Editorial
O brocardo ‘dura lex, sed lex’ não deve prevalecer, pois a norma não nasce para ser dura, mas sim justa.

      The person differs from other beings in the universe by being a being capable of demonstrating their sensitivity and by having reason evolves from their birth by originality to their singularity. It is with caution that its origin must be unveiled, but its right, life, conscience, morality, image and freedom will be preserved, finally guaranteeing its personality. To these factors determining the preservation of the human being that the Law is concerned at every moment to regulate the experiences lived by the person in its transformations arising from the circumstances of time and space, and it is therefore up to man to interpret this volubility: reducing to the thought, “Homo sum, et nihil humani a me alienum puto “. Moreover, in this harmony, a close relationship of man is approached every day, as an intimate being, directed towards his reflections and actions, with anthropological Man: to the position of social being, in a double vision, in a balance between their mistakes and correctness, in face of their daily behavior. The characteristic of being involved and living in community brings each individual to their own vision and perception of reality, provoking a personal and at the same time dynamic organization aiming to achieve their intent of accomplishment. It starts from unity to the whole and the social structure by which it imposes itself – “collective will” – when reflecting on the factual plane the obedience to indicated values ​​purposely, establishing, finally, a phenomenon guaranteeing social justice: the enthronement of the legal system as regulating relations between people and between them and the State. Thus, it is from a language known to all, people are instrumented with exogenous elements, such as the shared search for socio-political development and a stable economy – valuation of a stable ethical-social environment – that harmonize the ideas individuals fostering a social unit of autonomous structure, because it is supported by the sovereignty of its decisions.                             

      At the beginning of humanity forms were rudimentary of the evolution of the social role, but with the contemporary sense of life, the equation of the “common good” was shaped by the insertion of the state in the individual will. Thus, the vertical and hierarchical inspiration of the pyramid in the State Power crystallized by becoming a parameter of growth, but at the same time denying on the lower plane the individual and unbridgeable content of consciousness and the factor of intimacy of the human being. Law, in turn, has been the instrument capable of better assimilating this relationship between the Public Power and the person. By the way, the experience lived between the interaction of the Law with other Social Sciences, such as Sociology and Politics, has been constituting a benefit, since it enlarges the human content to be considered by the Positive Right and by consenting the approach of control of the excesses arising from the actions of the State before the individual will constitutes one of the pinnacles established by the norm, by establishing logical conditions of behavior capable of transmitting reasonable and possible security between the parties involved. At this point, it should be taken into account that the law, besides being a social phenomenon, has in its complexity to promote a special characteristic regarding its structure: its practice has the nature of being argumentative [1]. Thus, there are those, like Austin, in advocating that legal authority be limited to a sovereign or a group of people who hold power and that all of society should bow down. [2] However, Hart refuted this view, for the foundations of Law translate into a stimulus superior to that admitted by Austin: “social conventions are that they grant to an individual or a group of people the power of leadership and by consent to the creation of valid laws.” In these theories of positivist genesis is that it involves the understanding of the Right by configuring as private the particular examination of the present prominence, about the superiority of the State over the individual or the inclination of this before that one. However, it is important to emphasize to those who defend the classic argumentation of natural law: morality is sometimes superior to legal propositions and it is therefore unacceptable to admit a legal proposition if it is not fair. If a particular law is omitted, for example, not to contemplate an individual right or even if it is transparent as to the intention of the legislator, but creating a social unrest, the solution of this legal proposition will have to consider what is fair and ethical to be conclusive. For others, “common sense” [4] appears as a principle to be followed for the purpose of justice.

The configuration of the divergence about which will be the true argument to serve as a guideline, among the legal propositions formulated, becomes the necessary and useful discussion for the learning of the legal science itself and its content, it is up to the judge to interpret the law applying it, and, thus, safeguarding the greater interest of the public order. When questioning whether or not a law has the primacy of reflecting a social interest in relation to individual rights, it is necessary to interpret its factual assumption and its real incidence, in addition to clarifying especially the “legal good” to be protected: if characteristic of being publicly or essentially privately directed. The objective right then set up generates subjective rights and duties that assume its role by the will of the State, but “makes the present man an easy prey of the dominant power structure, which on the pretext of giving him a good that he lacks or deems lacking , it ends up castrating him essentially from his human personality as well as from the anthropocentralization of juridical rules, of which one of the most significant dynamics is the consecration of a general right of personality as a matrix, reference and complement of the special rights of personality [5 ] “. However, some states are currently trying to signal in their legal systems the configuration of a “general personality right” formally harboring the conviction of certain human rights as inviolable and inalienable [6], though historically others, for in turn, render their original wills insufficient by acting materially in a differing way in favor of the interest of the person or group of persons who momentarily constitutes the representative authority of the State in practicing certain actions which constantly violate the essential rights of the human personality independently whether or not they are in a time of peace [7]. Thus, the reservation and secrecy of “private life” comprise one of the spheres [8] of the general right of personality which has respect for the dignity of the person at its core. It is with the unlawful offense that the offended person will have the right to request the State Court to terminate it, in addition if it is the case of obtaining a corresponding indemnity from the one that was considered author, in the face of the loss that has been proven: individual right of personality ‘of the offended person in pursuing compensation for the harm suffered. This purely private effect of civil liability becomes in turn framed in a larger dimension, if perhaps the perpetrator of the wrongdoing is the State itself thus erecting an emerging social insecurity. In this connection, the State’s obligation to protect the established legal order is necessarily first and foremost safeguarding the “general right of personality” of the citizen, justifying at last the reason for having been created and the purpose for which it is proposed, the ‘common good’. However, in order to assign a State responsible for its actions, it is up to society to follow some principles of evaluation, as we shall see, about its role in the meaning of the assertion of justice. Moreover, the idea of ​​justice can generate a certain discomfort if it is based on the prism that relations are complex among people in a society, in the presence of the conflict between the will of all pursuing an ideal of well-being, with reciprocal advantages and same time coming to the conclusion that goods are not for everyone, only for some. In this sense, the distribution of justice will comprise a thorny task of determining what interest will be satisfied and for this people must meet the minimum mandatory rules of social coexistence: institutions will have to “define the appropriate distribution of benefits and burdens of social cooperation [ 9] “. In this sense, disputes over the interest to be satisfied are distressing, but we can say that they are natural, in the face of the inability of the State to serve everyone. The sense of balance between people’s mutual interaction with institutions generates ‘social satisfaction’, revealing the organizational stability of a given state by addressing inequality issues and realistically addressing desirable efficiency plans. The topic to be satisfied is, therefore, social justice and the basic structure that the State must possess to meet the expectations of the population: the opportunities presented in front of a project widely discussed generating favorable conditions for an ethico-social, economic and political development based on freedom of action, although it is subject to certain rules of conduct that make it limited or relative.

The set of rights and duties foreseen in the legal order is an essential element for social justice, but insufficient to be considered an advantage that can affirm that the State is fully developed in its principles of action. In the wake of a well-ordered society comes the willingness of the State to seek to meet social demands and respect human rights. The meaning we want to give is the object of justice to be instituted by the state and the status it considers, because it has a society formed by ethical people, in the expression of John Rawls: “rational beings with their own goals and capable of a sense of justice. [10] “. After all, in this intellection it is important to emphasize that it could lead to a conception of the ideal state without taking into account the vicissitudes that a modern society necessarily has to face, in the face of the human affliction in the face of increasingly intellectual and professional competitiveness and the inequality of opportunities generated by the Public Power, but what we have or want is not always what we can have or possess and so it is reasonable to admit a social organization capable of meeting enough to meet the general and essential expectations of social justice capable of transmitting security to each citizen regardless of whether or not he is elevated to the fortunate category. Moreover, what matters is the State having a legal framework and following “ethical-social principles” that are prone to legitimize the “collective will” and at the same time to safeguard the individual rights essential to the human personality giving rise to the understanding that it is a State democratic and focused on the development of its actions, according to the expectations of its people.

Finally, it is in this perspective that the advancement of the legal system must be guided and that as a corollary, in our understanding this understanding must be preserved as the best way to be followed. By the way, this is our vision of the study of Law and why it should be explored, including this site, always seeking its evolution, in view of its dynamicity.

 

LEONARDO PACHE DE FARIA CUPELLO

[1] DworKin, Ronald, “The Empire of Law”, Ed. Martins Fontes, São Paulo, 1999, p. 17.

 

[2] Austin, J.L., “The Province of Jurisprudence Determined (H.L.A. Hart. Org., New York, 1954)”.

[3] Hart. L. A., “The Concept of Law (London, 1961).”

 

The case of the “Snail Darter”: the vote of the Judge of the Supreme Court, Lewis Powel when he affirmed that “it is not for us to rectify policies or political judgments emanating from the Legislative Power, however it is the disservice that they render to the interest public. But when the formation of the law and the legislative process, as in this case, need not be interpreted to arrive at such a result, I consider it the duty of this Court to adopt an effective interpretation that is compatible with a little common sense and public welfare ” (Tenesse Valley Authority v. Hill, 437 US 153, 185-1788).

 

[5] Sousa, Rabindranath V. A. Capelo de, “The General Right of Personality”, Coimbra Editora, 1995, p. 84/85.

 

[6] In the Constitution of Germany, for example, in its art.1.1 it imposes that “the dignity of the man is intangible. All public authorities have an obligation to respect and protect “and emphasizes in its art. 2.1 that “everyone has the right to the free development of his personality …”. In turn, the Portuguese Constitution guarantees to all the development of the personality, reserving the privacy of private life and therefore to human dignity (art. 26). In Brazil, in its 1988 Federal Constitution, one of its fundamental principles is the dignity of the human person (art. 1, III).

 

[7] All those totalitarian states which use as modus operandi, e.g. torture and oppression in the face of opponents in order to remain in power. Thus in these states, as Sahid Maluf puts it, “what prevails is the end in itself and therefore it is used of individuals as a means to achieve their own purpose and which lead to the annulment of the human personality and to the slavery of man” General Theory of the State, Ed. Saraiva, 1991, p.110-.

 

[8] The rights to personal identity, civil capacity, citizenship, good name and reputation, image, freedom of expression and information, inviolability of domicile and correspondence, freedom of conscience, religion and worship , etc. are also considered other spheres of the general right of personality and that it will be up to the State not only to protect them, but to classify them as inherent to a Democratic State of Right, since “the dignity of the human person is a spiritual and moral value inherent to the person , which manifests itself singularly in the conscious and responsible self-determination of one’s own life and which brings with it the pretension to respect on the part of the other persons, constituting an invulnerable minimum that every juridical status must ensure, so that, only exceptionally, can be made limitations on the exercise of fundamental rights, but always without neglecting the necessary esteem that all persons deserve as human beings. “(Alexandre de Moraes – Fundamental Human Rights, 3rd Edition, Ed. Atlas, 2000, p.60)

 

[9] Rawls, John, “A Theory of Justice,” Ed. Martins Fontes, São Paulo, 2000, p. 5.

 

[10] Idem, p.13.

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