The Principle of Equality: What the Brazilian Constitution Guarantees

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The equality set out in Article 5, caput, of the 1988 Constitution goes beyond banning arbitrary distinctions before the law. Brazilian law recognizes two complementary dimensions, formal equality and material equality, and accepts that unequal treatment can be not only legitimate but legally required when its purpose is to reduce historically entrenched imbalances.

The formal dimension: equality before the law

Formal equality is expressed in the command that “all are equal before the law, without distinction of any kind,” as stated in Article 5, caput, of the Constitution. In its classic sense, it is addressed to those who apply the law. Judges, administrators and public authorities may not treat people differently when they are in the same legal situation. This is equality in the application of the law.

Historically, this idea arose as a reaction to the privileges of rank and status under the Ancien Régime. By abolishing personal jurisdictions and distinctions of birth, liberal constitutionalism asserted that the law should be general and abstract, applying to everyone uniformly. The generality of the rule came to be seen as a safeguard against arbitrary power.

The problem is that purely formal equality, applied in an absolute way, proved seriously limited. Treating people in materially different situations identically can deepen inequality instead of neutralizing it. Blind uniformity overlooks the fact that people do not start from the same place in social life, and that a neutral rule can lend its approval to inequalities that already exist.

The material dimension and the formula of differential treatment

Material equality, also called substantive equality, shifts the focus from the application of the rule to its content. It is not enough for the law to be applied uniformly. The law itself must take into account the relevant differences between people, so as to ensure genuinely equal opportunities. This is equality in the law, not just before it.

The core of this concept rests on a formula attributed to classical philosophy and embraced by Brazilian legal thought: treat equals equally and unequals unequally, in exact proportion to their inequality. Proportionality is the decisive element. Legitimate differentiation is not one that discriminates on a whim, but one that is calibrated to the degree of disparity it aims to correct.

The 1988 Constitution adopted this logic in Article 3, items III and IV, which set as fundamental objectives the eradication of poverty, the reduction of social and regional inequalities, and the promotion of the well-being of all without prejudice as to origin, race, sex, color or age. These provisions turn the reduction of inequality into a binding normative program, rather than a mere rhetorical aspiration.

Several constitutional provisions put the material dimension into practice. The protection of women’s place in the labor market through specific incentives, provided for in Article 7, item XX, is deliberate differential treatment. The reservation of a percentage of public-service positions for people with disabilities, in Article 37, item VIII, follows the same rationale: the differentiation serves inclusion.

It follows that formal and material equality are not opposed. They work together. The first prohibits odious privilege and arbitrary discrimination; the second authorizes, and at times requires, compensatory distinctions. Without each other, both produce distortions, whether through indifference to differences or through the lack of an objective standard for applying the rule.

By abolishing personal jurisdictions and distinctions of birth, liberal constitutionalism asserted that the law should be general and abstract, applying to everyone uniformly.

Positive discrimination and affirmative action

The instrument best suited to material equality is so-called positive discrimination, a term for preferential-treatment policies aimed at socially vulnerable groups. Affirmative action puts this concept into practice. These are measures, usually temporary, designed to speed up the overcoming of structural disadvantages in areas such as education, employment and political representation.

In Brazilian law, the most debated example is the quota system. In ruling on the claim of breach of a fundamental precept concerning the policy of reserving university admission slots by race at a public university (STF ADPF 186), the Supremo Tribunal Federal (Brazil’s Supreme Federal Court, or STF) upheld the constitutionality of the model. It held that material equality justifies differentiation aimed at correcting the effects of historical discrimination.

Along the same lines, Law 12.711/2012 established the reservation of slots at federal educational institutions, combining social and racial criteria. Later, Law 12.990/2014 set a percentage of positions for Black candidates in federal civil-service examinations, and the Supremo Tribunal Federal confirmed its constitutionality (STF ADC 41). In both cases the basis is the same: temporary differentiation in the service of equalization.

It is essential to understand that affirmative action does not violate equality. It achieves equality in its substantive sense. Preferential treatment does not stem from any supposed superiority of the group that benefits. It stems from the objective finding that barriers make it harder for that group to access social goods on fair terms. Removing the obstacle restores parity; it does not create a new privilege.

Criteria for the legitimacy of unequal treatment

Not every differentiation is constitutionally permissible. A legitimate distinction must pass a reasonableness test, which legal scholars and case law break down into verifiable elements. The first is the existence of an objectively identifiable distinguishing factor, that is, a real characteristic that justifies the different treatment.

The second element is a logical connection between the chosen criterion and the purpose of the rule. The distinguishing factor must be relevant to the goal being pursued. Reserving positions for people with disabilities to promote job inclusion is coherent; drawing a distinction based on a criterion unrelated to the intended purpose is arbitrary. The third element is that the purpose must be compatible with constitutional values.

There is also the requirement of proportionality. A differentiating measure may not go beyond what is necessary to achieve its purpose, or it risks becoming a source of new injustice itself. That is why affirmative action measures usually carry expiration periods and review clauses: once the equalizing function has been fulfilled, the reason for the distinction ends.

With these standards in hand, the interpreter has a reliable method for separating constitutional differentiation from prohibited discrimination. Understood this way, equality stops being a static formula and works as a dynamic principle, responsive to social context and aimed at effectively correcting imbalances.

Frequently Asked Questions

What is the difference between formal equality and material equality?

Formal equality requires that the law be applied uniformly to everyone in the same situation, prohibiting privileges and arbitrary distinctions. Material equality goes further. It requires the rule itself to take into account the relevant differences between individuals, and it permits different treatment in order to equalize real opportunities. The first operates in the application of the law; the second, in its content.

Can unequal treatment be constitutional?

Yes. Unequal treatment is constitutional when it aims to reduce real inequalities and follows objective criteria. There must be an identifiable distinguishing factor, a logical connection between that criterion and the purpose of the rule, compatibility with constitutional values, and proportionality of the measure. When these requirements are met, the differentiation achieves equality in its material dimension instead of violating it.

Do quotas violate the principle of equality?

No, according to the position established by the Supremo Tribunal Federal. Quotas are a form of affirmative action meant to correct the effects of historical inequality in access to education and public positions. Because they are temporary measures based on objective criteria, they put material equality into practice. Preferential treatment does not create a privilege. It removes barriers that prevented genuinely equal conditions.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.