Law is a Latin term whose etymology (lex) is ambiguous: it comes from ligare (to connect) or legere (to read), as is read in De legibus (1612) of Francisco Suarez (1548-1617). In Greek, one says nomos that is a term whose first known appearance is found in Hesiod (8th century B.C.) and had a wider use: it served to designate custom, common practice, that which is accepted, etc. Plato (427-346 B.C.), in Republic, identifies nomos and noûs (spirit, reason, intelligence) and uses the term logos to designate law. Today, the word ‘norm’ continues to have a diffused use. There are many types of norms, from “norms at home” to technical norms that establish procedures based on knowledge.
Law is a signifier of religious and political origin. Today, it has a polyvalent meaning, but its uses and qualifications are mainly the following: scientific law, legal law, moral law. A scientific law is an expression of regularity of a relationship between natural phenomena, inescapable. Legal law and moral law are prescriptions of conformity of behaviours, susceptible of transgression. This may be publicly sanctioned, in the case of law in legal form, or not, in the case of simple moral law. In the present context, it is mainly legal law that is going to be seen, according to a double (but necessarily brief) approach: historical-normative approach (of the legal phenomenon) and historical-pragmatic approach (of the written law).
Ubi societas, ibi ius (Where there is society, there is Law). Law, in its broadest sense, is a trans-historical and trans-cultural social phenomenon, as is revealed by Legal Anthropology.
Jean-Jacques Rousseau (1712-1778) wrote in his Essai sur l’origine des langues, that he did not finish and was published later (1781): “In the early ages, men dispersed on the face of the earth did not have another society other than the family, other laws other than those of nature, another language other than the gesture and some unarticulated sounds”. The causes of their barbarism and cruelty were isolation, ignorance, weakness and fear. “They had the idea of a father, son, brother, but not of a man. Their hut contained all their fellows; a foreigner, a beast, a monster, all were the same thing for them”. Families were self-sufficient and endogamic. In the family hut, as Aristotle observed (384-322 B.C.), in Politics, quoting Homer: “Each one makes the law for their children and for their wives” (1252b).
Palaeolithic communities of hunters-collectors (until about 10. 000 years), with a small demographic density, homogeneous, were governed by non-codified rules, rooted in customs and orally transmitted. They were the myths and their rituals which served to guarantee the adherence to the order considered natural. With Neolithic sedentarization, agriculture “brings with it property, government, laws and gradually misery and crimes, inseparable in our species of the science of good and bad”, as Rousseau wrote in his Essai. The political organisation of communities emerges. The appearance of the State as personification of a legal order gave Law a social and political more and more historically determinant.
It was especially with the invention of writing (in Mesopotamia, around the end of the fourth millennium B.C.), contemporary of the establishment of cities, that legal rules became more and more necessary, numerous and formal. When certain moral values become essential for the entire community, they are transformed into imperative norms. This is the case of those that are perhaps the two primordial and most universal interdictions, border limits between animality and humanity: the interdiction of incest and murder. And when such rules are transformed into juridical laws and the sanction of their violation becomes a collective interest, Public Law emerges and come on stage the first lawyers: the specialists of its interpretation.
The oldest known legislative code is the Code of Ur-Nammu, attributed to the Sumerian king Ur-Nammu (2112-2095 B.C.). It is than prior to the well-known Code of Hammurabi (around 1750 B.C.), which is a compilation of jurisprudence of the Babylon King Hammurabi that established notably what became to be known as the “Talion law” (incorporated in the biblical Old Testament). It aimed to limit the excesses of revenge (retaliation comes from the Latin talis which means similar, having the same nature, that is, the severity of punishment should not exceed the seriousness of the offence committed). Western Law, as we know it, was a Roman invention. Roman Law does not have a parallel outside of the horizons of the Greco-Roman cultural influence. Its source is in the Leges XII tabularum (Law of the Twelve Tables), written around 450 B.C., during the Roman Republic. However, there is not so far a consensual definition of Law.
Right (Direito, Recht, Derecho, Diritto) comes from the Latin Ius. The word sounds first like the opposite of broken or curved. In its Greco-Latin conception, for philosophers and in the social imaginary, Law is confused with justice. «It’s not fair!» - there is the cry that is in the origin of Law, according to Paul Ricoeur (1913-2005). Ius a justitia appelatum (Law comes from justice), one reads in Corpus Iuris Civilis, that forms a systematization of Roman legal heritage made by initiative of the Justinian emperor (527-565), in 529-533, in Constantinople. In Celsius’ (2nd century) beautiful expression, Ius est ars boni et aequi (Law is the art of good and fair). According to Ulpian’s (3rd century) definition, it consists in ius suum cuique tribuere (giving to everyone its due). Nevertheless, justice is a moral value not exclusive of Law.
Defining Law is characterising it as an autonomous social phenomenon, distinct of other normative systems that also aim to act upon behaviours. The quid of its definition is in the determination of the criterion of what is juridical – or of juridicity – that is, of that that allows for a norm to be qualified as legal, distinguishing it from an ethical norm in particular. The normative specificity of Law consists necessary in the power to react to behaviours that are deemed to be contrary to their rules, which presupposes a public power. The sovereign “must have some force wherewith to maintain the law”, Aristotle wrote in Politics (1286b), “for where the laws have no authority, there is no constitution” (1292a). To sum up, Law is a normative mechanism or normative system of regulation of social relationships and conflicts, consubstantial to the idea of organised society. It is a normative order inscribed between Ethics and Politics, irreducible to both, that being coercive, its creation, legitimacy and protection require the public power that, according to Ricoeur, is the common force that results from wanting to live together. Public power is than the framework-power for the exercise of all other powers and should be the instrument, by excellence, of the distributive justice.
The juridicity question raises the issue of political legitimacy, which unfolds in the issues of good government and of good laws. They are primordial issues in Political Science which Plato and Aristotle are perennial sources from. Plato’s most extensive work (which remained unfinished) is entitled Laws. It deals with drawing up a code of laws to found a real, possible society, while Republic deals with thinking an ideal, fair city. In the first lines of Laws, there is a reference to Minos, legendary Crete king whose name is the title of the only (and brief) platonic dialogue (between Socrates and a friend) whose topic is law. At the beginning of Politics, Aristotle said “that the State is a creation of nature, and that man is by nature a political animal”, because he “is the only animal whom she has endowed with the gift of speech”. And because he is a speaking [LANGUAGE] animal he has a peculiar and unique characteristic: “he alone he has any sense of good and evil, of just and unjust, and the association of living who have this sense makes a family and a state” (1253a). Given that the State is a “political community”, superior to all other communities (family and aggregations of families), Politics is a research into “what form of political community is best of all” (1252a, 1261a). This is the goal of “political science of which the good is justice, in other words, the common interest” (1282b). As common interest, “justice is the bond of men in states, and the administration of justice, which is the determination of what is just, is the principle of order in political society” (1253b). Well, “law is order, and good law is good order” (1326a), it is “‘a surety to one another of justice’, as the sophist Lycophron says” (1280b). Therefore, there is no good Government without good laws. In Digesta (or Pandects, in Greek etymology), part of Corpus Iuris Civilis, law is defined in the following manner (Modestinus, D.1.3.7): Legis virtus haec est: imperare, vetare, permittere, punire (This is the power of law: to order, to prohibit, to allow, to punish).
The law has progressively become the main source and form of expression of Law, monopoly of the State. In the XVIII century, under the influence of science, whose mission is to “discover” the laws of nature, the law is placed in the centre of Roman-Germanic legal thought (different from the Anglo-Saxon system of Common Law, which is of a jurisprudential nature). Its qualities were generality, impersonality and permanence. The myth of liberating, necessarily good law is born, whose goal was, as said by Portalis, chairman of the drafting Committee of the famous French Civil Code, “make men better”. It stopped being the monological expression of a divine will or autocratic power, and became a consensual construction, argumentative and dialogic, in the framework of a democratic mandate, limited and controlled. The realm of law became the ideal of a new political rationality. In the Declaration of Human and Citizen Rights (France 1789), the word law appears 11 times.
The legitimacy of laws is the question that separates the two main paradigms in the history of Philosophy of Law: the old naturalist paradigm (there are natural laws, not written, timeless), and the modern positivist paradigm (positive, written, perfectible laws alone are valid). The legal positivism sank with the Second World War. The natural Law became the source of inspiration of the new International Human Rights Law, whose founding text is the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948. The positivist vicious cycle legality-legitimacy was broken. The radical distinction between national and international Law was overcome and the individual also acquired international legal personality. It was a Copernican revolution in the history of ethical and legal consciousness of Humanity.
As Jacques Derrida (1930-2004) wrote, there are two violences in Law: the founding violence (that institutes it) and the conservative violence (that applies it). The foundation of Law is a “performative violence and therefore interpretative”. The same may be said about its conservation, through its application, but in this case the power of judicial performativity presupposes the constitutional pact. In fact, the act of judging, in the judicial sense (the strongest), is a codified drama (by the procedural codes) that ends with a sentence that does what it says: it condemns or acquits. It is the end of a process of applying laws to particular cases, in special premises and by people qualified to qualify, that is, socially and legally authorised to interpret and apply the Law. Indeed, laws have an immanent meaning that transcends the intention of their authors, and the judge may have to fill in the silence of the law.
In the act of judging is at stake the reciprocal recognition as a personal and social good, as Ricoeur stresses. The Court is an institution of a social subsystem that represents a recognition order (in Jean-Marc Ferry’s sense), where the relationship with the other is procedurally mediated. It is a place of reciprocal recognition of the legal subjectivity of the parts in the process. While one of the parts loses, both win in recognition as persons that respect themselves and others as equal in dignity, rights and duties. As subject of human rights that are the Law, never definitely written, of survival and improvement of a species threatened by reflexes of its Stone Age and by the flames of the Fire of its genius.
Therefore, written Law is today a speech delivered in various premises by different speakers. In the internal plan, they are mainly:
- The Parliament, the place of production of written laws, with its representative legitimacy, through regimental procedures formally dialogic. Some of its legislative power may be delegated in the executive power.
- The Courts, places of neutralization of self made justice, as an act of revenge, of its mediation ordered by a third party (the judge), “where the word prevails over violence” (Ricoeur).
- The Lawyers, as advocates of the parts, whose mission is to contribute to the search of the truth, or as Professors that teach Law and give opinions about its elaboration and application.
- The Public Opinion too, as expression of the citizens’ feelings related to the way their representatives exert power delegated to them, and as the judicial power works.
At the international level, legal discourse has as its main sources the States, the international Courts (and other quasi-jurisdictional bodies), the Lawyers and also more and more the Public Opinion represented mainly by the Non-Governmental Organisations (NGOs).
Consequently, the substitution of the brutal force of the direct individual action by a collective mediating Law was a decisive step in the history of Civilization, as Sigmund Freud (1856-1939) said in Das Unbehagen in der Kultur (Civilizations and Its Discontents, 1930). The expansion and internationalization of Law constitute, perhaps, the main vector of humanization as “a never-ending politicization, even if it cannot nor should be total”, Derrida wrote, insofar as the advance of politicization obliges also the Law to move forward. The politicization and juridification of human existence is a mission and prerogative of public power. Its deepening dilates and reinforces the protective veil of public space that is, on the one hand, the condition of the coexistence of the human plurality and the realization of personal potentialities; on the other hand, it is a place of the dialogic constitution of the self and of the dialogicity of the resolution of conflicts inherent to living together. That is why Derrida concluded: “Nothing seems less anachronic to me than the classical emancipatory ideal. One cannot try to disqualify it today, whether in a rude or sophisticated way, without at least some lightness and without consent to the worst complicities”.
Still Derrida, commenting Walter Benjamin (1892-1940), after stating that, in its original essence, before being conventional, representative, communicative, informative, language is the presentation, the manifestation of itself, epiphany (like in the expressions of anger), considers that, although these two dimensions of language are “incommensurable and radically heterogeneous”, one cannot stop searching for conciliating them, to “obey, at the same time, the law of representation [...] and the law that transcends the representation and subtracts the singular”, with its name and signature, to the inscription in the anonymous generality, as the Nazi juridism did.
The justice of recognition of freedom, equality and singularity to which every human being has “a practically infinite right” (Levinas) is an à-venir (Derrida), an infinite to-coming…
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