On Slaves and Lands

Brazil’s Congress just passed a Proposal of Amendment to the Constitution (PEC) known as “Slave Labor Amendment.”  The new law aims to broaden the power of land confiscation without compensation by the government, including  properties on which there is exploitation of slave labor.

After the modifications, Article 243 of the Constitution reads as follows: “Rural and urban property anywhere in the country where psychotropic had been cultivated or where slave labor was exploited, as described by law, will be expropriated and destined to agrarian reform and popular housing projects, without any compensation to the owner and without prejudice of other lawful sanctions.”

This is quite interesting for libertarians. First, a person who enslaves another one in their land can be legitimately expropriated. For a libertarian, unowned land becomes property through occupation and labor. If you’re forced to continue to work on land you’ve already used or if you’re taken to another location and obligated to work, the plot of land you worked is legitimately yours, not your captor’s.

Even if the slaver were the legitimate owner previously, his violation of your rights in forcing you to work the land make his property rights void. Hence, expropriation of slavers in favor of the enslaved is fair and just.

However, there are two significant risks in applying this principle: 1) Expropriation does not benefit the victims and increases state control over land; 2) The definition of slave labor is problematic.

It’s worrying that the expropriation of land in the project isn’t as reparations for violation of someone’s rights, but a policy of expropriation for the supposed common interest in agrarian reform or popular housing. Even if people formerly enslaved should be prioritized, this doesn’t change the fact that this policy does not acknowledge the rights of the victim in the crime. In practice, it would impair the victims’ rights to use their rightful land as they see fit, because government regulates agrarian reform and popular housing projects according to its own priorities.

The new law may come to strengthen the obsessive control the Brazilian state exercises over access to land by poor people, supposedly to protect the interests of a generic class of people who need rural land or housing, not the real victims of slavery.

Moreover, it is the very control by the state over the access to land that has created a whole contingent of people who are in dire need of agrarian reform or popular housing. The first measure the (then Portuguese) state when it occupied Brazil was dividing it up in hereditary captaincies and creating the latifúndio. The practice of grilagem* only came to be in the Amazon due to the vulnerability of property rights in the countryside, that privileged artificial property titles (that is, not based on occupation and use). At its peak, the system made it possible for “Carlos Medeiros,” a person who has never existed, to own 1.5% of the national territory – land equivalent to the territories of Portugal and Belgium combined.

Meanwhile, poor people’s properties remain “irregular” in the country – especially lands owned by indigenous peoples and quilombolas – a factor that has contributed to their exclusion and social vulnerability.

The constitutional guarantee of expropriation with due compensation is very little, being a system prone to manipulations and that serves to a “model of urban development that evicts the poor from the city centers and pushes the value of their labor even lower,” as the World Cup has made clear.

On the subject of expropriation without compensation, since 1988 until the passing of this amendment, there was only one case where that could happen: When the land was used to cultivate psychotropic drugs. Government wants to discourage internal production (thereby protecting the drug dealers cartel that control the imports of several illegal drugs) to sustain its failed drug war, which has not only made Brazilian countries world champions in murder rates, but also kills disabled children, by denying them access even to medical marijuana. Your civil disobedience in cultivating marijuana that could help children could make your property title void without compensation.

Besides all these problems, there’s also the issue of the problematic definition of slave labor in our legislation, which does not equal “forced labor.” Our Penal Code criminalizes the “reduction to condition analogous to slavery,” which can comprise one of these cases: 1) Subjection to forced labor; 2) Debt serfdom; 3) Exhausting labor hours; 4) Poor work conditions.

The two first are clearly valid. But the latter two are not. Poor work conditions, while in some cases derived from severe fraud in labor contracts, are not forced labor.

The expansion of the concept of “conditions analogous to slavery” means that it is government that is going to dictate what those conditions are and cheapen the definition of slavery. Being outside a few state labor regulations would be enough to prosecute someone, without investigation about local customs, the willingness of the workers, and the specifics of the situation.

This legal insecurity also motivated the addition of the term “as described by law” in the amendment, so that the norm will depend upon further regulation about what it means to exploit slave labor.

Thus, while we should be happy that a libertarian principle has been added to the Brazilian Constitution, there are legitimate concerns about its application. For, instead of making expropriation a reparation to victims of slavery, the state has transformed it into a policy of control of the land.

*Grilagem is the practice of counterfeiting property titles to establish fake customary rights to government or other people’s lands. Those who carry it out are called “grileiros.” The term comes from the use of crickets to make paper documents appear older than they are.

Translated from Portuguese into English by Erick Vasconcelos.

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