Who says who hovers above the law?

Image: Евгения Егорова


In a country marked by state violence, it is important to discuss whether public agents are above the law

It was November 7, 1975, late Friday afternoon, when a man crossed Avenida São Luís, in the center of São Paulo, number 50 and, decided to speak, went up to a law firm. Two weeks had passed since the 25th of October, when a note was released by the Command of the Second Army informing that the director of the Department of Journalism at TV Cultura, Vladimir Herzog, had been found dead inside military facilities, after presenting himself, voluntarily, to provide clarification.[I]

The official thesis of suicide that was attempted was not well accepted by different sectors of civil society and was only no more repulsive than the hypothesis speculated as the true cause: torture to death.

The army note drew attention for presenting a version of the facts in which Vladimir would have been found dead hanged by a strip of cloth, after being left alone and locked in a room. Along with this, in the released photos, Herzog appeared suspended in an absolutely unrealistic position, which inflamed and sensitized public opinion.[ii]. For this reason, through Ordinance No. 03-SJ, five days after the death, the Commanding General determined the initiation of a police-military inquiry to determine the circumstances in which the, italics added, “suicide” of journalist Vladimir Herzog occurred. .

The word caused strangeness due to the direction it promoted. Why not investigate the circumstances of Vladimir Herzog's death?

The inquiry reiterated the conclusion that the cause of death was suicide, with no military criminal offenses of any kind committed by DOI-CODI agents.[iii]. For this, an autopsy report signed by two coroners was used, which led to a request from the Military Public Prosecutor's Office to close the investigation, which was accepted by the Military Justice. Judicially, there seemed to be nothing more to be done.

Fourteen days after the fateful October 25, 1975, however, the testimony of Rodolfo Osvaldo Konder, journalist, friend of Herzog, arrested concomitantly with him, would begin to dismantle the version of the armed forces and encourage a declaratory action[iv] which, three years later, would make the Union responsible for the death of Vladimir, in a rare sentence against the military regime.

He said: “At six o'clock in the morning of the twenty-fourth of October this year, the bell at my house rang, and when I went to answer it, I saw that it was three police officers, who told me that I should accompany them to provide some clarification. (...) At the entrance, they put a black cloth hood over my head and took me inside the DOI. Inside, they made me take off my clothes, gave me an army jumpsuit, and I sat on a bench in the jumpsuit and hood. (…) I was taken to the first floor, as I was on the ground floor, and someone started asking me questions about my political activities. She started to get exasperated and threaten me, because she wasn't satisfied with the answers I was giving, and she called two people into the interrogation room, asked one of them to bring the , which is an electric shock machine, and from there I started to be tortured. (...) Then they installed it in my hands, tying the ends of the electrical wires connected to that machine to the thumb and forefinger; binding was on both hands and also on the ankles. They forced me to take off my shoes so that the shocks would be more violent. While the interrogator was turning the handle, the third member of the team, with the end of a string, would shock me in the face, over the top of the hood and sometimes in the ear (…) To get an idea of ​​how violent the shocks were, it is worth recording the fact that I could not control myself and defecated, and often lost my breath.”

And it continued. “(…) As soon as we entered the room, the interrogator ordered us to remove the hoods, so we saw that it was Vladimir, and we also saw the interrogator (…). He asked us to tell Vladimir that withholding information was pointless. (…) Vladimir said he didn't know anything and the two of us were taken out of the room and taken back to the wooden bench where we had been in the next room. From there, we could clearly hear the screams, first from the interrogator and then from Vladimir and we heard when the interrogator asked for the chili pepper to be brought to him and asked for help from a team of torturers. Someone turned on the radio, and Vladimir's screams mingled with the sound of the radio. (...) At a certain point, Vladimir's voice changed, as if he had put something in his mouth, his voice became muffled, as if a gag had been put on him (...) ”.

Disgusted with the farce told by the military regime, Herzog's widow and children filed a declaratory action before the Federal Court of São Paulo, with the aim of declaring the Union responsible for the illegal arrest, torture and death of Vladimir.

In a brief defense, the defendant - União - maintained that there would be preliminary extinction that prevented the judgment of the action, given that the claim would result from facts that "had already been judged by the Military Justice"; moreover, he reiterated that Vladimir had not been arrested, since he had voluntarily presented himself, as well as relying on the autopsy report to reaffirm the suicide.

In the reply, perhaps one of the most important pieces of Brazilian judicial history on torture, the plaintiffs, through their lawyers, made a point that deserves to be highlighted: “The idea that, through this action, the to demoralize authority. Demoralize how? All that is sought is the recognition of the responsibility of the Union for the acts of its agents, who, contrary to what one might think, do not hover above the law and, therefore, cannot, with impunity, act in defiance of legal rules, in flagrant violation of regulations. To blame is not to demoralize. Quite the contrary, it is to ensure respect for legality and institutions, a duty from which no one can validly exempt themselves”.

In front of both sides, in 1978, Judge Márcio José de Moraes issued a sentence declaring that under any angle of the State's civil liability theory, the Union would be responsible for Vladimir's death.

The judgment said that Herzog had died of unnatural causes, noting that there were not enough elements to support the inconsistent version of the Union that he was not arrested, as well as the military regime was unable to justify the reason for the victim to carry a usable belt for alleged suicide. In addition, based on the instruction hearing, in which the coroner and expert in the case, Harry Shibata, stated that he never saw the body of Vladimir Herzog, but only ratified the report prepared by the first expert, the judge rescued the legislation on the subject to completely invalidate the expert report, since it had to be prepared in its entirety by two different doctors, and it was not enough for only one to examine the body.

As the expertise was declared false and without probative value, the judge concluded through the other evidence that there was abuse of authority and torture against Vladimir Herzog, declaring the responsibility of the Union for his death[v]. After an appeal was filed by the Union, the Federal Court of Appeals once again declared the State's obligation to compensate for damages resulting from Herzog's death, a decision that became final.

The military government's responsibility for the cruel death of a civilian was embedded, even when the State did everything to deny the truth, including manipulating official documents. This story, considered a milestone in the fight against dictatorship abuses in the Brazilian judiciary, introduces the topic that will be addressed in this article: are public agents above the law?

Studies on the perception of law by society and its practice by public agents often lead to questions about its nature. And in this aspect, there are convergences, although not absolute consensus, as well as some concepts that are repeatedly investigated. One is coercion.

Jeremy Bentham (1793) and his well-known disciple John Austin (1832), both English, argued that the characteristic feature of law resides in the way in which it tells us what to do and threatens us with negative consequences if we do not obey. This idea, for many years notable, highlighted the coercive aspect of law, and faced its greatest criticism when it was opposed by Herbert Hart (1961). In his argument, Hart exposes that law could exist without coercion, whenever agents (law operators or not) internalize a set of rules.

In this respect, the fact that these rules are ordinarily upheld by the use of force could be an important point about how the law operates, but irrelevant as a philosophical and conceptual issue. An idea of ​​great innovative value, it was deepened and followed by many in the field of legal theory, reducing the importance of coercion in conceptual analyses.

But it is not uncontested. Frederick Schauer, in his 2015 book, The Force of Law[vi], questions whether force and coercion are really all that irrelevant to explaining the nature of law. From this perspective, it takes the counter-majoritarian current to refute the idea that many people just obey the law just because it is the law, and raise the need for coercion in theoretical analyses. In this vein, since coercion is important for the law, would it be the same for everyone? Is there a difference between public agents? What legal mechanisms are evoked in these equations?

Let's move on to discuss the ideas presented by Schauer. It is noticeable that the law is not alone in the world of normative universes, that is, what demands behavior from us. Morality demands behaviors from us, and so do customs, etiquettes, social norms of sports, educational institutions and family. The most latent difference, however, is that the law, unlike the other listed norms, has resources to compel us to comply with it in ways that other systems do not have.

In this view, the law forces us to do things we don't want to do, as well as some of those we want to do, but in a specific format. He insists that we act in accordance with his wishes and rituals, despite our personal interests, and often with even common sense in mind.[vii]. With that in mind, disobeying a social conduct can generate disapproval, but what makes the law different at its disposal are systematic, often severe and highly relevant sanctions, something much more complex than simple disapproval. That, then, would be your nature?

The philosophical study of the nature of law has a long and distinguished pedigree. Plato, in The Laws, The Republic e The politician, it was followed by subsequent generations: Aristotle, Cicero, St. Thomas Aquinas, Hobbes, and many others. However, many important aspects start with Jeremy Bentham.

In the face of different kinds of mandates around us, what for Bentham was distinctive of the suggestions of law from the others would be his ability to relate his commands to the unpleasant threats of sanctions, such as fines, imprisonment and even death. To have a legal obligation, then, was simply to be in an official state of compulsion, and without that possibility there would be neither legal obligation nor right.

Thus, followed by Austin, Bentham even believed in the possibility of making moral critiques of law, although he understood that this was largely irrelevant to the operation of law as it actually existed.[viii].

Against this convergence, however, Hart, in the following century, had the core of his philosophy of law based not on the idea that law coerces, but on the argument that law confers powers, and this would indeed be its most important characteristic. In this way, the law establishes structures and concepts through which people can materialize their wills.

This would be an important part of the law, which we perceive and also call law, but which is not threatened by the use of sanction or force. For this reason, the nature of law could not be reduced to sanctions. Oppositely, law must be understood as an understanding of rules, in the sense that citizens accept and use those rules. For example, it may be that someone wants to kill a person, but what matters is that socially he stops committing the crime, even if he is not necessarily concerned with the sanction. She internalized the right.

Internalizing and obeying the law just because it is the law is a topic with relevant stories.[ix], since Socrates and his insistence on recognizing and accepting his sentence, even when he believed within himself that he had been unjustly condemned. About this, Hart was responsible for establishing the figure referred to as the “perplexed man”, the one who wants to know the law not because he is bad and wants to disobey it, on the contrary, he wants precisely to comply with it, without being coerced to do so. In Schauer's words about Hart, the puzzled man is willing to fulfill the law just because it is the law, and a description of the law that fails to take the puzzled man into account would simply be disconnected from the facts.[X].

This would be the defeat of coercion as the main factor of the nature of law, in Hart's theory. But there's a catch. The assertion that there is a relevant number of “perplexed men” in society, in such a way that they become predominant to the point of justifying obedience to the law, is empirical, given, taken as an assumption and, therefore, subject to criticism.

Far from being the purpose of this article to exhaust the debates that exist on this subject, some considerations taken by Schauer are important to take us where we want to go. For him, after analyzing a series of examples of social behaviors, “coercion can be for the law what flying is for birds: not strictly necessary, but so ubiquitous that a complete understanding of the phenomenon demands that we consider it”.

Furthermore, we could understand and agree that too insistent a focus on coercion can leave parts of the law unexplained, in the same way that blindly following the idea of ​​internalization is a mistake. Never mind, the role of coercion in explaining law is there. Denying the importance of the force of law is, for Schauer, an increasingly perverse posture, even accepting that perhaps it is not essential for all possible legal systems.

Continuing on, it is common and observable in legal systems that citizens and public agents are committed to the system for reasons that are independent of sanctions, but also because the law obliges them to commit. From this perspective, it is particularly relevant that sanctions do not simply appear out of nowhere, they are imposed by someone.

But what would lead public agents to threaten certain sanctions and not others? The quick answer is that you are required to enforce laws by other laws. But it should be seen that this could be a question taken to infinity, if the resources of Bentham and Austin were used to indicate motivations of public agents, focusing on punishments or incentives. Eventually this explanation would be exhausted, explains Hart, by a simple question: who threatens the supreme sanctioner?

In carrying out this investigation, one of the arguments that Hart used stands out, introducing the so-called rule of recognition, a secondary rule that would allow citizens and public agents to determine whether a primary rule that regulates conduct would or would not be a valid legal rule. In turn, what would make a secondary rule of recognition valid is precisely a legal rule of superior recognition, and another, and another, and, typically, a constitution.

But what makes a constitution valid? In a sentence: many things, not necessarily the same in different places.

For Hart, the constitution is an ultimate source of legal validity, but its own validity is a matter of social fact. It is valid by virtue of its acceptance, and the fact that it is accepted makes it the ultimate source of legal validity.

Thus, while legal systems may arise by virtue of a society's cooperation and coordination around common goals, a sufficiently powerful individual despot (or a group of them) may well create a legal system based solely on its own coercive power.[xi] In the end, the whole structure rests on the brute power of that individual or of a small authoritarian group, as happened in the typical Absolutist States of the Modern Age, as it docked in America with the caravels of the conquerors[xii], and how it was replicated in the Brazilian military regime installed in 1964.

In the case of the Brazilian military regime of 1964-1985, the biggest difference resided in the fact that there was a series of laws that structured the legal order of the country, pre and post coup, but which were repeatedly violated by agents of the military wing of the government, often with a blind eye by other public agents, precisely because of the fear of the use of force. In this regard, the judgment handed down in the case of the declaratory action of Clarice Herzog and her children against the Union is, at the same time: rare for the historical moment, configuring a true point outside the curve; and highly grounded in the laws in force in the country and therefore legal.

However, one should not be mistaken, the said sentence could very well not have been handed down.

This leads us to another interesting point addressed by Schauer, moving towards the end. It is not just the threat of sanctions or the internalization of the law that influences the behavior of public agents in the exercise of order, but another element.

Schauer demonstrates that the acceptance and obedience to the law, even in the absence of sanctions at the top of the legal hierarchy, is, in fact, a puzzle that the description of the law based exclusively on coercion has no answer, surviving important questions about official obedience. When talking about high levels of power, for example, apparently all you have are rules indicating how they work, without sanctions.

The author demonstrates in his book, through a series of examples, that, in the uncertainty of mechanisms such as the sanction or the internalization of the law, a primordial element stood out in the control of the actions of high-ranking public agents: the acceptance or rejection of political results . To illustrate, it tells the story of the Obama administration, which carried out attacks on Libya in the context of the overthrow of the dictator Colonel Muammar al-Gaddafi in 2011, surpassing a legal provision that prescribed a maximum period in which the American executive could maintain hostilities with a foreign nation. without the need to obtain approval from Congress, which ended up being largely ignored, after positive results.

On these occasions, therefore, and on many others, the illegality of public policies and decisions that turned out to be well received was largely ignored, considering their effects. What is also true in the reverse version, that is, when the actions turn out to be unsuccessful and poorly received, the application of regulatory law seems to make a lot of difference and moves crowds.

Tracing analysis, it is possible to identify that this is what happened in the case of the judgment of the declaratory action regarding the death of journalist Vladimir Herzog. There is no doubt that the version that the Union tried to support not only contained a lie, in the attempt to avoid its responsibility by faking a suicide, but also carried a hidden meaning behind the arbitrary arrests, torture, deaths and disappearances, that of having full conviction of doing something good, “riding the country of undesirables”, simply put.

This narrative was so strong that it supported illegal actions for a decade until there was the first sentence making the State responsible and condemning an illegal death, which was only possible, no doubt, in the face of the horror with which the story was received by different sectors of society. and subsequent awareness.

Thus, the allegation is not that there cannot be political sanctions or public opinion for illegality. It can, but the question is whether these sanctions tend to be imposed by illegality itself, or whether they observe other effects of the actions of public agents, legality or illegality making little difference. The second hypothesis seems stronger when analyzing real examples. Political or public opinion-forming processes seem rarely to take the right itself as an important determinant of rewards or punishments. Let's say the hypothesis: it doesn't seem that people were horrified by the murder of Vladimir Herzog simply because it was against the law, hundreds of other people died before him in similar circumstances and the silence fell, they were horrified and reacted by not endure more the regime of fear and violence imposed by an authoritarian group, despite the threat of sanctions, including.

On the other hand, it was precisely this unacceptability that created the conditions for a sentence such as the declaratory action to be handed down, using existing procedural means and applying previously established laws.

There is much to be considered, but all that has been said so far brings us, finally, to a facet of the law that is little noticed, although it is of enormous relevance.

Schauer says that numerous personal and political dynamics will lead public agents, even well-intentioned ones, to have great confidence in the wisdom and even the morality of their political conclusions, even if they are not in full compliance with the law.

But the law, beyond the obvious pretense of preventing bad people from doing bad things to the detriment of society, also exists in part because neither good faith nor trust are particularly reliable indicators of the wisdom of public officials in their actions. This other role of law, especially apparent in the context of constitutions, has as its main objective to prevent well-intentioned public agents from making the wrong decisions, even though they believe they are the best ones.

Understanding restrictions from this perspective helps to visualize that sanctions and coercion can be even more relevant in contexts of public law than those of private law, where they are commonly remembered more frequently.

*Vitor Piazzarollo Loureiro is a master's student at the Department of Philosophy and General Theory of Law at FD-USP.



DUSSEL, Enrique. 1492: El Encubrimiento del Otro: hacia el origen del “myth of Modernity”. La Paz: Plural, 1994.

HERZOG, Clarice. Case Herzog: the full sentence of the lawsuit filed by Clarice, Ivo and André Herzog against the Union. Rio de Janeiro. Salamander. 1978.

HART, Herbert Lionel Adolphus; HART, Herbert Lionel Adolphus; GREEN, Leslie. The concept of law. oxford university press, 2012

SCHAUER, Frederick. The force of law. HarvardUniversityPress, 2015.

SCHWARTZMAN, Simon. Bases of Brazilian authoritarianism 1982.



[I] Vladimir was sought out on the night of October 24, 1975 at the premises of TV Cultura by agents of the military regime. However, through the intercession of the station's directors, who argued that he could not leave without affecting the channel's programming, the military decided not to take him that night, with the commitment that he would show up the next morning, which Herzog did.

[ii] In an ecumenical celebration held in his honor at the Catedral da Sé, in the center of São Paulo, 8 thousand people attended.

[iii] DOI-CODI, acronym for Operations and Information Detachment – ​​Operations and Internal Defense Center.

[iv] Process 136/76.

[v] HERZOG, Clarice. Case Herzog: the full sentence of the lawsuit filed by Clarice, Ivo and André Herzog against the Union. - Rio de Janeiro. Salamander. 1978.

[vi] Schauer, Frederick. The force of law. HarvardUniversityPress, 2015.

[vii] A simple example is to wait, as pedestrians, in the lane even if no car is coming. Or, as a driver, stopping at a red light at dawn even when there are no other cars on the street.

[viii] A person being prosecuted for exceeding the speed limit can claim that he does not agree with the limit established on the road, but this is irrelevant in the analysis for him to suffer the penalties.

[ix] Philosophers and non-philosophers discuss this topic, regarding a content-independent obligation to obey the law. Hobbes and Locke found the basis of this obligation in the social contract. Rawls located the source of obligation in principles such as fairness and reciprocity.

[X] Not just talking about the perplexed man, Hart went even deeper in his critique of Austin and Bentham's theories. Briefly, he developed a differentiation between constitutive and regulative rules, it is explained. Regulative rules are that type of rule that provides a conduct for a situation whose conceptual existence is prior to the rules. For example, there is the ability to drive a car at 130 km/h on an avenue, regardless of the law, but it is possible that the law limits this conduct by means of a rule. However, there are rules that create possibilities that would not exist without them. For example, it is not possible to score points without the rules of golf, only if you would be putting a ball in a hole. Thus arise the constitutive rules, which are those that institute a corporation, a will, a fiduciary alienation. A group of people can come together to make something like a partnership, but they can only create a corporation based on the legal rules that establish that idea. Would this be contemplated by the theory of coercion? It seems not. The law would hardly be coercing anyone to make a corporation or a will, although you can do that.

[xi] Dworkin and Hannah Arendt observed, for example, that many public agents in Nazi Germany obeyed government commands as a right, but mostly out of fear or detachment, considering their acts as “acts of the State”.

[xii] The Argentine philosopher living in Mexico, Enrique Dussel, does a brilliant job in his book “1492: The cover-up of the other (The origin of the “myth of modernity”)” by demonstrating the violence present in the conquest of America by Europeans. Through historical documents, he explains that the meeting of civilizations was marked by the annihilation of culture, religion, health, populations and cities of the inhabitants of the new continent, and more than that, transferring to the conquered the “blame” for the historical event , and should be grateful for the arrival of European modernity in a largely backward place. This relationship hides, above all, the irrationality of the conquest, which violently subjugated the indigenous people and installed, by force and coercion, a new social, military, religious and political order.

In the same sense, Simon Schwartzmann in his book “Bases do Autoritarismo Brasileiro” describes, through historical channels, the formation and perpetuation of “neopatrimonialismo”, from the economic development of regions of Brazil, throughout the colonization, and its subsequent decline, the which made the political facet of the State a kind of business to be taken and usurped by the elites for their own benefit, as a way of perpetuating their own economic interests and protecting their capital and influence. Not as a function of society, the state apparatus serves to honor and serve only a small ruling class, more or less cohesive among themselves, and ready to co-opt anyone who threatens this imbalance.

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