Law and practical reason

Image: Jonathan Santos
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By MARTIN MAGNUS PETIZ*

the appeal to justice and mercy in “O auto da compadizada”

In times of effervescence in empirical research at law schools in Brazil, there is a poll that could generate interesting data that is representative of a larger legal problem: by separating two groups of law graduates from an elite college into the analysis groups composed of (A) first year students and (B) final semester students, close to graduating, what would be their answer to the question “what is the law for”? It seems reasonable to assume that group (A) would give more answers aimed at achieving justice than group (B), probably already less 'idealistic', more aware and more acclimated, molded to everyday life, to the routine of law. I wonder why?

The merely hypothetical exercise serves to affirm a point that is not always raised when discussing the direction of legal education: that law courses, currently, still tend to put the connection between and questions of justice and practical rationality.

As José Reinaldo de Lima Lopes shows, it is a characteristic of modernity that law schools have “thrown these issues to the sidelines”, due to countless factors. One can cite as a cause of this fact the long-standing project of absorbing the law to the natural sciences (legal naturalism) in the theory of law; and the adoption of a model of instrumental and strategic rationality in law, based on the model of a self-interested subject, typical of the economy, focused on the accumulation of material goods.[I]

In this brief article, I intend to expose how law and practical reason are intricate themes that deserve to be increasingly related. I take as a backdrop a scene from The compassionate car (2000), film directed by Guel Arraes. The film shows some of the various connections between law and practical reason that, in my opinion, every good jurist needs to understand at least a minimum of in order to be able to consider himself a “well-educated” professional, who understands the limits and possibilities of his work.

The scene I have in mind is the trial of João Grilo in purgatory, an occasion in which he exposes how the law deals with actions not only to know and describe them, as an anthropologist can do, for example.

The Devil, armed with many proofs, appeals “to justice”; João Grilo, the astute, “at mercy”; and the lawyer Nossa Senhora asks that “the poor and sad condition of man be taken into account”, which leads them “to do what is no good, almost without wanting to.” More than a conflict between justice and forgiveness, the scene displays the very rationality that permeates the law, typical of the relationship between thought and action.

A judgment is the example par excellence of the evaluative role of law in the lives of citizens in general, as it judges their actions based on pre-established rules. In addition, Ariano Suassuna's incredible capacity as an interpreter of the vicissitudes of deep and indigenous Brazil, which jurists from elite faculties in large centers are not usually aware of, offers additional elements for an analysis of the connection between law and practical reason.

In this case, the Devil accuses the astute João Grilo, the cangaceiro Severino, the baker Eurico and his adulterous wife, Dora, of their respective sins before Jesus, in addition to the Priest and the Bishop, claiming their souls. The Devil argues very well about the guilt of each one and, in fact, the film shows up to that point how each one of them was a sinner in his own way: Dora, an adulteress, was not faced by Eurico, resigned in the face of non-compliance with his vows; the Priest and the Bishop are miserly in the hilarious scenes in which they dispute over the division of donations to the Church; Severino “killed more than thirty” in his life; and João Grilo “lied for pleasure”.

However, João Grilo, the astute one, knows that all due process is more complex than that, for the simple fact that the judge evaluates a human action, and not simply declares a fact. Therefore, he appeals to Our Lady, in the sense of demanding that her perspective on the facts be taken into account: “pray for us sinners”, he calls. What is interesting in this movement of the scene is that the Devil's accusation starts alone, without a counterpoint, and we are led to wave favorably to his arguments. There seems to be no salvation for the tragic accused. In fact, they all committed reprehensible actions throughout the film, and the director hides relevant circumstances until the moment of defense.

It is necessary for João Grilo to realize the situation of injustice in which he finds himself in order to realize that he can rationally appeal to natural justice: the basic measure for evaluating his actions is equality before a judge.[ii] It is not simply João Grilo's fear of going to hell that leads him to this – although it cannot be ruled out that his trickery plays a part in his appeal –, but a matter of practical rationality (and of virtue, as he does not remain silent in the face of of injustice). He knows that a more complete understanding of the facts and circumstances of an action can alter a judgment's conclusion about the facts. For example: the Devil asserting that Severino committed homicides, by itself, is not a necessary condition for his conviction, as it is known that there are hypotheses that “destroy” the description “homicide” if present, such as self-defense, the state of necessity or just war (the last hypothesis is the closest to the successful defense of Our Lady).

In a classic article, but not always so discussed, Herbert Hart (1907-1992), one of the greatest legal theorists of the XNUMXth century, states that the function of the judge is to use the law to decide based on the reasons and facts available, because law works by imputing meaning to particular actions after consideration of reasons for and against certain legal consequences.[iii] We cannot have a formula for resolving legal cases exactly and in advance, as exceptions can always arise.

Legal concepts deal with human action, which is defeasible and imputable. Defeatable because reasons against the realization of the institute can always arise; imputative because we only know whether the intended action actually took place after considering all the facts and reasons involved. This is why Hart claims that law students learn legal concepts by studying “standard cases” of institute occurrence, with some negative conditions serving as “exceptions” to such cases to illuminate the positive conditions in which institute occurs, with the their corresponding legal consequences.

Examples like this pervade all fields of law, not just criminal law. In civil law, the fraud discovered months after the ceremony took place only proves that the belief in the performance of the marriage was false from the beginning: this error destroys the action of “getting married”, and, suddenly, the description of the action becomes false from the beginning.[iv]

In short, a good jurist – be it a lawyer, prosecutor, judge, etc. – will know that an unknown fact or an ignored circumstance can change the description of the actions of the agents involved, changing the consequences of their actions and the outcome of lawsuits. These additional elements can "destroy" a certain description of the action and "produce" a new one, with different consequences.

It is precisely to these two elements that the defense of Our Lady lends itself, after her invocation by João Grilo. She then brings new elements to the judicial debate that unfolds before Jesus and the diabolical accuser: (a) the baker Eurico placed himself in front of the woman at the hour of death to protect her, deserving to be praised for her courage and loyalty; (b) his wife Dora recognized her adultery at the same time, asking for forgiveness; (c) the Priest and the Bishop bless their own executioner, praying that his soul be saved: “Father, forgive them, for they do not know what they are doing!”, affirms the Bishop, echoing the teaching of Jesus; (d) Severino is recognized as incapable of his actions, seen as “a mere instrument of divine wrath”, as he saw his parents being killed unjustly by soldiers as a child.

So far so good. But there is an additional element of drama that shows another very interesting aspect about the relationship between practical rationality and the law. Because (and) João Grilo is the one who has the most difficulty raising an argument that mitigates his guilt: in the “moment of truth”, João recognizes that “that is where he is chipped, because with him it was in the lie”.

It is at this moment that one of the great issues of the connection between law and practical reason comes into focus: the logical distance that exists between rules, characteristically universal, aiming to cover some class of cases, and the actions that judge, always particular. Our Lady raises the circumstance of João Grilo's poverty: “cunning was the only weapon he had against the powerful”, and describes the misery he went through in life. Jesus ponders: “I understand the situations in which John lived, but this also has a limit. I don't think I can save him." Deep down, the problem of practical reason that arises, with fundamental application to law, is the following, if we remove the case from the religious sphere and take it to the law: should the judge let himself be carried away by his feeling of compassion, or is there really a circumstance that modifies the description of João Grilo's actions?

Jesus seems to lean towards the second hypothesis; at most, poverty is a pitying circumstance, mitigating but not excusing his guilt. Therefore, João Grilo returns to life, fulfilling an “alternative sentence” and heavier than that of the others, sent to purgatory. But there is no judgment by benevolence, as such; that would be to forgive João Grilo without an acceptable exception that could be universalized for other cases.

The reflection that remains is about the role of forgiveness, mercy or charity (caritas), the maximum virtue of the Christian faith, in law. In Aristotle, equity is not confused with any of these other virtues. Equity corrects the literal application of the law when the distance between the universal and the particular proves to be unbearable. As Alejandro Alvarez says, analyzing Hart's famous example about “vehicles in the park”: (i) there may be a semantic problem when a linguistic doubt generates controversy about whether or not the case applies to the terms established in the text of the law; or (ii) there may be a factual problem, when discussing whether the case is exceptional to the point of suspending the application of the legal consequence provided for in the rule. The first problem expands or reduces the number of cases under which the rule applies, while the second suspends the rule in certain contexts.[v]

Jesus looks for a justification in the case of João Grilo; but the only thing Our Lady can offer is the circumstance of her poverty. The final judgment follows Aristotle, even though he is a religious example: it is rational to have compassion for João Grilo and, therefore, to mitigate his penalty. But exempting him completely would be an act of charity that disregards his free will. Not even religion can disregard the responsibility of agents for their actions. But it is characteristic of a good judge “to remember more the good than the evil done to us”, balancing the injustice with a dose of forgiveness.[vi]

Brazilian law operators could well take better advantage of this maxim. After all, the judgments of people in extreme poverty continue to be rigid in the same line with which the Accuser of the analyzed film would like the law to apply. On the 16th, a homeless person was arrested after stealing a cold blouse worth 55 reais in Cruzeiro (SP). As temperatures hit record highs across the state[vii], a police chief thought it fair to set up arrest in flagrante delicto for theft, with a bail of 1500 reais – obviously not paid by the accused –, and the judge of the District of Guaratinguetá thought it best to maintain the arrest, because “despite the fact supposedly committed without violence and/or serious threat to the person, the defendant has several criminal records, has already been convicted of property crimes, and is currently facing recent lawsuits for the alleged practice of similar crimes.”[viii] That is, for the judge, poverty is a dangerous circumstance, as it encourages “criminal recidivism”, as he states in the decision.

It is clear that Ariano Suassuna's work exposes a religious judgment; but the parallels with law are obvious. In the first part of the judgment, there is an implicit reflection on natural justice, marked by equality before the law as the first expression of justice in life in society. As law is a practice that aims at judging actions, via the attribution of legal consequences based on rules, it must allow for equality of defense in trials, with some separation between the roles of judge, prosecutor and defense attorney, in addition to a space exchange of reasons and arguments. This is a general thesis about the nature of law, and about the need for a good jurist to understand the relationship between law and justice.

The second part of the judgment exposes a wound in Brazilian society to which the Brazilian way of applying and thinking about law continues to turn a blind eye. Our judicial system continues judging and condemning people left to their own devices due to the inefficiency of the same institutional structure that fails to guarantee them basic dignity. To sharpen the sensitivity of a law operator in training, the work of Suassuna (who had a degree in law) is a fantastic reading key for anyone who wants to reflect on law in the Brazilian context, where poverty and oppression are still the tonic of the life of a large part of the Brazilian population. At the same time, we sought to show with the discussion on equity that there are objective and rational criteria for making good decisions in the context of law.

The parallel between Suassuna's work and the growing resumption of practical reason in law helps to show that legal judgments are not a matter of sentimentality, but of justice. Knowing how to apply the law well involves understanding what it means to act and decide well. Ignoring practical rationality in the legal context will be the same as ignoring these issues, confusing law with a technique that equates people with cattle. If so, our sentences will be (or will continue to be) much heavier than the cold and calculating virtue of justice demands.[ix]

*Martin Magnus Petiz Master's student in Philosophy and General Theory of Law at the University of São Paulo (USP).

Notes


[I] The thesis has been affirmed many times, including with sophistication typical of a first-class legal historian, by Prof. José Reinaldo de Lima Lopes. See LOPES, José Reinaldo de Lima. The words and the law: law, order and justice in the history of modern legal thought. 2nd ed. rev. amp. São Paulo: Editora Madamu, 2021. LOPES, José Reinaldo de Lima. Legal Naturalism in Brazilian Thought. Sao Paulo: Saraiva, 2014.

[ii] José Reinaldo de Lima Lopes remembers in his Course (LOPES, José Reinaldo de Lima. Philosophy of Law Course: Law as Practice. 2nd ed. rev. and current. Barueri: Atlas, 2022, p. 370-371) that John Rawls, the greatest political philosopher of the XNUMXth century, claims to be a basic condition of the justice of a system of political institutions that the authorities know how to judge based on rules, and not under personal influences, monetary or other irrelevant considerations.

[iii] HART, Herbert Lionel Adolphus. The ascription of responsibility and rights. Proceedings of the Aristotelian Society, New Series, Vol. 49, 1948, p. 171-194.

[iv] ANSCOMBE, GEM Two errors in action. In: ANSCOMBE, GEM (Ed.). The collected philosophical papers of GEM Anscombe. Vol. 3: Ethics, religion and politics. Oxford: Basil Blackwell Publisher, 1981, p. 3.

[v] ALVAREZ, Alejandro. Interpretation of law and equity. Porto Alegre: Editora da UFRGS, 2015, p. 205-206.

[vi] ARISTOTLE, Rhetoric, I, 13, 1374b.

[vii] NETO, Francisco Lima. Frio beats a new record in São Paulo with 9,8°C; south zone reaches 3,9°C. Folha de São Paulo, 2023. Available at: https://www1.folha.uol.com.br/cotidiano/2023/05/frio-bate-novo-recorde-em-sao-paulo-com-980c-zona-sul-chega-a-390c.shtml#:~:text=A%20temperatura%20bateu%20novo%20recorde,da%20Prefeitura%20de%20S%C3%A3o%20Paulo>

[viii] FERREIRA, Lola. Justice denies habeas corpus to man who stole R$ 55 cold blouse in SP. Available in: https://noticias.uol.com.br/cotidiano/ultimas-noticias/2023/06/19/furto-blusa-de-frio-cruzeiro-sp.htm?cmpid=copiaecola.

[ix] Thanks to Otávio Almeida, Matheus Della Monica and Gilberto Morbach, who read an early version of this text and kindly shared with me their views on the writing and also on the work.

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