I’m realistic (“pero no mucho”)

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.

NOTES:

¹”The empty signifier occurs when a speech universalizes its concepts so much that is impossible it be set accurately” (MENDONÇA, 2007, p.252)

REFERENCES:
Bauman, Zygmunt. Community: the search for security in today’s world. Zygmunt Bauman; Translation Pliny Dentzein. Rio de Janeiro: Jorge Zahar, 2003.
Bauman, Zygmunt. Interview given by renowned Polish sociologist Zygmunt Bauman to channel “frontiers of thinking” site http://www.youtube.com in 2011. Available at:https://www.youtube.com/watch?v=POZcBNo-D4A . Access on: 19 January 2015.
BIRTH, Maria Medrado. Between security and freedom: challenges nowadays. Text produced by graduate student in sociology at the University of Brasilia (UNB) in 2006 and has as reference the Polish sociologist Zygmunt Bauman book “Community: seeking safety in the world today.” Available at: < http://www.scielo.br/pdf/se/v21n2/a12v21n2 .pdf>.Access on: 19 June 2015.
MIGUEL, Reale. Three-dimensional theory of law: historical and systematic preliminary. Miguel Reale. 2. ed. rev. is updated. São Paulo: Saraiva, 1979
ORMELESI, Vinicius Fernandes. Legal principles and legal regulations reality. Journal of Legal Studies UNESP., V.16, n.23. 2012. Available in: Available from <http://seer.franca.unesp.br/index.php/estudosjuridicosunesp/article/view/623/657 > ;. Accessed on 17 Jun 2015
COSTA, Alexandre. Introduction to Law. Chapter X:. Theories on the right
Mendonca, D.. The theory of hegemony of Ernesto Laclau and the Brazilian political analysis. Social Sciences Unisinos. Volume 43 Number 3 Sep / Dec 2007
Holmes, Oliver Wendell. The common law. 47th ed. Boston: Little, Brown and Company. (1881).
ROSS, Alf. Law and justice. São Paulo: EDIPRO 2000.
ODOY, Arnaldo Sampaio de Moraes. Introduction to Legal Realism US / Arnaldo Sampaio Moraes Godoy. Brasilia: author’s edition, 2013

Hit the hammer! Or not

martelo

The legal order, “in a context of norms with particular relations between themselves” (BOBBIO, 1995), is based, undoubted, by the dogmatic speech. Because of the decision meaning of the juridical practice, is necessary the existence of a group of unquestionable concepts, where the judges can build foundations to construct theories. Since the uncertainty is something unacceptable, in a perspective guide by the Law, is not possible to disagree whit any presupposes made by the legal order, so that, is necessary to create dogmas (COSTA, 2001).

These dogmas, knowing that, in this perspective, they are unquestionable, have an important part in the Law practice. However, are these elements enough for the resolution of any conflict? It is acceptable to say no. The legal order can create an intense search for the completeness, but it will not reach the final objective, truly precision and a big coverage. The norms, for themselves, are frequently not enough, in most case because of your ambiguity, possible chock with another law and for your imprecision in a normative text.

By these reasons, the judge is constantly challenged in a context that is necessary to implement in decisions a metalegal speech. Economics, sociological and philosophical aspects can be where the judges try to find solutions for the black spaces that the norms create, adjusting for a certain social context.

Nonetheless, this way can be really dangerous, since the existence of the dogmatic speech it is indispensable and decisions based just by extralegal should conduct to an unacceptable level of arbitrariness. So, how can be insert this element in the decision making process during social transformation? The graphic can illustrate, in a simple way, the circularity of the dogmatic speech, by their permeability in relation to the metalegal aspects.

grafico ied en

In the graphic, it is possible to notice a simple idea of the standards in the evolution of the dogmatic speech. By adopting a restrict normative perspective, the dogmatic falls into the trap of thinking in the existence of the legal order as a panacea, where the norm have a clearly answer for every conflict, conducting to bring the permeability of the dogmatic to the level of the metalegal aspects, that comes to fill the black spaces of the law. However, the excessive permeability conducts the system to a trap: arbitrary. Not considering the norms creates a big crisis in the system, because the divergence between decisions breaks the legal order, bringing the system to a more intense normative characteristic.

This ordainment creates an environment that the norms do not exist for themselves; they are connected in a juridical system. By the existence of the legal order, that the juridical norms are present. Because of that, in a variety of norms in a certain legal order (especially the complex ones), we will have a lot of problems, like the unity (the knowledge of the legal order as united and valid, in a hierarchical perspective) and the coherency (process of attempt of ease the contradictions). In the end, it is obviously to say that the ordination that appeared to be united and valid brings the completeness (it will try to fill all the black spaces) (BOBBIO, 1995).

Considering what was said, it is noticeable that, in the legal order, the dogmatic speech will be always aiming the completeness, in your last level. So, it exists something near a organization method where the dogmatic speech will fight to seems complete

Besides, it is interesting to show the way dogmatic theology presents itself within the legal order:

venn ied

The Dogmatic theology, according to Kelsen (2006), is the “way rules should be understood”. It helps, according to Costa (2001), in the decision-making process, ensuring some “stability and predictability” in juridical actions, which assures, at least, formal justice between people (equal handling). However, as shown in the diagram above, the dogmatic, despite penetrating the whole legal system, is not applied equally to all. The dogmatic used to assay a factual case in civil law is not the same used by the jurist 19when analyzing criminal law, for example. Nevertheless, there is nothing to stop the convergence to a common dogmatic (COSTA, 2001).

To certify the above distinction, it is possible to use the example of political revolutions defended by Kuhn (compared to scientific revolution): “Political revolutions begin with an increasing feeling (…) of failure of the institutions to respond adequately to the problems imposed by the surroundings” (KUHN, 2013 p.178). During political revolutions, a new legal order can or cannot be created (like the passage from monarchy to republic), which does not interpose in the Dogmatic theology’s existence. In other means, the legal order is changeable (may be even inexistent, as in communist system), but not the dogmatic: while there is a decisive phenomenon, there will be dogmatic. Once these definitions are enlightened, we will be able to discuss the dogmatic point of view of completeness in a complex legal order.

Assuming that there will be necessarily a decision and it will be based on a rule of law integral system (BOBBIO, 1997), there is the dogmatization of completeness (the reason of a system, as seen above), in other words, the pacification of demands. This way, the judge will not have space to select cases: once caused, then it will come to judgment¹.

Although there is not the demand of a perfect and complete legal order, casual antinomies may appear, being the judge up to solve them by the provided tools, like normative integration. If the rule itself or any other rule with the same hierarchy, which deals with similar cases, are not enough, there is a climbing through the normative pyramid looking for decision support (BOBBIO, 1995).

However, this search cannot be provided with inconsistency, once, when referring to normative unit, the intention is to abstract from it principles which harmonize everything, so that even with a possible gap, filling the spaces is consistent. We can’t mistake, nevertheless, filling with freedom to create some strange law to the system: a rule, while part of a unit, always looks for validity in some above (KELSEN, 2006),   once innovating without considering that it is totally arbitrary.

This way, the dogma of completeness has the function to bring certainty of an answer. However, considering the legal phenomena which modify society ever faster and also that rules are incapable to follow it, it is noticeable, trying to fulfill the duty of judging, more occurrences of abstraction that extrapolate standard laws to factual cases. The resulting problem is, as said, the uncertainty of being installed on the legal system and the consequent change of roles of the person who create the rules and who apply it. When this occurs, normally, positive rules yield in its dogmas, aiming to avoid the appearance of antinomies e, in consequence, not restrict the role of legislator.

Therefore, it is possible to abstract that Law is presupposed to answer and avoid, in some way, excessive digression that does not bring certainty. This way, by saying “everything is relative” we do not create an absolute which any argumentative base can disappear in an eventual contradiction or non-acceptance otherwise than the intended meaning. The very enunciation, when widespread, is distorted: if everything is relative, the very sentence is suspended, concluding that not everything is relative and there will be no relatable situations.

Footnotes:

¹There will always be a sentence, even when the judge decides, like in non liquet, that Law can’t answer the case, for example. However, it is possible to say that, even in this case, there will be a dogmatic.

References:

BOBBIO, Norberto. Teoria do Ordenamento Jurídico. Brasília: Universidade de Brasília Publisher, 1995, 6th ed.

KELSEN, Hans. Teoria Pura do Direito. Chapter V: Dinâmica Jurídica.

COSTA, Alexandre. Introdução ao Direito. Chapter II: normas jurídicas

Law and right in Brazilian society

constituições brasileiras

Initially, we will delimit the theme of this project, locating the reader on what we are proposed to do, so, by the end, judge if we fulfilled or not our goal. This project pretends to assay about Brazilian constitution’s function on society. How do they influence? How is the law embodied in society? And what is the role of law on the shaping of civil society? Besides, the group will address some curiosities, little spoken, about Brazilian constitutions and their creating scenes.

Before writing about the first Brazilian constitution, it’s important to historically describe its creation process. Brazil was, by mid-1810, economically superior to its colonial metropolis (moment that the colony was subject of metropolis’ constitution). Therefore, the relation “metropolis-colony” was untenable, especially after the arrival of the royal family to Brazil. With the rise of Brazil to the condition of United Kingdom¹ linked to Portugal, in 1815, it, symbolically, earned importance e political recognition, no more being a Portuguese colony. The Empire of Brazil started with “Dia do Fico”(Day of staying), in which Peter I, in January 9, 1822, decided to no longer accept Portuguese authority over the ex-colony, crying the famous sentence: “As it is for the good of all, and general happiness of the nation, I am ready: tell people that I stay. Now I just have to recommend you union and tranquility”. This rupture would be formally fulfilled at the banks of Ipiranga River, the famous September 7, 1822.

Next, in 1824, Brazil would have its first constitution, granted after the shutdown of the Constituent Assembly and rejection of the first proposed constitution, considered “liberal for an autocrat like Peter I” (Villa, 2011). There were some peculiarities to be noted, like the electoral system of that period and some articles of this constitution. It started with a controversy statement: “Art. 1. The Empire of Brazil is the political association of all Brazilian citizens. They form a free nation, and independent, that does not allow any link with other nation of union, or federation, which opposes its independence.” However, people considered citizens were a large minority at the time. Not that the idea of citizen was restricted to few people in this constitution, the article 6 of this very same text was clear who would be considered a Brazilian citizen: people born and naturalized, men and women, excepting slaves. However, there is a contradiction on this statement, proved by the electoral system of this period: elections were indirect, divided in three states. In town, were electors only men greater than 25 years old, not slaves, who committed no crimes and had a minimal income. They would elect a delegate to participate in the provincial and national elections. Are excluded from the right to vote, therefore, “Those who do not have an annual income of one hundred thousand reis for real estate, industry, trade, or jobs” as shown at item V of Article 92.

This electoral system was, therefor, census (excluding according to income). Thus, political association between all citizens was totally fanciful and non-existent. Throughout 19th century, however, many happenings compromised the imperial power and its constitution. We will approach some of these events, based on samba of Empress Leopoldina, in the 1889 carnival, when it was clear population’s behavior about changes that leaded to the end of the Empire. They shouted: “Freedom! Freedom! Spreads its wings over us and that the voice of equality Always be our voice (…) The decadent empire, very rich nobility was inconsistent (..) and War Of never will forget war patron, the Duke immortal The bloomed immigration, Brazil’s culture music charming, and the people sing well and Princess Isabel to the heroine, who signed the divine law Negro danced, celebrated the end of the night fate fifteen and gleaming with the prowess finally Marshal who was proclaimed President “(TRISTEZA, 1889). The end of slavery put an end to the aristocratic support to the emperor. The Paraguayan War strengthened the power of the military and their republican principles, giving rise to a republic which “Freedom would open wings over us, with equality being our voice”. However, it was not like that.

The constitution of 1891 brought the first signs of a dichotomy between behaviors and the law. It’s visible the separation between Church and State: “Demonstrating the secular orientation (and with some positivist bias), the Constitution of 1891 was started without reference to God, or as in 1824, the Holy Trinity. The constituents opted for form ‘representatives of the Brazilian people’ “(Villa, 2011, p.32)” Despite the religious customs of the population, the constitution did not reflect this characteristic and, for it, the “divine law” signed by Princess Isabel would not be more than an award of legitimate rights. Moreover, the Catholic holidays were abolished and others were created as a national holiday in honor of Argentina, on December 8th ³. The Constitution, on the other hand, also legitimized some aspirations of society, such as civil marriage. The following constitutions of 1934 and 1937 were marks of the rule of Getulio Vargas. In the constitution of 1934 it’s visible, in particular, women’s voting, recognizing, reflecting and legitimizing other aspirations of society. Also in this constitution, it is noticeable the start of legitimacy (written) of social rights, contained primarily in Article 121 of this constitution. (Villa, 2011, p. 51): “Article 121 – The law will promote the protection of production and establish the working conditions in the city and in the country, with a look after social protection of workers and the country’s economic interests.”

Constitutional Gravitation: The Orbits of The Juridical Systems

Gravitação

Before the theories of gravitation were formulated in the way we know today, there were already observations and ideas about the dynamics of the heavenly bodies. It’s already known that the weight of a body in vacuo influences the others around it. On the legal framework, the attraction force is also a source of research: a strong and dense law has enough attraction to generate orbits to the normative systems around it, in a major or minor scale. However, the point, in the legal scope, is not the force or the weight, but who should orbit around what.

When dealing with heavenly bodies wandering in space, we can remember of the societies and communities that compose the humanity. Every set of rules should be attractive enough to make the individuals orbitate around it. However, as conflicts between these systems are common, it’s necessary to determinate new orbit centers. Bringing this theory to the globalization era, where is possible to cross the world in a phew hours, or obtain any kind of information instantly, the conflicts became even more frequent.

Even inside of a politically delimitated territory, no matter how small, there is cultural plurality. Therefore, is inconceivable the diversity that can be found in a hole continent.

Taking the Latin America in specific, it’s possible to observe a hole network of different cultures and people. The formation of the continent was largely after the colonization period, when a lot of new cultural habits were introduced in the native perspective. The continent was dimiated by the Treaty of Tordesillas, and this did not influenced only the language spoken in the two parts, but also generated completely original nations and stories.

Currently, we live on the globalization context, that dissolves the physical borders through the tecnology, bringing up the exchange of not only capital and investments, but also cultures and traditions. But this generates an issue: a country that has enough tecnology and resources to spread it’s culture will overlap the others. It was always like that, even in the ancient times, but today the global standardization became a real threat. And what’s the problem?

The immediate issue is the identity losses: people situated in different cultures suddenly want the same things, things that are dissoant from their reality. It’s not wrong to adopt a lifestyle that is different, but only when it’s spontaneous, and not imposed. When there is imposition, the human being gives up it’s major gift, that is to observe the world by it’s own perceptions and extract it’s own conclusions. Therefore, there will be an impoverishment of the manking as a rational being.

This impoverishment ends up outsourcing the human wills and establishing a point of convergence, a new center orbit center, focusing on the ones who overlaped the others. When there is a total centralization, it becomes impossible to comprehend a nation by it’s singularities, but only by it’s proximity to the orbit center. The next step is the individual concept, the indiosyncrasies will be regulated by this central force. This is dangerous, because the diversity, in all it’s aspects, is what brought the human race here.

In this matter, Constitutional Right seems to have contrary effect of diversity, which is to standardize. It is not like that, because it is necessary to understand the function of a Constitution: give political unity and legal order to the state, once it and its power cannot be presupposed (or preexisting), being able to exist only when it reduces in a political unity the multiplicity of interests under its power. This unity of multiplicities is a motion, which will never be concluded, once it is constant search object: stems from a historical factual process ignorant to the static and abstract legal entity. This way, unity should be understood as enabled acting with functional disposition, which gives conditions of accepting e fulfilling binding decisions, creating the “state” (COELHO, 1998).

Unity does not mean necessarily a general harmony and fully elimination of differences, without which it would be impossible, once it is the conflict that mitigates rigidity and allows historical change, being suitable to contexts. At the same time, conflict should not be and object itself, since it would cause extinction of political unity (COELHO, 1998).

In addition, why is it necessary both conflict and political unity? We cannot ignore the fact that democratic contemporary state is not anymore the sole leader of policy area, since it was reduced to a part of modern society, whose economic and social conflicts are part of formation of political unity and state’s will, behooving its pacification to confront dynamic scenarios (COELHO, 1998).

The immediate function, shortly, would be give power and unity to resolve present matters. Under the Latin America, therefor, an Integrator Constitution for all countries would have the goal of protecting them from other economic blocks, not only from a financial point of view, but also from a cultural aspect to be preserved as well.

Since the 19th century there were defenders of a Latin-American integration between newly independent nations. In defense of “Pan-Americanism”, there was Simón Bolívar (1783-1830), who assembled some Latin-American countries (Mexico, Guatemala, Peru and former Gran Colombia) in the Congress of Panama (1826), owing the elimination of trade barriers in Latin America and, through this, enable mutual economic development for its nations. The initiative, however, failed because it compromised the interests of local elites, which profited from customs taxes (NOGUEIRA, 2010)

There is a similar initiative of Latin America’s integration in Brazilian Constitution of 1988: “The Federative Republic of Brazil shall seek the economic integration, political, social and cultural development of the people of Latin America, viewing the formation of a Latin American community of nations”. Thereby, there were different attempts of integration, but with no success due to political and economic instability of each area, as well to pressures of external economic blocks. However, there are many initiatives for unity, opposing to the increasing overlapping. It is noticeable the rising loss of cultural identity and the imposition of customs from other countries, putting our diversity in danger.

Lastly, we conclude that promoting a referendum and from it create an Integrating Constitution to unite Latin America would not have just the goal of standardizing and having economic benefits. It should be noted that integration is the main goal, not destroy local rules and impose rules considered best. The main target is to clarify the gravitational axis that we belong. Maintain the difference is to ensure liberty while rational beings, in other words, ensure plurality and rational thinking, not making people mere consumers of canned food.

References:

_____________________________________________________

VICENTINO, Cláudio. História para esnino médio: história geral e do Brasil: volume único/Cláudio Vicentino, Gianpaolo Dorigo. São Paulo: Scipione, 2001.

RAMALHO JÚNIOR, Francisco. Os fundamentos da física/Francisco Ramalho Junior, Nicolau Gilberto Ferraro, Paulo Antônio de Toledo Soares. 8. ed. rev. e ampl. São Paulo: Moderna, 2003.

CANOTILHO, J. J. Gomes (José Joaquim). Direito Constitucional e teoria da constituição/ J. J. Gomes Canotilho. Coimbra: Almedina, 1998.

COELHO, Inocêncio Mártires. Konrad Hesse/Peter Häberle: um retorno aos fatores reais de poder. In: Revista de Informação Legislativa. Ano 35, n° 138 – Brasília: Senado Federal, abr./jun. de 1998.

Constitution of the Federative Republic of Brazil from October 5, 1988, article 4, Sole Paragraph.

NOGUEIRA, Fausto Henrique Gomes / CAPELLARI, Marcos Alexandre. História: Ser Protagonista. 1st Edition, São Paulo: Edições SM Ltda. 2010.

Of darkness (?) into Light – The influence of medieval thought in the contemporary order

Castelo

The decline of Western Roman Empire, after barbarian occupation in 476 A.D. put western society in a deep plunge into the “Dark Ages”: the beginning of Middle Ages. This time period is known for representing a delay in culture and science in Europe, because of the submission of Catholic Church. However, much of medieval thought is present in our culture nowadays, and can be noticed in many aspects, like family’s moral, education system and part of the philosophic thought.

Rome, capital of the western part, held commercial routes for all over Europe, and between these routes founded cities and provided them economically. With the decline of the western part of the Empire, urban population migrated to the countryside, settling in feuds, which had an unique structure, compared to the ancient cities of the Empire. In feuds, the seigneur gave protection to the servants (against intrusion, robbery, disorder), and they paid with their work (VICENTINO, 2001, p. 104).

The end of the Empire did not mean the end of monarchs, just a change in their way of rule and social position. Thus, monarch’s figure was completely detached from politics and connected with sacred, acting by bringing harmony, integrating natural to supernatural. In practice, the king was a seigneur who maintained relations of suzerainty and vassalage and who held a symbolic function. Besides, the “legal disunity” between feuds decreased the power of action of these kings.

In the first centuries of Middle Ages the insularity of feuds prevailed, which started to the end from 11th century, with military’s conquests of the Latin west. At the same time, the Hungarian’s invasions ceased with the resulting spatial homogeneity and the contact with ancient knowledge is reestablished – hitherto held by Arabs. With this, there were founded the translator’s schools, the beginning of the first universities (LOPES, 2006, p. 28).Universidades da idade média

Universities started from the need to rationalize concerns previously explained only by the Church, however not going against this logic – Church’s interests still manipulated them. In this sense the Middle Ages create a philosophical point of view: the Platonic thesis of St. Augustine (354–430 A.D.) stood out at the begging, defending the existence of a perfect world, ideal and parallel to the physical world (metaphysical), predominantly from the 5th century until the end of 11th; and sometime later there is St. Thomas Aquinas (1225-1274), defender of Aristotle’s ideas in which someone, initial, perfect, universal and timeless was the greatest force in the universe, predominating from 12th century until the middle of 15th. Saint Augustine, writer of the book “City of God” (De Civita Dei, published in 426 A.D.), defended the existence of two distinct worlds in pagan theories: “there are very many and great nations all over the earth, whose rites and customs, speech, arms, and dress, are distinguished by marked differences, yet there are no more than two kinds of human society, which we may justly call two cities, according to the language of our Scriptures. The one consists of those who wish to live after the flesh, the other of those who wish to live after the spirit; and when they severally achieve what they wish, they live in peace, each after their kind.” (La Ciudad de Dios, XIV, 1).”

St. Thomas Aquinas, on the other hand, defended the existence of three classes of law: the first would be eternal and handled on the existing order of the universe, being a combination of all understandable sciences; the second class would be the natural laws, divine revelations for men by granting a small part of His knowledge, and the last would be related to positive laws, created by men and, thereafter, unfair and imperfect – created by equally imperfect and unfair beings.

Thereby, there is a stronger theoretical basis of the Canon Law. At beginning this branch worried only with religious aspects and ruling life in the ecclesiastical community, aiming society sometimes, however. Lately, Church assumes ordinary’s life affairs e judge them by the Ecclesiastical Courts, reaching its height in the holy inquisition’s practices.

In the transition for Modern Age, it will be the thought of William of Ockham (1285-1347), from nominalist school, which will stand out against St. Thomas Aquinas: he linked divine will and reason to the natural right – the law is nothing but an order of the reason, created by who cares of community and promulgated it, Ockham unliked faith and reason, secularizing the natural law (ALVES, 2009, p.99).

William of Ockham is also known for elaborating the logical principle which bears the name of Ockham’s Razor. This principle states that every phenomenon must hold just the necessary premises for its explanation and discard the others. It is often designated by the Latin expression: Parsimoniae (Law of Parsimony):entia non sunt multiplicanda praeter necessitatem” (entities should not be multiplied beyond necessity). It is recommended, therefore, that the explanatory theory explain the fewest number of assumptions and assumed entities.

At the beginning a reductionist principle of nominalist philosophy, is now seen as one of the heuristics maximum (general rule) which advises savings, thrift and simplicity, especially in scientific theories. By this it is noticeable a forgetfulness of divine power in theory. However, the medieval naturalist thought in theory played a crucial role as historical precedent of human and fundamental rights.

St. Thomas Aquinas, by treating the conception of equality between mankind (before God), was clear about the existence of two distinct orders (the natural and positive law), besides, believed in human dignity as a crucial virtue (which would lately influence Renaissance thoughts, like the model of human personality as intrinsic virtue). On the other hand, with the nominalism  of Ockham and the study of the human individualism origin, there is the development of the theory of subjective rights, encouraging future debates about the existence of fundamental and universal human rights (ALVES, 2009, p.101).

Therefore, it is undeniable the influence of Middle Ages in modern and contemporary conceptions of science, looking for reflections about fundamental and universal human rights much in vogue in the international legal scene.

References

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GROSSI, Paolo. “Da sociedade de sociedades à insularidade do estado entre medievo e idade moderna” In: Revista Seqüência, 2007, no. 55, p. 9-28.

VICENTINO, Cláudio. História para Ensino Médio: História Geral e do Brasil. Volume Único/ Cláudio Vicentino, Gianpaolo Dorigo. – São Paulo: Scipione, 2001. Série Parâmetros.

LOPES, José Reinaldo de Lima. Curso de História do Direito/ José Reinaldo Lima Lopes, Rafael Mafei Rabelo Queiroz, Thiago dos Santos Acca. São Paulo: Método, 2006.

FRANCO JÚNIOR, Hilário. A Idade Média: Nascimento do Ocidente. Hilário Franco Júnior. 2ª  2. ed. rev. e ampl. São Paulo : Brasiliense, 2001.

ALVES, Rodrigo Vitorino Souza. Artigo publicado na Revista CEPPG –número 20 – 1/2009 – ISSN 1517 -8471 – Páginas 89 À 102 . Autor: . Rodrigo Vitorino Souza Alves. 2009.

VILLEY, Michel . Filosofia do Direito: Definições e Fins do Direito: os Meios do Direito; tradução de Márcia Valéria Martinez de Aguiar. 2ªed. São Paulo: Martins Fontes, 2008.

Submission or Compliance?

Laios

The human being tends to credit it’s existence to something magnificently magic, and because of that, it considers itself a species above all others. The anthropocentrism places mankind on top of the pyramid (that was created by themselves). Therefore, there are some nonconformity conciliating decisions that are results of rationality and those that emerge from gnosiological analysis. The pursuit of transcendence is an attempt to validate the given reality.

This transcendentality is the base of the Natural Law thought. It believes that the law must have validity as an immutable and timeless order, without this, it would be unfair, irrespective of the autority. A set of standards can only be validated as legal rulings if it agrees with the joint of society values, that are based on the transcendental thought.

Hans Kelsen (1881-1973), however, criticizes the jusnaturalist thought, based on the authority danger it brings to the State norms. He considers that the legal rulings would be vinculated to the moral values, and could only be laws if they were morally acceptable. As a result, there would be insubordination, and the denial of the Law as a science.

Kelsen represents the Positive Law thought, the rules according to the reality of the society in it’s time. In this thought, the law derives from a will, democratic or not, of those who can dictate the rules. The law is in line with the reality of the society

The Antigone from Sophocles shows this conflict in it’s essence: on one hand we have Antigone, who goes against the law in the name of something bigger (her moral values), on the other we have her uncle Creon, who reigned over Thebes.

Before the analysis of the Antigone, it’s necessary to explain the role of the tragedies in the greek society: they were events on the polis (which was, for the greek people, more than just a socially organized place. It was a place of ideas and practices exchanges), born and raised for it. Played outdoors, on the acropolis, they were made to teach young people civical lessons, as elements of a moral formation.

The Antigone is based on Jocasta and Laius’s (former King and Queen of Thebes) fate. The Oracle of Delphi stated that their son would kill his father and marry his mother, after the king Pelops cursed Laius, saying that his lineage would be extinct (Laius kidnapped and raped Pelops’s son: Chrysippus).

Afraid of the prophecy, Jocasta and Laius end up letting their newborn baby to die on a mountainside. But, the baby was found by shepherds and taken to Corinth, to be raised by King Polybus and Queen Merope. Already with the name of Oedipus, the kid consults the oracle, and runs away from Corinth, afraid of attempting against Polybus life. Heading to Thebes, he ends up killing Laius in the way, without knowing his identity. When he arrives at Thebes, he finds the city at the mercy of the Sphinx. He answers correctly the riddle of the monster, defeating it and winning the throne of Thebes, and, therefore, marrying the queen Jocasta (his mother).

Oedipus and Jocasta end up having 2 sons (Eteocle and Polynices) and 2 daughters (Antigone and Ismene). But, when he discovers his kinship with Jocasta, he runs away from Thebes, leaving the throne for his two sons, that agree to take turns. But, desobeying the agreement, Eteocle denies the throne to Polynices, who gathers forces to war against his brother, in the name of the throne of Thebes. They end up killing each other, and the throne goes to Creon (Jocasta’s brother).

The Antigone’s dilemma begins when Creon decides that Polynices, the traitor brother, body won’t be buried. However, Antigone questions Creon’s edit, accusing him of being in conflict with the lessons of the gods. For Antigone, Creon, despite his authority, cannot inflict such punishment to her brother. So, she follows her principles, which she considers more important than Creon’s edit, and buries her brother.

When that happens, Creon has no choice but to execute his niece, in order to show the strength of his power. He considered Polynices act as treason and sacrilege, things that were unforgivable.

As the tragedy unfolds, others rebel, like Haemon (Creon’s son), and claim for more connection with the transcendental laws, because without it, the order would be injured, and there would be divine punishment.

In the end, Creon decides do reconsider his edit. But, it was too late: Antigone and Haemon suicide, and when found that her son was dead, Creon’s wife, Eurydice, also suicides. After that, Creon admits that his actions caused several disgraces, and regret disobeying the transcendental laws, the god’s will.

It’s tempting to classify Creon as a cruel legal positivist . It’s noticeable, however, that he and Antigone had the same culture e religious principles. He didn’t think that his decree was against gods’ will, he was punishing a traitor. The beginning of the conflict was the difference of interpretation of the law between Creon and Antigone. This type of conflict is impossible to solve when it’s analyzed apart from the faith in which it operates. The outcome of the story, as several tragedies, shows the author judged Antigone’s behavior as correct and naturalist, as source of transcendental virtues.

There are two moral conflicts before these transcendental rules: one orders the obedience to the law, to the edict, arguing that it’s based on what is right; the other argues against the law under the same principle. This happens because law, for ancient Greeks, was recent, was still mixed with moral virtues and needs of the polis. The tragedy tries to show the disconnection between human aspirations and its limits, between what is fair for some people and for other.

In a similar contemporary conflict there are several rational arguments defending equal civil marriage, but there are also arguments against it, based on traditions and religious freedom. At this point, we should ask: where do rights come? Do they come from the society itself or from a combination of different laws from different societies? The point is, the law only exists where it’s socially accepted. To claim rights without this is pointless. Is equal civil marriage a right? If it’s recognized by society, it is. Otherwise, this right doesn’t exist. This type of impasse is difficult to solve, because it involves distinct values of the society. The rational speech behind legislation points to the contradiction between opposite values. Therefore, this subject-matter has a hard, but possible solution.

A classic work of French literature, Les Misérables, shows in an explicit way the conflict between imposed and assumption law. At the story, there is the tireless hunt of Jean Valjean, a fugitive criminal, by Javert, a law enforcement officer. However, throughout history, Javert has his life saved numberless times by one who was considered an imminent danger and faces a fateful dilemma. On one side there are the written right assumptions, grounded in the imposed law, which doesn’t questions the prison of Valjean, on the other there are ethical principles, that despite exceeded, can be used at this case. This theory can be summed up by the picture of two concentric circles where the biggest represents the moral and the smallest, the law. Thus, it can be said that law is based in moral, but not everything that is moral is legal. This way, Javert’s moral doesn’t fit the law. Being guided by written law and failing to deal with this dilemma, he chooses suicide.

IED

Given the above, the conflict between both thesis doesn’t show a winner. In this normative conflict there is only the search for pacification of human concerns in a fair way and politically acceptable. At the same time something is pacified, accepted and considered correct in the present, in a near future it can be considered against bigger laws, timeless and natural which we take into account. The dispute will go on. According to Friedrich Carl von Savigny (1779-1861): “Law has no other task than to serve the ethical determination of human nature”.

References:

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DIAS, Gabriel Nogueira. Positivismo Jurídico e a Teoria Geral do Direito: na obra de Hans Kelsen. Gabriel Nogueira Dias. São Paulo: Revista dos Tribunais, 2010.

ALVES, Marcelo. Antígona e o direito. Marcelo Alves. 1st Edition (year 2007). Curitiba: Joruá, 2008.

HUGO, Victor. Les Misérables. São Paulo; Moderna, 2001.

FERRAZ JUNIOR, Tércio Sampaio. Introdução ao Estudo do Direito. 17. Ed., São Paulo: Saraiva, 2005.

SÓFOCLES. Tragédia Grega Volume I: A Trilogia Tebana. 13rd Ed. Rio de Janeiro. Jorge Zahar Editor, 2008.

A. L. Brown (1976). The End of the Seven Against Thebes. The Classical Quarterly (New Series), 26, pp 206-219.

The dynamics of the stones in the arch

A bridge is not built for an end in itself, it is made to surmount the obstacles. It is a way. It’s bowing is an abstraction, which is only visible and useful because there are stones holding it up. We can see society in the same perspective: a way, to survival. To live harmonically in society is essential to the human existence, and to reach this point, a connection between the individual and the collective it’s necessary, a connection that not only brings a meaning to life, but also brings safety.

Evolution has not made the human being self-sufficient, but the capacity of building relations with the others gives them a great advantage compared to the other species. The harmony between the individuals and the associated efforts determinated the success or the failure of the groups before the hindrances. So, the most efficient groups were able to shape the environment for their own benefit. Thus, new structures were being formed, and the human beings were growing as groups.

But, as the arch were no longer able to accomodate the changes, the structure of the stones had to be rethought. And this became the dynamics of the society: the arch is abstract in it’s essence, and the stones reify it. But the stones must be organized according to their singularities, to lead to a better aggregation, that becomes efficient to the society gear.

The society (as an arch) is analyzed by several fields of science. For example: in biology, it is seen as the group of species the coexists in a space, and it’s relations. In the human and social sciences, the society is the core, the source of analysis, debates and discussions, which has even generated new fields of study, like the sociology. [i]

It is noticeable that the society is like the arch, it remains. What changes is the organization of the stones, in other words, the way that people interpretate it as human beings, with new laws, rules, habits and traditions. This can be confirmed by several philosophers in the course of history, as we are about to see.

For Aristotle (4th century BC) the human being was already seen as a social being, Zoon Politikon [ii]. This implies that men were born to form families (a social bond), and that those families together would form communities and cities in the future. To live in society, according to Aristotle, assured men a dignified life, grown in the basis of good mores and good virtues. It was considered natural to the human being to form social bonds (thought that would be criticized by the contractualists, more than two millennia later, as we will see).

“Law is order, and good law is good order” [iii]

In this quote we can see how Aristotle points to the society as an “arch”. As the society would naturally undertake the life in group, and for that it would establish rules and laws in order to preserve the social bonds [iv]: good stones (laws) would build a good bridge (the order).

This Aristotle point of view would be ratified by Giles of Rome (1243 – 1316), in the Middle Ages, when he affirmed the importance of living in society to acquire virtues – meaning that the laws would bring good mores to the people, ensuring the order.

There is, therefore, a clear idea of bridge (as arch) and stones to reify it in these analysis of the human behavior as a group.

Against Aristotle’s point of view there is Thomas Hobbes, a famous contractarian who said on his masterpiece “Leviathan”, that men, in their state of nature are fighting against each other, aiming their own interests [v]. As a solution, they signed a social contract, giving power, legitimacy and sovereignty to someone in exchange of the rule of law. By giving power to this person, people could mutually protect themselves in society, being safe. It’s clear, therefore, that Hobbes looks at society as the only viable way of living, despite human beings getting to it in a different way than Aristotelian’s point of view. Society, once more, like in all history, is interpreted as an abstraction similar to the arch (perfect, the only viable way to human life); however, the interpretation of how society reached order and security changed from Aristotle to Hobbes.

In Modern Age, we come back to the point of view of society as imperative to human life. Defending this theory there is Giuseppe Mazzini (1805-1872), physician and philosopher who believed men must serve the nation (seen as a coordination of united people). By doing that, people would be united in society: “By working for our own nation under the correct principle, we work for mankind” [vi].

This dynamic is regular through human history, and it’s possible to see similar movements in Brazilian’s society, emphasizing our society and the following theme:

(Against women’s suffrage)    /    (In favor of women’s suffrage)

Contra o votoA favor do voto

(Picture – Reproduction “Correio do Paraná” – Andressa Katriny/CMC)

Only in Brazilian’s most recent laws women were allowed to equally participate with men in the electoral process.

The rupture in the genres’ distinction, socially accepted until then, was consequence of historical pressure and happened that time by expressing the contradiction of arguments used for women’s exclusion in political affairs. There was, therefore, a renovation of the society’s structure for this new social setting [vii].

It is noticeable that defining the best way to arrange stones is an impossible task, giving the dynamic mentioned above. There is no way to predict, but by experience, a social arrangement which does not result in less violence or in bigger economic progress and individual happiness.

Therefore, the conception of society as an arch and the only way to order is noticeable in human history (from the Ancient to Contemporary Age). However, interpretations (composed of laws, costumes and tenets, for example) create different links: harmonize themselves within its particularities. The only thing given as right is that this phenomenon is dynamic.

References:

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[i] LOPES, Sônia. Bio: Volume Único. 1st Edition. São Paulo: Saraiva Publisher, 1999. pg. 551.

[ii] FEOLA, S. Zoon Politikon: a condição natural de autoridade. 81f. Dissertation (Master’s degree) 0- College of Philosophy, Letters and Human Sciences. Department of Philosophy, University of São Paulo, 2012.

[iii] Aristotle, Greek philosopher (384-322).

[iv] ARANHA, Maria Lúcia de Arruda. Filosofando: introdução à filosofia/ Maria Lúcia de Arruda Aranha, Maria Helena Pires Martins. 2. ed. rev. atual. São Paulo: Moderna, 1993. pg. 194.

[v] HOBBES: a instituição do Estado. In: Vinicius Berlendis Figueiredo. (Org.). Filósofos na sala de aula. São Paulo: Berlendis Publisher, 2007, v.2, pg. 46-76.

[vi] MAZZINI, Giuseppe (1805-1872): Deveres do Homem. Translation: Antônio Piccarolo e Leonor de Aguiar. Digital Source book on paper. Italian thinkers. Classic Jackson. Volume XXVI. W. M. Jackson Inc. Rio de Janeiro, 1950. Scanning revision for Portuguese of Brazil and eBook version: eBooksBrasil.org. Part IV.

[vii] The Electoral Code approved by Decree No. 21,076, of February 24, 1932 and subsequently inserted in the 1934 Constitution in art. 108, caput: voters are Brazilians of one or other sex, older than 18 years who enlist under the law.