This study aims to analyze a sentence said by Saul Sibert, looking for concepts used by him (natural law, positive law and realistic theory) to demonstrate that, although being a coherent speech to the legal nonprofessional, Sibert, amiss, postulates himself as realistic, using a mistaken definition as argument: he starts from false premises (the definition of natural law) to get to a conclusion near to the empty significant¹.
“You ask me if I’m positivist or naturalist, but this is an overpast frontier. We do not need to be something or other, once there are other approaches. For me, personally, natural law is relevant, but there are only a few principles that can be linked to a valid law apart of any political decision or costumes. Therefore, I am not completely naturalist, but neither completely positivist. In fact, I consider myself realistic, once I recognize in the law its real facet, without the tenets of the positive and naturalist extremism”. (Paul Sibert)
At first, we will analyze what the author calls “natural law”, under the naturalism current. It focuses on a law from nature, above law created by men. It can be divine, recurring mentality in the antiquity and medieval period, inherent of human nature itself, as believed Aristotle, or coming from the reason, according to the Enlightenment (COSTA, 2001).
Apart of its origin, the idea of natural law has been present in several legal cultures (COSTA, 2001). It is recurrent the idea of principles which rule society and under which all laws created by men must be based on, extrapolating costumes and political decisions. Natural law, therefore, is not opposite to positive law (created by men), as implied in the author’s sentence above, but propose ideas that it (positive law) must follow.
As an example there is the “Faith Militant”, on the HBO series Game of Thrones. Create by the queen Cersei Lannister, a group of young fanatics for their faith were armed e authorized by the king to pursue those considered sinners. Although members of this group believe their law was natural, above everything, and must be fulfilled by everyone, their principles were just manipulated by queen Cersei as part of her political game to arrest and punish her enemies.
What is observed in reality is that principles of natural law change according to the society and the historical moment it is inserted. They are not universal and central ideas, but conceptions of the society about what they should be. For a long time people believed natural law was from God’s laws, as preached by Catholic Church. The bourgeois revolutions, throughout 17th and 18th centuries, however, brought new ideas, not based on divine anymore, but on Enlightenment ideas of liberty, equality and fraternity (COSTA, 2001).
It is noticeable that there was a change in the principles taken as natural, coming from a historical moment and which spread out through societies lately. They served as justification of a new positive law suitable to the shown reality in the time, and not as equal and central laws to all societies.
This way, therefore, it is possible to link Sibert’ speech to the influence of historicism current. This, with roots in the dynamic idealism of Hegel, having as the most prominent scholar the German jurist Savigny, points to the direct influence of culture experiences, as shown above in some examples (COSTA, 2001, p.146; ORMELESI, 2012, p.4,5).
Soon after, she would be adopted by lawyers who try to harmonize both conceptions (natural law theory, jusnaturalism and a historicist conception of law), especially Stammler. This proposes a kind of ‘natural law of variable content “(COSTA, 2011, p.147), indicating that the content of natural law is diferent according to the history and culture, but at the same time its function remained constant – being “a prior right to the one made by the men; (…) Seen in a theological way sometimes or in a rationalist one “(ORMELESI, 2012, p.4) -.Because of that, this concept made by Stammler, does not assume the existence of a universal and a priori natural law “inserting the jusnaturalism in the history” (COSTA, 2011 p.147,148).
This conception influences in some ways the Sibert’s speech, once that it also seems to deny the claim of the existence of universal and unchanging natural rights (as can be seen in the phrase in bold in his speech and when he disregards about other principles that were already considered valid by some societies), although, he believes that some conceptions of natural law are valid, reflecting a thought that is based on a temporal context: the validity of the principles of natural law is based on a view that inevitably is influenced by democratic, Western and capitalist context and there historical and cultural. The author, however, is presented as a realist. By presenting some of this theory, we want to demonstrate that the concepts used by the author have some mistakes.
Historically realism emerged in the 30s, but only acquired a significant theoretical importance from the 50s, especially in the United States and the Scandinavian countries. In addition, there are two main thought, the first inspired by psychological realism, Scandinavian, and the second under the influence of sociological realism, US. Both agree to interpret the very validity of the law in reference to terms of social effectiveness of legal rules. Such effectiveness derives from the difference between a current regulations and a law project, considering that the first is active in the legal life of communities and the second is merely a possible future. However, the differences begins when the question of “how to be valid” is raised, and the first path points to the popular legal consciousness and the second for the performance of courts (Ross, 2007).
The Scandinavian school, sees popular legal consciousness as the main core of the validity of a norm, and the application by the courts only a minor aspect. So, it is necessary to ask if the norm is valid, and “the only touchstone and criterion possible for the existence of a legal rule is your consonance with the popular legal consciousness” (Knud Illum, tradução própria). Normally, the public accepts all that is in line followed by the Constitution, but the popular legal consciousness is not, necessarily, the same as the law. Remember that the legal consciousness of the normal people is not enough for this analysis, and is crucial the conscience of the jurists of the country (Ross, 2007).
The American school, was influenced by the so-called sociological realism, that consider that the legal reality is in itself insert in the legal activity, so the right is effective when there are sufficient evidences to assume that will be accepted by the courts. The mayor exponent of the school is Oliver Holmes (1841-1935), which assumes the necessity of knowing the judges in order to know the Law itself. (Godoy, 2013).
Much of our forecasts, when generalized and reduced to a system, do not form a whole as large or unwieldy. They are presented as a finite body of dogmas that can be mastered within a reasonable time frame. It is a big mistake when scared us with the growing number of tried and judicial precedents. The courts of a given jurisdiction over a generation take into account the set of rights available, interpreting this set from the points of view of the time when the law is applied. We can reconstruct this set […] the use of old decisions is primarily historical […] (HOLMES, 1992, p. 161).
In addition, legal realism and its beaconing between positivism and the naturalistic relativism resemble a balance, which oscillates between the extremes of freedom and security (Nascimento, 2006). As the balance is directed to the security edge (away from freedom), the individual has more certainty about their life projects and how society will behave before their conflicts. The opposite occurring, when the balance swings to the extreme of liberty, the certainties become fluid at the price of a diminishing degree of determinism.
There will always be this oscillation in different gradations one way or another. If the edge chosen is the security one, the individual will have certainties, but will not be recognized across the whole and will be easily disposable. At the other extreme, the individual is the center (at the expense of the community) and their freedoms are the core, however, the high degree of freedom does not enable security for the future (Bauman, 2003; Nascimento, 2006). There is no correct point or middle ground between the extremes to statically position the pendulum. This happens due to the social dynamism that leads to the need to consider always between what is most appropriate: “Every time you choose for more security, you surrender some of your freedom. Every time you have more freedom, you give away part of your security. So you win some and you lose something “(Bauman, 2011).
Living in society is both winning and losing, and as a result, the legal framework and its application are the embodiment of these oscillations, in which it seeks to fit the individual (freedom) against the normative whole and the social peace achieved with this ( security). Thus, the application of the rule needs to be well contextualized for greater precision in this weighting.
A norm is not an absolutely strange element which is applied randomly, because, as already noted, it aims at social peace. It must take into account the whole structure of which is the result, on pain of being smothered by inconsistency. It is, instead, due to values cultivated by society, aimed at disciplining certain facts, or how treated above, fluctuations in the order (REALE, 1979).
Finally, when dealing with legal positivism, Silbert gives this an incompatibility content with the natural principles, which is not always present in positivist. When dissecting positivism to the tail, several different streams can be seen , which this work is intended to list for a better understand of the facets of legal positivism and demystification of this “incompatibility” between positive law and natural law.
At the height of legal positivism, Hans Kelsen, with his “Pure Theory of Law”, brings the “self-sufficiency” norm conception, repelling any possible obsecration to fundamental and necessary postulates, so, to the Natural Law. For Kelsen, norm’s validity is not in metaphysical or higher principles, but is within the normative system, in some other norm, above it, or in the fundamental norm (KELSEN, 1999), even in the case of the superhuman laws:
“[…] when someone says that we must love our enemies because Jesus, Son of God, issued this command in his Sermon on the Mount. But in both cases, the reason for the validity is not that God or his son issued a certain norm at a certain time in a certain place, but the tacitly presupposed norm that one ought to obey the commands of God or his Son. ” (KELSEN, 1999)
Insomuch, Kelsen assumes the fact that the norm just exist while a normative system’s element, appeal to a fundamental norm, forming, thus, a norm’s idea as self-sufficiency factor, that doesn’t need the natural principles.
As Kelsen, Jeremy Betham, known british jurist, denied the abstact and natural principles, but, unlike Kelsen, he believed that the validity of the norms stemmed from another source: its effectiveness. The fair legal regulation was that laws which brought pleasure to the individual and contribute to the happiness of the population, and the unfair was that laws which brought pain or suffering. And, for this utilitarian conception, Bentham concludes that the law science function was, so, determine which norms were classified as “good” and should be taken into consideration. (BENTHAM, 2007)
However, appreciate the positive law does not require, necessarily, an abomination of any natural principle. The French exegetical school, for example, illustrates the perfect meeting between a jusnaturalism ideal and the Positive Legal. For bringing, the idea that total of positive legal is in the “text of the law”, and that the jurist should take into consideration just it with absolute rigor, someone can already call him of positivist. Nevertheless, the French do not deny the existence of Natural Law, contrariwise: they believe that the legal codes prepared by the reason were “the human expression of Natural Law”, and, for this, the jurist should be limited to their exegesis, almost like a sacred text. (DINIZ, 2014)
Thus, can be exemplified that, even as in some legal theorists the concepts are incompatible with abstractions and higher beliefs, sometimes, the Positive Law goes hand in hand with de Natural Law (being the Legal Positive an instrument of the Natural Legal). And, therefore, it is perceived that is possible to reconcile the two strands to certain interpretations of Law, without necessarily resort to Realism theory, as told by Silbert.
Between this and that, when Silbert presents himself as reaslistc, he defines this theory in a manner so vague (“see the Law in its real facet”), which is impossible called him as such. Furthermore, for indicating a possible incompatibility between natural and positive law, and for defining natural law in a wrong way, Silbert, in fact, proves to be a (jus)naturalist, influenced, of course, for historical and cultural conceptions.
¹”The empty signifier occurs when a speech universalizes its concepts so much that is impossible it be set accurately” (MENDONÇA, 2007, p.252)
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