Covid-19 Through Brazilian Courts: The Deserving and the Undeserving Vulnerable

Luciano Bottini Filho

doi:10.1017/glj.2021.55

Abstract

AbstractLooking into these times of neoconservatism in Brazil, marked by a far-right agenda and populism, this Article explores the role of vulnerability (as a legal theory, a legal principle or factual consideration) in the litigation prompted by the pandemic in Brazil. The usages of vulnerability as a form of resistance to the denial of their identity and vulnerable condition show that vulnerability can take different forms through litigants and may have an independent meaning to what is defined in legal theory or law. This is most evident by the fact that litigants dispute government policies based on ideologies that contest their identities (and not merely their vulnerability). Four case studies substantiate this Article with lawsuits brought to higher courts by judicially active groups: prisoners, indigenous people, Afro-Brazilian ethnic communities and gig economy drivers. They are what I call “undeserving vulnerables”, groups discriminated from a legally recognized vulnerable group through attacks to their identity.

Highlights

Litigation under the right to health in Brazil has repeatedly raised questions of inequality and unfairness towards the less empowered
Sheffield Hallam University Corresponding author: luciano.bottini2@gmail.com (Received 03 May 2021; accepted 25 June 2021). Looking into these times of neoconservatism in Brazil, marked by a far-right agenda and populism, this Article explores the role of vulnerability in the litigation prompted by the pandemic in Brazil
When confronted by flawed government responses to COVID-19 such as in Brazil, a priority that springs to mind is the most vulnerable—though it is not always clear whom we refer to as vulnerable. Looking into these times of neoconservatism in Brazil, marked by a far-right agenda, populism, and hate speech towards marginalized classes, this Article explores the role of vulnerability—as a legal theory, a legal principle, or factual consideration—in the litigation prompted by the pandemic in Brazil

Summary

Vulnerability Theory as a General Legal Principle

Vulnerability theory, as devised by Fineman, may be appealing in relation to COVID-19 because it does not commit to identities or vulnerable groups; everyone is vulnerable by default and under the dependency of the State to a certain degree. 10 Given the variable effect of COVID-19, using a general vulnerability principle—pervasive, and context-dependent—may be helpful to engender legal responsibility of the State for anyone affected in different ways for all. Complexity and particularity could be taken as identity, but Fineman wants to use vulnerability foremost as a universal principle This theory seems to be open or flexible to any intervention in a public health crisis, if the State must take action to ensure resilience without stereotypes of vulnerable groups.. In contrast to the “universalist turn” in American legal scholarship, which recommends strategic universal claims without using specific identities, litigants in Brazil may have a strong sense of belonging to their class or cultural group.26 This litigation is a form of “identity resilience” and the evidence of vulnerability presented in courts attempts to reclaim their identity rejected by the State. Common identity within those groups—for example, the growth of peasant’s rights or the association of marginalized individuals in gangs.

Vulnerability in the Brazilian Law

Prisoners and the Identity of the Inexcusable Offender

Indigenous People and Cultural-Territorial Identity

Workers and Employment Relationship Discrimination

Conclusions