UNAUTHORIZED BIOGRAPHY OF THE LAW E-Book

Fábio Ulhoa Coelho

• Herausgeber: WMF Martins Fontes
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 602

Veröffentlichungsjahr: 2021

Beschreibung

How do judges decide different things applying the same law to identical cases? Why do some laws stick and others don't? What is judicial activism and why has it been criticized? Isn't legal reasoning very opaque and full of useless filigree? Unauthorized Biography of Law was written for people asking these questions. Although it doesn't give all the answers, it presents information and offers explanations that can help in understanding this intricate universe where laws, court cases, legislators, judges, lawyers, the police, etc. are found. It is a book written with the non-legal public in mind, but students and legal professionals will also benefit from reading it. It serves as support literature for the subjects of Introduction to the Study of Law and Philosophy of Law.

Leseprobe

Sumário

COVER

TITLE PAGE

INTRODUCTION

PREFACE: SOMETHING NEW UNDER THE SUN

BEGINNING

1. Biographies

2. Conflicts

TRAJECTORY

3. Retribution

4. Tradition

5. The State

6. Positivisation

7. Judges

8. Institutions

SAFEGUARDS

9. Order

10. Legal Norms

11. Science

12. Logic

13. Appeals

14. Justice

CONCLUSION

15. Values

ENDNOTES

COPYRIGHT PAGE

Landmarks

Capa

Página de rosto

Sumário

Dedicatória

Introdução

Prefácio

Início

Conclusão

Notas

For Mô and Kiki

INTRODUCTION

Why are homicide rates higher in some parts of the world than others? Why is tax evasion rare in some countries, while, in others, a significant number of individuals do not pay their taxes and are not recriminated by friends and relatives for their actions? Why, in certain places, are the commitments that people make generally kept, even without written contracts, while, in others, they generally are not? Why are there some communities where girls have the same access to education as boys, but this is not the case everywhere? In short, what is it that shapes societies?

Many believe that these questions all have the same answer: the Law. As they see it, each country, place, region or community has different laws and, as such, the homicide rates, rates of tax payment, contract compliance rates and forms of access to education vary.

This book is an invitation to rethink this conception. My proposal is that the Law doesn’t mold societies or social groups of other dimensions or configurations, like tribes, families, states, etc. It can be expected to act much less comprehensively, restricted to the treatment of specific conflicts of interests.

My invitation to rethink the matter as such is divided into four parts: Beginning, Trajectory, Safeguards and Conclusion.

In the Beginning, human beings find themselves undergoing a unique evolution, never before experienced by any other species. Just as one day we happened to become bipeds, on another day we happened to address certain conflicts within the species in a new way. It came to pass that stronger human individuals were no longer able to use force to impose their will on the weak. Starting from the moment that this standard for treating conflicts is accepted, the human species develops a very particular evolutionary strategy: civilization.

In Trajectory, important moments in the development of this evolutionary strategy are highlighted. The standards by which conflicts are dealt with went about changing quite sharply. There are five key moments: the law of retaliation, the written law, the emergence of the Nation State, positivisation and the appearance of independent judges.

In the Safeguards section, the reader is invited to reevaluate each of the aspects that supports the conception that societies are different due to the differences in their laws. First of all, we will reexamine the idea that the Law is an order, the result of judges applying the general norms approved by legislators. Next, we reexamine legal science, the logic of judgments, the system for correcting errors committed by judges and the of justice as the objective of the order instituted by the Law.

Finally, the Conclusion takes up the thesis that it is the values cultivated by the majority of people that shape a society.

My main objective is to try to explain the Law to the lay public. But I believe that this unauthorized biography can also be useful for students and professionals in the field, presenting them with another way of understanding what we study and what we actually do. I would be pleased if, after finishing the book, readers concluded that some of their certainties no longer seemed so solid, or if they, at least, had been viewed in a new light.

This attempt at explaining the Law to the lay public is an old project[1]. During Carnaval of 2020, I finally started writing the first segments, without yet having a clear idea of the general plan of the work. I imagined it would take at least a year to come up with a first draft. But then came COVID-19. And, in social isolation, I quickly progressed in the writing process.

By mid-July, I had already completed the first version of the text. Still, I was unable to assess whether I had managed to put together an accessible and clear text, stripped of those overly elaborate terms in which we legal professionals can easily get lost, somewhat transfixed, in the midst of that pompous language, legalese. So I asked some friends of mine to help me with this assessment. They are people with the most diverse professional backgrounds: business administration, architecture, the arts, political science, foreign trade, media, law, engineering, journalism, marketing, medicine, psychology and international relations. I would like to thank them for their time, generosity and friendship. I am eternally grateful to Beatriz Ferrer de Ulhoa Coelho (“Kiki”), Carla Girolamo, Ernesto Tzirulnik, Fernanda Resstom, Fernando Castro Junqueira, Francisco de Sá, Guilherme Mendonça, Juliana Siqueira de Sá, Mano Penalva, Marcelo Guedes Nunes, Maria Cristina Fernandes, Mariana Leme, Marina Amaral Egydio de Carvalho, Maria Teresa de Ulhoa Coelho, Mirelle Bittencourt Lotufo, Mônica Andrigo Moreira de Ulhoa Coelho (“Mô”), Rodrigo Ulhoa Cintra, Silvia Fagnani, Telmo Porto and Victor Bruno Jr., for agreeing to read the first draft of this biography. Of course, I am solely responsible for the content, as well as for the inaccuracies and murkiness. I also owe my gratitude to Juliana Sá and Rodrigo Monteiro de Castro for the enthusiasm with which they assisted me in this project. And last, I would like to offer sincere thanks to Justice Luís Roberto Barroso for his generous and scholarly preface.

Preface:SOMETHING NEW UNDER THE SUN

Luís Roberto Barroso[1]

As a general rule, in my academic life, I only pen the prefaces for books written by my masters and doctoral students. I do so for three basic reasons: I would not be able to manage my time otherwise; in terms of the work I mentored, I have already had the opportunity to read them horizontally; and one of my rewards in life is getting to push young talents toward academic success. Fábio Ulhoa Coelho and his Unauthorized Biography of the Law do not meet any of the above mentioned requirements. Fabio and I belong to the same generation, of which he is among the most successful and deserving of recognition. So it’s hardly worth saying: I never mentored him, nor is he in need of any introduction. For this very reason, I was surprised and honored to receive the invitation to write these lines. I asked him then for the originals of the work, so that I could look it over in the brief interval between Christmas and New Year’s Eve and give him an answer. Here it is. The truth is that life, if just once, was generous with me: in addition to allowing me to associate my name with Fabio’s, it gave me the opportunity to read, firsthand, a text of exceptional quality and rare originality.

Fábio Ulhoa Coelho has written a fascinating book. Scholarly and simple, analytical and objective, deep and concise. Rare virtues, which do not usually go hand in hand. One of the books that has most impressed me recently was Sapiens: A Brief History of Humankind by Yuval Noah Harari. It was a singular way of viewing and narrating the history of the human condition, with unconventional points of observation and insights of great wisdom. For Fabio does something similar to retelling the history of the Law, covering ground that is very different from that of the official historiography. Here you have the difference between a traditional photograph and a work of art. I read many sections in full agreement. Others, with some doubts. And there were a few of them that I read in amazement. But there wasn’t a single passage that I didn’t find interesting, pleasurable and useful. This is not a book that should be read with confirmation bias. It’s made to get you to rethink what you have always believed. This is its greatest merit.

Instead of using the preface to summarize the book, anticipate its ideas and provide spoilers of its conclusions, I opted to try something more modest: I separated some proposals made by Fábio throughout the book in order to use them to establish a constructive interlocution. Actually, I’m presenting some brief reflections provoked by the author’s brilliant, compelling verve. One important observation: in general, I came to identical or analogous conclusions.

The book peremptorily states that, “knowledge of the Law is not a science, but a set of rational opinions.” If we take the concept of sciences as a valid paradigm for the natural sciences, the thesis is irrefutable. Indeed, the Law is a domain of knowledge that cannot serve, on a relevant scale, the ambition of objectivity that characterizes the exact sciences and nature. In these areas, the main intellectual raw materials are observation, experimentation and proof, all of which can be monitored and confirmed by other scientists and the community in general. Knowledge of the Law, in turn, does not deal with phenomena that are ordered independently of the activity of those who create or interpret it. Its brand is the subjectivity of its actors. The creation of the Law is essentially the fruit of a political will and its interpretation and application will never be entirely objective. The human sciences do not deal with mathematical certainty, but with practical rationality, with the logic of the verisimilar and the justifiable. It is only possible to speak of “the science of the Law” as a reference to an organized set of knowledge, founded on its own principles, rules and concepts. And with normative pretensions, that is, the ambition to conform to reality. But, of course, it is not a science, technically speaking. The book does well in demonstrating this point.

Another insight that I would highlight is the fact that, “the Judiciary must build a strong alliance with society. As it is not legitimized by popular elections, it depends directly on the confidence that the public has in the justice system.” Although this might not always be the general consensus, it is also impossible to disagree here. In a democracy, no one exercises power in their own name. All power is representative, that is, it must be exercised in the name and in the interest of society. As a consequence, nothing could be more natural than to listen to it. Certainly, the alliance with society does not mean giving in to public outcry or the disorderly passions of the masses. The majority will, to be preserved by the Judiciary, is what is materialized in the Constitution. For this very reason, if the prevailing social sentiment does not pass through the sieve of the Constitution, the Judiciary and, particularly, the Federal Supreme Court, should produce a counter-majoritarian decision. However, in the absence of a constitutional obstacle, it is natural and desirable to take into account society’s feelings within the possibilities of legitimate and viable interpretation. In fact, it is precisely this harmony that gives supreme courts the political capital and credibility to produce enlightened decisions in favor of vulnerable groups - women, blacks, gays, native populations, inmates in the prison system. In another fortuitous passage, Fábio points out that, “it is the empowerment of the weakest, in a given culture, that provides the measure of their civilization.”

In fact, incidentally and subtly, Fábio Ulhoa Coelho sends several important messages to present-day Brazil. One of them concerns the “urgency of environmental sustainability.” In tune with the moment in which we live, there is an implicit gravity in such matters as climate change and global warming, which are some of the major defining issues of our time[2]. There is a relevant scientific consensus on the seriousness of the problem. “If you hear anyone saying otherwise, disregard it,” the author warns. In fact, denialism toward this matter and indifference to environmental crimes represent a serious case of international responsibility and intergenerational injustice. By unfortunate coincidence, the day I read this passage – December 29, 2020 –, the Pantanal was on fire, the Amazon had reached record levels of deforestation and the headline in the newspaper Folha de São Paulo read: “In 2 years, the government has drained environmental defense agencies.”

In another passage, the book warns of the risks of appealing to exacerbated nationalism, which, “might, in fact, be the opposite of defending the interests of the Brazilian people, and concealing the preservation of our closed economy, guaranteeing a domestic market that is ‘captive’ to companies installed here.” Indeed, protectionism, anti-globalization and the closed economy are hallmarks of Brazilian political culture, which have held us back historically. Capitalism presupposes competition, risk and equality between economic agents. In Brazil, there is an atavistic preference for public financing, market reserves and favored treatment. A kind of socialism for the rich. Fábio mentions the example of China, an emblematic case. When the country closed itself off from the world under the Qing dynasty (which began in the 17th century), it ceased to be an economic and technological power, and went into a profound decline[3]. With the reopening of the economy in 1976 under Deng Xiaoping, after Mao’s death, China once again became a world power, lifting millions of people out of extreme poverty.

The author’s shrewd eye also did not overlook the role of the internet, which, he claims, “has democratized ignorance more than knowledge.” The worldwide web is the symbol of the Technological or Digital Revolution that has subverted our lives, changing the way we search for information, shop, make reservations and listen to music. We live with a new vocabulary comprised of utilities that we had never even heard of yesterday and which today we would not know how to live without. Google, Amazon, Skype, Waze, Spotify, YouTube, Netflix, among many others. For single people, there’s Tinder. Then there are the so-called social networks: WhatsApp, Facebook, Instagram, Twitter and TikTok. Everyone got the right to a voice. There has been a huge democratization of access to knowledge and freedom of expression. Some even dreamed of a great public sphere of deliberation, for an exchange of ideas, arguments and decision-making. Perhaps this is one project that shouldn’t be abandoned. But for now, we have to worry about the disinformation campaigns that are contaminating the entire public debate[4]. The lies that have been dubbed post-truth or alternative facts. And so much ignorance, as Fabio detected. A number of shadowy figures inhabit social networks spreading hatred, insults and conspiracy theories, many of whom have problems with spelling and subject-verb agreement. Not to mention various flat-earth theories. Here too, we must have faith in the civilizing process.

No less important is the way the book highlights the Enlightenment, marking, “the moment when knowledge begins to become detached from authority.” Reason, science, humanism and progress are the hallmarks of the comprehensive philosophical movement that revolutionized the world of ideas throughout the 18th century[5]. The Enlightenment was the culmination of a historical cycle that began with the Renaissance in the 14th century, which itself had roots in the Protestant Reformation, the formation of Nation States, the arrival of Europeans to the Americas and the Scientific Revolution. Reason the became the center of the system of thought, which in turn became dissociated from faith and the dogmas of Christian theology. In this environment, the ideal of knowledge and freedom grows, with the spread of such values as the limitation of power, religious tolerance, the existence of inalienable natural rights and the use of the scientific method, among others. The paths were open to the liberal revolutions that were soon to come, and democracy, which would arrive much later, on verge of the 20th century.

From that point on, Fábio Ulhoa Coelho writes luminous pages about the impact of the Enlightenment on the Law and about the extraordinary transformation that was the passage from the model according to which laws were dictated by tradition to the model of positivisation. The positivisation of the Law, that is, its creation through act of will by an authority – and not as divine or rational revelation – was a revolution in legal thought. The idea that the Law could be made was foreign to ancient societies[6]. In the midst of the scientific wave that dominated the world throughout the 19th century, there was an attempt to give the Law the same objectivity that was envisioned in the natural sciences. The intention was to bring certainty and safety to legal relations in a post-Industrial Revolution world, which saw the advancement of capitalism and big business. Then comes law as it is conceived of today: a political decision emanating from the competent power which does not need to reproduce tradition, but, quite the contrary, can completely innovate in the legal system. They who make the Law are sovereign. What changed over time was the holder of sovereign power: first the monarch, then the aristocratic parliament and finally the representatives of the people. At least, that’s how the legend goes.

By the way, Fabio demystifies several legends about the Law, which get passed down from generation to generation. And on the way, he makes essential distinctions between science, religion and opinion. I could continue on here indefinitely, dialoguing with the profusion of good ideas introduced in the book. But this preface is already long enough and I should just get out of the reader’s way. There’s a well-known passage from Ecclesiastes which reads: “What has been will be again, what has been done will be done again; there is nothing new under the sun.”[7] That may be so; I’m not taking sides in this fight. But, even if they are the same, things can always carry a new look, a new point of observation, that makes them different. Same facts, new truths. This is what Fábio Ulhoa Coelho does in this compact masterpiece. And he does it with wisdom and simplicity. Just as life should be lived. There is no greater sophistication.

Brasilia, January 26, 2021

[1] Full professor, State University of Rio de Janeiro - UERJ. Justice of the Federal Supreme Court of Brazil.

[2] William Nordhaus, The climate casino: risk, uncertainty, and economics for a warming world. New Haven: Yale University Press, 2013, p. 11.

[3] For more on the topic, see Niall Ferguson, Civilization: the West and the rest. London: Penguin Random House, 2011, p. 44 and s.

[4] For more on this subject, see Patricia Campos Mello, A máquina do ódio. São Paulo: Companhia das Letras, 2020.

[5] Steven Pinker, Enlightenment now: the case for reason, science, humanism and progress. New York: Penguin, 2018.

[6] Dieter Grimm, Constituição e política. Belo Horizonte: Del Rey, 2006, 4.

[7] Ecclesiastes 1:9.

BEGINNING

1. BIOGRAPHIES

The Law is on the social networks, in conversations at watering holes, at backyard barbecues, at birthday parties, at workplace coffee breaks, in elevators and in line at supermarkets. Everyone knows the Supreme Court justices by name. They try to guess the political allegiances of each one. They approve and disapprove of their decisions. Hearing the news of another Federal Police operation, they cheer with enthusiasm or scrunch up their faces. They have a formed opinion on the interpretation of the Constitution and the Code of Criminal Procedure.

Legal experts give interviews on TV. The less enigmatic paragraphs of verbose court decisions are displayed and highlighted on the screen while newscasters read them. And prisoners, investigators and convicts exercise the monothematic right to reply, “I trust in the justice system and will prove that there is no truth to these accusations.”

This interest in the Law in Brazil is a relatively new phenomenon. It began, perhaps, around 2002, when TV Justiça began broadcasting the Federal Supreme Court sessions live.

Along with this growing interest in the Law, naturally, came questions and confusion. How could two judges, applying the same law, each have a different interpretation? If the Court has already decided the matter one way, why did the judge innovate, and precisely in my case? Isn’t the law the same for everyone? What is the logic behind the arrest and release of a corrupt individual who was even caught on camera taking a bribe?

I don’t know if this book will be able to clear up all these questions. But it will at least present another side of the Law. A side, perhaps, of which the Law itself is not aware, and, if it were, one it would prefer not to see exposed.

The book’s title is a metaphor

“Biography of the Law” is a metaphor.

The Law is not a person whose biography can be written. But whenever I turn to the realm of metaphor for refuge (which I do mainly in this chapter), I will address the Law as if it were a person. I insist: this is only a metaphor.

My insistence is not impertinent. It’s just that I’ve been burned many times, witnessing legal debates lose the course of reason by failing to realize they were focusing on a figure of speech, and not reality.

Metaphors are very useful tools. They are enormously helpful when teaching and I employ them in my classes constantly. But they must be explicitly set aside after fulfilling their function of facilitating the comprehension of a more complex concept. We have a reality to acknowledge and we can’t get bogged down in the diversion of metaphor.

This explains the title of the book. Actually, it explains part of the title. I mentioned the “biography” part. An explanation of the “unauthorized” part is yet to come.

Unauthorized biographies

Up until 2015, no one could write a biography in Brazil without getting the authorization from the subject or their descendants. That was how everyone interpreted the law on the protection of the “right to the image” (the Civil Code). Each one of us was considered to be the sole owner of our own story. If anyone wanted to tell it, they couldn’t just come up with just any narrative. Only if the biography presented the story in a manner approved by the subject would the law permit to it be published. That’s how most jurists interpreted it.

In other words, whenever a writer was interested in the life of a certain person to the point of believing him or her deserving of a biography, it was necessary to ask for permission even before starting to write. Otherwise, they would run the risk of investing time, energy and resources in research and writing that would later be wasted if the biography’s subject did not authorize the book.

The understanding was that each individual had the right to control their image. If someone didn’t want their biography to be written, or didn’t want it written in a certain way, that was their right. No matter how much public interest there might be in learning the details of a famous person’s life, no one could contradict their will in controlling their own image. If the subject was deceased, the authorization had to be granted by his or her descendants (children, grandchildren, great-grandchildren and other generations, infinitely). By all of them! And there would always be one great-great-grandchild who would make their consent conditional on the payment of an exorbitant sum. It was believed that the biographies of many Brazilian men and women would never get written because of this anachronistic and individualistic way of dealing with the matter.

In 2015, the Supreme Court ruled unanimously that unauthorized biographies are admissible in Brazil[2]. There was no change in the text of the Civil Code or approval of a new law. Still, Brazilian law changed radically. You may be wondering: how can a law change without any change in its text? We shall see how. This was also the case with the permission of same-sex marriage, for instance.

In any “unauthorized biography,” readers expect the revelation of unpleasant incidents or personal traits that make the subject uncomfortable-- personality traits that they dislike to the point that they prefer to keep them hidden, wounds and traumas they would rather forget and don’t want disclosed. If certain biographies aren’t granted their subject’s authorization, it is likely because they would bring revelations to light that would upset their subject’s self-image or damage their public persona.

Hence the metaphor in the title. Here, the Law is presented in a way that it would prefer not to be revealed.

The story of the law of the Twelve Tables is improbable. The enlightened despot did not back down from his subjects out of fear of judges. Roman law is not the model of present-day law. Montesquieu, aside from being a racist and a sexist, is not the great developer of the separation of powers. The Code of Hamurabi and the Code of Justinian were not Codes. All are unequal before the law.

Moreover, this biography presents a concept of Law that is not pleasing to the subject. It’s a very different concept from what it has been propagating for some time. It’s a different identity. The Law is astute. It presents itself as logical and it’s pure rhetoric. It presumes to be scientific, when it’s nothing more than a repertoire of opinions. It is strengthened in law, but law has no power.

Of the books I’ve written, this one was the hardest to name. I tried some alternatives. It took me a while to define it. And, you know what, I quite like the title.

An ever more just world

Every biographer admires their subject. The choice is never neutral. So I’m quite zealous about the good and noble sides of the Law. I’m here to emphasize that the lack of logic, science and strong enacted laws are not the defects they might seem to be. On the contrary, they are rather shrewd (and now indispensable) means for the Law to fulfill its function. You’ll see.

Note: justice has to do with adjustments. We do not live in a just world, but if we look at the way things were before, we see that a number of adjustments have been taking place in the relationships between human beings, which make the world progressively more just. The Law contributes to this by empowering weaker parties in its treatment of conflicts of interests. This is the admirable side of the subject of this biography.

No biography could fail to highlight how the Law has done its part to build an ever more just world. We will come to these points, and we will give due recognition to the subject’s merits, of which there are more than a few.

Authorized Biographies of the Law

For those interested in reading an authorized biography of the Law, there is extensive literature. There are several books that present the Law in flattering light. You can start with the courses and manuals of Constitutional Law. Another good starting point would be any book entitled Introduction to the study of law, the basic literature of a discipline offered to first-year undergrads in Brazil.

In these authorized biographies, the Law is presented as a set of norms, the so-called “legal order.” These are norms of different denominations and functions. For the time being, I will refer to three of them: the Federal Constitution, ordinary laws and decrees.

The norms of the legal system are not all of equal importance; there is a hierarchy among them. The most important is the Federal Constitution. All the others must be compatible with it. If an ordinary law contradicts a constitutional norm, it is unconstitutional. This means that it has no validity and needs to be removed from the legal system.

According to the hierarchy, ordinary laws fall under the Federal Constitution.

Those dealing with relevant or comprehensive matters are often given special names like Code or Statute. For example, we have the National Traffic Code, the Penal Code and the Consumer Protection Code. And then there are the Statute of Children and Adolescents (ECA), the Statute of the Elderly, the Statute of Sports Fans and others. Most ordinary laws, however, are identified simply by a number. The numbering sequence was rebooted with the Constitution of 1946, and, by 2020, there were over 14,000 federal laws in Brazil.

According to the hierarchy of the legal system, the decrees come after the laws. These are norms determined by the President of the Republic to specify aspects of the laws that have not been sufficiently detailed. Decrees cannot contradict laws, just as they cannot contradict the Federal Constitution.

In any authorized biography, the Law is presented as a portentous set of legal norms rationally organized into a hierarchy. This is the legal order. The designation tries to say it all: an instrument for setting order. The authorized biography will say that the Law is the legal system. For the official biographer, legal science studies the laws and other norms that are components of a country’s legal system.

This is how the Law wants to be seen.

The pyramid

Legal information is typically not presented in charts, figures, tables and organograms. We in the field actually have a certain difficulty processing the information transmitted by these visual tools of synthesis, so unaccustomed are we in employing them.

There is, however, one exception: the hierarchical structure of the norms of the legal order is commonly presented to students as a pyramid.

In its simplest version, the Federal Constitution is at the top; at the base, decrees and other regulatory norms, such as Ordinances, Instructions, Resolutions, etc.; and, between the Federal Constitution and the decrees, the laws (the Complements to the Constitution and the ordinary laws; some with symbolic names like Code, Statute, Organic Law, etc.).

The pyramid, when it represents only the legal norms issued in the federal level, for application throughout the country, is shown below.

Outline 1: Hierarchy of federal norms

Order-by-Law

In an authorized biography, the Law is presented as the ordering system in society. Its purpose is, according to the official biographers, to create and guarantee social order. And, to achieve this end, it always functions in association with a triad: State, laws and judges.

To put it succinctly, this is how things go. The State has an agency dedicated to the development of general and abstract standards of conduct: it is forbidden to do this, it is forbidden to do that, it is mandatory to behave in this manner, etc. The State body in charge of developing standards of conduct can be a collegial agency of legislators (like in democracies) or a single sovereign (as in absolutist monarchies).

By developing these general and abstract standards of conduct, the legislative body decides how people should behave and threatens the disobedient with punishment. For instance, it establishes that everyone should respect the lives of others and that murderers will be imprisoned. These abstract standards are the laws.

Judges are part of another State body, responsible for enforcing laws passed by the legislature. They cannot modify the laws, nor distort them; they must simply apply them in their judgments of concrete cases. In short, judges must be the first to obey the laws created by the legislators. Their decisions must punish transgressors in precisely the manner stipulated in the general and abstract standards. In the end, through this ingenious mechanism, everyone ends up behaving as defined by the laws approved by the State, since the disobedient are removed from social life by the judges.

The unauthorized biography disagrees with all this.

Law as dealing with conflicts

If the Law is not the legal order, then what is it? It is the social system for dealing with conflicts of interests.

There are several differences between defining the Law as a legal order or as a system for dealing with conflicts. The most important concerns the purpose of the Law. Seen as the social system for dealing with conflicts of interests, it cannot be expected to bring order to society. The Law acts occasionally, not generally. Its object is the micro, not the macro.

Another important difference is connected to the function of the law. In the authorized biography, it is the instrument for ordering society. Here, it will be one of the guiding standards for handling conflicts of interest. Certainly the most important standard, but only one of them. I mean to say there are other standards, which also guide the handling of conflicts of interests. They are legal doctrine and precedents.

Legal Doctrine is the structured knowledge of the interpretation of laws and the other legal norms in a country’s legal ORDER. When a conflict of interests is addressed, the teachings of the indoctrinators, the doctrine’s creators, are taken into account.

Precedents, in turn, is the set of judicial decisions on a given matter, which represents prevailing thought among judges. The precedents also serve as a guide for dealing with conflicts of interests.

The authorized biography created a metaphor for these patterns. It speaks of sources of the Law. Just as water gushes from underground through a spring, the Law also springs from legislation, legal doctrine and precedents. The unauthorized biography sets aside the metaphor of springs, because it does not help to understand the Law.

An explanation of the word “law”

“Law” is a norm of the contemporary legal system that guides judges in solving conflicts of interests. You know the mechanism: the Legislative Branch approves a law, in general terms, and the Judicial Branch applies it to specific cases. This hasn’t always been the case. In fact, it’s relatively recent. And, of course, this wasn’t the case before the Homo sapiens crossed over into civilization-- that is, back when we lived in the “state of nature.” In fact, we believe in two very different environments or circumstances: before and after we became civilized. When civilization did not exist, human life must have been quite similar to that of other primates.

When we talk about the law of the jungle, we are once again using a metaphor. It is useful for us to organize the narrative. The existing standard for solving conflicts between humans before civilization can be synthesized by the notion of the law of the jungle. As long as we keep in mind the fact that this is a metaphor, there’s no harm in continuing to use the word “law” in this context.

Incidentally, as we will gradually discover, when we talk about the law of retaliation and the law of the Twelve Tables, for example, we are also using the word “law” in a metaphorical sense. They were not approved by any legislative power, to be applied by judges, in their judgment of legal cases.

“Law” and “law”

The word “law” in the English language means both the social system for resolving conflicts of interests (“direito” in Portuguese, “derecho” in Spanish, “droit” in French) and the norms approved by legislators (“lei” in Portuguese, “ley” in Spanish, “loi” in French). For the purposes of disambiguation, I employ “Law” with a capital “L” to refer to the social system for resolving conflicts of interests and “law” with a lowercase “l” for the norms passed by legislators.

An explanation of the word “civilization”

Some words are dangerous.

Dangerous words are ambiguous. They have more than one meaning, but it is not just any case of ambiguity that makes them dangerous.

The danger arises when two meanings of the same ambiguous word are very different, with one of them evoking violence, discrimination or prejudice that the other does not.

This is the case of the word “civilization.”

Starting in the late 15th century, when Europeans arrived in Africa, the Americas, the Far East and Oceania, they proclaimed themselves “civilized,” and called the original peoples “uncivilized.” And this justified the genocide, enslavement and submission of these peoples, as well as the usurpation of their lands, as if they were spreading civilization throughout the world.

It is definitely not in this colonialist sense that I use the word here, when referring to the transition of Homo sapiens from one state to another. This transition is an occurrence so far in the distant past that we don’t know when it first took place, let alone where.

“Civilization” is the state in which Homo sapiens observe some standards distinct from the law of the jungle in addressing conflicts of interests internal to groups. It emerges at the point when the species begins organizing itself, discouraging or even punishing the use of force, by those with greater strength, to subjugate other individuals in the same group, in order to make their interests prevail. From the moment that this takes place, we separate ourselves from the other primates in such a way that we can speak of another state, different from the state of nature.

The transition from the state of nature (conflicts resolved by force) to the state of civilization (conflicts resolved by other standards) was a turning point in the evolutionary trajectory of the species. I think we can better understand how all this came to pass by not treating the biology and history of human beings as if they were dissociable.

“Civilization,” in the second sense of the word, is a measure, a metric or a ruler. The innumerable groups of humans distance themselves from the state of nature (and the prevalence of the will of the strongest) at their own pace, in their own time and in their way. “Civilizing leaps,” in turn, are the moments in which the speed of this distancing from the state of nature increased. There will also be moments of stagnation and even regression.

With each step in which a group of humans distances itself from the state of nature, the chances of the strongest individuals succeeding in imposing their will by force are reduced. As the group moves away from the state of nature, weak individuals gradually become empowered.

In the word “civilization,” used to identify the departure from the state of nature, there is no reference to colonialism. As we will see further on, colonialism is the negation of civilization.

Conflicts and complexity

To continue, the Law is not the order for behavior in society, but the social system for dealing with conflicts of interests. And they can be more or less complex.

The vast majority of conflicts of interests are relatively straightforward. If tenants have not paid their rent, they must be evicted. They cannot continue to use someone else’s property without paying. If a divorced father suspends payment of child support after learning that his ex-wife has a new boyfriend, he has to be forced to hold up his obligation, and even face imprisonment if he doesn’t. If entrepreneurs refuse to pay their taxes in order to be able to sell their products for less than their competitors, they should be compelled to pay said taxes, along with fines and interest. And so on.

There are, however, more complex conflicts. In the intricate relational matters between the shareholders of a corporation or in the interpretation of sophisticated contracts of financial innovation, lawyers and judges make efforts to translate economic nuances into legal terms.

And some conflicts are highly complex. So it is no longer a question of difficulties in the legal translation of certain realities that are somewhat opaque for legal professionals, but a real clash between values of great and equal importance. Consider, on the one hand, the damage inflicted upon the environment through the incorrect use of pesticides, while, on the other, the impossibility of feeding billions of people without this resource for production. In the conflict between environmental protection and food safety, there isn’t one simple answer. Do we condemn billions of people to hunger today out of fear of disrespecting the rights of future generations? Is it possible to reconcile these values? How should this compromise take place?

The Law deals with increasingly complex issues. And, as such, it requires increasingly complex instruments as well. And we have a problem: everything that is done to eliminate complexity always has an effect contrary to the one desired, making the world even more complex. It’s inevitable.

Conflicts and more complexity

More highly-complex conflicts:

The prohibition of sports of great popular appeal, but which are cruel to animals.

Payment by the State of extremely high prices for experimental treatment for a rare disease in a single person, consuming resources that will thus be unavailable in attending the basic healthcare needs of thousands.

Recognition of a criminal’s right to forget his or her crime, in opposition to freedom of the press and information.

Limitation of privacy in favor of greater security.

The right to image clashing with freedom of expression.

The permanence or removal of statues in public squares that honor historical figures once we have begun to repudiate the values they nurtured.

The choice between, on the one hand, prohibiting or rewriting classic children’s literature that contains racist phrases and, on the other, contextualizing it historically, as the correct way to contribute to the self-esteem of black children.

Decriminalizing the recreational use of marijuana, while maintaining the criminalization of other drugs.

Granting or denying a rapist the paternity of a child conceived from rape.

Punishing zero tolerance crimes or depriving first-time offenders of the “criminal higher education” they will receive in a penitentiary.

Conflict addressed is not necessarily conflict terminated

When we say that the Law is the system by which society organizes itself to address conflicts of interest, we cannot presume that it effectively resolves them . A judge might determine that an aggressor cannot come near a victim of domestic violence, through an restraining order. The judge issues the order, but nothing can ensure that it is obeyed. There are, incidentally, many cases in which, despite this sort of restraining order, aggressors have pursued their victims, subjecting them to further violence at moments when they are not directly protected. The perpetrators will have to answer for this new crime, receive a higher penalty and possibly be imprisoned, but none of this truly resolves the conflict between aggressor and victim.

So far, human societies have managed to organize themselves to address conflicts of interests, but they have not created the means of effectively overcoming them, ending them, bringing them to a conclusion. There is no known instrument capable of bringing a conflict to a definitive end.

It may happen, and frequently does, that the conflict the Law addresses actually disappears, that the people involved accept the given solution and abandon the dispute or discord. Then comes peace for the winners and the losers, who continue to do business or interact, as neighbors or family members. But even here there is no certainty of real pacification. The loser might submit to the unfavorable decision merely for tactical reasons while, in fact, coldly awaiting the chance to strike back.

The Law’s treatment of conflicts, while not always leading to the end of a dispute or discord, is important for the organization of society. Without this treatment, there would be no obstacles for stronger parties to use violence to impose their will, thus dominating the weaker parties.

The Law’s contribution to the organization of society is limited and piecemeal. It addresses some of the conflicts of interests and occasionally resolves a number of them. The Law is not able to organize society. It only serves to reduce some tensions that could completely fray the social fabric.

Addressing conflicts of interests

Medicine treats the sick, but it does not cure them. Doctors are aware of treatments, some more efficient than others, and they propose them based on what they interpret from symptoms and tests. But the cure is a response that comes from the patient’s organism. Two people with the same symptoms are treated in the same way, but it often takes longer for one to get better than the other, or it might happen that one heals completely while the other succumbs.

The Law, in turn, addresses conflicts of interests, but does not necessarily resolve them. Legal professionals are aware of the treatments available for situations of conflict. The complete disappearance of the conflict, however, is a possible response of the subjects involved in the conflict to the treatment given by the Law.

Orientation in addressing conflicts of interests

Treatment, in medicine or in the Law, presupposes the adoption of procedures consistent with a certain goal. There is a clear objective to be pursued: curing the sick patient or the resolution of the conflict of interests. The rationality of the procedures is defined in terms of this objective.

Humans adopt a rational orientation when they organize themselves to address conflicts of interests that have arisen within the innumerable groups into which they have been divided (tribes, clans, families, cities, states, economic regions, etc.). Organizing the handling of conflicts means, in short, creating a consensus regarding a few general guidelines.

The standards of orientation in addressing conflicts of interests

Not everyone easily understands the reasoning embedded in the measures of treatment. Therefore, orientation translates into standards of conduct.

Doctors and patients do not need to know the reason why any given antibiotic, in the dosage and frequency defined in the instructions leaflet, should help in curing the illness. It’s up to the doctor to stay up to date on the latest medications, and the patient to simply obey the doctor’s prescription.

The constant standards of instructions leaflets and medical literature result from extensive biological, pharmacological, chemical and clinical research. In the office, professionals are prepared to make the diagnosis and detail the dosage and frequency of the medication, but they generally don’t know (and don’t even need to know) the research done to support the information in the instructions leaflets. Not all physicians are capable of processing the nuances of scientific work. On the other side of things, the patient is even less capable.

Likewise, the reasoning behind the measures for addressing conflicts of interests is translated into standards of conduct. Individuals responsible for handling conflicts of interests are guided by these standards. Nowadays, in democratic countries, these individuals are lawyers, judges and other legal professionals.

The most effective standard for guiding the treatment of conflicts of interests nowadays is the law. In other words, the legal norms (the Federal Constitution, ordinary laws, decrees and the rest). And I’m only talking about the most important standard here. In addition to the law, those involved in addressing conflicts of interests are guided by the standards of legal doctrine and precedents. In the past, when there were no such thing as laws, doctrine and jurisprudence, the standards to guide the handling of conflicts of interests were different. When lecturing on sources of the Law, professors tell students that these ancient standards were customary.

But, just as there were once different standards from our current ones, there is no guarantee that, in the future, the treatment of conflicts will continue to be guided by laws, legal doctrine and precedents.

Standards and decision

In the state of nature, the standard for handling conflicts was the law of the jungle. Of course, it wasn’t that someone decided that it would or should be that way. In the struggle for the scarce resources for survival, the satisfaction of the strongest’s needs simply predominated.

In the same way, when civilization emerges and the treatment of conflicts of interests begins to follow other standards, it’s not as if someone decided that this is how it would or should be. Gradually, the satisfaction of needs by force ceased to predominate. The process of civilization as a strategy of survival for the human species was underway.

With the invention of writing, some societies began to record these standards. Here too, this was not the result of any individual decision. Similarly, it wasn’t as if someone had decided that things would or should be that way. The written record became a way of reaffirming, whenever necessary, the standards observed since the beginning of time.

Only recently did the standards for handling conflicts of interests become the result of a decision, historically speaking. It resulted from a slow and gradual process in the way human society organizes itself to handle conflicts of interests. It concludes with “positivisation,” something that fully matured only in the early 19th century. This is something I will discuss at length.

A trajectory, not a history

To understand the transformations it is currently undergoing, we need to look back. This unauthorized biography, however, is not a history book of the Law. The narrative of the subject will not be detailed in a exhaustive manner, transiting through the succession of all relevant facts. Yes, I do present a timeline, but with gaps, leaps forward and steps back in time. This is why I prefer to call the narrative a “trajectory.” It occupies the first half of the book. In the second part, I invite the reader to reconsider whether the Law really is, as its official biographers say, a system for ordering society.

I propose a trajectory in five stages and choose a historical fact as a temporal milestone for each of them.

The first stage corresponds to the beginning of civilization, when the law of the jungle ceases to guide conflicts over scarce goods and other standards of guidance follow. One of the first is the law of retaliation, summed up by the formula “an eye for an eye, a tooth for a tooth,” which you most certainly have heard of. The chosen temporal milestone is the installation, on orders from Hammurabi, of stone tablets with instructions for the solution of conflicts of interests in public squares in some cities of the Babylonian Empire (18th century BCE).

The second stage of the trajectory is that of written law. Its temporal milestone is the law of the Twelve Tables of Roman Law (fifth century BCE). At that time, the standards were transmitted orally, and this gave the guardians of oral tradition enormous power. They were required to be consulted to recall the standard of treatment for each conflict. There was also the fear that the guardians would adjust the tradition to fit the interests of the occasion. Writing them down not only did away with this power and prevented opportunistic distortions, it also provided greater rationality in the treatment of conflicts of interests.

At the beginning of the third stage of the trajectory of the Law, a powerful character appears: the Nation State. It claims to be the only one legitimately authorized to use force and, with that, institutionalizes the Law. Also at this stage, a stable body of civil servants is now exclusively responsible for dealing with conflicts of interests. Now we have judges, for the time being acting as mere agents of the sovereign. The temporal milestone is the Peace of Westphalia (17th century).

The next stage of the proposed trajectory is characterized by a sweeping change in the definition of the guidelines for dealing with conflicts of interests. These standards shift from long-standing tradition to the product of a conscious decision. The temporal milestone is the approval of the Civil Code of the French under Napoleon Bonaparte (early 19th century). At this moment in their history, human beings are fully convinced that they will successfully organize society in a rational way.

In the fifth stage, the one in which we currently find ourselves, we are witnessing a strengthening and independence of judges. Democracy is no longer just the will of the majority, with the judiciary giving voice to and recognizing the rights of minority sectors of society. The complexity of social conflicts is so exacerbated that the triad State, laws and judges no longer seem capable of handling it. Then comes the emergence of what was once called “judicial activism” and “juristocracy.” The temporal milestone I selected here was a trial of the Federal Constitutional Court of Germany, the Lebach Case of 1973.

The stages are not air-tight

Every explanation we come up with is a simplification. We have never been fully able to translate the rich reality that surrounds us into ideas. We always only understand part of it.

This limitation in our capacity for abstraction has not prevented effective interventions in reality. We create vaccines that protect us and fantastic little machines that we use to exchange messages with people on the other side of the world. We build huge buildings. We produce food for billions of human beings, and we’ve even visited the Moon.

When describing historical trajectories, we also develop ideas that are inevitably a simplification, only partially capturing the object. Simplification is inevitable, but we can defend ourselves against certain pitfalls.

One of the pitfalls of simplification consists in approaching the five steps in which I divided the trajectory of the Law as if they were air-tight. In the rich flow of events, the changes that the human species has gone through and is going through are not abrupt. They insinuate themselves initially, triggering an insistent movement of ebb and flow, spreading vacillations and uncertainties. Then, at a speed that goes from hesitant to exponential, the representative changes of each stage assert themselves. The new imposes itself on the old, pushes it back, but not always eliminating it completely.

When we say that, at a certain point in our history, human beings stopped using the law of the jungle to handle conflicts between individuals and adopted different standards of treatment and that, at that moment, civilization and the Law are born, this is a simplification-- just as are all our historical narratives.

First of all, there is no one moment per se, but rather a process, in which we “advance” toward the different, coming and going, going more than coming, coming more than going, at different paces, until most individuals introject new values and concepts, transforming the environment to the extent that it triggers a perception of the arrival of yet another stage in the trajectory.

Furthermore, nothing changes completely, not normally. The emergence of new standards for handling of conflicts did not do away with the law of the jungle entirely. Even today, even in big cities, conflicts of interests are resolved by the natural law of prevalence of the will of the strongest. Consider the hypothesis of the rape of a young woman, in which the perpetrator is her violent neighbor: they live in a community where the presence of the State is barely felt. If the victim prefers painful silence to the excruciating uncertainties and discomfort of police interrogation and the criminal trial and the perspective of further violence against herself and her family, the unmentioned conflict would be suffocated by the law of nature. The rapist will see his perverse interests prevail over those of the weakened, unprotected young woman.

If, however, she decides to react, to seek out other women in the community who have suffered the same heinous aggression, to forge unity among them, to go to the State that neglected to come to them, to kick up a storm on the social networks and the media, have a little luck on her side and keep up an unwavering disposition for the fight, there’s a chance that she will succeed in getting this conflict of interests addressed by the Law. At least, she will have the possibility of inverting the game and managing to place her interest above that of the rapist, seeing him imprisoned for a few years. In the state of nature, victims of rape were left with no choice but to endure.

The law of the jungle nowadays

If I were talking on my cell phone as I walk to work, and I’m surprised by a cyclist, who snatches my device and speeds away, quickly disappearing down a side street, I would be just another distracted victim of a commonplace act of theft in São Paulo, the city in which I live.

What should I do when faced with this theft? Strictly speaking, I should go to the nearest police station and inform them of the crime. If I find employees willing to do their job, I would be asked to try to recognize the criminal by looking at a series of photos on the computer screen. I would be subjected to in-depth questioning, the objective of which being to collect as much information as possible for the investigation. Part of this questioning is intended to rule out the hypothesis that I’m lying. I would be taken to a technician, in order to provide details that would allow him or her to draw a composite sketch of the perpetrator.

I might never get news of my cell phone, in which case, this would all add up to a colossal waste of time. But, what if, on the contrary, everything works out, the police are able to identify and detain the assailant and I get the cell phone back in a few days? In this case, the saga will continue. I will be summoned to appear before a judge, to recognize the criminal in person.

If the judge finds that there’s not enough evidence to impose any penalty on the young man sitting there on the other side of the table with a rehearsed “poor-me” countenance, then he’ll acquit him and it will all have all, once again, been a colossal waste of time. But it could turn out that the judge is convinced that that individual did in fact rob me, thus sentencing him to the penalties provided for under the law.

If the individual happens to be a first-time offender and if, in the judge’s eyes, the cell phone is not such a prized possession for me, the sentence will be light. The assailant won’t be detained for more than a few months or he might even just have to pay a fine or do some community service.

I might be pleased with this result, believing that justice has been done and that the young man will be taught a hard lesson that will lead him to look for honest work rather than continue to steal people’s cell phones. But, then again, events could transpire quite differently. The assailant comes after me the first chance he gets, seeking vengeance for the punishment he was given. When I realize he’s stalking me, I again go to the police to report him, starting the whole saga all over again, with the same tension and the wasted time.

In view of this, if I’m well aware of the sort of treatment the Law will give to the conflict of interests between me and the guy who stole my phone, it’s likely that I will choose to simply take the loss, disabling the device from a distance and, rather than going to the police station, going to the store to buy a new phone. If I make this choice, the conflict of interests would have been resolved by the law of the jungle. I pondered the pros and cons and preferred to live with the damages than go to the Law to address the conflict.

Civilization has not completely eliminated the conflicts resolved by the law of the jungle. Due to a series of factors (public policy failures, the ineffectiveness of the police, judicial and penitentiary systems, etc.), numerous conflicts are still resolved by this irrational pre-civilizational standard. Think not only of the unsafe urban environment of Brazil’s big cites (as in my example), but also in land disputes around the country, in the communities that practice female genital mutilation, in the silencing of journalists by dictatorial regimes, in economies devoid of laws to protect workers and in impoverished areas ruled by criminal organizations.

Denial of history

When I was little in the 1960s, there were these two cartoon shows I used to watch on TV, produced by Hanna-Barbera studios. One was The Flintstones, which told stories set over a million years in the past; the other, The Jetsons, was set in 2062, 100 years in the future.

Both shows chronicle the everyday lives of a family, as such depicting minor everyday concerns of the American middle class of that era. Fred Flintstone and George Jetson are employed by large corporations. Fred works in a quarry, operating a dinosaur that functions like a crane. George is employed at a sprocket factory, pressing buttons on his computer, with whom he converses as if it were a coworker. Both of them answer to irascible, abusive bosses. They should be quite dissatisfied with their work, but apparently choose to endure constant moral harassment from their bosses as each is the sole breadwinner in their family.