Text 2 - Legal norms and other social norms
48 Later, that is, in the next chapter of the book in which this fragment is found, the author will seek a different proposal, which would be “the alternative to the apparently insoluble antinomy, that is, the criterion for overcoming the ideological oppositions between 'right positive' and 'natural law'”.
47 LYRA FILHO, Roberto. What is Law? 1st ed. São Paulo: Brasiliense, 1982 (First Steps Collection).
Roberto Lyra Filho
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It is generally accepted that Law is expressed through a certain type of norm – the legal norm. We must, however, point out that this is just the packaging: the Law is the content.
The text, reproduced here, was part of a volume commissioned by Editora Brasiliense,
for the collection “Primeiros Passos”47, which was modified to fit the format of the series.
It is formed before being packaged in the legal norm, and not everything that is included in it will be Legitimate law, also because there are more than one series of legal norms, in conflictual coexistence, at every moment, and all of them belong to the social dialectic of Law48.
Therefore, it is necessary to warn the reader that the fragment, now disclosed, begins the debate, so to speak, halfway, and ends abruptly, announcing an examination of the real distinction between Law and Morals, which it does not expose. Anyone who wants a complete review can take the book, edited by Brasiliense, and insert this small excerpt, between chapters 4 (Sociology and Law) and 5 (Social Dialectics of Law): you will see, then, that it fits perfectly where it came from. was removed.
Positivists tend to reduce Law to norms or, even more narrowly, to legal norms, in this case, rejecting attempts to see the legal phenomenon in a pre-legislative product, in the mores and customs of the dominant class and groups (historicist positivism or sociologist), objectively identifies as “culture” and “Volksgeist” – spirit of the people – monopolized by that class and groups; be it, subjectively (psychological positivism), in the “free right” of the interpreter; in the “judicial law” (judge-made law), of official contentious applicators; or in the “legal phenomenology”, of the researchers of “essences” (who remain limited by the guidelines of a single focus, that of the dominant class and groups).
In spite of everything, I believe that the disclosure alone will be useful, because here a point of special interest for the jurist is discussed, in a frankly “heretical” perspective; that is, diverging, without fuss, from the usual and consecrated criteria, in the distinction between the legal norm and other social norms, especially the moral one.
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But it is obvious that, in the coup d'état carried out in this way, there is no revolution or even reform, however,
there is abrupt conservation. This confession was already found in Kelsen himself.
In any case, positivists do not always give the legal norm the same meaning. Some are limited to
laws, decrees-laws and their resulting decrees, regulations and other details. Others expand the concept of
legal norm and, although without abandoning legalism, admit a process of derivation, which, even if it does
not go beyond those milestones, arrives at “individual norms”, that is, produced in a concrete case – such as
the judgments of the judges. magistrates and contracts, concluded between private individuals or involving
public bodies. This is the case, again, with Kelsen.
In these oscillations, within an arbitrarily contracted range, a certain divergence is established
between positivisms. Some (and it is, even today, the majority, from what has been called the “Modern State”)
circumscribe the laws, although this often causes them embarrassment in the face of “super laws” (which
also aspire to “legal” self-foundation), coming from groups that take power to directly reaffirm the class
domain, even if, for this, they have to pay the price of breaking an entire system of legality, subjecting
themselves to the discussion of the legal problem of legitimation itself. This is where the paradox of denying
the untouchability of a complete state order, including the constitutional summit (which means admitting a
measurement parameter superior to the laws), and, soon after, recomposing another legality, reverse the
idea of that this is untouchable and cannot be changed, not even by peaceful means (as if that parameter
were a monopoly of eventual victors and a closed question of a single system, legitimized by itself). In this
context, there is sometimes talk of revolution, confusing the true revolution, which is a concept of historical
and sociological science, implying the complete restructuring of society, from its bases, and coup d'état,
which is a political movement , in which the government passes from one group to another, without changing
the ruling class, nor fundamentally remodeling the established order. The purpose of coups d'état is, in
general, to avoid this remodeling, including that attempted by legal means (in which case the “defenders of
order” come to act above the law).
The General Theory of Law, as usually practiced, is an anemic field, developed from the tradition
of bourgeois jurists in the 19th century. We do not intend to invite the reader to take a walk in this caatinga.
Like stamp collections, chess games and crossword puzzles, the aforementioned theorization requires a very
particular taste and does not bring much clarification or practical effect to what is, in fact, the life of Law. This
does not mean, of course, that we consider all studies of Legal Logic to be useless, it just states that it
withers and dies in flamboyant constructions, while it exacerbates itself in the mental acrobatics of Formal
Logic. Alienating himself, uncritically, from the real problems of legal and social life, from the origin of norms
and their effects of domination, the formalist dedicates himself to the pastime that seems to give a certain
scientific rigor to conformist exercises, of service rendered to the “will ” from the legislator.
Machine Translated by Google It is commonly asserted that legal norms are distinguished from other social norms – technical norms (correct way of carrying out a task) or moral norms (honest way of proceeding) – because they would be, the legal ones, (a) heteronomous, (b) bilateral-attributive and (c) coercive, through organized sanctions. This complicated vocabulary covers very simple and – we will try to demonstrate – also very inaccurate notions.
Even putting aside the question – which we have already referred to – of free or determined will (only in
(And he ignores it, it is obvious that the norm expresses the wishes of Léch Walesa, and his companions or of the tough marshal who arrested the worker leader). But to give an impression of "scientific objectivity" to all this, Nowak tries to formulate that "rule, with the help of more precise terminology"... What do we have, then? Rule 13 of the formalist is expressed in symbols, which we will spare the reader, since all this involves laboriously unfolding the “principle” (we already remember that it is cabreiro, in its positivist fervor to postulate the perfection, even formal, of any norm – law) , “decreing” that if the norm/law has something superfluous, the interpreter must affirm that it is not superfuous... of the “rule” that the norm is never pleonastic, even if... in fact it is. In other words, it is necessary to “resolve”, logically, through “interpretation”, the so-called “inconceivable”, but real, pleonasm; and, instead of saying that it is a very badly done norm/law, it would be the interpreter's “duty” to consider the bad done as well done, because who can commit the “sacrilege” of saying that the norm, even formally, is nonsense? Uff! We have already wasted too much time with this intellectual onanism of the idolaters of the law! Anyway, the already mentioned Wroblewski, more modest than Nowak, recognizes that the logical-legal formalism “can be used to describe some elements of material decisions, provided the adequate translation of peculiar legal arguments, in a system of logical calculation”. And? Only a non-formalist Logic, admits Wrobleswki, can effectively analyze the decision-making process “taking into account all the evaluation conflicts”. This is worth it to us! And it is worth confessing that “the antiformalist concept of logic has a wider field of application, at least in legal interpretation, than the formalist concert”. Wider or narrower, it is still worth noting that these Polish scholars avoid talking about dialectics, which is material logic par excellence, the one that absorbs and reframes “conflicts”, as well as any and all contradictions...
Heterônomo is the opposite of autonomous and intends to indicate that legal norms subject us to the will of others (the will of those who have the power to regulate our conduct), while moral norms (which would be autonomous) subject us only to our own conscience. and will.
Let's look at an example of the formal-logical frenzy of the Polish Leszek Nowak. He takes the following proposition from Wroblewsky, “it is necessary to establish the meaning, in such a way that none of the expressions included in the norms is considered superfluous, that is, unimportant, nor that the interpreted norm is declared useless, in the framework of a certain act legal”, which, according to Traditional Legal Logic, is strictly a somewhat stupid banality of positivism
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we free ourselves to the extent that we become aware of the “determinations” that govern us), it remains to be seen whether, in fact, moral norms are autonomous, that is, whether the whole moral question arises between us and our own individual conscience. Marx said that consciousness (Bewusstsein) is awareness (Bewusstsein) and, with this, he pointed to the fact that, in the inner field, of what is called consciousness, external elements act, affecting our will; and awareness, instead of consisting of inner “freedom”, demands that we struggle, mentally even against what the outside world (class or social group, education, way of life) has placed within us, shaping our opinions and attitudes and creating an ideology. This awareness process is, in turn, conditioned by other external factors: the breaking of the ideological veneer by the contradictions of the social structure, aggravated and in crisis, makes the falsity of those beliefs evident.
Freud showed us that behavior is governed by a scheme of solicitations, of “appetites”, under the control of an internal censorship of the superego (that deep element that authorizes or represses the search for what we feel like doing). What Freud did not show us – and, yes, Marx – was the exact nature of the system that governs the authorizations and prohibitions of the super ego. This is not modeled from within, but absorbs and internalizes elements from outside, which get inside our heads: they are, as the sociologist Lucien Goldmann said, intrasubjectivated; that is, they come from received standards, they come from our social position, in class, group, education and way of life. Only to the extent that we can become aware of such a powerful influence can we begin a process of “de-ideologization”. But where, then, is the “autonomy” of morality?
On the other hand, Law is not purely external (nor purely internal, of course), but legal norms are also subject to that same process, while, for example, we come to realize that legal positivism (the notion that Law is only what the State determines, with its laws) is an ideology that the State itself has generated (and a certain type of teaching perpetuates), to make us more docile to everything that the power in exercise intends to demand of us.
Since we began to critically analyze those directives, apparently autochthonous (that is, appearing to be born in our “spirit”), instead of passively adhering to the “voice of conscience”, we began to realize that that “voice” is not ours, that there is an alien will there, with which we have to settle accounts, expelling much that seemed created by our “free will”. And then many “sins” reveal themselves as fables of oppression that impregnated us with very convenient prohibitions for those who dominate us.
So only laziness or blindness prevent people especially attached to their class or group living from seeing that such beliefs are false, false is the conscience and illegitimate their origin.
We want to say that there is also an internal aspect of legal awareness and, while this reflects the vanguard of principles and liberating practice, such awareness is even legitimate and fruitful. Law is a social phenomenon that also works internally, as recognized, among others, by the Marxist jurist Imre Szabo, returning to speak of a “legal conscience”, which, evidently, like the norms themselves, can be reactionary or progressive; that is, you can
Machine Translated by Google Attributive bilaterality is the pompous name given to the characteristic also attributed to the norms of law, according to which there is always a relationship, in this type of norm, in which one of the subjects is invested with the subjective right to claim what the norm itself (objective right) ) guarantees him, imposing on another subject the legal duty to respect both the precepts and the rights of others, inscribed therein. Let's change this in kids, with the famous example of Petraziski.
be the liberating awareness or the passive “conscience” of those who surrender to ideologies. How to distinguish one from the other is an operation that follows the same criteria for evaluating the legitimacy or illegitimacy of the norms in which the Law is expressed (and which are not exclusively those of the State). It is a mistake to speak of Law and Morals, as if heteronomous norms appeared in the first (imposed, from outside, by someone else's will) and in the second there was an autonomy in which the norms and their domain were exclusively an internal process. The legal norm is heteronomous, just like the moral one, in the sense that we are not the ones who create them; but they are also both relatively “autonomous”, insofar as we position ourselves critically, aware, awake, in the face of what either of them imposes on us. We emphasize, again, that there is not a single set of legal norms, but several (those of the State, those of dispossessed and oppressed classes and groups), in such a way that the exact awareness leads us to options and attitudes of critical examination of those standards of conduct that intend to be obligatory and are equipped with repressive means, to try to lead us into submission. Purely autonomous moral norm and purely heteronomous legal norm are notions taken from Kant's philosophy, according to which the legal norm subjects us without remedy to the will of the State and the moral norm "reveals" in us a "categorical imperative" (an indeclinable moral duty ): for him “the moral law is within me” (of the subject). However, if we look at what this imperative consists of, we will see that all of Kant's “inner” morality is, substantially, the internal reflection of his social position and the education he received; in fact, from a very religious mother, who filled her son with prohibitions and tricks. This is not the importance of Kant's work. By combating Kantian legal positivism, Poulantzas shows that it is worth mentioning another angle, also legal and of better inspiration, indicated in Goldmann's Kantian studies. But this, here, is beside the point.
If a citizen rents a vehicle and, arriving at the destination, refuses to pay the cost of transport, also denying the alms requested by a beggar who was there, the disgrace towards the beggar has no consequences, unless (again!) in the intimate forum of those who practiced it, but the carrier can demand payment, as there is a legal rule, which establishes the obligatory bilateral relationship and provides means of collection. The reader has certainly noticed that typical bourgeois element of the example itself, who immediately thinks of the chargeable debt and credit ratio (between people “of means”), leaving to the misery (which society generated) the recourse to charity (even so, if the beggar is lucky and the bourgeois, the “open hand”...). Incidentally, the entire General Theory of Law, according to tradition, is very bourgeois, and keeps talking about debtor, creditor, performance (that is, fulfilling the obligation, paying, even if puffing, or submitting to indemnify “losses” with interest and all those other frills about the dollar sign-lord of the world). With this observation, let's return to the example: why it is not “enforceable”
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moral duty, whatever it may be, even if conceived in those very paltry terms? The answer would be that
there is no (public) body that defines the moral duty, nor any organized sanction (from the State), to which the “creditor” resorts. At the most, the thing is resolved between the uncharitable and God, through the mediation of a priest, who will “fine” the miser in about ten well-said Our Fathers and a little extra money for the Church's charities. This, without any greater sacrifice, as the surplus value is substantial.
It will be said that moral standards are less precisely indicated; that there is a lack of texts to
define them (sometimes they exist, in so-called “codes of ethics”). It will also be said that moral sanctions are much less precise than legal ones and, in the latter, coercibility is more intense, the procedure for applying them less fluid and the applicator body less vague. But, in this case, the question shifts to the third characteristic, attributed to the legal norm, that is, that this, and only this, has organized sanctions. In this, after all, lies, for many jurists, the supreme distinguishing criterion. Let us leave aside, for the moment, their vice of characterizing the Law by the norm and the norm by the sanction, in a vicious circle, which then defines the Law as the set of norms that have that sanction, no matter what, to be “ legal”, whatever they take inside.
There is, in this reasoning, a great deal of confusion. Admitting that morality is “unilateral” and law “bilateral”, returns, by way of detour, to the question of “autonomy” and “heteronomy”, since it is thus said that the moral norm (created in us, because God or “Human Reason” there we are concerned with such a free “conscience”) has no master, protector and collector, except on an intimate level. But here the same trick appears. The moral act is charged by society (class, group, institutions), which establish it and the bad payer (ah, always this vocabulary!) suffers a non-negligible sanction, which grows, from the light form of being “disgusted” by “ good people”, even isolation, which prevents the “bad character” from enjoying worldly sweets. And there go the outcasts to the underworld, with the label of whore, faggot, stoner, crook, irresponsible, shameless and other hypocritical “horrors” for the “morality” of the bourgeoisie, the moralist, who incites wars, selling weapons to hostile groups, exploits the worker, has sex in the bush in all positions, hands over national riches to foreigners, gets drunk in secret, sponsors whorehouses, receives perks, opens a Swiss bank account and emerges rich from bankruptcies or receives credit injections for avoid them.
In any case, there is a legal norm without an organized sanction, just as there is a moral norm that has such a sanction. If the organized sanction is the one that has an exactly defined organ and process for its application, International Law, for example, in many cases, presents mere diffuse sanctions (without “organization”); and extracting the idea that it is not really a Law (as some do) is equivalent, as Truyol y Serra says, to arbitrarily imposing the model of “Modern State Law” on International Law, as if this were the only one – which, logically, is absurd and, historically, it is important to say that many legal systems of the past were not Law. In International Law, reprisals, economic pressures, even just war are not necessary.
Machine Translated by Google Moreover, there is a mere reinforcement of the established domain (ideological reinforcement), in the idea that the State Law is considered as the only “developed”, perfected and “rational”. The word “rational” is suggestive, as it suggests the transition from bourgeois irisnaturalism, which thrived outside of power, to freezing in State dogmatism and bourgeois laws, which in the end reached social command. The Nuremberg and Tokyo Courts, for example, overcame the challenge that they did not constitute a pre-established body to apply non-pre-determined sanctions to procedures not predefined as a crime. The legalism that intended to save criminals, under International Law, did not prevail.
We would remember, for example, the “ice”, in which a group marginalizes the offending individual; the “black ball”, which prohibits the access of individuals with bad reputation to certain associations; the requirement of “suitability”, required for free movement in certain social positions; and so on.
and previously defined, in its scope, procedure and applying bodies. In this sense, it can be said that such sanctions are diffuse, just as many sanctions related to non-compliance with the precepts of the Declaration of Human Rights are also diffuse, not for this reason ceasing to be legal. The fact is that the argument of the deniers of International Law is distorted by the presentation of a historical model, that of the bourgeois state law of the 19th century, as the only legal model, which would mean that, before and outside of it, Law did not exist, nor does it exist. . This implies historical nonsense, to serve legalist privilege, and contradicts, on the other hand, reality.
Above all, the moral norm is equipped with sanctions, also organized according to customs, endowed with a very precise ritual of application, for infractions against honest conduct.
In conclusion, it seems that there would not be a distinguishing criterion between the legal norm and the closest type of social norm, which is the moral norm. We didn't get that far, what we wanted to emphasize is that there is no absolute formal difference between the legal norm and the moral norm. Only the legal norm tends to be more intensely heteronomous; its attributional bilaterality, more precise; its coerciveness, more prominent and the sanctions, more clearly organized. It was in this process of intensification that the list of legal norms, which coexisted there in a kind of undivided condominium, was gradually detached from an original block. The historical lesson and social anthropology studies demonstrate this quite clearly. But it is immediately necessary to remember that the absence of a radical difference in form (due to absolutely different norms) between Law and Morality does not confuse the fields of one and the other, for the simple reason that, as we have repeatedly emphasized, even if they were expressed by norms radically different, this would not be the reason why Law and Morals would be distinguished, in substance. The same product could come in two packs, just as the fact that it comes in very similar packs (standards) does not mean that these standards are for the same product, as they effectively are not. Law is one thing, Morality is another, but it is not in the norms that such a difference lies. Formally, the vehicles of expression (social norms), both for Law and Morals, are very similar; the legal norm is just a form that tends to intensify the characteristics of the social norm. If we want to be147Machine Translated by Google Critical Introduction to Women's Rights
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To establish the difference between Law and Morals, we will say that, instead of looking for it in the norms (in which there is no radical demarcation and, even if there were, it would not resolve the issue), we should seek the nature of the contents that are conveyed in standards of such great similarity. Even in a primitive community, in which Law and Morality maintain a certain common direction (since there is no division and, therefore, no conflict of classes), this does not exclude the conflicts of groups and individuals, which Law focuses in a way and the Morals of another. What continues to separate Morals and Law, even when (and this is the case of the primitive community) both types of norms appear in a block of precepts with a more or less homogeneous direction, is not in the precarious formal difference of norms, but in the sense substance that reveals the Law in its peculiar “essence”. This must be sought in the social dialectic itself, so as not to dissolve in metaphysical nebulae, nor flatten itself in any block of state norms (which are not even remotely a guarantee that there, in the laws, is the legitimate Law).
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