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 Building Arches of Knowledgment

bridge-central-park-6021476

Picture 1


‘’ Marco Polo describes a bridge, stone by stone. “But which is the stone that supports the bridge?” KJJblai Khan asks. “The bridge is not supported by one stone or another,” Marco answers, “but by the line of the arch that they form.” Kublai Khan remains silent, reflecting. Then he adds: “Why do you speak to me of the stones? It is only the arch that matters to me.” Polo answers: “Without stones there is no arch.”

(CALVINO, Ítalo)

It is inherent to humankind trying to understand the word in it habits. The society structure searches for sustentation in many pillars, emphasizing the quest for self-knowledge, either in physical phenomenon either in social ones. Since immemorial times, the hunt for comprehension of nature is present, starting with the simplest questions, and then developing knowledge for more questions to be elaborated and answered. Over the history, this procedure of building awareness changed, and what was before based only in observations nowadays follows a study methodology.

This transformation came as a consequence of politics, economics, and social changes which started from XVI century. Thus, the science and the systemization method began to be frequently used to explain the various areas of knowledge. Germinated, in this context, the social science, an instrument that initially tried to explain society as a system, based in rational and empiric criteria. This approach was not enough to cover all implications that conceived by such a complex organism, though.

Beginning with this idea, it is possible to make an analogy between social sciences and the Ítalo Calvino’s quote, which approaches the topic: stone- arch-bridge. That way, the bridge is not only an amount of stones, but a result of a structure and organization. Similar to society, that not only limits itself to a summation of people or theories in an isolated manner, but is a product of interpersonal relationships build from rules and principles collectively experienced.

Furthermore, observing the bridge we can comprehend its shape, its function, and its location, however, a bridge does not resume itself on simple questions, because it represents an outcome of a complex relationship set between the stones that sustains it. However, how can these relations be explained? In each historic phase, we could get a different answer, about, for example, how the bridge was made and why it keeps uplifted.

The first answers were given based in a mythological awareness, which is a fantasy explanation for the events. It was possible that certain community believed that the bridge was sustained by an invisible being that was condemned to hold it on for eternity. Those mythological histories had great importance in antique societies and, by the way, fulfilled their purposes, even though nowadays this answers are not accepted as the single fact.

That’s because nowadays knowledge has the necessity to be scientific; and it is that scientific knowledge that is considered the closest to reality. However, it is valid the questioning: till where can it be accepted? Because, several times, the empiricism cannot be applied as reality check.  From there, it starts the dichotomy in accepting something as veridical without means to prove it in totality.

Analyzing this knowledge evolution – from mythic to scientific- it is possible to make a comparison with Ítalo’s quote. According to it, a bridge permits an obstacle to be trespassed, but according to the path, it might be necessary to build another bridge. So, one bridge is important, but it’s not enough for a road to be completely built. It is similar to what happens with knowledge, an arch paves a way that can lead to another arch to be built.

Following the same line of reasoning, we can see that the world is formed by a variety of arches, it means that there are many systems connected to each other and in which every single part is linked in a direct or indirect way. Thereby, the world is a union of several cultures, different people, and new perspectives, which together constitute arches over the history. Therefore, it is necessary to comprehend that worth for nothing a research about the system without being able to identify the essentials characteristics in each part, as well as you cannot determine an specific part without being able to analyze it’s relation with the environment where it is inserted.

Therefore, to understand all this complexity easily, we study it In a segmented manner. This way we pick a system from the world, and from this system, we determine a research subject. In these terms, when you determines a field of study, it is important to think about the context It is inserted. This is clearly expressed by the interdependency between stones and the arch, so it can and needs to be taken to science social area, including legal science. Because, when its value is followed, it turns to be possible to elaborate more complete studies, with more easily applicable objects.

Returning to the bridge-arch’s idea, the dependency situation between those two elements is equal to the relation between a person and the collective; in the system it is inserted. Each of these systems makes a new arch and each bridge’s stone is a new person, which takes part in sustaining the bridge; it means that a system is formed by several elements.

There is another link that can be made from Calvino’s quote: the man as a stone and the platonic thinking. In its writing ‘’The Republic’’, Plato develops an ideal republic that is based in justice, as explained in Bobbio:

‘’The dialogue in ‘’The Republic’’ is, as all know, a description of the ideal republic, that has by goal the accomplishment of justice, understood as an attribution to each one’s obligation, according to it one’s aptitudes.’’ (BOBBIO, 1909, p.45)

This way, Plato’s conception of justice is related to the idea that society works as a system. So it is, that he sees society as an organism, as a human body, in which every organ is dependent on another, and the malfunction of one can affect the whole body function. This way of thinking is called Organic Society theory.

The secret of the perfect Republic is in its harmony between three man categories created by Plato, these are: the philosopher-governors, the warriors and the ones that makes useful works.

Therefore, analyzing society as a complex system made by small, individual, parts it is possible to make an analogy between the stones and the arch, according to Marco Polo`s explanation : the stones would be what compounds the bridge, in an arch format (abstract form) become reality. The stones, for Law study, would be the laws, rules, while the union between those stones and people in society would make what would be recognized as the arch (the resultant system, the society itself). So, from this moment on, it is important to make new questions: how to build more durable and efficient arches? In which manner those new manners of organizing the structure (stones) could be better used? Alternatively, even, would it be possible to develop stones even more strong stones that could create arches even better than the ones created until today? Those questions, in certain manner were repeated along history, and they were answered and gained new answers. Moreover, thereby, the human knowledge, not only in Law area, but in also other disciplines gradually evolved. It`s our responsibility to be disposed to try to construct even better arches and bridges.


Picture 1 – Available on  <http://www.dreamstime.com/stock-images-stone-bridge-central-park-ny-image6442904&gt> Accessed on March 2015


Legal Positivism and Natural Law Theory: a contemporany duality

The legal positivism and the natural law theory had great importance in order to society find it’s harmony. In addition, although they have similar utilities, they have different sources and distinct definitions.

The stoicism, established by Zeno, used to defend that everything takes place in a universal ration (“logos”). Then, it is important to emphasize the existence of a valid universally right, or natural right, which occurs with society birth and it is believed to be the most dynamic and subject, also being considered by many, the basis of law itself. Therefore, it shows itself as a valor and it is intrinsically related with man morality, which determines its cyclic, permanent and valid characteristics, based on man’s timeless ration and, as a consequence, this is independent of any legislation. Its definition covers the idea that natural law theory is shown as a specie of celestial justice and is made by some force majeure, so, it is in everything essence and is everywhere. To stoics, law from estates were just imperfect imitations of a right that comes from nature itself, and the natural laws (Physis) should be established as man’s law (Nomos).

This way, stoicism strongly influenced roman justice, having Cícero figure as its major exponent. In this case, what is important is the Law, not the rights. Justice would be something inherent to human kind.

The legal positivism, in contrast, developed itself proportionally to positivism valorization and emerges from humans necessity to regulate, by rules, actions to be obeyed, excluding metaphysic and turn itself to observe facts based on experience (it is given the name law to constant relations of that facts that repeat itself in determined circumstances). Its formalist conception understands the right as a fact and finds its legality assured and posted by the Estate, using laws and rules that are restricted to determined people and territory. Those, in turn, show another characteristic of positivism law: its mutability. This because, across systems of written rules, legal positivism follows society evolution and adjust itself to its necessities, oriented to social stability and, thereby, it is in constant change. It is widely defended by one of the greatest juridical thinkers of XIX century, the Austrian Hans Kelsen.

When singly analyzed, it doesn’t have legitimacy. Therefore, it is necessary to find that legitimacy in natural law theory. Despite this, natural laws always based on morality, are not enough to intimidate man, insomuch that it should be obeyed based on civil subjection question. So, the natural law became subordinated to civil actuation.

In sum, the natural law ordains and sustains the legal positivism, working as general fundament and inspiration for creating laws, and also actuating as a criterion that allows it to be valued. This way, the second is a consequence of the first. The natural law and the legal positivism are instituted, each one in their way, as society guides, looking ways to reach best solutions, although creating juridical and philosophical dilemmas in many situations.

In the famous theatric Greek tragedy of Sófocles, Antigone, written around 442 B.C, the character Antigone, daughter of a couple Edipo and Jocasta cursed by the gods, strongly expresses its religious tradition, and ethic, in contrast to the values imposed by the state, expressed by king Creonte. It focuses on the collision of her morality, the people of Tebas and the in vigor system on state, which was firmly defended by king Creonte, who acts in a very despotic and autocrat way. The great dilemma is: would Antigone condemnation be fair because she wants to bury his brother, even disobeying the king’s law, but following natural laws imposed by Greek pantheon?

It is notable in the opus the confrontation of two kinds of right: natural and positive. The natural would be people superior willingness, that doesn’t agrees with the tyrannical attitude imposed by the king and as a consequence of he’s acts, the misfortune would fall back to his family (it is important to emphasize that the critic to tyrannical powers is a frequent theme on Plato and Aristoteles opus). The legal positivism has its maximum representation on king’s justice, opposing to natural power, more abstract and religious of Antigone and the people of Tebas.

Consequently, the legal positivism requires acceptation or legitimacy from the people, while natural law theory is an innate and timeless characteristic, which validation is not questioned for being imposed by gods, considered superior creatures. This way, Sophocles works are still actual, including ethical and rules dichotomies, in which individual and collective rules are put through their paces, at the end, democratic willingness is consolidated: society and its ethical values prevail in detriment of the rules imposed by state, that is, natural law “won” legal positivism.

When positivism contradicts the natural, appears among citizens a moral conflict, because the individual finds itself in a dilemma: follow natural laws or men ones? In order to choose, he asks himself, which one is really fair? For this question, the answer is another questioning: how can we measure and compare justice?

As well as natural law precedes imposed law, man has fundamentals that precede his legal knowledge and tend to guide his actions. Knowing this, we can answer the question made about justice the following way: laws must follow consolidated good principles in society, and those are going to determine which rule is fair and which shall not be applied. In this sense, the justice question on a positive norm is answered according to its adjustment to moral ordainment of some society. It is a presupposition to rules reach its total efficacy – here understood in kelsenian sense, as a law characteristic in which man adapts his behavior.

We need to understand the natural law as a guiding of emerging and formation of juridical ordainment. In addition, both types of law can exist side-by-side establishing a relation of complementarity, instead of opposition. This important relation must be remembered in every moment, since creation, passing to interpretation and arriving at rules application.


References

GAARDER, Jostein. O Mundo de Sofia: o romance da história da filosofia. São Paulo: Companhia das Letras, 1995

 GOUVEIA, Alexandre Grassano F.. Direito Natural e Direito Positivo. Revista Jus Navigandi, Teresina, ano 3, n. 27, 23 dez. 1998

  Kelsen, Hans. Teoria pura do direito. Armênio Amado: Coimbra, 1979

– Romilly, Jacqueline de. A tragédia grega. Trd. Ivo Martinazzo. Brasília: universidade de Brasília, 1998


How Middle Age influenced in Modern Law formation

The Middle Ages, which happened between the V and XV centuries, has as main feature its political organization, known as Feudalism. This system does not limit itself to the political aspect, but also determines the economic and social organization of its time. It consists in an order of land ownership, in which the territorial unity is known as the fief- most of the agricultural lands of the Western and Central Europe was divided in such structures.- A fief is formed by a village and hundreds of acres of arable lands , where the people would work. Those lands had different dimensions and organizations and the lieges were the owners and responsible for managing those properties

There are three different classes that compose the static and hierarchical

Fief’s society: the priests, the warriors and the workers, included in three big layers: the clergy, the servants and the lieges.

“Each fief had a liege. It was common to say that in the Feudalism there was no “liege without land, or land without liege” […] in those properties, the liege lived (or visited, as it was common to own many fiefs; some owned hundreds).” (HUBERMAN, L, 1936, p. 3)

It can be observed that the feudal liege is the central figure with great importance in the Medieval Age. Of his lands comes his political, economic and legal power. He sets the rules and defines rights and duties about issues such as weddings and right of inheritance, and in the end, applies such rules as follows:

“As included in the Tribunal’s files: ‘Robert, son of Roger, son of Richard, who owned three hectares of land, is dead. In addition, as it follows, John, his inheritor, was granted the ownership of the land, as according to the fief’s habit… and pays the liege 3 s. [shillings] of fine related to his entry”

The expression above shows how the legal relationships of the time were justified. The law was manly a consequence of the fief’s habit, what explains the great variety of legal orders of the period. The tradition was so important for the fief, as it is today the Constitution for its State.

The Feudal Law legitimated the relationship between the vassals and the suzerains, being present in the Middle Age, in the period of the transition for the Renascence. It is present, at this age, the consuetudinary Law (concerns what is held outside the religious domains)

In the Middle Age, the legal issues were solved with the help of the Church, which means that, having as a base the few canons that the Canon law had at the time (as it is clear in the foreword of the current Code, which includes all the history of the Code’s formation and also how the Church was regulated throughout the centuries). It gradually evolved, so that it was as complete as possible to regulate all the Church’s formation and its relationship with the people. Currently, the Canon Law regulates the ecclesiastical life, the hierarchy and the clergy’s relationships. It comes from the catholic tradition throughout the centuries, with its organization starting at the Council of Trent, achieving its complexity and fullness as it is currently only in 1983. The laws that the Church used to have that influenced the Law inside the fiefs were based in few canons, not as extensive as the Current Code.

The period between the XI and XV centuries, known as the Middle Age, represented the fall of the feudal system. Such process happened by step. First, the development of new agricultural technology as the hydraulic mill and the coupling of cows on carts provided an increase in the productivity of the fiefs. Then, a fief alone was not enough to sustain the population and its productivity potential. Therefore, the Burgos started to develop – forming cities- and the feudal organization stopped being individual and started being collective. The commerce provided a bigger interaction between people and, consequently, brought out the need of a new administration of the life in society, one that could manage this recent social dynamics.

When the liege needed to solve a merchant problem, for example, to whom could he appeal? To church’s rules? There should be an impartial way to make those decisions. It was necessary, in order to Law evolve, to look back, back on history: we came back do Roman law. People, therefore, started to look to the past so that they could see a future solution: they started to study the Roman law. Moreover, it comprehended, in much more aspects, the idea of civil roman process, in other words, relating law with action; the roman citizen should follow rules to fulfil or benefit from his rights. Furthermore, conceptions like “an eye for an eye, teeth for teeth” were established and solved by the romans, which substituted them for public justice, where a judge – an Estate employee – used to conciliate conflicts between citizens. This way, Roman law showed to be completely fundamental and capable to cover complexities from this society. Not just that, it turned to be the basis and great influence to developing law as it is nowadays.

This way, this new generated order, the fiefs union, for example, resulted in societies, which needed a more complex organization in order to establish order. People gave up their greatest good, that was the pure liberty, to give state (here comprehended the relation between lieges and vassals) so that it could take care of them. It is a voluntary subordination. From this on, because society also evolved, it was necessary to create a set of rules tended to impartiality, splitting also the religious judgments. Moreover, the politic and juridical pluralism of that age gave space to a set of rules that defined society routes, and this, as society was being formed and evolving, was possible to reach the molds we know today. In this, therefore, is laws font theory constituted, as elucidates Gustav:

“[…] however, the ethical duty, that presents its law to our want and act, has a triple nature: the rules of a good act, fair and adequate, producing morality; the costume and finally law. Between them, historically in first place the costume, which one just later on dropped out law and finally morality”(RADBRUCH, Gustav. 1999, p. 01 – 02)

It is basically this the process of Law’s evolution: passing since an altruist aspect until production of morality, costume basis, and finally reaching law. Splitting costume law (in other words, ending this relation between lieges and religious costume) we could reach law as we know today.

We can understand, at least, that from man’s necessity – how to be social – to live as community, emerged laws and society as we know today. Furthermore, roman law – with its premises of power legitimation using representatives that could bring solution to conflicts in a way to congregate all the group – showed to be as an essential element of transformation. This way, it was only possible to reach this complex organization system of rules and written laws because of the necessity to human being live in-group in a harmonic way. So, people would give up their total and absolute freedom to be “free” inside a system, and this way, forming the complex of rules that are followed: giving up his individual freedom to a bigger organization – responsible to ensure all the basic and necessaries principles (as locomotion freedom, propriety, security, and others). Summarizing, this system was, as said before, inspired in Roman law, in each fief costume in a tentative of impartiality in those complex social context. Furthermore, it was form chaos that brought organization, from a politic and juridical medieval plurality – many fiefs with distinct lieges and individual organization – we came to this system unification.


References

[1]HUBERMAN, L. (1936). História da Riqueza do Homem. Trad. De Waltensir Dutra. Rio de Janeiro: Guanabara, 1986.  p. 3.

[2]Ibd., p. Grifo nosso.

ALVES, J.C. M. – Direito Romano; Editor Borsoi, RJ, 1965, vol. 1, c. XVII E XVIII.

TRICI, J. R. C.; AZEVEDO, L.C. – Lições de História do Processo Civil Romano; Ed. Revista dos Tribunais, c. 3,4 e 5.

Júnior, J. Cretella – Curso de Direito Romano; 19ª edição; Ed. Forense; Rio, 1995.

SANTOS, Michel Carlos Rocha. História do Direito na Baixa Idade MédiaRevista Jus Navigandi, Teresina, ano 16n. 28013 mar. 2011.

RADBRUCH, Gustav. Direito. In. Introdução à ciência do direito. Trad. Vera Barkow. São Paulo: Martins Fontes, 1999, p. 01.

<http://www.vatican.va/archive/cod-iuris-canonici/portuguese/codex-iuris-canonici_po.pdf> Accessed on april 12, 2015.


Possible Latin American Unification

                                              “As the capitalism continues to process the globalization of the world, emerge relations, process and this world’s own structures. And here is where starts the movements of interdependence and integration, fragmentation and antagonism.” (IANNI, Octávio.) A Sociedade Global. Ed. 15, Rio de Janeiro: Civilização Brasileira, 2013. p. 149

In accordance with what Ianni addresses in his book, along History and the context of each time there will be a reason that leads to unification. In this perspective we can grab the thought for a possible unification of the South America, through a plebiscite, uniting all the habitants for the creation of a single Constitution and a single State. Therefore, new questions are being developed: what reasons could lead to this unification? What factors could make it possible? How one single Constitution would be created and would work in these political and social contexts? And, finally, would the Constitution define its people, or would the people define its Constitution?

Reasons for a possible union

Through Middle Age, the unification of fiefs was only possible due to tolerance and respect to political and cultural differences of each scenario. The culture was the main factor to maintain the internal order. The fiefs unions, for example, tried to deal with these problem, so that two lieges of antagonistic religions would unite in benefit of a common interest, whether protection, whether political and economical stability.

On the Modern Age, on the other hand, there were the union between countries (States with rules, laws and defined territory) determined for political aspects in a bigger scale and factors such as religion became less important (specially  after the Protestant Reform). The maintenance of the external alliances is more important once the wars in global scale are a possibility.

Going to the Contemporary Age, it’s possible to observe that the tendency of unification goes beyond territorial aspects, emphasized by the globalization, and seeks the maintenance of peace in a global scale. As the culture is determinative for the maintenance of the internal order, through the new media, the culture is starting to get homogeneous. So, the nationalism is, as time goes, losing its influence over people. This happens because the nationalism’s concept is a result of the belief and valorization of the qualities a community has in common and, once these characteristics start to become less evident and implies less impact over the individuals of that population, the feeling of nationalism starts to decline and tends to disappears.

A modern example that is in the path of unification of States in a constitutional aspect is the economical blocks. Those five steps: Preferably tax zone, free trade zone, customs Union, common marked and, finally, economic and monetary union. The European Union is in the penultimate step for an effective constitutional union.

Then, it is possible to conclude that, so that the union can really happens, it is necessary to have motives that lead to that. We are following the European Unions’ model, which the initial interest was to facilitate the commodity market between the nations inside the block. Now this interest is more than just commercial, is also political, having a court of law, council and others. The possibility of a single constitution has been discussed. In France and in the Netherlands, through a plebiscite, however, the population denied this option. However, such unification would bring many benefits. Politically united, the countries could become stronger in a military aspect, more active and important economically. Furthermore, jurisdiction processes would become easier; the transit of people between territories would become more accessible and recurrent. In the end, between pros and cons, the single Constitution shows itself as a rich possibility in many different aspects, for the State and for the individuals. The South America is adopting the same path, through the MERCOSUL, starting as an union with economical goals and embracing measures that cover much more that only pure commerce.

Where to begin?

A union in this proportion cannot happen at once, the countries must pass through many stages until they reach a point in which a new constitution involving all Latin America should be built. Observing the actual global organization, we can see that there is a tendency to create alliances between countries with common characteristics/interests. As Marcos Azambuja shows, in the book “Brazil and the new worldwide order (disorder?)”, when speaking about the economic blocs formation in America:

(…) as the procedures in America keep, since the beginning, a great synchrony. Few years divide nowadays moves. We keep, somewhat, to walk in same steps and, by different paths, in same directions. Of integration procedures in development, two of them stand out in a much-accentuated manner: the Nafta and the Mercosul

This integration is intensified along the years, being reinforced by each decision that aims to uniform practices or approach even more the estates. In 2016, for example, the member of Mercosul will adopt patterned license plates; the intention is to facilitate identification, inspection and circulation between members of the bloc. This initiative follows European Union steps,   “a bloc of 27 countries that serves as a model of integration for Mercosul, that has patterned license plates since 1998” [4]

placas[5]

Following the steps of the most developed of the Blocs, Mercosul is in development and the countries are being even more unified, as a symbol of this union, we adopt a common flag – the greatest symbol of a nation.

bandeira[6]

Starting with four countries, the bloc nowadays has more two estates in procedure of accession and embraces half of South America. It is possible to say that the first step for unification has already been taken.

mapa[7]

How the Constitution would be

The relation would be more and more extraterritorial and the barriers rupture, caused by capital frequent flow, would form the sovereignty of the bloc as whole. Therefore, the blocs would decrease influence of individual states of each country, becoming an important transnational agent, and that would socially and economically reflect in member states. The constitution should be approved by plebiscite between member states, in order to respect population’s opinion. This way, it could be legit and would be the reflection of a mix of each country aspects. The importance of the people can be seen in historical events.

            Making a comparison with French Revolution (1789), a mark in worldwide history, brought with it the transition of king’s statehood to the nation, and from the nation to the people. This changing influenced French first, which served as an example, and at last many European countries. It is with Revolution and the Declaration of the Rights of Man and of the Citizen that people is consolidated as principal agent in politic range. In American  way of thinking, the popular sovereignty of its people was countered by the promulgation of 1787 constitution. It is important to say that United States constitution is distinguishable from Brazilians: in this, each state has its own constitution and the number of emends is limited, in Brazil this bureaucratization of constitutional changes is not a rigid followed principle. This way, following American thought, the power is just reciprocal, and popular participation would be limited after voting, noticing that it would manifest just as a critic way. Constitutional sovereignty takes popular sovereignty place, with jargons (“in name of the people”), so people rights are transferred to elected people, after constitutional legitimacy.

            People sovereignty, basis of a democratic estate, would just be there to ensure constitutional precepts. Therefore, in a critic analysis, people political action can be considered as incomplete, so it is necessary a protection in order to do not substitute people sovereignty. This way, to Latin America constitution be able, it should be approved by the people (in a plebiscite) and should take a part of countries sovereignty (that would turn to be members, subordinated to it), and just like this and, through the progress of relations between countries, stepwise evolving economic blocs, we could talk about a possible constitutional unification.


References

[1] <http://www.camara.gov.br/mercosul/blocos/introd.htm >  Acesso em 18 de abril de 2015

[2] <http://europa.eu/index_en.htm >  Acesso em 18 de abril de 2015

[3]<http://revistaautoesporte.globo.com/Noticias/noticia/2014/11/entenda-o-novo-sistema-de-placas-do-mercosul-que-comeca-valer-em-2016.html>  Acesso em 18 de abril de 2015

[4]<http://noticias.r7.com/internacional/noticias/veiculos-do-mercosul-terao-mesma-placa-a-partir-de-2016-20101216.html >  Acesso em 18 de abril de 2015

[5]IMAGEM:<http://quatrorodas.abril.com.br/noticias/mercado/mercosul-apresenta-formato-novas-placas-automotivas-805279.shtml >  Acesso em 18 de abril de 2015

[6]<http://www.mercosur.int/t_generic.jsp?contentid=5908&site=1&channel=secretaria&seccion=2&gt;  Acesso em 18 de abril de 2015

[7]<http://www.mercosur.int/t_generic.jsp?contentid=5908&site=1&channel=secretaria&seccion=2&gt;  Acesso em 18 de abril de 2015

IANNI, Octávio. A Sociedade Global. Ed. 15, Rio de Janeiro: Civilização Brasileira, 2013.

VELLOSO, João Paulo dos Reis; MARTINS, Luciano (Coord.). O Brasil e a nova ordem (desordem?) mundial. Rio de Janeiro: J. Olympio, 2006.

KUNTZ, Rolf . República, direitos e ordem global. Lua Nova [online]. 2003, n.60, pp. 45-55.


Law in Modernity 

Law as a symbol

The Liberal State formation is connected to Constitution creation that guarantees rights to everyone, sets limits to the power of those taking the political guidelines and assures individual freedom. However, legislation is sometimes considered as merely symbolic. Therefore, it is present in the rights and in the law, but lost its instrumental character.

Therefore, the history of rights in Roman Empire – that lasted for 12 centuries and is considered one of the greatest that ever existed – should be highlighted, as many juridical aspects developed in these period of time are still present in the contemporary liberal society, manly in what refers to civilest notion and to property in juridical institutions.

In this age, it can also be noted the existence of symbolic law, in which the Law of 12 Tables is an example. This law was created by magistrates who were roman and patricians, and would guarantee the plebs exclusion, who had their rights ignored, as the only ones considered worthy of full civil and political laws were these magistrates.

In the Contemporary society, on the other hand, laws with symbolic character compromise the autonomy of the Right, as they are restrict to an illusory character shaped into a fast solution to social problems. As a current example, the anti-racism law, with its light penalties that do not correspond to what is established in the norm. The lack of effectiveness of these laws, on the other hand, does not satisfies people’s wishes – the ones whom these laws should be actually made and executed in best behalf – making the execution of citizens fundamental rights , as it is defined by the fifth article in Brazilian Constitution, inefficient.

In a different analysis,  laws can be understood as a way to benefit those already in power. Moreover, based in Weber’s perspective, the politics would be just a way to participate or influence in the division of power, as it is the aspiration or motivation of every political devoted man. Concepts like “professional politician”, that refers to the ones who live by the politics and depends of the salary earned, could harm its capacity of action. So, the process of law and norms formation, politics in general, would be resumed to an exchange of favors between governments and governated, based in a “power for the power” idea.

On the other hand, Hannah Arendt (2009) addresses concepts of power as the human ability of acting in concert and of authority as the receiving of voluntary and unquestionable obeisance, without the need of using coercion or persuasion. Therefore, the process of laws formation would need a consensus between governors and governed, in which the first ones would have to adapt the political aspects to  wishes and exigencies of the second ones, including the customs of the society – that throughout XVII and XVIII centuries gained space and importance in legislation and political decisions. All of that for maintenance of the power’s legitimacy and, in consequence, the harmony between society and govern.

Rupture of the traditions through the advent of capitalism

As the human society progressed historically, so did the State, by modifying itself and following these processes.

The German historian Werner Naef identifies three large typologies in the process of modern State development: the first as being an estamental State, predominant during the XV and XVI centuries and represents the first wave of political power centralization; the second as being characterized by absolute monarchical State, predominant in XVII and XVIII centuries, represents the second wave of power centralization, now exclusive of the monarch; the third large typology of the modern state is represented by democratic State, that starts with French Revolution and consolidated itself with rights of the man and the citizen fixation.

Silvio, making this analogy to the thought of Werner Naef, explains how State has modified. The Modern State, as we know today, was marked mainly by the power of democracy that makes the “auto govern”, meaning that the people chooses the ones that will represent them, so that, theoretically, it could govern itself in the best way possible. This, however, does not actually occurs. The respect to human dignity and consolidation Human Rights was constituted by the “power of the people”.

 Humans Rights

In modern period, the recognition of human’s rights can be observed by the ratification of documents responsible from defense to decent man living. It is worth mentioning, for example, the Petition of Rights (1628), Habeas Corpus Amendment Act (1679), Bill of Rights (1689), United States Declaration of Independence (1776), The Declaration of the Rights of Man and of the Citizen (1789). Opening space for developments in contemporary age with Geneva Convention (1864), Mexican Constitution (1917), Weimar Constitution (1919), Charter of United Nations (1945), having its apices in the Universal General Declaration of Human Rights (1948), inspired in ideals from French Revolution (liberty, equality and fraternity) and is an international recommendation to States in how to treat their citizens.

Can be related to federal’s attempt to obey (or at least look as trying) those rights, the valorization of public opinion, given by democratic process advent, which depends on it for elections of its representatives or by the support that the monarch ruler depends, in order to avoid riots or insurrections. One can see that there is a relation between maintenance of the actual order and collective good valorization. There are reasons beyond the apparent ruler’s goodness in consenting those rights.

The constitution often does not fulfil its principal function, which would be guarantee rights for people in general and it is used as an instrument of powerful people in order to get advantages. A recent example in which that fact is evident is found in the law sanctioned in January of this year that raises ministries salaries of Brazilian Supreme Court. According to Constitution, the salary of Brazilian Supreme Court ministries should be at the cap, and, consequently, this amount paid to judges of inferior instances should take this cap as a basis. Thus, there would be a general increase in those servers, benefiting just a population portion only.

In view of that, it is inevitable an idea that in order to maintain this system, somebody is prejudiced. However, it occurs in a discreet way, in which an image of a relative equality is transmitted and that everybody has the same benefits and chances to rise. Although trying to cover and pretending that it does not exists, the abyss between social classes is evident and constant in history. This condition is reflected in Law, which should provide justice – where all people are equal – reinforce different treatments State gives to few.

Therefore, what we see is a right that gives some benefits to few people, while a great portion of society is pushed into the background. How to justify this situation? The same juridical order tells about treating everybody equally makes distinction between those who have a superior degree, an “intellectual elite”, and separate from those who did not go to university from special cells to res judicata of a penal decision. Why the group who had access to education has to be better treated than population great majority that does not have the opportunity release themselves from precarious education offered by government?

In order to answer those questions, it is necessary to have in mind the procedure of validation of a law. It can begin by deputies, senators, federal president, or even by people’s initiative, that than goes to legislative houses to be analyzed, passing through commissions until reach the president. In order words, the project is elaborated by the people or by its representatives, which have to analyze and decide about its validation.

This way, laws should be a popular instrument, but this idea is not performed, because parliamentarians do not represent the people actually and in a great part of the situations, they put theirs private interests and the willingness to maintain power beyond general interests. It can be observed that Modern Law maintained a discriminatory characteristic and reinforces the exclusion of certain social groups, as patricians did in Rome. This situation generates an unjust system in which the people majority do not even know about the true situation and end up accepting peacefully a patrician system.


References

CNJ autoriza aumento para juízes sem necessidade de lei estadual. Available on <http://g1.globo.com/politica/noticia/2015/01/cnj-autoriza-aumento-para-juizes-sem-necessidade-de-lei-estadual.html>. Accessed on April 24, 2015

GAGLIETTI, Mauro. O poder simbólico e a distância entre os dois Brasis: o formal e o informal. Rev. katálysis,  Florianópolis ,v.9,n.1, p. 43-52, June  2006 .  Disponível em <http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1414-49802006000100005&lng=en&nrm=iso >.Accessed on April 24, 2015

[1] WEBER, Max. “A política como vocação”. Ciência e política: duas vocações. São Paulo: Ed. Cultrix, 1993, pp.55-69: 104-124.

[2] ARENDT, Hannah. Sobre a violência. Rio de Janeiro: Civilização Brasileira, 2009, pp.51-74.

[3]GALLO, Sílvio. A filosofia política moderna e o conceito de Estado Disponível em <http://www.cedap.assis.unesp.br/cantolibertario/textos/0007.html > Acesso em 24 de abril de 2015.

[4] CARVALHO, José Murilo. Cidadania no Brasil. Rio de Janeiro: Civilização Brasileira, 2012, p. 10

[5] CARVALHO, Flávio Rodrigo Masson. Os direitos humanos, a Declaração Universal dos Direitos Humanos de 1948 e o pensamento filosófico de Norberto Bobbio sobre os direitos do homem. In: Âmbito Jurídico, Rio Grande, XI, n. 57, set 2008. Disponível em: <
http://www.ambito-juridico.com.br/site/?n_link=revista_artigos_leitura&artigo_id=5147&revista_caderno=15
>. Accessed on April 24, 2015


 

Objectivity as an Aspect of Positive Law

The objectiveness as an aspect of the positive law

The law, in the XXI century, sees itself surrounded with many challenges, such as a set of norms creation that, in the best possible way, covers the level of complexity of the current social ordering – that includes the appearing of new environmental, social and political problems. With that understanding, the text will approach the main characteristics and the ones that leads to discussions, in which the formation of these norms configures itself as an essential element to a good living among individuals.

It is known, as explored in  a previous text of the blog, “Naturalism and Positivism: a current dualism” [1] in which the positive law and the natural law, each one in its own way, are fundamental pillars to the genesis of norms that act in it’d fill capacity of society orientation.

So being, in the moment the code was instituted, the law is given with the objective of, in the best possible way, formalize the parameters of subjects diversity, subdivided in other areas such as Criminal Law, Civil Law, Administrative Law, Economic Law, among others.

Potential Code adaptations arise in this context due to historical changes and innovations in areas such as social, economic, political and location.
From there, you can promote a question about the purely objective character of Positive Law. Therefore, as a pillar that builds regulations governing complex communities, it must also obligatorily cover the subjectivities of those companies. In general, it can be said that, as human social relations are characterized by subjectivity, it is possible the emergence of a law that seeks objectivity.

Duality of objectivity and subjectivity

The development of codes for a society based on objective assumptions, would have its origins in questions guided on rationality and especially to the fact that the conduct governing interpersonal relationships generate consequences. Thus, the laws have the primary duty to regulate society, in order to get closer to the maximum of a harmonious coexistence.

In addition, it should be noted the duality between natural and positive law. Which the first emphasizes the aspects related to the subjectivism that, according to Rudolf Stammler, is something that varies according to historical conceptions of every age and social context. Thus, it raises the question of positive law as something to strengthen existing laws in the mindset of the population of a period, causing the questioning of the fundaments that guide and set limits for the actions. With That said, in order to reach the goal of an objective law, it has partly had a need to let go of the things that somehow are relatively specific to each culture and society (subjectivity), to address the issues in their totality (objectivity).

As previously mentioned, the objective law is, above all, laws and regulations that govern a certain period in a society and its breach can lead to penalties. He shapes the culture and customs of a particular nation in a given period.

Therefore, it by itself is ephemeral because space and time, which are subjective elements, constitute it and, therefore, they are not universalized. An attempt to achieve objectivity in the area of ​​positive rights was the Declaration of Human Rights creation. That is, in attempt to reach, as its name makes clear, the universality of rules whose universality understood here is the result of objectivity, abandoning subjective criteria. Human Rights, therefore, seek the abandonment of subjective aspects for the establishment of general rules. It was the result of illuminist philosopher’s ideas and the French Revolution of 1789, which for some academically is very similar to the natural law, caused by its general scope.

Complications in Positive Law

            The juridical ordainment embraces from simplest questions to the most complex ones, which divide the popular opinion and causes polemic. That is why it is difficult to organize the rules in an uncomplicated way and an impossibility to build a set of rules that satisfices the wishes of everybody. For example, discussions about death penalty – abominated by some and considered as a necessary penal instrument for other – cannot be indifferent to legislator, which must have their decisions properly based on principles that leads the legal order. Nevertheless, not only in the legal system construction these principles have importance. They are necessaries guides from creation of law, to its application “it’s a judge and tribunals duty to apply laws in conformity to its fundamental principles”.

Complexity creates impasses the moment law is applied, because its amplitude and interpretations resulting from its obscurity makes antagonist decisions, which can be opposed to other sentences or other rules. This conflict is called antinomian, that, in Tércio Sampio definition:

It’s the opposition that occurs between two contradictories rules (totally or partially) emanated from competent authorities in a same normative ambit, which put the subject in an unsustainable position by absence or inconsistence of criteria’s apt to permit an exit in the parameters of a given ordainment. (FERRAZ JÚNIOR, T. S, 1996, p.14)

The antinomian conducts to suspicion and disbelief in the juridical ordainment. In order to avoid it, there are instruments created to guide rules interpretation, such as proposals.

With the adoption of a binding proposal, there is a considerable diminution of divergent decisions, which deals about the same theme, as the judge will, after the facts analysis and the observation that the issue was already proposed with a binding effect, to apply Supreme Court’s positioning.

Brazilian Law adopts a civil law system, which means the prevalence of law on juridical decision, in other words, written rules in a juridical ordainment should be enough. This presupposes a system without contradictions and that, this way, waivers the creation of proposals or other rules to correct the lack of clarity of its own rules.

Impasses to this Objective Creation

In the bias of those who exercise law in practice, we can see that its human and rational characteristics of accumulation of experiences ends to develop moral judges intrinsic to each one, hindering a posture completely neutral when it faces problems. Although, it is expected him to adopt an impartial posture that: “offers the parties the same possibilities from constitutional and legal rules and, inside produced proves, transmits its word vision by the sentence, not being partial, as long as it demonstrated fundamentally to all (parties and public in general) that the reached result is the one that fits better to the juridical ordainment and to the case peculiarities.” (DUARTE; BARBOSA. 2013)

Therefore, it would be necessary the existence of an universal language in Law that would guide works and guarantee an equality of approaches, in other words, that would consider all the constituent pluralist aspects of a given population. However, as long as there is not a mechanism that guarantees this total representation, attaches to rules formations that adjusts theirselves to fundamental rights and to social, politic and economic claims.

In sum, because it begins from decisions made by men and women, legislations tend to adopt subjectivities. That is why it is necessary to create intrinsic mechanisms that allows its actualization and shiftiness. When talking about its generalizing face, Law’s actuation can ignore particularities revolving each case. More general is the rule, more it can be prejudiced by those who find their selves away from idealized contexts.  Each case interpretation and its recognition as singular and unite depends on non-hermetic rules elaboration. If it is possible to reach this neutral language, decisions would diverge less between them and, therefore, injustices caused by interpretations would be reduced.


References

DUARTE, Hugo Garcez; BARBOSA, Jadson de Oliveira. Uma análise sobre os conceitos de neutralidade e imparcialidade do juiz. In: Âmbito Jurídico, Rio Grande, XVI, n. 115, ago 2013. Disponível em: <http://www.ambito-juridico.com.br/site/?n_link=revista_artigos_leitura&artigo_id=13524>. Accessed in May 2015.

WYKROTA, Leonardo Martins; BOTELHO, Ricardo Guimarães. Direita Objetividade e Efetividade. 2010. Trabalho publicado nos Anais do XIX Encontro Nacional do CONPEDI. Fortaleza, 2010.

OLIVEIRA, Maria de Fátima Alcântara de. Direito como Ciência. Revista Jus Navigandi, Teresina, ano 3, n. 26, 1 set. 1998. Disponível em: <http://jus.com.br/artigos/4&gt;. Accessed in 19 of May, 2015.

REALE, Miguel. Lições preliminares de direito – 15a. ed – São Paulo: Saraiva, 1987.

COSTA, Alexandre. Direito Positivo. Introdução Crítica ao Direito. Available in: <http://www.arcos.org.br/monografias/introducao-critica-ao-direito/a-natureza-do-direito/7-direito-positivoembora-o-direito-natural-seja-o-de-mais-alta-hierarquia-ele-e-composto-por-normas-de-natureza-muito-generica-que-precisam-ser-concretizadas-em-cada-momento-historico-os-conceitos-de-justica-e-igualdade-por-exemplo-mudam-com-o-processo-hi&gt;. Accessed in: 19 of may, 2015.

Available in <https://produzindodireito.wordpress.com/2015/04/05/naturalismo-e-positivismo-uma-dualidade-atual/>. Accessed in 20 of May,  2015.

STRECK, Lenio Luiz. Verdade e Consenso: constituição, hermenêutica e teorias discursivas. Rio de Janeiro: Lumen Juris, 2006. page. 135.

FERRAZ JÚNIOR, T. S. Introdução ao estudo do direito. 2. ed., São Paulo: Atlas, 1996.

VIEIRA, Priscila Alencar de Souza. Constitucionalidade e finalidade da súmula vinculante à luz do ordenamento jurídico brasileiro. In: Âmbito Jurídico, Rio Grande, XI, n. 58, out 2008. Disponível em: <http://www.ambito-juridico.com.br/site/index.php?n_link=revista_artigos_leitura&artigo_id=5172>. Accessed in 19 of May, 2015.


Dogmatic and Juridical Ordainment 

According to Kelsen, it is through the knowledge of legal science that a plurality of standards becomes a law, a single system without contradictions. [1] Not contradictory because every order is based on a principle that underlies each standard, as well as all have the same base, they should not oppose. To reach this foundation:

It should have its conclusion in a norm that is assumed as the last and the highest. As the highest standard, it has to be assumed, since it cannot be placed by an authority whose competence would have to be based on a standard even higher. Its validity can no longer be derived from a higher standard; the foundation of its validity can no longer be questioned. Such a standard, presupposed as the highest, will be designated here as a fundamental norm. [2]

Thus, Kelsen builds the concept of a fundamental hypothetical norm, as said, is where originates the validity of all other norms, what organizes the entire legal system that derives from it.

In short, the juridical order refers to the way the law is organized within certain sets of rules and specific laws from their midst. In this way, the very order is an organized collection, whose system has rules and laws hierarchy. (COSTA, 2001, p. 19). The dogma is the result of habits in a society, and, based on them, creates a text said to be absolute in order to get the most of this attempt of order.

“So, the dogmatic is not a disinterested knowledge, is not knowledge for knowledge, but a knowledge oriented to the realization of a practical activity.” [3] As explained by Costa (2001), the dogmatic has a practical purpose which is the very application of the rules cannot be said to be invalid or otherwise, the juridical order would not make any sense. The dogmatic guides the decisions of the law and serves to create certain homogeneity to future decisions that will be taken by members of the judiciary, avoiding as much as possible distortions between each other.

How to comprehend the Juridical Dogmatic

The juridical dogmatic can be analyzed by a more logical-normative than an empirical-causal. The first fits more in an abstract vision, based on rational research without empirical data; in short they follow the logic reality and determined people to meet, making rules and laws system an immutable rule, just very well defined.

This dogmatic often avoids mistakes and arbitrary justice, also legitimating most lawsuits. It’s like she act like a manual, which defines the limits of the jurist. The dogma is not seen as static but rather a movement, it is important that the legal system does not fail.

As well as the juridical framework, discussed earlier, the religious dogmas are also controversial issues in which truths are accepted without concrete proof of these. Only an absolute acceptance, without proper evidence to determine its veracity.

It is with different interpretations that different analyzes and unchanging truths can be reached. The Christian Holy Bible, as well as the Muslim Koran can be read and understood in different ways. With an analyses toward the law, there is the constitution, whose vision and distorted acceptance can create absolute certainty; different from its initial and real purpose.

Juridical Ordainment Modifications

The system in which lives a society, eventually, can suffer some changes according to peoples willingness in determined age and place. In Classic Age, it was believed that this could hardly be changed. In Modernity age, it is passing through changes, though. The alteration in this way of thinking, was demonstrated by the idea of power in people hands, that elects its own representatives using voting power. Continuing the cycle this way, what is expected is that the chosen ones are going to put in practice promised changes.

However, when talking about juridical ordainment alteration, it is not as simple as it seems to be. This happens because it is based in different sources. Among them, can be cited: analogy, law, costumes, doctrine, jurisprudence and general law principles. From that, it is evident that the moment a law is not applicable to a given case, in other words, when the situation is not contemplated by some rule, it is the judge job to decide which course to take. However, that judgement varies according to the judge’s personal interpretation, that even based in laws and in principles, values, of some society, can be considered as unjust depending on each one’s interpretation.

From that, it is important to talk about Miguel Real definition about juridical ordainment, that can be elucidated as: “a complex of juridical rules capable to comprehend the sources of law in all its content and projections, covering both explicit rules and the ones elaborated to fulfil gaps” (REALE, 1987). This way, laws considered to be implicit, that depends on magistrate’s interpretation, can be avoided as ways to understand that the juridical ordainment is not immutable.

In fact, in order to develop a system formation, we can affirm that its substrate would be modelled in values such as juridical security and in principles of equality and justice. This way, law’s predictability, just as well the stability, legislation continuity and jurisprudence would aggregate values to a system formation, which necessarily has to translate, realize the value adequacy and the interior unity as a fundament of juridical ordainment. (NETO, 2008)

Dogmatic importance as a guide of decisions

The juridical ordainment, when understood as a system, tries to apply the rule to probable behaviors. That unicity comes from juridical dogmas, which although its efficiency, do not covers all possibilities, those are the system gaps. However, the “dogmatic, creates conditions to capacity of decisions of defined juridical conflicts” (BRANDÃO, 2013). In other words, the interpretation can be maculate by subjectivities coming from customs, which are hardly modifiable, so it is worthy the inquiry of how it is possible to reduce the arbitraries in a juridical process.

In our point of view, we understood that rationality, juridical thinking characteristic, involves the hermeneutic (comprehension), the ontological conception of Law itself, argumentation and interpretation, and the value of a methodological proposal. That should be evaluated by the degree in which the methodological defaults can be put in practice. It is by them that changes are made for the sake of an ethical community of individuals in constant process of construction. (FERNANDEZ, 2008)

In other words, in order to a conclusion be considered as valid, it should be derived of a rational process of normative knowledge and its posterior recognition in the analyzed situation, considering its particularities demanded by each case. The dogmatic exists in order to avoid arbitrary decisions, inasmuch as it coordinates the disagreements that can appear between interpretation and rule. It tries to standardize the judgement, in a manner that the same situation is not going to be judged in discordant ways, promoting stability and juridical security.

The social juridical dogmatic function is in the duty to limit variation possibilities in Law’s application and in controlling decisions consistency, having as a basis others decisions. Only by a scientific-juridical research that it can be inferred what is legally possible. Jurists’ ideal is to discover what is implicit in the juridical ordainment, reshaping it, showing it as a all coherent whole and matching it to standing social valuations.


 

References

[1] KELSEN, Hans. Direito e Ciência. In. Teoria Pura do Direito. Trad. João Baptista Machado. São Paulo: Martins Fontes, 2006, p. 82.

[2] KELSEN, Hans. Teoria Pura do Direito. 6. ed. São Paulo: Martins Fontes, 1999. p. 136.

[3] COSTA, Alexandre A. Introdução ao Direito: uma perspectiva zetética das ciências jurídicas. Porto Alegre: Fabris, 2001. p. 97

Max Weber e Hans Kelsen: a sociologia e a dogmática jurídicas. Rev. Sociol. Polit. [online]. 2006, n.27, pp. 171-179. ISSN 1678-9873.

NETO, Ney Castelo Branco. O sistema na ciência do Direito: As incompletudes diante do pensamento sistêmico e a racionalidade jurídica. In: Âmbito Jurídico, Rio Grande, XI, n. 58, out 2008. Available in: <http://www.ambito-juridico.com.br/site/index.php?n_link=revista_artigos_leitura&artigo_id=5182&gt;. Accessed on May 26, 2015.

FERNANDEZ, Atahualpa. Argumentação Jurídica e hermenêutica. São Paulo: Impactus, 2008

BRANDÃO, Cristina Silva; BRANDÃO, Cristina Silva. Kafka e o Direito como Ciência Dogmática. Universo Jurídico, Juiz de Fora, ano XI, 13 de mai. de 2003. Available in: < http://uj.novaprolink.com.br/doutrina/1325/kafka_e_o_direito_como_ciencia_dogmatica >. Accessed on May 26, 2015.

DIAS, Ádamo Brasil. Interpretação constitucional: entre a dogmática e a zetética. Revista Jus Navigandi, Teresina, ano 18, n. 3797, 23 nov. 2013. Disponível em: <http://jus.com.br/artigos/25948&gt;. Accessed on: May 26, 2015.

DINIZ, Maria Helena. Lei de interpretação ao código civil interpretada. 11 ed. São Paulo: Saraiva, 2005.

REALE, Miguel. Lições preliminares de direito – 15a. ed – São Paulo: Saraiva, 1987.

BARROZO, Jamisson Mendonça. As fontes do direito e a sua aplicabilidade na ausência de norma. Available in: <http://www.direitonet.com.br/artigos/exibir/5763/As-fontes-do-direito-e-a-sua-aplicabilidade-na-ausencia-de-norma&gt;. Accessed on May 26, 2015.

SILVA, Lays Fernanda Ansanelli. A epistemologia de Hans Kelsen e a explanação do ordenamento jurídico kelseniano visando a explicação da norma fundamental. Available in: <http://www.ambito-juridico.com.br/site/?n_link=revista_artigos_leitura&artigo_id=4504&revista_caderno=15&gt;. Accessed on May 26, 2015.


Going Beyond Positivism and Naturalism…

“You ask me if I am positivist or naturalist, but this is an ancient division. It is not needed to be one thing or another, as there are other approaches. I, personally, believe that the natural law is relevant. However, only a few principles can be identified as a valid law independently of any political decision or the custom. Therefore, I’m not completely naturalistic, but I’m not completely positivist as well. In fact, I consider myself a realist, because my posture is to recognize in the law, its real facet, without the dogmatisms inherent to the positivists and naturalists radicalism. (Paul Silbert)”

About the True realism: the mistake of Silbert

As shown in previous posts, the positive law, hand in hands with the natural law, acts as a pillar of the construction of the juridical system. Being the positive law the one that addresses the law as fact rather than as a value, relating more to objectivity. On the other hand, natural law is more generic and relates to society’s subjectivity. [1][2]

Analyzing the epigraph, it is plausible that the individual questioned will adopt a position not totally positivist or naturalist. Mainly because, given the immeasurable complexity of social and legal means of a society, it is perfectly possible that further analysis on these two theoretical aspects of the law will develop and apply to these means. However, it is important to realize that the fact that the individual above have gone beyond purely positivist or naturalistic theories does not qualify in any way as realistic.

Considering this sense, conceptualizing realism as an escape from extremism which can be found on positive law and on natural law is, not only reductionism, as a wrong definition of the tendency. This view disregards the essential aspect of juridical realism, in other words, it sets aside the search for what validates the subjective or positive law.

“In the legal realism, the law is what the courts decide, the product of the courts, based on jurisprudential precedents and even the using and customs. There is only the subjective law, if so say the courts, and the relationships that are not subject to its control are excluded from the legal world.” (CARDOSO, Lais)[3]

This current is based, as the name implies, in the reality, how in fact the law is applied. So it only makes sense that there is a naturalism or positivism if it is effective, not restrict to a theoretical orientation that should happen. This study of the dynamic process provides the construction of a method that considers the tendencies of the court, as it follows:

“The Realism originates a strategic discourse, replacing the classic search of the legally correct solution, by trying to establish appropriate strategies to influence a particular judge in the sense that he will take the decision desired by the jurist.” (COSTA, Alexandre) [4]

New conceptual Approach

The realism proposes changing the idealized interpretation of the legal doing, through changing focus when interpreting the decisions. Now, the legal norms play a role of little importance, as the formalism could not explain the idiosyncrasies that revolve around the system[5]. The leading role belongs to the behavioral analysis of jurists, especially judges. It was intended to understand how the judges made their decisions, not how they should take them, or how they say is taken.[6]

“For realists, judges decide according to what the facts causes in their ideals, not to what accords to general rules that would lead to particular results. Thus, judges would respond much more to the facts (fact-responsives) than to the laws (rule-responsives). “(Godoy, 2012) [7]

In other words, to support its strategic approach of the law, Realists should pay attention to social facts, such as the lines of thought and partisan affinities adopted by certain judge, so that the subject will be handled according to them.

In a hypothetical case in the area of human rights, in case the judge identifies with humanist ideas, the approaches proposed will try to fit this interpretation, even though not matching the realist’s personal ideas. Returning to the epigraph, it is clear that the definition of realism goes far beyond the “impasse” between naturalism and positivism. It is the attempt to adequate the speech to the interlocutor, regardless of one’s convictions.

Returning to Greece: are the realists the modern sophists?

In ancient Greece, specifically in Athens, the performance of the Sophists was something very common, characterized mainly by their skepticism, considering issues that were outside the limits of human understanding as unnecessary. They would pay attention to issues about the man and his place in the world, considering what aspects of the human being vary according to place and time. So being, they would question themselves about what was natural and what would be socially created.[8]

However, something that would  strongly characterize the sophists was the fact that they would utilize the rhetorical art of convincement towards the population to convince them about their knowledge, using persuasion as a strategy form. According to Chauí, the citizen needed to know how  to talk and to be capable to  persuade others, the sophists then came along with that purpose, being considered the  rhetorical masters, convincing the interlocutor through oratory and eloquence.[9]

This differs from the convictions of a philosopher, someone who values the ethical precepts and always speaks the truth regardless of the circumstances without the use of rhetorical speeches.

Thus, a parallel can be traced with realism in the law, in which social facts receive an analysis that agreed with the ideas that want to convince someone of something. So  it is like trying to argue a case at any cost even if it is necessary to contradict some personal convictions.

The decisions of the State and the Concern of realists

As humanity advances, the State has been taking a decision regent character in society. The way life is lived  today in a regulatory State, which is governed by certain laws. It is through them that the State seeks the common good.

From this perspective, both the State and its citizens are subjected to the system of laws and regulations. But to what extent the State and its rigid system of rules interfere in the lives of ordinary citizens? As we have in the one-child policy, which has decision-making character in the lives of many Asian families. The ones who fail to comply with the norm will lose benefits given by the government and may suffer other penalties.

Why is this Law valid? Analyzing as an example the one-child policy, we can think: what is the justification of this politics? This government action is legitimate or illegitimate? Analyzing on the perspective of realists, norms are only “delusions” they are external to the notion of validity, that is, to them it matters little whether the rules fit the dogmatic present in a given society.

Still on the eastern Law, in this system it is made the distinction between Li and Fá. Li is basically used to refer to rituals and, thus, is related to customs, religious rules, and to the specific characteristics that people should follow to take part in a ritual.

The Fá, on the other hand, refers to the set of rules outside the customs of a particular country. It is a “legal or right principle.” (MANCUSO, 2011).[10] So, even if it was a part of a certain custom to have a reasonable amount of children (Li) on behalf of a demographic control of the country, it seemed appropriate to adopt the one-child policy (Fá).

To the realists it matters little whether the laws are just or unjust, they just want to use them as a tool to convince a judge, for example. Therefore, realists are true “modern sophists“, making use of rhetoric and, unlike philosophers, do not care about the origin of the norm and why it is valid, as it is cared by the naturalists and the positivists.

 


References

[1]A objetividade como aspecto do direito positivo.Brasília, 20 de maio de 2015. Available in:                          <https://produzindodireito.wordpress.com/2015/05/20/a-objetividade-omo-aspecto-do-direito-positivo/> Accessed on June 19, 2015..

[2]Naturalismo e Positivismo: uma dualidade atual. Brasília, 5 de abril de 2015. Available in: <https://produzindodireito.wordpress.com/2015/04/05/naturalismo-e-positivismo-uma-dualidade-atual/&gt>; Accessed on June 19, 2015..

[3] CARDOSO, Lais Vieira. Por uma visão crítica do Direito: Revista Jus Navigandi, Teresina, ano 5, n. 45, 1 set. 2000. Available in: <http://jus.com.br/artigos/16&gt;>. Accessed on 18 June, 2015.

[4]COSTA, Alexandre. O Realismo jurídico. Available in: <http://www.arcos.org.br/livros/hermeneutica-juridica/capitulo-v-neopositivismo-juridico/3-o-realismo-juridico>. Accessed on 19 June, 2015.

[5]Costa, Alexandre Araújo. O realismo jurídico. Arcos.. Available in: <http://www.arcos.org.br/livros/hermeneutica-juridica/capitulo-v-neopositivismo-juridico/3-o-realismo-juridico>. Accessed on June 18, 2015.

[6] GODOY, Arnaldo Sampaio de Moraes. O realismo jurídico em Oliver Wendell Holmes Jr.. Jus Navigandi (Teresina), v. 11, 2007. Available in: <http://www.maxwell.vrac.puc-rio.br/17621/17621_3.PDF>. Accessed on June 18, 2015.

[7] GODOY, Arnaldo Sampaio de Moraes . O realismo jurídico norte-americano é intrigante.Consultor jurídico. 2012. Available in: <http://www.conjur.com.br/2012-jul-15/embargos-culturais-realismo-juridico-norte-americano-intrigante> Accessed on June 18, 2015..

[8] GAARDER, Jostein. O Mundo de Sofia: o romance da história da filosofia. São Paulo: Companhia das Letras, 1995

[9] CHAUI, Marilena. Convite à filosofia. Ed. Ática, São Paulo, 2000.

[10] MANCUSO, Salvatore. O Direito na China: Análise histórica para melhor compreender o presente. Lisboa, 2011. Available in: <http://www.fd.ulisboa.pt/wp-content/uploads/2014/12/Mancuso-Salvatore-Introducao-ao-Direito-Chines.pdf>. Acessed on June 18, 2015.

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