Racism in Brazil is not manifested solely through isolated acts of explicit discrimination. It reveals itself in a much deeper and more persistent way: in violence statistics, in unequal access to education and healthcare, in the occupation of positions of power, and in the very way institutions operate. It is a phenomenon that transcends individual behaviors and is rooted in the very social, economic, and legal structure of the country. It is within this context that the concept of structural racism is situated.

Understanding structural racism is essential for any serious legal analysis of inequality in Brazil. It's not about accusing individuals in isolation, but about recognizing that institutions have been historically constructed in a way that reproduces privileges and exclusions. The law, far from being neutral, has participated in this process, either by legitimizing discriminatory practices in the past or by failing, for a long time, to confront them effectively.

This article proposes an analysis of structural racism from a legal-constitutional and civil perspective, examining its historical origins, its concrete impacts on social relations, and the role of the State and the Law in overcoming these inequalities. It seeks to demonstrate that confronting structural racism is not merely a moral or political issue, but a legal imperative stemming from the constitutional commitment to material equality and the dignity of the human person.

Structural racism: concept and distinction in relation to individual racism.

The concept of structural racism stems from the premise that racism is not limited to individual prejudiced attitudes, but is embedded in the regular functioning of social institutions. Unlike individual racism, which manifests itself in direct discriminatory conduct, structural racism operates in a diffuse, normalized, and often invisible way, producing systemic inequalities.

Contemporary doctrine highlights that social structures (such as the labor market, the education system, the penal system, and access to public policies) have historically been shaped in contexts of racial exclusion. In Brazil, the formal abolition of slavery in 1888 was not accompanied by policies for the integration of the Black population, resulting in a continuous process of social marginalization.

In this sense, structural racism does not depend on conscious discriminatory intent. It reproduces itself even in the absence of individual malice, precisely because it is inscribed in institutional rules, practices, and routines. This characteristic challenges traditional law, which has historically focused on individual accountability, demanding new normative and interpretative approaches.

The historical roots of racism in Brazil and its institutionalization.

Brazilian social formation is deeply marked by more than three centuries of slavery, a period in which the Black population was systematically exploited, dehumanized, and excluded from the status of subjects of rights. The late abolition, without compensatory measures, consolidated a profoundly unequal social structure.

After 1888, the Brazilian state adopted policies that reinforced the marginalization of the Black population, such as the lack of access to land, exclusion from the formal labor market, and the promotion of projects aimed at "whitening" the population. During this period, the law acted more as an instrument of social control than as a means of promoting equality.

Even after the 1988 Constitution, which inaugurated a new paradigm of fundamental rights, the effects of these historical structures persist. Social indicators demonstrate that Black people continue to be the majority among the poorest, the most incarcerated, and the main victims of lethal violence, showing that racial inequality is not episodic, but structural.

Structural racism and the constitutional principle of substantive equality.

The 1988 Federal Constitution establishes, in Article 5, the principle of equality, and, in Article 3, items III and IV, imposes as fundamental objectives of the Republic the eradication of poverty, the reduction of social and regional inequalities, and the promotion of the well-being of all, without prejudice based on origin, race, or color.

Constitutional doctrine distinguishes between formal equality and substantive equality. While the former ensures equal treatment before the law, the latter requires the State to adopt concrete measures to correct historical and structural inequalities. The recognition of structural racism is directly linked to this concept of substantive equality.

From this perspective, differentiated public policies, such as affirmative action, racial quotas, and inclusion programs, do not represent undue privileges, but legitimate instruments for achieving substantive equality. Ignoring structural inequalities means perpetuating exclusion under the pretext of legal neutrality.

Structural racism, the penal system, and selective punishment.

One of the areas where structural racism manifests itself most clearly is the penal system. Official data indicates that the Brazilian prison population is predominantly composed of Black people, young people, and people with low levels of education. This reality cannot be explained solely by a higher incidence of crime, but reveals patterns of selectivity and institutional discretion.

Critical criminology points out that the penal system acts as a mechanism of social control, disproportionately impacting historically marginalized groups. Practices such as selective police stops, arrests in flagrante delicto in vulnerable contexts, and difficulties in accessing legal representation reinforce this cycle of exclusion.

From a legal standpoint, addressing this scenario requires not only legislative reforms, but also profound institutional changes capable of incorporating an anti-discrimination perspective into police, judicial, and prison operations. Combating structural racism necessarily involves a critical review of the practices of the criminal justice system.

The role of Civil Law and institutional responsibility

Although the debate on structural racism is often associated with Criminal Law and Constitutional Law, Civil Law also plays a relevant role in addressing it. Private relationships, such as contracts, consumer relations, the labor market, and access to services, are spaces in which racial inequalities are reproduced daily.

In this context, civil liability can function as an instrument for protecting dignity and combating discriminatory practices, even subtle ones. Furthermore, interpreting civil law principles in light of the Constitution allows us to recognize the duty of companies and private institutions to adopt policies of diversity, inclusion, and prevention of discrimination.

Recognizing structural racism necessitates a reinterpretation of traditional categories in Civil Law, shifting the focus from exclusively private autonomy to a perspective of social function and collective responsibility.

Conclusion

Structural racism in Brazil is not a residual or exceptional phenomenon, but a constitutive element of the country's social and institutional formation. Recognizing it is an indispensable condition for the effectiveness of the 1988 constitutional project, which is founded on the dignity of the human person, material equality, and social justice.

Law, far from being a mere neutral observer, plays a central role in both reproducing and overcoming these inequalities. The adoption of affirmative action public policies, the critical review of institutional practices, and the incorporation of an anti-racist perspective in the interpretation of legal norms are necessary measures to address the problem at its root.

Ultimately, combating structural racism does not mean breaking with the legal order, but rather realizing it in its entirety, making effective the constitutional commitments that still remain, to a large extent, as unfulfilled promises.

References

BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
BRAZIL. Law No. 7.716, of January 5, 1989. Defines crimes resulting from prejudice based on race or color.
ALMEIDA, Silvio Luiz de. Structural Racism. São Paulo: Pólen, 2019.
SARLET, Ingo Wolfgang. The effectiveness of fundamental rights. Porto Alegre: Livraria do Advogado.
BARROSO, Luís Roberto. Course on contemporary constitutional law. São Paulo: Saraiva.
GONÇALVES, Carlos Roberto. Personality Rights. São Paulo: Saraiva.