Posts Tagged ‘Direito’
Contractualism and Innocence
30
Mar
The great discussion of the contractualists was about the non-innocence of the person, they are
all defenders of the powers of the state and, ultimately, of in dubio pro societate (when in doubt, in favor of society and not of the defendant), Hobbes saw man as evil and the state should police it, Locke saw how it limited the powers of the state and gave the people the right to rebellion and Rousseau saw man as good, society is what corrupted him.
None of them denies the need and priority of state powers, as they were pillars of all modern country constitutions, and their update is in John Rawls and his successor Michael Sandel.
Both were Kantian idealists and utilitarians, but there is a small difference in that Sandel criticized Rawls’s voluntarism, according to which political and moral principles are legitimized from the exercise of individual will through choice or consent.
Locke’s empiricism claimed for this: “we are all, by nature, free, equal and independent, no one can be excluded from this situation and subjected to the political power of others without having given his consent” (1988, section 95).
In order to understand Sandel’s position, it is necessary to read at least the work that we indicate or clearly understand his examples, which seek to make his concepts practical and clear, in relation to belonging to groups, as a guarantee of collective interests (he rejects the term communitarianism). cites two cases: that of a French resistance pilot who during World War II refused to bomb his hometown, even though he knew that this would contribute to the liberation of France (2012, p. 279), belonging to his hometown.
The second example is that of a rescue operation organized by the government of Israel to save Ethiopian Jews from refugee camps in Sudan (2012, p. 280), belonging to the Jewish people.
However, in one of his famous lectures in which he gives other examples, and makes several dialogues with the audience, he is caught in contradiction when he gives the example of 6 patients arriving at an emergency room and 1 is in serious condition while the 5 patients who need donation of different organs to survive and the patient in serious condition requires a lot of care time, asks the question if he would let him die to help others.
Most people agreed to let him die, but a young man (in the photo) said he had another solution, out of the 5 who were about to die, the one who died first would donate his organs to the others, which left Sandel embarrassed and arrived at admit: “it’s a good idea, except for the fact that it destroyed the philosophical point of view” (see video below).
There are interpersonal and ontological relationships that go beyond mere subjectivity, it is something between beings and not just between beings and their cultures or belongings, it is in a kind of collective soul, in a noosphere where everything is more than logical, it is onto-logical.
(155) Justiça com Michael Sandel O Lado Moral do Assassinato – YouTube
LOCKE, J. (1690). “Second Treatise of Government”. In: Two Treatises of Cambridge Government: Cambridge University Press, 1988.
SANDEL, M. (2012) “Justice – what is to do the right thing”. Rio de Janeiro: Brazilian Civilization.
Innocence and right
28
Mar
In another post, we have already drawn differences between innocence, naivety and ignorance,
the first being something we are unaware of, however we perceive the harm (or good) in the act, naivety is when we are unaware of the effect of an act that it can cause and ignorance it is when we are unaware that there is an evil in a practiced act.
We dealt with this situation in a post made some time ago, and in the previous post about the current war.
Violence is evil practiced intentionally, and in this case it goes beyond deceit and is usually the victim of some kind of hatred, revenge or mere distemper, there is always something of ignorance in violence.
Some authors treated this philosophically and there are those who see in innocence a “danger” in which it would be possible to adhere to some evil committed, Nietzsche saw it this way, but for current authors this is seen from the legal idea of presumption of innocence, in doubt pro reo.
The thought that opposes this is the in dubio pro societate, in this case the promoter of some illicit act must file a complaint in favor of society, the opposing arguments are in the decision of the values of dignity and the right to freedom, and here is the presumption of innocence.
For idealists like Kant, the individual is endowed with reason and dignity, so performing an action for a reason outside its causes and not because it is the right thing to do and this is in favor of freedom.
For this reason Bauman will discuss mixophobia, that is, the desire to oppose those who are different, strangers or minorities, the more the world becomes global and plural this must appear in larger doses.
In Bauman’s view this would be increasing fear in cities, if he lived through these times of pandemic and polarization perhaps he would perceive more clearly that there is a greater basic problem, one that comes from cultures and environments where the desire to isolate oneself from the different.
One of the greatest lecturers on this subject, bringing together large audiences in his lectures is Michael Sandel, we will see later, but Freud in a way anticipated this in Civilization and its Discontents: “An unrestricted satisfaction of all needs presents itself as the most tempting method of conducting our lives, however, means putting pleasure before caution, immediately incurring its own punishment.”
People live under global risks, where everything can turn into explosive and violent situations.
BAUMAN, Zygmunt.(2006) Verdade e medo na cidade.(Trust and fear in the city). Translation by Miguel Serras Pereira. Lisbon: Water Clock.
KANT, Immanuel. (1986). Fundamentação da Metafísica dos costumes (Metaphysical foundation of morals). Translated from German by Paulo Quintela. Lisbon: Editions 70.
Law and justice
27
Aug
Human systems are in crisis because if in rhetoric there are new
forms of sophistry, populism is a complex of sophistry, and they have always appeared in the crises of the polis, our justice that comes from the Roman Empire, with strong idealistic and positivist colors, cannot remain on a line of coherence, there is always a double interpretation according to the defendant.
This is due to populism in the current context, more broadly, in the absence of an ethical approach as proposed by Paul Ricoeur, neither the deontological system that claims to be exempt from any metaphysical aspect, nor the
This aim proposed by Ricoeur, as already explained, is not restricted to the field of personal freedom, because by the very requirement of universality it must have a “coercive effect”, this is applied by a force of law, but it is not limited to ethics either ” institutional”, since there must be a set of “estimated good” actions, for example, each person has an intrinsic dignity, death and violence are not fair resources for coercion, and there may be borderline cases, etc.
But an estimated good action, difficult in times of polarization is one that comes from a golden rule, do not do to the other what you would not like to be done with you, there must always be the possibility of discussing the contradictory always, even in actions ” good estimates” and there must be a prevalence of the community over the individual, without embarrassment or excessive “coercive force”, different cultures interpret what is good differently
The limiting and unacceptable discriminatory point, in addition to the sophistry that since antiquity has recourse to rhetoric and the force of persuasion, but demagoguery and public lie, for example, that which omits cases of appropriation of public property as a clear case denial of the common good.
Governance over natural goods and resources that are national or even planetary heritage, not only nature, but also museums, libraries, historic buildings, whatever cultures they may be, cannot be seen as acceptable.
This deontological legalism (which would be justified by the ends), is also present in the Christian biblical narrative, the Pharisees and teachers of the Law asked Jesus about the customs of washing hands, of following the “tradition of the ancients”, as in the passage of the evangelist Mark (7,5-7):
“Why do your disciples not follow the tradition of the ancients, but eat bread without washing their hands?” and Jesus replied: “Well did Isaiah prophesy of you, hypocrites, as it is written: ‘This people honors me with their lips, but their heart is far from me. The worship they render me is useless, as the doctrines they teach are human precepts’. you forsake God’s command to follow the tradition of men”.
For no one can love the God who does not see if he does not love the Other (neighbor) who sees (1 John 4:20).
The current debate on justice
26
Aug
Heir of John Rawls, Michael Sandel is successful, he says what 
he says to many others who are successful: “Those who are successful tend to think it’s thanks to themselves”, certainly if they weren’t a professor at Harvard, they wouldn’t give assisted lectures by thousands of people, and could not speak of polarization without a clearer definition of its own position.
His book A tyranny of merit (Editora Civilização Brasileira, released in September 2020), drew the attention of progressive sectors, but there is a veiled criticism of these sectors, accused of “embracing, in response to the challenges of globalization, a culture of merit that led to a legitimate resentment of the working classes, of disastrous consequences that were manifested, even in the management of this pandemic” (Daily El País, September 2020).
It has the merit (making a paradox) of saying what is obvious, that without a policy of quotas and breaking the barriers of inequalities (including the cultural one that he points out) there is no possibility of mobility for the underprivileged, but the line of thought de Sandel is rooted in the readings of John Rawls, and his work “Liberalism and the Limits of Justice” (Gulbenkian, 2005) is proof of this, and both were colleagues at Harvard.
In the early 1980s, Rawls himself cited Sandel’s communitarian critique as “the most scathing of all” and although he called into question “deontology with a human face” (see the roots of this thought in the previous post), it was an inherent thought. to the Rawlsian theory of a “deontological liberalism” combined with a “reasonable empiricism”, the terms can be found in Sandel’s work.
In order to obtain a “liberal policy without metaphysical constraints”, Sandel called on his colleague Rawls, ultimately, to abandon the deontological argumentation of an “unencumbered self”, “incapable of self-respect” and “self-knowledge, in any morally serious sense”, see that there is an objectivism within what Hegel calls ethics.
Rawls himself had already been led to reformulate his political liberalism, starting from the context of reasonable pluralism and moving away from a comprehensive moral theory of justice.
Sandel’s lectures are successful in the US and now also abroad, and also in his case it is nothing other than the fruit of meritocracy (Harvard in this case), but his works must be read carefully.
SANDEL, Michael. (1982) Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. In Portuguese (2005): Liberalism and the Limits of Justice. Trans. C.P. Amaral. Lisbon: Gulbenkian.
Ethics in the morals of Paul Ricoeur
25
Aug
In his 1990 text, Paul Ricoeur has already elaborated what he called
a little ethics, simplified into three theses:
- the priority of ethics over morals, that is, the priority of the life of the good life (comes from the Greek concept of goodness), with and for others, in just institutions, over the moral norm;
- The need, however, that the ethical approach (here opposes the Hegel/Kantian ethics) through the sieve of the moral norm: this passage from ethics to morality, with its imperatives and its prohibitions, is, as it were, demanded by the ethics, insofar as the desire for the good life meets violence in all its forms; and,
- the legitimacy of a recourse from the moral norm to the ethical aim, when the norm leads to conflicts and for which there is no other way out than practical wisdom, the creation of new decisions in difficult cases, such as in law , in everyday life and in medicine.
Ricoeur clarifies that neither in the etymology of the words, nor in the history of the use of the terms, there is no clear distinction between morals and ethics, but there is a nuance in the term ethics “for the aim of a life carried out under the sign of good deeds” , and the moral term “towards the obligatory side, marked by norms, obligations, interdictions characterized at the same time by a demand for universality and an effect of coercion” (Ricoeur, 1991a, p. 256).
In this sense, its “ethical aim” must be understood, nor is it restricted to the field of personal freedom, since it admits “the requirement of universality and an effect of coercion” nor is it limited to institutional ethics since it must be “under the sign of good esteemed actions”.
It is thus possible to distinguish more clearly in his ethical approach, the distinction between two inheritances, the Aristotelian “ethics characterized by its teleological perspective (from telos, which means ends), and the Kantian deontological inheritance (“morality is defined by character from the norm’s obligation and, therefore, from a deontological point of view (deo of “duty”).
Thus, his analysis, rather than excluding one or another thesis of modern ethics, complements both the work of Nicomachean Ethics, by Aristotle, and the Grounds of Moral Metaphysics and Kant’s Critique of Practical Reason, but without the need for to be faithful to the orthodoxy of neither is not an evasive solution, but an inclusive one.
RICOEUR, Paul. (1991). Éthique et morale, Lectures 1: Autour du politique. Paris, Seuil, Pp. 256-269.
The just and hermeneutics
24
Aug
The traditional concept of Justice is one that comes from the 
Enlightenment and idealism, will have its consecration in the Introduction to Hegel’s philosophy of law, the margin of this right survives Christian, Islamic and other beliefs (Haiti, for example, had a Creole constitution) , but always the margin.
One can, for historical reasons, return to Kant and Fichte to discuss theoretical questions of justice, but the modern state and its laws, which are the foundations of contemporary justice, at least in the West, have their foundation in Hegel, and an essential concept there is that of ethics, which comes together with the idea of justice based on the equity itself and not on what is fair.
So Hegel theorizes ethics as “objective morality” or “ethical life”, remember Kant’s categorical imperative: “acts in such a way as to be a model for others”, thus an individual morality, but Hegel’s two abstract concepts they are law and morality.
The scope of ethics, to realize the ideal of freedom, is present in the family, in civil society and in the State, but with the State as sovereign over the other institutions for which it establishes a contract, and the moral and ethical rules are defined by someone who acts in this way, then this is a quality of ethics and ethics.
It goes beyond Kantian thought by stating that there is a subjective morality and an objective morality, a classic dualism of idealism to which Hegel is an apogee, for Kant was the first to say “acts in such a way” that it is universal, for Hegel it is the second and for this will define a new (abstract) concept of the “self-determination of the Will”, which is an objective morality.
It may seem that the “individual” (questionable) right is preserved, but in almost all legislation in “missing” situations, it is the state through the judge that determines the justice, see article 4 in the Brazilian case, of the Introduction to the Civil Code:
“Art. 4th. When the law is silent, the judge will decide the case according to analogy, customs and general principles of law“, there is no objection of collective or individual conscience and there is also no self-determination of the will, it is decided by the State, and already in this it differs from morality.
The current discussion has advanced in phase to serious social problems, on the issue of equity, and even on the veil of contractualism (the law ruled by the state), the most eminent name is John Rawls, for whom his discussion advances on intuitionism and utilitarianism, which Paul Ricoeur will focus on to question his concept of Justice in his work: “The fair or the essence of Justice” (1997).
Essentially, the discussion is about collective, diffuse rights (of nature for example) and equity, Paul Ricoeur moves towards a hermeneutics of law, while Rawls towards liberal law and equity in the face of justice and not the social rights of human dignity, and different from equity and social justice.
References:
RAWLS, John (1997). A Theory of Justice/John Rawls: Trans. Almiro Pisetta and Lenita MR Esteves – São Paulo: Martins Fontes.
RICOEUR, Paul. (1995). The just or the essence of justice. Trans. Vasco Casimiro. Lisbon: Instituto Piaget.
