caused by these measures will certainly diminish as the new gains are incorporated into routine labor relations. For professional women, however, whose work is competitive and demands constant updating, a long obligatory leave may well not be in their best interests.
Particularly in a country such as Brazil, where democracy follows a long period of dictatorship, there is a great sensitivity to authoritarian structures. This awareness is evident in recent debates about the family. My own position is that the democratic process is seriously undermined if it does not pass through the family. This is why equality between women and men within the family is essential, quite apart from its personal benefits. The last ten years of slow redemocratization in Brazil have convinced me that to restructure the family in its legal expression, creating a modern body of legislation that is both egalitarian and effective, is in fact to work toward the political restructuring of society.
I took part in these developments as a member of the Brazilian Constitutional Studies Commission. This group, also called the Arinos Commission in honor of its president, the late senator Affonso Arinos de Mello Franco, was composed of fifty individuals (only two of whom were women) with different areas of expertise, named by the president of Brazil in 1985 to prepare draft proposals to be considered by the Constituent Assembly. My particular task during the year that the commission met was to propose articles that would redefine the family in a democratic direction. The ideas behind such articles had earlier gone through extensive debate in feminist circles and in the councils on women’s rights at the federal, state, and municipal levels. From these discussions had emerged a perception of the overriding need to alter the legal definition of the family and to redistribute authority within the family.
All preceding Brazilian constitutions had given the family, created through marriage vows, the right to invoke the protection of the state. This definition offered no protection to innumerable Brazilian women living in common-law unions, who had to pursue their rights on a case-by-case basis. The majority in the Arinos Commission agreed with my goal of democratizing the family and persuaded the Constituent Assembly to include many articles based on our recommendations in the Constitution of 1988. While discussions were going on in the commission and the assembly, our recommendations also occasioned broad debates throughout the country among feminist groups and nonfeminist women’s organizations.
After considerable negotiation and compromise among conflicting interests, the chapter in the new Constitution on the social order, which deals with the family, children, adolescents, and the elderly, reflects gains made in relation to the concept of the family, the facilitation of divorce, and the introduction of family planning.
The results did not please everyone. Members of the Constituent Assembly who represented positions more toward the Left did not like the social centrality given to the family. The Catholic Church and other religious groups were dissatisfied with changes that facilitated divorce and with the failure to include in the Constitution limitations on the use of contraceptives. Furthermore, despite the efforts of a gay lobby that attempted to introduce the concept of freedom of “sexual orientation,” heterosexuality was explicitly made the norm of the new Constitution.
In the end, the Constitution defined the family as the “basis of society” and accorded it the right to protection by the state without regard to how that family is constituted. Included within this protection is the “stable union between a man and a woman,” and it is expressly stated that “the law shall facilitate” the conversion of such unions into marriage — the latter a concession to conservative groups. Within the new conception of the family, however, the community formed by a parent of either sex and her or his offspring is also recognized as a “family entity.” A consequence of this innovation is that specific legislation will now have to be introduced into the Civil Code to deal with these new forms of the family.
Redefining the family on a constitutional level also involved considering anew the nature of political relations within the family. This was an important task precisely because in all preceding laws it was the very institution of marriage that explicitly reduced women’s civil status. The new Constitution at long last revokes the notion of the husband’s leadership (chefia) of the conjugal unit and declares instead that “the rights and duties relating to the conjugal unit are exercised equally by the man and the woman.”
A noncontroversial issue taken up by the Constituent Assembly was the status of children. In recent years, changes introduced into the Civil Code have facilitated the possibility for children born of adulterous unions to be recognized by their fathers, thus gaining rights to child support and inheritance. The new Constitution definitely puts an end to any distinction among offspring; discrimination of rights among them is no longer to be tolerated. Adopted children as well as those formerly considered “illegitimate” are included in this provision.
Family planning — a hotly contested subject for the past two decades — has now become a constitutional right. At the same time, individual decisions over reproduction are to be respected. In other words, family planning (deliberately not called “birth control” because of the connotations inherent in that term of authoritarian imposition) is to be facilitated but in no way coerced. There already exists in Brazil a state-sponsored program for women’s medical care through which contraceptive information and devices are to be made available to the public. But this program, elaborated with the participation of feminists working in the area of health, has not yet succeeded in reaching large numbers of women due both to lack of funds and to the opposition of the Catholic Church.
Access to contraception is closely related to the issue of abortion. Brazil is a world leader in the number of illegal abortions, and these constitute a serious public health problem. Although opinions diverged on this point, the prevailing position in the women’s movement was that no discussion of abortion should take place within the Constituent Assembly. Since there was no possibility whatsoever that abortion could now be declared a constitutional right, any mention of the subject incurred a risk that conservative forces might succeed in introducing a constitutional prohibition of abortion. This would have meant a return to the situation that prevailed before the current Criminal Code, which considers abortion a crime against persons but permits it in cases in which pregnancy either results from rape or represents a risk to the woman’s life. Further advances in the direction toward the right to abortion will obviously have to be made.
As regards the important issue of violence within the family, the Constitution also foresees the enactment of specific legislation to prevent and to punish abuse, not only against women but also against children and the elderly.
If we judge by what is written in the Constitution, women now have considerable grounds for rejoicing. The relations newly legitimized in the Constitution do not abolish the nuclear family, but they seek more adequate accommodation to the modern world. The fact remains, however, that we do not know as yet what the general and specific effects of the Constitution will be, with respect either to the principle of equality or to the new legal profile of the family. In some cases, these effects are already apparent, amplifying women’s rights where until now barriers still existed. For example, the administration of marital properties and holdings has been equalized, and women have been given greater access to professional training and work.
Although some constitutional provisions forbid discrimination of any kind, this does not create the practical instruments needed to put these provisions into effect. An additional problem is that other provisions may impose duties on women which not all of them are yet able to perform — to administer their own finances or property, for example — and these incapacities may force them back into their traditional dependence on men.
In this connection, let me note the possibility that women themselves might resist new rights and freedoms which they are not yet prepared to live out. After all, while law may have put an end to women’s juridical dependence in Brazil, women still exist in a condition of economic dependence, concentrated as they are in the least prestigious and worst paid occupations. A similar problem exists in relation to race, for, despite prohibitions against discrimination, Black women occupy the very lowest positions in terms of work opportunities and salaries.
It cannot, then, be assumed that the principle of equality creates a new reality by the mere fact of its constitutionality. Existing codes and laws of the country must now be changed in all points not in harmony with the new Constitution, and this will be a long and arduous process. In practical terms, implementation of many of the new constitutional principles depends upon the passage of specific legislation. The Criminal Code, for example, reflects an unfair and obsolete treatment of women: rape is regarded not as a crime against persons but as a crime against customs, that is, against social morality. Or, to take another example, the Criminal Code still includes a differentiation between “honest” and “dishonest” women, which refers exclusively to sexual behavior and has implications for certain criminal charges.
In the case of women and the family, new positive legislation is needed, especially to modify the old Civil Code with its traditional masculine privileges. The Brazilian Civil Code was enacted in 1916, still under the influence of Portuguese and French law. It underwent an important revision with the so-called Married Woman’s Statute of 1962, which finally removed from women the stigma of relative incapacity to act juridically, a legal status that had relegated them to the same marginal position as Indians and minors in the eighteen-to-twenty-one-year-old group. The 1962 statute represented an advance with significant consequences for the lives of married women. Except in certain specified cases, it facilitated women’s right to the custody of their minor children, and it broadened their right to dispose freely of the product of their own labor. While reaffirming the husband’s position as head of the household, it stipulated — somewhat ambiguously — that he was to exercise this function “in collaboration” with his wife.
But until the Constitution of 1988, the husband was still considered the head of the conjugal unit, enjoying exclusive rights such as that of administering the family’s assets, choosing the family’s place of residence, and having priority over the wife whenever their “collaboration” resulted in conflict. Furthermore, although the 1962 statute corrected some imbalances, it did not eliminate the article that permitted annulment of a marriage within ten days if the husband had been unaware that his wife was not a virgin; nor did it revoke the article allowing a father to disinherit a daughter still living under his roof if he considered her to be “dishonest.”
All these stipulations, although seldom invoked in the courts, were upheld by the 1962 Married Woman’s Statute. But the situation has now changed, for inasmuch as the new Constitution is the fundamental law of the land and cannot be contradicted by particular legislation, all these provisions can now be considered revoked. And as revoked law must be replaced by new law compatible with the new order, the elaboration of a new Civil Code has become a matter of great urgency, not only because of the new family law but also as a result of other shifts in Brazilian society. Jurists at the highest levels are working on this task, in particular some women jurists active in feminist circles.
Part of this work to revise the Civil Code was initiated years before the new Constitution was promulgated. In 1980, the feminist jurist Silvia Pimentel and I began to work on some basic ideas regarding what needed to be changed in the civil status of married women. Our aim was the enactment of the principle of equal rights. After much public debate, I had the opportunity in 1989-90, while working in the office of the legal advisor to the president, to rewrite the Married Woman’s Statute of the Civil Code, adapting it to the new Constitution. The revised bill was introduced to the federal Congress in February 1990, by then-president Sarney. The groundwork has therefore been laid for the implementation, through the Civil Code, of the principle of equality articulated in the new Constitution. This is where the matter now stands.
Other bills — some of major significance, a few of lesser importance — have been proposed to deal not only with the family but also with the labor market, the social security and health care system, and so on. But their passage through Congress is slow, which is not surprising in view of the great political and economic turmoil through which the country has been passing. In 1989 the first free and direct presidential election since 1960 took place. The vastly expanded electorate (over eighty million) included for the first time illiterates and sixteen- and seventeen-year-olds. In late 1990 further elections were held for governors, state assemblies, and the federal Congress. Although Brazil’s economic problems tend to overshadow the slow legislative process, legislative revisions have been set in motion. Thus, with more insistence and also patience on the part of women, we will soon have a new body of laws implementing the Constitution, establishing a juridical order that is modern and even audacious in terms of the evolution of family law.
The growing participation of women in the labor market, changes in customs, relative sexual liberation, and access to contraception, are, in conjunction with urbanization and industrialization, decisive factors in altering the family model. If society tends toward transformation and innovation, the law must evolve in the same direction. The new Constitution recognizes this reality. This qualitative legal evolution is, in my judgment, more significant than the specific quantitative increases in social benefits and workers’ rights.
To the extent that women gain, in law and in fact, equality of opportunity, they will be able to achieve economic emancipation. This, however, can occur only in a democratic country that promotes economic development based in freedom. The enjoyment of many benefits accorded by the new Constitution clearly depends upon society’s ability to produce goods and services on a scale sufficient to support these benefits.
There is also a danger that people might relax their efforts, thinking perhaps that the mere existence of the new Constitution is enough. And there is the hazard, as well, that legislators (the great majority of whom are men) might now adopt an attitude of: “What more can you want?” Furthermore, as noted earlier, there are still a great many women, in Brazil as elsewhere, who fear and resist progressive social change.
Laws have meaning only if they are made effective, and they can be effective only if they are known and made use of by their potential beneficiaries. In order for the new Brazilian Constitution to become operational, we need, in addition to the legislative changes already described, to set up permanent public offices to disseminate information, utilizing TV, radio, telephone networks, and all other possible means to inform the populace of its rights. We also need to organize more efficient free legal services for women, for they are more likely than men to be without resources and information, and to increase the number of women’s police stations all over the country, staffed entirely by women and dedicated to women’s protection. Professional training for these posts is a high priority.
Beyond these specific measures, means need to be developed for opening new spaces for women’s professional training and for broadening women’s access to higher levels in the labor market. Above all, women’s participation in the political process, at all levels, is indispensable, so that they can finally become the subjects rather than the objects of political discourse and decisions. Equal-rights law is not enough to eradicate deeply rooted discriminations, but egalitarian law is the indispensable prerequisite of a thoroughgoing transformation in women’s condition.