By JOSÉ MANUEL DE SACADURA ROCHA*
No Constitution has ever been among us the mirror and support of the nation, because the nation has been artificially built
Carlos Cossio's parable on the positivist value of a Constitution is well known. In times when ours seems destroyed at the mercy of the petty interests of power, it is worth asking where the “force of law” comes from, Jacques Derrida's question, and long pursued by the philosophy of law.
The parable by Carlos Cossio, “addressed” in a face-to-face debate to his master Hans Kelsen, was: “Why after all did the French during the Great Wars, when they protected by hiding their most valuable works of art, so that the Germans would not destroy them, not hidden their greater good, in this case, why not hide the French Constitution?”. Hans Kelsen obviously realizing what Carlos Cossio was getting at remained silent. Carlos Cossio said: “Because for the French the Constitution is in the heart of each one of them, or it will not be anywhere!”.
There, the debate was about the “weight” and “strength” of the formalized law, and about the relevance of the conjunction of state systemic practices for the formation of a justice system. Looking now at what they do with our Constitution for greed and power, just proves that Carlos Cossio is right: it is nowhere, it is not in our hearts (Egological Theory of Law)! I am not referring to the hearts of those who vilify and trample on her without scruples and without remorse.
José Canotilho, the immense Portuguese constitutionalist from whom so much and so many learned, said that the Constitution was the “mirror of the nation”, from which it drew its strength and its popular representation, and later, in the form of an outburst, it already said that “it does not makes sense today to write about the Constitution”, because it is seen, by leaps and bounds, that people are less and less interested in the values of living as a nation, both from the point of view of global economic movements and the collapse of the matrix values of their cultures . I would say that in the end the first (economic) movement also accounts for the second (cultural).
But in the Brazilian case, the problem is deeper, even if it is on the surface of our historical sociability - contrary to what constitutionalists would think, it was not the Brazilian people who craved to be a nation and craved a Constitution inspired by itself, in its values and culture, in their sovereign unity as a nation, but exactly the opposite. Between us, historically it was the law that wanted to make us a nation, and of course, it never did!
Those who achieved it for their own benefit were the elites who “imagined” the nation and the Constitution as an alien example to form a country at the service of their petty class interests, with the law against small people and in favor of minorities. No Constitution has ever been the mirror and support of the nation among us, because the nation has been constructed artificially (arbitrarily, for Jean Domat) by a Constitution.
There is something that needs to be repeated: citizenship (the belief in the rights of citizens) cannot just remain in the “dead letter of the law”; citizenship has to be “an egological principle”, to repeat Carlos Cossio, it has to be impregnated, “incarnated in the egos” of people, and that is why it must be transposed, by necessity of social organization, into the law. Popular participation for the 1988 Constitution was the first attempt to say: “yes, we are the Brazilian people, we are the Brazilian people”… But we just said it…
But, soon afterwards, the interests of the elites organized themselves to return, despite and within the Constitution, to reign in their hereditary sesmarias and captaincies, something like that, in which the nation does not exist and where the emptying and total disregard of Citizenship rights are compulsorily exchanged for a favor, or as Roberto DaMatta says, for “do you know who you are talking to?”.
The colonial system did not end with us, like our 1988 Constitution, because the patrimonial system (as Raymundo Faoro taught us) remains eternally among us as an infinite and scabrous payment for the end of the heinous privileges of slaveholders and slaveholders. In any other country whose nation was taken seriously by the people and in their hearts the value of citizenship, justice and freedom was deposited, as Cossio said to Kelsen, the Constitution would not be disdained, denigrated, violated, trampled and torn opportunistically by those who only they just yearn to assault the power of the Republic. Because of this, many countries in the world and in the Americas made revolutions and are still fighting battles that want to be definitive to cement once and for all the sovereignty of the people and their sacred rights of citizenship.
The “force of law” is either in the most intimate forum of each one of us, or it simply does not exist, although some efforts by institutional bodies to maintain integrity and respect for the Constitution are commendable. In fact, we are still in our infancy to be a nation that respects its Constitution, that is, that truly respects the rights of all citizens. If it's not too late, let this be the last battle to decide what citizens we want to be and what country we want to have for ourselves (and in our hearts)!
The values deposited as the rights of all men and women also have limits, they cannot be just any number: obviously, the rights of citizens cannot exclude respect for democracy, as it alone believes in justice, equality and freedom for all. It is this belief in ethical justice, and for being ethical, that sinks deep into our egos, as in Immanuel Kant, the possibility of being a nation of respect in our own eyes.
*José Manuel de Sacadura Rocha He has a PhD in Education, Art and Cultural History from Mackenzie University. Author, among other books, of Legal Sociology: foundations and frontiers (GEN/Forense). [https://amzn.to/491S8Fh].
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