One of the sciences most present in human society, without a doubt, is philosophical thinking; which has long been inserted in the legal sphere, when researching, developing, criticizing and standardizing principles and concepts, normative and legal. The philosophical application in Law seeks, mainly, to interact with it, through a precise approach from the philosophical point of view, of the main elements that integrate it and of which it is covered in its social struggle. Law is a highly valued science, and Justice represents the ideal that is so sought after by human society. The functions of Philosophy of Law, relevant to the development of the current legal order, is to expose axiological criteria of legal experience, in the universality of its aspects through the question of the first principles that inform legal institutes,
Keywords: Law, Philosophy, Thought.
Philosophy of Law in academies and other legal careers imposes some questions that are somewhat uncomfortable, but necessary: What does the role of Philosophy of Law consist in the integral training of the legal professional? The academic must fulfill a mandatory workload of Philosophy of Law, How should the knowledge built in the study of this discipline contribute to improving the performance of the legal field? What is the Philosophy of the Right for? What is the purpose of such a discipline? Thus, the guiding problem of this article can be summarized in the following question: What is the role of the Philosophy of Law in the integral training of the legal professional?
The coherence of this discipline leads us to two defects or two very peculiar deficiencies in legal courses, at first due to the atomistic presentation of the legal phenomenon and, later, due to the prevalence of technique over ethics.
Philosophy of Law brings a panoramic and contextualized view of the legal phenomenon. We see not only domestic law or international law, nor only positive law or natural law. The law is analyzed as a whole, as a group whose composition enjoys artificial and didactic divisions.
We cannot accept the simple factual analysis of the reality of law, as if it were data that need neither explanation nor justification. Also through the journey of ideas, its historical nature is recognized in the legal phenomenon.
In the methodological analysis, this work consists of a bibliographic review of literature dealing with the Philosophy of Law, seeking to remove from this vast literature, even from different and even divergent theoretical trends, the information that demonstrates the hypothesis raised to be valid.
The main themes addressed by Philosophy in Law are: production methods, Justice, property, freedom, interpretation and legal application of norms and principles, equality, the function of Law, and Law itself; observing patterns, scrutinizing reasons, uncovering interests, establishing comparisons, and eventually creating future predictions. However, the primary objective of philosophical application in law is to lead the student and the operator of the law to a reflection on these issues, taking into account their morals, social ethics, laws, justice, and the equity of this and the acts protected, reproved, or executed by them; in the effective exercise of the ideal of Justice.
The importance of criticism can be seen in the work of Bittar e Almeida (2001, p. 43): “The Philosophy of Law is a critical knowledge regarding the legal constructions erected by the Science of Law and by the praxis of the law itself. Right. More than that, it is your duty to seek the fundamentals of law, either to become aware of its nature, or to criticize the seat on which the structures of legal reasoning are based, producing, several times, cracks in the legal building that rises over them ”.
In view of this perspective, and endowed with such noble meanings, the use of Philosophy in Law is an important instrument in legal thinking and in the application of Law, which makes it a great improvement, reaching increasingly higher and important aspirations for societies. human; as well as culminating in offering a personal improvement to the individual, making him more critical and observant to personal and social well-being; making the saying ‘JUSTITIA SOCIETATIS FVNDAMENTVM – Justice is the Foundation of Society – to be immaculately true.
The purpose of this unpretentious article is to present the philosophical aspects relevant to legal science, as well as the goals or tasks of Philosophy of Law taking into account its purposes, demonstrating that Philosophy of Law is capable of offering theoretical and practical contributions to professionals of Law.
Philosophy was born in ancient Greece, approximately in the 6th century BC. And the first philosopher of which it is known is Tales of Mileto. “All things are made of water, Tales de Mileto would have said. And so Philosophy and Science begin ”. Tales and some of his contemporaries practiced a Philosophy focused on understanding natural phenomena.
Evidently, the search for a primordial element is made within a context that takes into account other assumptions, such as the existence of a logic of causality inherent to the natural order; the commitment to logos (reason for informing rational discourse); the ideology that the order present in the cosmos was accessible to human rationality. Taking this and other factors into account, humanity, represented by the Greeks, opens up a new method of understanding and interpreting life, society and the world. Thus, what appears later will be called Philosophy.
After this introductory phase of Philosophy, the historical figure of Socrates emerges in the Greek world, inaugurating a new period called the Classic Period. During this period the figures of Socrates appear in permanent opposition to the Sophists; Plato, idealist, founder of a metaphysical view of reality; and Aristotle, who values materialism and experience. For Russell, Socrates, Plato and Aristotle are the “three greatest figures in Greek philosophy”.
Classical Philosophy debates widely on the ontological, metaphysical and gnosiological question; it also discusses the issues that must be considered for building an honest and supportive society. At this point, philosophers are clearly positioned on the concept of justice, the role of agents with political power and even give guidance on the fundamental principles of social life.
The golden period of Greek Philosophy ended, the great philosophical movement is the so-called Medieval Philosophy of Christian character. The most striking feature of Medieval Philosophy was, due to the strength of the Christian religious institution, theocentrism. In place of theocentrism, a striking adjective of medieval thought, there is a strong appreciation of man, who starts to occupy the center of attention. And this man is endowed with a Reason reliable enough to be able to discard any and all reality that did not harmonize with the ideas and values embraced by that Reason.
For Lamanna, the following can be said of Modernity that was born with the end of medieval thought: “The modern world is characterized precisely by the opposite: no longer theocentrism, nor ecclesiastical authoritarianism, but autonomy of the world of culture in relation to every end transcendent; free explanation of the activity that constitutes it; supremacy of rational evidence in search of truth; awareness of the absolute value of the human person and affirmation of his sovereign power over the world ”.
All Modern efforts find their culmination in the Enlightenment that influenced the ideals of the French Revolution. This icnographic revolution serves as a reference for understanding several of the elements present in current socio-political organizations and marks, according to classic historiographical criteria, the end of modernity and the beginning of Contemporaneity.
In Contemporary Philosophy, differently from what was verified in previous moments, it is not possible to establish a thematic line that runs through it, in fact, philosophically speaking, the Contemporary Period is characterized by a plurality of interests and questions that make Philosophy can only be understood in the light of the currents or schools within which thoughts and thinkers are manifested. Each School or Philosophical Current has its object, its methodologies, its convictions, its starting points, its conclusions.
“One of the main characteristics of all the philosophy of the 20th century is the distrust of the great systems of thought that intend to account for the whole of reality, as were the German idealism and the historical materialism of Marx. Philosophy became more modest in its intentions […]. That is why it has become multifaceted, with particular trends and difficult to be mapped (INCONTRI and BIGHETO, 2008, p. 406) ”
The philosophy of law at the time of the Renaissance is strongly influenced by ancient thoughts, plus a strengthening of the critical spirit. The period of rebirth can be compared to “a splendid flower sprouted in the middle of the desert”.
In this period of Renaissance thought, Machiavelli’s thinking stands out as the first “to reflect on the problems of political science with the spirit of modernity”. Machiavelli revolutionizes political thought, which previously dealt with issues related to polis from a normative perspective. Machiavelli’s thought breaks with the moral ideal, with strong influences of Christianity, present in the Middle Ages.
Jean Bodin appears in France during the time of the consolidation of the absolutist monarchy. Bodin wrote the theory of the Modern State, defining the new republic. Bodin’s main attention is related to sovereignty, classified as an essential feature of the republic’s power.
Hobbes’ thinking is related to some problems experienced by man. In his theory of knowledge, Hobbes stated that experience was the mother of science, studying the problem of human knowledge from sensations, a movement by which sensitive beings affect the human body. For Hobbes, the state must be strong, in the highest degree, and take the form of absolute power, whose mission is to maintain order and internal peace.
Locke’s thinking in the field of philosophy and psychology is of great importance. Locke, in his main work, entitled “Essay on human understanding”, proposes to discover the origin, certainty and extent of human knowledge, supporting the idea that experience is the only source of our ideas. For Locke, “no one at birth, healthy, child, crazy, wild, idiot, brings ideas already formulated, because, if that were the case, it would not be necessary to acquire them”.
Montesquieu, author of Spirit of the Laws, proposes a definition for the laws. “Laws are necessary relationships that derive from the nature of things”. The nature of things for Montesquieu is taken in a totally empirical sense, resulting from the historical past, integrated by physical facts, trends and customs. Montesquieu contributed greatly to the legal world by presenting the theory of the triple division of powers, in executive, legislative and judicial, which the author drew from English law, developed, exemplified and exalted. Moving away from Aristotle, Montesquieu distinguishes three forms of government: the Republic, Monarchy and Despotism.
Rousseau has nature, the realm of freedom, spontaneity and happiness for man, as a moral ideal. “Rousseau maintained that sciences, letters and the arts are the worst enemies of morality, creating needs, which are sources of slavery”. The main problem fostered by the Social Contract is “to find a form of association with all the common strength, and by which each, uniting all, however obeys itself only, remaining as free as before”. Rousseau believes he can solve the question of how to legitimize the situation of the man who, having lost his natural freedom, finds himself subjected to political power.
Imanuel Kant is known as the philosopher of the three criticisms: Critique of pure reason, Critique of practical reason and Critique of judgment. It is worth noting that, in order to understand Kant’s thought, greater attention is needed with the semantic use of the words. Some words, in Kant, do not have the usual meaning. For example: criticism, instead of meaning censorship or disapproval, means study, investigation and research; pure does not have the sense of being free of impurities, but rather independent of experience; therefore, Critique of pure reason does not have the usual meaning of words, but it does indicate an investigation of reason functioning independently of experience.
Philosophy of law
For Law, philosophy presents itself as an important instrument in apprehending the meaning of legal norms, such importance is built from philosophical concepts that allow jurists to understand their own activity. It works as a process, through which, without denying or contesting the validity of the previous posture, it highlights another angle. It appears as learning to think, that is, as a development of the ability to question, to reject immediate evidence as unequivocal data, as the most important thing is not to know the answers previously presented, but to try to achieve, through the reflection and questioning already proposed. , a new answer, subject them to new questions and, consequently, insert themselves in the path of new questions, inserting themselves in the analytical-critical exercise of philosophizing.
British philosopher Collingwood argues that the role of philosophy is not to make people think, but to make them think better; because it strengthens the thinking skills he already has; challenges you to think about significant concepts from the philosophical tradition, urging you to make use of thinking skills that need to be learned to think critically other areas of knowledge, including law.
Philosophy takes as a starting point for its legal inquiries the latest news established by the science of law, about the meaning and ends of law; questioning and criticizing them, thus contributing to give meaning and dynamism; therefore, values are part of the social world and, therefore, they cannot be ignored either by law or by philosophy, which addresses within the specific approaches and concerns. Thus, it is on the basis of the truths accepted and postulated by science that Philosophy is constituted, questioning the very principles of legal science and effectively contributing to its renewal, escaping, through a permanent criticism of stagnating in sterile dogmatism and alienated.
Having explained the specificity of philosophy, it remains to understand its importance for the study and practice of law. It is known that the term “right” involves several meanings and can be considered as a social fact and a branch of knowledge, that is, the term can mean both the production and application of legal rules and the discipline aimed at investigating the meaning of the rules legal entities.
Insofar as Law is a reality produced by human reason, insofar as it is a cultural being, it is also an object specially thought by Philosophy, which leads to the perception that a Philosophy of Law can and should exist.
It can be said that one of the relations of Philosophy with the Law will involve the attempt to evaluate, weigh the performance of Law before society in order to contribute so that it, Law, seeks the possible and necessary improvements to reach its primary goal: to organize, in a reasonable way, the society, managing equally the divergences of interests of the individuals that compose the society.
The law is fundamental to the coexistence of man in society. Thus, the law presents itself as something complex and that needs to be explained. Thus, Philosophy proposes to study Law as something that exists objectively and applicable to all. Thus Reale (1999, p. 40) asserts that:
(…) Philosophy of Law, clarify right away, it is not a legal discipline, but it is Philosophy itself as directed towards an order of reality, which is the “legal reality”. It cannot even be said that it is special Philosophy, because it is Philosophy, in its entirety, insofar as it is concerned with something that has universal value, the historical and social experience of law.
The expression philosophy of law only appeared in the beginning of the 19th century, even though the theme has its roots in the origins of the Western legal and political culture. One can even date the use of the term, when Hegel’s Principles of Philosophy of Law was published, in 1821. Hegel begins his text, intended to serve for the course he gave on philosophy of law, referring to to the “philosophical science of law”, which would have as its object the Idea of law, which would understand the concept of law and its realization. Kant, in turn, dealt with the subject of the philosophy of law, but used other terms to refer to it: “doctrine of law” or “metaphysics of law”. Before Kant, other philosophers, like Puffendorf, Burlamaqui or Wolf used other terms, such as “theory of natural law”,
Philosophy of law is a branch of General Philosophy that presents a panoramic view of the legal phenomenon in the social context, aiming to analyze, not only the aims pursued by the complex legal order, but to understand them. It is the sector of the jusfilosóficos, they seek to understand the true sense of the law, they try to reveal the reason for the existence of the norm. It is the branch of Legal Science that is concerned with the ethical application of the standard. Legal Philosophy is the constant question that juridical philosophers make about the various phenomena of the legal field. “The Philosophy of Law is, therefore, the field of jurists with philosophical interests, instigated, in their reflection, by the problems for which they do not find a solution under Positive Law. (LAFER, 2004, p. 21) ”.
The philosophy of law should serve to identify the different cultural or philosophical parameters that justify law and law. It is through the philosophy of law that we will analyze the different conceptions about the relationships between law and morality, between society and the individual. , the responsibility of individuals, as moral and legal agents, different conceptions of justice and other topics of the same kind. The philosophy of law does not analyze the formal qualities of law, which is the domain of the legal sciences, but simply follows the meaning and horizon of the modern legal project.
In Chaui’s understanding (2000, p. 69) it is: “rational knowledge of natural and cultural reality, of things and of human beings.” Philosophy seeks to know reality through human reason, seeking and questioning the true meaning of human knowledge.
For Galves (2002, p. 1) “Philosophy of Law is the study of the fundamental questions of Law as a whole. Fundamental, because it is, literally, the foundation, the basic questions, on whose solutions the whole building of Law stands. As a whole, because these are issues whose solutions involve the entire body of law, and, therefore, are of interest to all branches in which legal science is divided ”.
Eduardo Bittar conceptualizes the Philosophy of Law as “a critical knowledge regarding the legal constructions erected by the Science of Law and by the praxis of Law itself. More than that, it is your task to seek the fundamentals of Law, either to become aware of its nature, or to criticize the seat on which the structures of legal reasoning are founded, sometimes causing cracks in the building that overlook the buildings. stand up ”.
In turn, Celso Lafer, presents the Philosophy of Law as “the field of jurists with philosophical interests, instigated, in their reflection, by the problems for which they do not find a solution in the scope of Positive Law”.
Another concept is presented by Reale (2002, p. 9), for whom the Philosophy of Law “is Philosophy itself while facing an order of reality, which is ‘Legal Reality’”. For this author, Philosophy of Law is not a specific discipline, but what is called Philosophy of Law is the complete exercise of Philosophy geared towards the Law object.
It follows from this concept that the Philosophical activity, when turned to Law, takes with it all the tradition and strength that comes from General Philosophy. Reale (2002, p. 9) concludes on the philosophy of law that “it cannot even be said that it is special Philosophy, because it is Philosophy, in its entirety […]”. In some way, for this author there is no way to speak of absolute independence from Philosophy of Law, what can be said is Philosophy focused on Law, that is, Philosophy of Law, even seen with a certain autonomy, has links with Philosophy General.
With these explanations, we seek to demonstrate to the new entrants in the legal field the importance of the philosophy of law for its operators, enabling them to obtain critical knowledge, which awakens in students the true sense of knowledge.
It is more than opportune to study the law taking as a guideline the principles of philosophical knowledge. It is necessary that bachelors in the legal field understand the true meaning of philosophy in the construction of knowledge and in the training of professionals, as it is an indispensable assumption for their training, as it allows students and professionals to critically read the law. The professional should not only have the technical knowledge of his profession, but he needs and must have the ability to interpret what is legal and what is moral. It must recognize the social facts that give rise to the norms and if these objectively translate those.
The Philosophy of Law instigates the academic to proceed to a critical analysis of the dogmas present in the juridical order, transcending what is positive. In this way, it is possible to have a panoramic view of the legal phenomenon in the social context, thus overcoming the excessively technical view of Law.
In this sense, Fabio Konder Comparato, when justifying the subject of Philosophy of Law in legal courses, adds that this is linked to serious shortcomings in these courses, among them, the atomist presentation of the legal phenomenon and the prevalence of technique over ethics.
Here the importance of the philosophy of law is highlighted, that is, questioning the technicality of law and the legal truths that are imposed by the law, arousing interest in the debate and criticism of dogmas and pre-understandings, creating the awareness that the law , it is often imperfect, it is unfinished work.
In this context, the lessons of Eduardo Bittar are opportune, who in his work lists some of the objectives of the Philosophy of Law, among them:
“1. Criticize the practices, attitudes and activities of law enforcement officers;
- Evaluate and question the lawful activity, as well as offering reflective support to the legislator;
- Assess the role played by legal science and the jurist’s own behavior towards it;
- Through institutional, evaluative, political and procedural conceptual criticism, assist the judge in the decision-making process. ”
Based on the above, we can conclude that the Philosophy of Law is a part of the General Philosophy that is dedicated to unveiling the phenomena of the Science of Law, being concerned above all with the ethical question of Law, seeking its foundations for the benefit of man . With this, the Philosophy of Law constitutes a constant critical investigation of the legal phenomenon. When Philosophy is applied to legal practice and law, it is noticed that it becomes more consistent with human thinking and proceeding, being, therefore, more just and acceptable; since Philosophy is closely linked to wisdom, ethics, morals, and behavior.
The importance of the Philosophy of Law discipline remains undisputed, being understood as a critical reflection of the legal truths that are constantly presented and imposed on us. In this way, such discipline becomes essential and indispensable in the Law course and it is necessary that it is presented as soon as possible to those entering the legal field, as they provide a critical view of the study of the rules, aiming to achieve the true meaning, or as it should mean, so that they reflect social facts. In this way, philosophy is an incentive for the law student to fight what is already determined, ceasing to be a mere spectator of the current legal reality, to actively participate in the processes of changing the legal system, as an operator of the law, consciously .