ALFREDO ATTIÉ
Towards International Law of Democracy A Comparative Study
Alfredo Attié
Towards International Law of Democracy A Comparative Study
Copyright© Tirant lo Blanch Editor Responsável: Aline Gostinski Capa, Projeto Gráfico e Diagramação: Rodrigo de Morais Lucio Finalização: Analu Brettas CONSELHO EDITORIAL CIENTÍFICO: Eduardo Ferrer Mac-Gregor Poisot Presidente da Corte Interamericana de Direitos Humanos. Investigador do Instituto de Investigações Jurídicas da UNAM - México
Juarez Tavares Catedrático de Direito Penal da Universidade do Estado do Rio de Janeiro - Brasil
Luis López Guerra Ex Magistrado do Tribunal Europeu de Direitos Humanos. Catedrático de Direito Constitucional da Universidade Carlos III de Madrid - Espanha
Owen M. Fiss Catedrático Emérito de Teoria de Direito da Universidade de Yale - EUA
Tomás S. Vives Antón Catedrático de Direito Penal da Universidade de Valência - Espanha
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Attié, Alfredo Towards international law of democracy : a comparative study [eBook] / Alfredo Attié. – 1.ed. São Paulo : Tirant lo Blanch, 2022. 10.218Kb; Ebook ISBN: 978-65-5908-263-6 1. Comparative law. 2. Democracy. I. Título. CDU: 340.5
Elisabete Cândida da Silva Bibliotecária CRB 8/6778 DOI: 10.53071/boo-2022-05-26-628fd437852f1 É proibida a reprodução total ou parcial, por qualquer meio ou processo, inclusive quanto às características gráficas e/ou editoriais. A violação de direitos autorais constitui crime (Código Penal, art.184 e §§, Lei n° 10.695, de 01/07/2003), sujeitando-se à busca e apreensão e indenizações diversas (Lei n°9.610/98). Todos os direitos desta edição reservados à Tirant Empório do Direito Editoral Ltda.
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Attié, Alfredo Towards international law of democracy : a comparative study / Alfredo Attié. – 1.ed. - São Paulo : Tirant lo Blanch, 2021. Todos 190 os direitos p. desta edição reservados à Tirant lo Blanch. Avenida Brigadeiro Luiz Antonio nº 2909, sala 44. Bairro Jardim Paulista, São Paulo - SP CEP: 01401-000 ISBN: 978-65-5908-262-9 Fone: 11 2894 7330 / Email: editora@tirant.com / atendimento@tirant.com www.tirant.com/br - www.editorial.tirant.com/br/
Impresso no Brasil / Printed1. in Brazil Comparative
law. 2. Democracy. I. Título. CDU: 340.5
Alfredo Attié
Towards International Law of Democracy A Comparative Study
SUMÁRIO Introduction. ................................................................................................... 8 1. Sharing Experiences. ................................................................................... 14 2. Paths and Moments of Comparison: A World of Metaphors...................... 24 Comparison and the Comparative Method................................................. 24 Law-Culture-Politics: Montaigne, Hobbes, Montesquieu............................ 25 Figures of Speech: the Metaphor................................................................. 29 Law, Narrative, Performance....................................................................... 33 Tragedy, Foundation of Law and Democracy.............................................. 35 Pure Province: Circumscribing and Compounding History and Poetry....... 38 3. Democracy to compare................................................................................ 47 Neither Framework nor Universal Apparatus.............................................. 47 Medium or New Technology of Association................................................ 48 Obstacles to the Understanding of Democracy............................................ 51 Democracy Imprinted in the Human Condition and Memory................... 57 Foundations of the Modern Conception of Politics..................................... 59 Changing Qualities in the Modern Era....................................................... 63 Ancient and Modern: The International Political Regime............................ 68 A new Science of Politics for a new World................................................... 72 Different Perspectives.................................................................................. 73 Triads for the Modernity............................................................................. 77 4. Cultures of Modernism: Novels for Nations Encounters in the International Century..................................................................................................... 82 Towards a New International Era................................................................ 82 Identities and Nations: Romanticism versus Modernism............................. 85 Culture as Political Artifact......................................................................... 90 Inventions................................................................................................... 90 Imagination................................................................................................ 92 Americas’ Cases........................................................................................... 94 “Der Zeit ihre Kunst, der Kunst ihre Freiheit”............................................ 97 Excavating Foundational Beliefs, Passions and Interests ............................ 105 Denial of the Founders............................................................................. 114 Romanticism and Representation.............................................................. 116 “Reentrar no meu povo, reprincipiar minha ciência”................................. 120
Anguish of Identity................................................................................... 126 Macunaíma, Abaporu, “Make It New”...................................................... 129 Hedonism-Hunger-Violence..................................................................... 130 Sovereignty-Oriented: the Anti-Narcissus.................................................. 132 Democracy-Oriented: the Narcissus.......................................................... 135 Political Identity and Compulsion of Refounding..................................... 139 Civil Republicanism and Liberalism Walking............................................ 145 War, Commerce, Democracy.................................................................... 146 Democracy International and Multiple: a New Universalism.................... 150 Conclusion.................................................................................................... 154 Acknowledgments ........................................................................................ 163 Bibliography.................................................................................................. 165
“… Ἔνισπε δ᾽ ἡμῖν ποῖ κεκύρωται τέλος, δήμου κρατοῦσα χεὶρ ὅπῃ πληθύνεται...”1 “ … l a c r é a t i o n d ´ ê t re s h u m a i n s , v i v a n t a v e c l a s a g esse, et aimant le bien commun.”2
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Aeschylus, Suppliant Women 601 (Herbert Weir Smyth trans., 1926). “Tell us — to what end has the decision been carried, and to what course does the majority of the people’s votes incline?” or, simply or literally: Tell us what opinion the sovereign hand of the people gave the majority? Or: “Dis-nous à quelle opinion la main souveraine du peuple a donné la majorité?” Pierre Vidal-Naquet, Les Grecs, les Historiens, la Démocratie : le Grand Écart 173 (2000). Cornelius Castoriadis, La Polis Grecque et la Création de la Démocratie in Domaines de l’Homme, les Carrefours du Labyrinthe II 261-306 (1986).
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Introduction Considered by some critics as simply reduced to a brand, Democracy, or, to be more specific, the Passion for Democracy has experienced an unexpected revival, in the beginning of our 21st Century. Most surprisingly, the new places of Democracy’s enchantment have been no more the traditional Agoras of the Western Civilization, but the crowded squares of traditional authoritarian States, including Brazil. People on the move, interconnected by the global artifacts, have left behind traditional passivity, and decided to meet in public spaces, asking for changes in the political regimes of their countries, starting unfinished riots, confronting rigid institutions, established structures. Within movements destined for success and failure, Democracy is now facing unprecedented obstacles, drawn by cultural, social, religious, economic, legal and political restraints. The Idea of Democracy has become again a matter of contentious, even violent disagreement. Whether in Africa, Asia or Latin America, people whose pattern of behavior was subject to a Government’s authoritarian rule, have, by cultural inclination or educational training, cut off ancient linkages, adopted hope instead of fear, and bravely decided to enter the political scene and become actors for their own destinies. As a political regime, experience, or ideal, as a mode of social life, a form of government; the form through which power is legitimized and the manner in which it is exercised; a juridico-political, and an economic-managerial mode of conceptualization - Democracy enters a new era. People all over the world recognize Democracy as something desirable and even indispensable to the achievement of a good life. Something that calls our attention to the ancient and modern ideas of the common life within the political structures: eudaimonia to the Greeks, pursuit of happiness to the Americans, both quite similar objects of living together, sharing the space and time with others. Mainly, this is a study on the foundation of democratic ideas in Brazil and United States, trying to uncover the roots and origins of potentially international common grounds and conceptions of politics. By situating a new dissertation in the existing literature, by referencing prior works and other scholars, I would like to establish a concrete proposal of a set of international requirements. This methodical research could then be useful for national and international actors in helping peoples choose better instruments to successfully achieve a more peaceful and effective path to the implementation of Democracy in their countries, while still in constant dialogue with international agencies, and other peoples’ experiences and ideas. As such, I would propound the building of a comparative
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database on democratic or political experiences and ideas, which can be accessed and enriched by everyone. Democracy and international law are, even if considered individually, difficult subjects to deal with, because their conceptions have been contentious, and cannot be understood without the help of different approaches in a multidimensional and interdisciplinary perspective. In addition, only recently have democracy and international law been read together and become a single object of study. Aware of the intrinsic difficulties of the subject and the originality of the method I have chosen to deal with it, I decided to divide my research into two stages: (1) a discussion of the building of the democratic idea, in its political, legal and cultural context; and (2) the discussion of the possibilities of an actual international law, in light of a global or universal democratic experience. I hope the first one is, to a certain extendt, accomplished by means of the research developed in this thesis: to understand in which manners the comprehension of the theory and the practice of democracy and international law depends on the implication of cultural, political and legal aspects, and in which manner those aspects are rooted in the characteristics of different societies. Those characteristics can only be understood with the help of historical and comparative methods. In addition to the resources provided by the work of social scientists—historians, psychologists, jurists, and ethnologists—I made extensive use of literary sources. Let me briefly describe the path I have followed to build my thesis and proposal, summing up the chapters and pointing out the main ideas I have developed within them. The thesis is divided in four chapters: Sharing Experiences; Paths and Moments of Comparison: a World of Metaphors; Democracy to Compare; and Cultures of Modernism: Novels for National Encounters in the International Century. Each chapter is divided into sections, in order to help the reader identify the main contributions of the thesis. 1. In the first chapter, - Sharing Experiences - I provide an abstract of the whole thesis — explaining my choice of an essayist style, and of literary sources— as a means to give to the reader an overview of the arguments that would follow. My argument is that, we are in the midst of a critical moment for legal theory, in which the international experience has become fundamental. This fact, the dominance of the international, requires the use of our legal imagination and the help of the knowledge and experience of other sciences and arts to criticize and overcome the state of our current legal theory and practice. The legal theory, however, at the present moment, is dominated by the domestic perspective; that is to say, the concept of sovereignty becomes paramount. In this sense, my argument, which I will develop in the fourth chapter, Cultures of Modernism, is that, in the building of the state, the major influxes—spous-
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ing nation-centric or domestic law preponderant legal theory or practice—were provided in the Romantic era, during the 19th Century. Furthermore, even the concept and practice of democracy would be led to the same nation-centric perspective, thus transforming an experience, international in its origin, into a case of national choice, the choice of a political regime within the frontiers of a nation. To convey this idea, I will provide, in the third chapter, Democracy to Compare, some narratives of democracy, an attempt to compare the concepts that were imagined by the philosophers, and regimes created by the nations, since the beginning of the modern history. 2. Due to my choice of method (essayist) and sources (literary), I provide an explanation of what I have called the metaphorical style or method, in the second chapter, Paths and Moments of Comparison. I explain the importance of the comparison and the comparative method and choose the metaphor as the figure of speech standard, in order to understand the experience of law as a narrative and a performance. The choice of the metaphorical method serves the attempt of the thesis to integrate law and democracy in the same and original model. It also helps in the comprehension of the determination of the experiences of both law and democracy by the cultural and political contexts, as in the finding of a way to understand the introduction of the international argument in that relation (international law and international democracy: international law of democracy). Literary sources can provide a more realistic understanding of the mechanisms by which societies identify themselves, and of the interactions of individuals. I will return to the idea of identification of the societies in the next chapter, Cultures of Modernism, in which I will describe the characteristics of the political experiences of Brazil and the US, by means of interpreting their romantic and modernist literatures. At the end of the second chapter, I propose a critique of the positivistic and state-centric conception of law. The ideas of the province of jurisprudence (Austin) and the pure theory (Kelsen) are metaphorical contour-lines traced around imagined coherent systems, which correspond to the illusion of a state-centric practice and theory of law. To sum up, Paths and Moments of Comparison is conveyed to expound the method of analysis and exposition developed all over the thesis. 3. The third chapter, Democracy to Compare, provides a discussion on the various concepts and experiences of democracy. It compares the original model, the Athenian experience, with the modern one. To deal with that comparison, I propose a non-universalistic point of view, and explain democracy as a narrative of those experiences compared. The human being is a political animal, politics is a part of its self; therefore, I explain two important ideas about democracy,
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which I took from the experiences compared: democracy as a medium, or a new technology of association; and democracy as essentially international. As a medium, democracy became imprinted in the human condition and memory. I exemplify that statement through Spinoza’s conception of democracy as the most natural political regime. As an international regime, democracy has always dealt with the international matters concerning public life, among them the most important has always been the relationship between war and peace among communities or societies. Then, I propose the triads that work as driving forces of the comprehension and the practice of democracy in the ancient history—eudaimonia-eleutheros-polemos, or happiness-freedom-war—and in the modern history—freedomrights-commerce. It is important to observe that the modern triad will not fit all the political experiences of the modern times. In that sense, specifically for the Brazilian experience, I will suggest the triad hedonism-hunger-violence, which I take from the analysis and the critique of the most important Brazilian writers, in respect to the relationship between the Romantic and the Modernist literary movements. At the end of the third chapter, I discuss the different modes of interpreting the modern triad—freedom-rights-commerce—and compare the way it was comprehended and adopted in the political and legal history of Brazil and US. 4. Cultures of Modernism is the last chapter and leads the reader to the conclusion of the thesis. I return to the critique of the state-centric conception of law and political society, by providing a critical analysis of the ideas of nation and nationalism, as products of the Romantic Era. Nations, National States and Nationalism are neither given by natural reasons, nor a deterministic result of historical constraints. They are inventions and products of imagination, because culture is a political artifact. In the process of foundation of the state-centric beliefs, romanticism played an important role. In the process of criticizing and deconstructing those beliefs, modernism would play a major part. I begin my critical analysis by rendering clear the importance of that relationship of romanticism and modernism with the help of the interpretation of the European avant-garde political and literary movements. Those movements worked indeed as important models for the modernist movements in Brazil and US, notwithstanding the different courses taken by the artists in the two countries. Gustav Klimt provides us an example that justifies our intent of immersing in the language of the arts. Indeed, as I intend to demonstrate, in a single depiction of Jurisprudence, the Austrian artist deconstruct the whole idea conveyed by the European theorists about the law system.
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In this chapter, I make extensive use of literary sources, the most important means to understand and compare the conceptions of political life and democracy in Brazil and the US. I compare the romantic and modernist Brazilian and American novels, using concepts provided by historians and sociologists, in order to define the political regimes, and the beliefs, the passions, and the interests involved in the conception and the experience of politics in both countries. My argument is that the cultural and political characteristics and constraints can explain the contours of the conception and experience of international law and international relations of US and Brazil. Finally, in defining the contributions of both countries to the international arena, I define them as antithetical in nature and experience: the Brazilian theory and practice of international law and relations is sovereignty-oriented; the American theory and practice is democracy-oriented. The main characteristic of the Brazilian international political and legal thought is determined by the fact that Brazil remains reflecting about its own identity, which I name the anguish for identity. The metaphorical role of Brazil in the international arena is the anti-Narcissus (a reflection of the Abaporu-Macunaíma literary characters). The main characteristic of the American international political and legal thought is determined by the fact that the US, in spite of establishing an ingenious political identity for themselves, remain in search of refounding their identity, as a manner to solve the permanent conflicts in which they are involved, internally and externally. That characteristic I call compulsion of refounding. Therefore, the metaphorical role of the US in the international arena is the Narcissus. I chose the mythical character of Narcissus, by means of criticizing the Freudian psychoanalytic concept. The concept was forged to deal with the European reality experienced by Freud, but when moved to the reality of the Americas, psychoanalysis suffered a radical transformation, because its main concepts would troubledly understand the political experiences of democracy and colonialism. 5. In the conclusion, I discuss briefly the need of and the obstacles to the building of an International Law of Democracy. The building of an actual international order is a great endeavor of our time. An international law must overcome the attachment to the national contexts—cultural, political and legal—that I have studied in the previous chapters. It must depart from the modernist critiques to the romantic determination of law-politics-culture. In dealing with the cultural characteristics of the nation-states, it has to be able to extract the aspects that help improve the international coexistence of different peoples, at the same time preserving and transforming rights constitutionally secured. That is the reason why the Inter-
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national Law of Human Rights is just a step in the building of International Law of Democracy. I propose not to abandon universalism, but to figure out a new universalism, The new universalism, I think and hope, must be realistic, and brave, in selecting, from the contribution of all the cultures that compound the international order, the aspects that actually contribute to the improvement of the democratic convivence of the peoples. To realize that selection, it is necessary to understand the characteristics of the whole cultures. In this thesis, I suggest a method to achieve that goal of understanding the communities, their cultural, political and legal features. The final proposal will be a joint effort of scholars to research those features, using the method of comparison to adequately interpret metaphors, and depict an accurate picture of the international system.
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1. Sharing Experiences The linkage, I have propounded, between law, politics, and culture, could sound unusual to some of my readers. The choice I have made for further exploring that connection would be responsible for the kind of sources I have explored and analyzed, as for the style I have adopted in the explanation of my ideas. Let me explain it very shortly. Firstly, the sources. Their careful choice corresponds to my commitment to describing and determining the cultural aspects, which, in my opinion, are determinant to the conception and the practice of law and politics both in US and Brazil. I was committed to invoking the particular attributes or characteristics that might enable anyone to identify the configuration or design of a specific legal and political phenomenon,3 namely the constitution of an international identity of each country. I say “international” and not “national” identity, because the making of the attributes of a constitutional unity can be only a result of a comparison with other unity, and vice-versa. The identity of a certain legal system is an image emerging from an interaction with other legal systems; it is not a self-invention or self-imagination expressing only internal or domestic interactions. Furthermore, it cannot be considered a monolith, as the forging of the identity is an ongoing infinite process.4 Several metaphors can here apply, as, for instance, influence, transplant, reception, encounter, overlap, combination, mixing, to the interaction phenomena. The use of those metaphors helps Comparative Law scholarship in dealing with the idea of hybrid legal systems. Indeed, in the developing of Comparative Law, the traditional idea of rigidly set-apart legal systems, under the rubric of “legal families,” was overcome by an interactive and constructivist approach. Legal systems not only interact with each other, but they also borrow characteristics of each other, being more permeable than it was once imagined.
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I was not insulate in making that choice. See, for instance, Gary Jeffrey Jacobsohn, Constitutional Identity (2010). In his Introduction, Jacobsohn states, based upon the works of Ronald Dworkin, John Hart Elly, and Richard Epstein, and against Lawrence Tribe’s skepticism, that “the concept of constitutional identity should be perhaps at the center of constitutional theory.” Jacobsohn quotes the philosopher Joseph Raz’ assertion — Joseph Raz, On the Authority and Interpretation of Constitutions: some Preliminaries in Constitutionalism: Philosophical Foundations 158 (1998)—that constitutional theories “are [only] valid, if at all, against the background of the political and constitutional arrangements of one country or another … [F]ew writings on constitutional interpretation successfully address problems in full generality.” Even Tribe, in a recent short appraisal of the constitutional crisis of debt and budget, urges not only to political courage and to compromise, but also that those attitudes must be “coupled with adherence to traditions.” Lawrence Tribe, A Ceiling We Can’t Wish Away in New York Times A23 (ed. of July 8, 2011). “The forging of constitutional identity is thus not preordained process in which one comes to recognize in the distinctive features that mark a constitution as one thing rather than another the ineluctable extension of some core essence that at its root is unchangeable.” JACOBSOHN, supra note 3, at Introduction.
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Therefore, I will address the question of the origins of the legal-political system, in terms of cultural conditions, which means, influences—a historical perspective—and interactions—a comparative perspective.5 In addition, the option for literary sources is everywhere acknowledged as the most useful instrument to find out and figure out the characteristics of the cultures, in their interaction with other components of human society.6 Secondly, the style. I have been advocating, for the best and for the worst, the adoption of an essayist and interdisciplinary approach to legal studies.7 The era of globalization, in which the interaction among the several actors of interna-
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See Mathias Reimann & Reinhard Zimmermann, The Oxford Handbook of Comparative Law (2008), mainly Parts I and II; and Esin Ōrūcū & David Nelken, Comparative Law: a Handbook (2007), mainly Part II, Chapters 3,4,5,6, and 8. See, for instance, the large intentional and pervasive use of literary, philosophical, psychological, and other many different sources, by one of the most important International Law Scholars of our time, Professor Philip Allott, a Cambridge Trinity College’s fellow. In his The Health of Nations: Society and Law Beyond the State XII and XIII (2004), he observed about his methodological choices: “This volume is radically syncretic in aspiration, drawing together ideas from many different fields. A major purpose is to encourage younger scholars and intellectuals, in particular, to have the courage to cross the arbitrary and artificial mental frontiers which have done so much harm to the creative potentiality of the human mind. Holistic diseases of the human world need homeopathic remedies produced from within the total potentiality of the human mind. The author’s hope is that younger scholars and intellectuals, in particular, will be inspired to reconnect with their intellectual inheritance, to explore new and better lines of thought, to search out new and better connections between ideas, ideas which may still be of redemptive value even if they are ancient ideas. Nothing could be more necessary or more urgent. Knowledge is nor merely to be known, but also to be used.” For both I can rely on some of the most important International Law scholars. See Philip Allot, Five Steps to a New World Order, 42 Val. U. L. Rev. 99 (2007); The Health of Nations supra; and Human Condition and the Role of Law in Tenth Anniversary Symposium, Master of Laws Program, Faculty of Law, University of Hong Kong 2,3,9-11 (2010): “How on earth can we possibly form an abstract and universal idea of the human condition? What we have done is to invent a set of four co-operative intellectual programmes designed to help us form an idea of the human condition, at the abstract and universal level. Those co-operative intellectual activities are called history, biology, sociology, and psychology . . . the four humanistic studies [. . .] Works of applied imagination. Imagining what is to be human … Above and beyond the four humanistic studies [which include, under the title of sociology, political economy and anthropology] . . . there is another layer of human thought – a transcendental level – represented by religions, philosophy, and art. They offer a totalizing picture of the human condition, nor merely inductively, not merely generalizing from human experience [. . .] They construct an idea of reality derived from the most general processes of the mind, including the most general self-ordering processes of rationality and morality [. . .] Law at those higher levels. Law, as a social system, is a wonderful human invention [. . .] The law carries the past of society through the present into the future [. . .] The law universalises the particular and particularizes the universal [. . .] The law transforms values into programmes of social action [. . .] Law will now begin to play its wonderful role at the level of international society, the level of all-humanity. Law will become the means of social transformation, human self-perfecting, at the global level, as it aspires to be at the national level. There is emerging a universal legal system, containing both international law and the laws of all subordinate societies.” Martti Koskenniemi, The Politics of International Law (2011): “International Law is an expression of Politics.” Koskenniemi, the most important European International Law Scholar, hopes to convey a “realistic view of the operation of international law as a practice of decision-making that interferes in peoples’ lives instead of a theoretical exercise in deduction-subsumption from abstract rule-formulations, principles of justice or the policies of international institutions.” He noticed, from not only his theoretical researches, but also from his important practices in international organizations, the break down of formalism under the weight of other considerations. Furthermore, if “neither formalism nor anti-formalism will save us, then focus will inevitably turn back to ourselves as lawyers, activists or academics, and our sensitivity to what is important in the practical contexts in which we act.” His work “can give expression to the experience of fluidity and contestability and provide tools for the cool-headed analysis of what our participation as legal language-users in our professional contexts does to the world and to ourselves.” Antonio Cassese, Realizing Utopia: the Future of International Law (2012). Also, for the most recent studies, see Samantha Besson & John Tasioulas, The Philosophy of International Law (2010); David Armitage, Foundations of Modern International Thought (2013); Paul Meerts, Culture and International Law (2008); Susan Tiefenbrun, Decoding International Law: Semiotics and the Humanities (2010); Austin Sarat & Jonathan Simon, Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism (2003); Michael Dillon, Deconstructing International Politics (2013); Roland Bleiker, Popular Dissent, Human Agency and Global Politics (2000).
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tional relations go beyond the expectations of the founders of International Law, and the mechanisms of control they had figured out to the balance of the international conditions, presents to International Law scholarship serious challenges. The most important of them, in my opinion, should be to convey a renewed framework of concepts and definitions, in one word, to provide a conceptual vocabulary that fits the actual characteristics of international social (political, economic, cultural. legal) life. The traditional conceptual framework has failed in the task of providing a convincing explanation to the contemporary phenomena. As a result, if we are expected to convey a new framework, and to provide a new conceptual vocabulary, we have to figure out a method or a style that can conform to the experimentation of different paths. The Italian writer Italo Calvino conveyed it with exactitude, when describing the essayist method and style, in a metaphorical or poetic way:8 “Whenever humanity seems condemned to heaviness, I think I should fly like Perseus into a different space. I don’t mean escaping into free dreams or into the irrational. I mean that I have to change my approach, look at the world from a different perspective, with a different logic and with fresh methods of cognition and verification [. . .] In the boundless universe of literature there are always new avenues to be explored, both very recent and very ancient, styles and forms that can change our image of the world. But if literature is not enough to assure me that I am not just chasing dreams, I look to science to nourish my visions in which all heaviness disappears.”
Calvino makes a distinction9 between two opposite tendencies in literature, which I think could be useful to the understanding of the option for the essayist method of analysis: “one tries to make into a weightless element that hovers things like a cloud or better, perhaps, the finest dust or, better still, a field of magnetic impulses. The other tries to give language the weight, density, and concreteness of things, bodies, and sensations.”
The first corresponds to the essayist style, and the second to the style of treatises. The density of the latter could be appropriate to a moment in which the science achieves a high degree of development, of confidence in its own methods and purposes. When scientists and writers are absolutely sure about the adequacy of their proceedings to the actual need of the societies and the context within which they work, and for which they provide ideas and propositions. The essayist, on the contrary, would be more useful to a moment of changing, in which the methods and proceedings of the established or traditional doctrines are challenged by unforeseen developments of reality, for turnings in the course of the expected movement of things. I would say that we are exactly experiencing that turning point in the science and art of International Law. Furthermore, I chose those path and method not only because I feel comfortable and confident using those kinds of sources and style, but also because 8 9
Italo Calvino Lightness in Six Memos for the Next Millennium: the Charles Eliot Norton Lectures 1985-1986 11, 12 (1993). Idem, at p. 21.
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there is a great difference between law in the books and law in the reality—even greater in Brazil than in the US—between what the law books say and what really happens. And if one is looking for the definition of democracy in Brazilian law books, one will simply find a description of what the Constitution says, which does not correspond to the experience, neither to what actually happens. In addition, there isn’t a general definition of democracy, but only political and democratic experiences. I have thus decided to look for those experiences with the help of the 19th and 20th Centuries Brazilian and American writers, who started developing an original reflection about their nations and political experiences. My own work conveys two precise moments: Romanticism and Modernism. Romanticism builds the idea of nation and explains the emergence of nationalism, while Modernism criticizes that idea, trying to demonstrate how the romantic statements on nationalism correspond to, or are products of invention and imagination. I tried to be as brief as possible in analyzing the ideas of the writers, as expressed in their novels, essays, and political writings. With the help of the writers I picked out from a wide range of alternatives, I could conclude with the definition of political life, in Brazil and US, and compared my conclusions, very briefly again, with the opinion of other classical statements. My attempt to present an original reflection is maybe the reason why I chose to introduce the thoughts of other authors, not only to rely on their experience, but also to dialogue and discuss their ideas. I have tried to figure out not only an appropriate vocabulary, but also images that could help the reader to understand my own statements and mainly reflect by him- or herself. Therefore, I present the question of democracy, and conclude with some suggestions on how we can use the cultural experiences of the countries to build an actual International Law of Democracy. It is an ongoing process, and, as I expressed in the very end of the thesis, I intend to continue my research, readings and writing, and I hope I will be able to accomplish my design of an International Law of Democracy. I intend to work with the theme of customary international norms of democratic governance, developing ideas that are more specific. Indeed, I would like to move from a long tradition of conceptualizing International Law, International Relations and Global Politics in state-centric ways, which has entrenched theoretical and practical boundaries between domestic and international spheres. However, as my research grew, I realized that it would be more reasonable to postpone that second intent of my thesis. It sounded more adequate to develop those ideas in another work, as a continuation of this one. Thus, I would be able to deal lengthily with the International Law and International Relations literature; criticize the traditional point of view; follow the steps of scholars who are trying to deal with different kind of experiences and initiatives, and understand human agency as a means to achieve a people-to-people
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dialogue, in the building of an actual International Law. To set the principles and rules of the International Law of Democracy and to figure out its relations with other branches of International Law and International Relations, as a means to move forward the present fragmentary stage of International Law theory and experience. Those ideas, on which I could only very concisely toil within the present work, are to be developed further in another one. Let me so explain the developing of my reflection. The next chapter is an attempt to demonstrate the usefulness or adequacy of the comparative method to deal with the interrelationship between law, culture, and politics.10 I propound the conception of law-culture-politics as products of acts of comparison, and as the process of comparison itself. As products, they set up practices, norms, and institutions. They organize the public space, within which people act, the human agency performs its tasks and develops its goals. As acts of comparison, they constitute an evolving process of adaptation, the permanent endeavor to rule over the environment and the behavior of the components of the natural and social order. Then I guide the reader through a dialogue with some authors who, in the history of ideas, according to my point of view, had developed a comparative method to deal with the complex interrelationship between law-culture-politics. In defining comparison as a method of research and reflection on the themes emerging from reality, I suggest we can work with a figure of speech that, at the same time, represents comparison with exactitude, and provides a flexible method to work with the entwined aspects of reality at stake in such an interdisciplinary approach. This figure is the metaphor, which allows us to understand the denotation and the connotation of the aspects of public life. Human agency is not only driven by rational choices, but it is also a resultant of emotional constraints and interests evaluation: the triad reasons-passions-interests. Aristotle, for instance, gave extreme relevance to the non-rational aspects of communications. He builds his science of rhetoric based upon the study of passions. He presents his propositions about human emotions reflecting on systematic ideas coined by Plato. The passions come in pairs, constituting dyads arranged in a diagonal disposition, which would be useful to the speaker to persuade the public to support the ideas he or she wants to convey, and therefore to move in the way the speaker points out, decide in favor of the speaker’s proposals. The usefulness of the passions chiastic disposed is a matter of choice to the speaker, who will induce the public to act as the third term between the two emotions contrasted.11 I have defined Metaphor as a method to play
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One of the triads that I have conceived, shaped, and laid through my text, to work as tools, or ideas force, and help to understand and explain the complexities of the human relations involved in the history of democracy, or politics. See Aristotle, On Rhetoric: a Theory of Civic Discourse Book 2 Chapters 2-11 (George A. Kennedy trans. 2nd ed., 2007). The passions compared are Anger (Orgē -ὀργή) and Calmness (Praotēs - πραότης);
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concomitantly with reality and imagination, allowing the language user, whether writer or interpreter, to deal with fictional works as revealing the truth as coherence, and as personal relevance, transcending the traditional formal conception of the truth as simply empirical correspondence. It is an important step in my work, because it introduces the method I intend to use in dealing with literary sources. An illustration of that method would be, after that, given to the reader, when I discuss the issues of comparison and metaphors in the work of James Boyd White. He is the English-speaking author who, in my opinion, had better worked with literary sources in the branch of law. With the help of his work, I could advance the conception of law as an art of language, a narration that creates versions of reality, in cooperation and competition with others. I chose two of White’s analysis of style and its aim: on Gibbon and Aeschylus. Not only because their oeuvres were important instances of the building of our conception of civilization (law within it), but mainly because of their proceedings of style—performative in the case of the English historian, and narrative, in the case of the Greek tragedian. There are connections between those proceedings of style, and the conception of law-culture-politics we live by. For the purpose of my long exploration of the rich poetic (poiesis) and rhetoric or pragmatic (praxis) properties of law-culture-politics, I presented, at the end of this chapter, a very brief critique of the assumption of isolation of the legal object, assumption represented by Hans Kelsen’s pure doctrine and John Austin’s jurisprudence province. I think it is not necessary to stress that the metaphors of purity and province are but derivations of Gibbon’s imagination of the values of a civilization distinctive and superior, and Aeschylus’ view of the polis as the embodiment of the society. Although Austin and Kelsen correspond and symbolize, respectively, the Alpha and the Omega, the first and the last, the beginning and the end of the romantic idea12 of identity and insularity of law, the critique is still and even
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Friendly Feeling (Philia - φιλία) and Enmity (Ekhthra - ἔχθρα), or being friendly (to philein - το φιλείν) and hating (to misein - το μισείν); Fear (Phobos - φόβος) and Confidence (Tharsos - θάρσος) or Hope of Safety; Shame (Aiskhynē - aισχύνη) and Shamelessness (Anaiskhyntia - αναισχυντία); Kindness (Kharis - χαρις) and Unkindliness (Akharistia - aχαριστια); Pity (Eleos - ελεος) and Being Indignant (To Nemesan το νεμεσαν); Envy (Phtonos - Φθόνος) and Emulation (Zēlos - ζήλος). See also Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph 12, 13 (1997). Hirschman traced the history of the difficult endeavor of political philosophy or political science, beginning in the Renaissance, to deal with human being as it really is: “In attempting to teach the prince how to achieve, maintain, and expand power, Machiavelli made his fundamental and celebrated distinction between ‘the effective truth of things’ and the ‘imaginary republics and monarchies that have never been seen nor have been known to exist.’ The implication was that moral and political philosophers had hitherto talked exclusively about the latter and had failed to provide guidance to the real world in which the prince must operate. This demand for a scientific, positive approach was extended only later from the prince to the individual, from the nature of the state to human nature. Machiavelli probably sensed that a realistic theory of the state required a knowledge of human nature, but his remarks on that subject, while invariably acute, are scattered and unsystematic.” Aristotle assigns to one passion the task of tempering its opposite passion, while Montesquieu would suggest the temperament of passions with interests. That is why, perhaps, Hirschman chose a famous passage from the Judge from Bordeaux, to set as the epigraph of his book: “il est heureux pour les hommes d’être dans une situation où, pendant que leurs passions leur inspirent la pensée d’être méchant, ils ont pourtant intérêt de ne pas l’être.” In the third chapter, I put in opposition Romanticism and Modernism, as a means to, among other things
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more necessary. In fact, the predominant contemporary legal doctrines13 act as if their lessons were everlasting and indisputable. That is the reason why I chose to ask the help of the authoritarian conception of language, ironized by Lewis Carroll, to reveal or uncover the political and cultural constraints behind Austin’s and Kelsen’s doctrines. The question that remained—the relationship between an authoritarian conception of law and the idea of democracy—was a reminder to the exploration carried out in the second chapter of my thesis, the looking for experiences of democracy. In the third chapter, I followed some narratives of democracy, having attempted to deconstruct them, and to perform some new ways to envision the democratic phenomena or experiences. As a parti pris, I refused to take a universal conception of democracy: democracy corresponds to certain experiences, from which we may try to construct definitions that, although abstractions, must remain attached to the experiences; it is not a framework, but an argument involved in certain contexts of the public life. Then, I advanced the conception of democracy as corresponding to a synonym, or, at least, a hyponym, of politics: democracy opposes to any other socalled political regime, and corresponds to a medium or extension of ourselves; a technology of association, which, as adopted in a certain moment, remains attached to the human condition as a second nature. I introduced Spinoza’s defense of the democratic regime, as a demonstration of my suggestion of the pregnant cognitive memory of democracy. As there is no universality in the human experience of democracy, I thus propounded an analysis of the prevailing narrative of its making.14 I criticized the misconceptions of the classics and the contemporary political philosophers, with the help of the witnesses of the emblematic Athenian political life, and the historians and philosophers that preserve its genuineness or legitimacy. As a consequence of my critical appraisal of sources and commentators, I proposed another triad that could sum up Athens’ historical experience, eudaimonia-eleutheros-polemos.
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conveyed; demonstrate the illusiveness of the assumption of identity, and the correlated ideas of nation and nationality. See, exempli gratia, the contemporary assumption of auto-poiesis, or auto-referentiality of law, in Niklas Luhmann, Law as a Social System (2008) (Klaus A. Ziegert trans.), and Gunther Teubner. Law as an Autopoietic System (1993); the idea of a neo-positivism, or neo-formalism, in Friedrich Müller & Ralf Christensen, Juristische Methodik 1: Grundlegung für die Arbeitsmethoden der Rechtspraxis (2009); and the conception of neo-constitutionalism, expressed in the theory of principles, in Robert Alexy: A Theory of Constitutional Rights (2010) (Julien Rivers trans.), and Ronald Dworkin, Law’s Empire (1986). Let me advert that it would be a mark of ingenuity to interpret my exploration of the works of the classics of political science or philosophy as a digression or jumping around disparate arguments. The authors I have dealt with are responsible for the very core of the conceptions of politics, and misconceptions of democracy, from which our civilization and our judgments were built. For that reason, it is a duty, and a sign of respect and loyalty to my reader, to undertake the endeavor of clarifying those conceptions and misconceptions.