Home | Novidades Revistas Nossos Livros  Links Amigos

An unpublished article by Aquinas on the 20 th. century continental Law
(translated from the "Latin manuscript" by Paulo Ferreira da Cunha)

 

Articulus 1: Do all material juridical sciences (or branches of law) have the same value? Ed videtur quod non.

Ad primum 1: Law of Polis and supreme law.

There are some constitutionalists well based within the hierarchy of jurisdiction who are used to saying that their branch of the law is the most important. The constitution (formal or instrumental, the written constitution) being the norm by which the others are regulated, namely in establishing the competent organs and procedures to follow for its elaboration, it is the norm of the norms. As all of them have got to be constitutional and have to submit themselves to the constitution, then also the law of these constitutional norms would be fundamental.

Praeterea 2. Profound law and the law of values.

Some penalists affirm, however, that it is their branch of law which is the most vital, being that in which the community at large sees its most essential values being brought into play, penal dignity, demanded for the penal-juridical good (that which penal law is aiming to protect) requires a profound axiological identification within the community. The only sessions which bring forth a public otherwise uninterested in the case for itself are the penal judgements. In these cases, a full house is guaranteed. So we see that it is penal law which can affect people most profoundly and it is the most important.

Praeterea 3. Scientific law and law of people.

Some civilists defend their branch of the law as being of high technical precision and authenticated by many years of scientific fine tuning. Apart from having been the first, in ancient Rome, to become autonomous epistemologically, and by this having ancient and therefore more noble honours, it is that in which law is most clearly law. Civil law does not mix in political games, nor is it a reflex to or substitute for morality or religion. It is, according to some, "the only perfect law" because the purity of the ideas behind the norms is clear and distinct. Or, according to others, because by evaluating the juridical titles of each person it becomes easier to attribute to each that which is his.

Sed contra:

1. Tha law of politicians.

"Constitutional law will go, and administrative law will stay ". In truth, as the general directors remain after the ministers leave, administrative norms frequently stay in force long after revisions or constitutional changes. In this way, as constitutional law is ephemera and highly dependant on the prevailing political winds, the necessity to establish the security of law demands that the core of the juridical allots itself quarters in other, more inpermeable places. It 's for this reason that, when touching on questions of public organization, administrative law takes the lead. Regarding the basic juridical problems of the community, this is done by civil law, to the point that constitutional material from the sources of law locates itself systematically within the civil code. (The portuguese civil code of 1867 lasted 99 years through various regimes and constitutions; the same is happening to that of '66.). On the other hand, constitutional law does not give sanction easily, and on this point penal law wins the day. However, the present confusion between constitution and the catalogue of utopian rights leaves the credit due the jurisdiction of the constitutional to be small. What use are so many rights which are impossible to uphold in court? Emphatically, constitutional law, that plaything of politics and propaganda,does not sit well as the head of the law.

2. Law of the "bloodthirsty".

The people who flock to the courts to see cases of penal law don't do this because they are friends of justice, but in order to smell blood. It is the circus, the old roman circus, for which the common people are seeking a substitute. This is related only to cathartic and ritual instincts, myth of the scapegoat, etc.. Even so, in pluralist societies such as ours, the idea of community values always presupposes the opting for the dominant values, which have to be those of the dominant political group. As this group will, in principle, dictate the constitution, penal law is subordinated by this ideological/ political route to the constitution even if it was nos already bound by the hierarchy of the norms. But modern penal law is in a very confused state, not having yet decided very well whether to continue or finish, by means of the de-penalization and of the endorsement by other branches of law, or whether to become the executioner of the white collar, after having been that of the blue collar, in order to justify itself. The graduation of penalties hasm nothing to do with the sentiments of the community. Why should a crime against property be more punished than that against a life? The lack of orientation of penal law cannot confer priority. It is a left over of religious and moral conceptions sin and blame from which the law must free itself.

3. "Grocers" law

The perfection of civil law is but a limitation : is deals with petty private matters, undignified by the great subject-matters of the state or of grave violations to the juridical conscience of a community, the technical precision, so often dusted down, can be the formal means by which the promoters of this branch of law shield themselves, in order to hide the limitations of their preparation, or in which to find tiny details or subtleties to justify those questions of mere business. Civil law, and the private general, is a servant of private interests, slave to the economy and capital, nothing else is of interest but numbers, resulting in the loss of its own characteristics. That which in private law has to do with people (family law, personal law and inheritance ) has been mostly made concrete, converted into figures, and decided, in the end, by political means, which arise from the constitutional. And then, when the grievance of a private person is not tiny, there is penal law to resolve it. So, in conclusion, civil law does not have the dimension to be perfect.

Respondeo:

The fight for the leadership in law is petty and denotes the breaking up rendered favourable by the sects which all the specialization, although necessary, make possible, the alleged preeminence of one branch of the law over another is puerile. Not puerile, though, are the criticisms which, be they malevolent or benevolent, sometimes send each other in return. One can note that, of the three branches of the law which more usually demand centre stage of the juridical scene, there is a common ailment which the critics of each exploit, not seeing the obstacle in their way; that is its own subordination to something else but law. All sacrifice to other gods; to politics, to the ritual of the scapegoat, to money. Now, retaking an ancient and long forgotten communal path, they ought to sacrifice to the law itself, which is the attribution to each that which is his. The attributing of power and honours in the constitutional, in accordance with the merits of the candidates; of penalties according to the guilt of the criminals; of property ( and also honours and powers, out of public reach v. g. in family law ) to individuals, in the civil and the private in general. No branch of the law is more important then any other, because to talk of pre-eminence is to deny the law itself in the heart of the law. In truth, to each his own, to each branch a function, to each one a role. All are equally important. What matters is that they re-find and review themselves in the law. What must not happen is to have a constitutional law in the tow of politics, a penal law to satisfy the sacrificial instincts and vengeances of days gone by, and a civil law at the mercy of the petty interests of neighbours or of the unfair or suspicious business deals of enterprises.

Ad primum : 1 Juridical statute of politics.

It is true that the norme which determine the production of rules are important. But those norms cannot refrain from showing a community opinion about themselves in the light of justice. If they mirror them, being just and adequate, they will not be so superior, because they limit themselves to consecrating that which has been already accepted , and they are, to a certain extent, instrumental. If they reveal themselves to be alien to just distribution, such as human nature, reason and popular will would see it in a given time and place, they would be unjust and tyrannical norms, and even by devoting much reverence to them, either formal or by coercion, they could not even be considered laws. The proliferation of judicially platonic laws in the constitutions relieves them of judicial credibility and causes them to slide into a realm which is simply political. Anyway, it is irrefutable that natural law, in proving itself in constitutional and other ways, starts to take on, at least, integrity regarding the immovable legalists and positivists, from appearing in the law. Apart from this, the law starts to carry out a function which, not being its own (and certainly adding to the confusion) is socially generous, at least in the abstract transforming itself into a herald of social justice. If human rights (not to speak of the rights of others) are even today largely an ideological jumble, it is indisputable that some of its meanings coincide with extremely important matters of law. Not being pure politics and nor can it or should it be, constitutional law is political law. It is the set of rules of the political game and the common denominator with which political choices should be made. For this reason it has to be a denominator that is sufficiently open and as such minimal. It might be important in the future that some social economic and cultural rights are affirmed and protected judicially whilst others should be abandoned to the fight of parties or to society's philanthropy.

Ad secundum: 2. Ultima ratio.

It is undeniable that penal law fulfills a vital social function in terms of prevention and retribution. But it too has to redefine itself. Being essentially a stigmatisor, more often than not, it must consider the ethic minimum, penal trifles and penal dignity leading to a sentencing ( or not ) quite separate from cultural and doctrinal fashions and from political pressures. On the other hand it has to rethink its penalties bankrupt as is the sanction of the privation of liberty, without resorting to such doubtful and socially incomprehensible experiences as prison on free days, and others. Furthermore it has to prevent itself from invading other areas such as administrative, economic or consumer law, etc. In the future by the diversification, humanising and making adequate of the sentences (without putting citizens in danger and distinguishing well the bandit of small misdemeanors) they will really have to finish with the penalty of social stigma and end the criminal register. The criminal pays his penalty to society. The debt is settled. What was taken is given back. If he is dangerous, there are the security measures which can't be camouflaged as additional penalty.

Ad tertium: 3. Quod ad singulorum utilitatem pertinet.

The technical civilist legacy is extremely useful and very praiseworthy as long as the profound questions are seen and he doesn't hide or bury the quest for justice. The interests of the particular, and even their material interests are, for the law in general, very important. It is understood that law doesn't propose holiness or liberality or wisdom. In the distribution to each of his own there is no doubt that in civil law everything becomes easier. In this sense civil law is more perfect than others. But this doesn't resolve all juridical questions and cannot always export its old and worn general theories of the nominalist-liberal juridical relation. Civil law, with its old juridical titles and its dogmas, runs the risk of being a law that is excessively conservative, calculating, economist aind of being incapable of having a dialogue with the solidarity exigencies which enter by the constitutional door. However it remains as the great law of the romans, with an inviable stability succeeding, despite everything, in giving reasonable solutions of justice, considering the presuppositions in which it is based.