O Guarda e a Formula/The Guard And The Formula.
| Autor | Guedes, Carlos Eduardo Paletta |
-
Introduction
Haemon: [...] Who thinks that he alone is wise, that he Is best in speech or counsel, such a man Brought to the proof is found but emptiness (Antigone, 707) (1) Greek tragedies have proved to be ageless. We are familiar with names and characters that are as immortal as the old Greek gods have been in history. Writers and philosophers have been analysing these plays for centuries: John Milton, Samuel Johnson, Virginia Wolf, Hegel, Freud among others (HALL, 1994). Sophoclean drama has that same enduring popularity and Antigone, especially, has been used in legal and moral studies for a long time (2). Its richness in conflict and opposition has proved to be paradigmatic for legal studies, especially legal philosophy.
That is why besides focussing on legal theory and research, this paper will make use of literature (Antigone), especially the Law and Literature strategy in which, according to Richard Weisberg: """literature provides unique insights into the underpinnings of law and that stories and poems stand as sources of law, richer and certainly more accessible than others in legal philosophy (WEISBERG, 1992) (3). Considering this approach, we aim to discuss one of the central logical Formulas in Alexy's work: the Radbruch Formula, opposing it to the conflict of perspectives narrated by Sophocles in Antigone and factual episodes of legal rhetoric under tyrannies.
The major point in Alexy's practical reasoning is the intimate relation between the bases of his theory. To be more precise, the thesis states that there is a conceptually necessary connection between law and morality, and consequently there is a normative argument that points in the same direction, that is a normatively necessary connection (ALEXY,2000). In order to prove the conceptually necessary as well as the normatively necessary connection between law and morality, Alexy establishes three arguments: (I) The claim to correctness, (II) the argument of injustice, and (III) the argument of principles. (4)
The purpose of our use of the Law and Literature strategy is to criticize the Radbruch Formula applied in the argument of injustice, which is linked to the correctness claim. Thus, the paper provides critical overview of, essentially, Alexy's argument about the normatively necessary connection, which brings up the argument of injustice. However, because the argument of correctness takes on a major role, the argument of the conceptually necessary connection will be questioned. Thus, a direct critique of the normatively necessary connection will be made, and therefore the elements of Sophoclean tragedy will be consistent in the critique of the conceptually necessary connection.
Speaking in literary words, the Guard, a secondary character in the play, holds a limited authority guiding his actions according to the polis' law enacted by Creon, but at the same time the Guard was the one who had felt the Antigone claim and had the chance to disobey Creon's order, taking into account the possible contradiction he had felt when the paradigmatic conflict took place. This view in the play is important because it works as a balance to promote a weighing of alexyan concepts and measures their validity. Once considered the Guard's view combined with the other relevant characters', they assume a participant's role in Alexy's viewpoint (5), that is: being able to take normative actions.
Although Antigone was the accused one, her courage and strength can be used as a paradigm of resistance during extreme times, which is an example for those who want to oppose unjust law under evil regimes--and a judge, the central example in the participant's view, who carries such characteristics, can be called, for the purpose of this paper, Judge Antigone. On the other hand, the Judge who follows the rules will be called Judge Guard. With that perspective, the difficulty of resisting injustice when holding a public position is the focus of this paper: trying to show how the Formula could sound good in some ways, but at the end it simply does not modify anything or any tragedy in legal systems.
In conclusion, we try to frame the only way in which the possibility of resistance unfolds itself and that is based on human rights education. Following Martha Nussbaum, the idea of resistance can only be triggered of throughout an approach of human rights content that does not allow itself to be summarized in an abstract theory that can be easily cast aside by interest and will of power. Therefore, human rights education must become that powerful narrative in order to function as a source of democratic legal norms and avoid the objectification of different concepts of justice just to fit into a logical formula.
-
The Tragedy
Antigone: [...] Creon has ordained Honour for one, dishonour for the other (Antigona, 21) Greek tragedy appears in the end of the 5th century b.C., and before one hundred years had passed, they disappeared. According to Vernant and Naquet (2011), the tragic oppositions reflected the sentiment of that time--but not only that. After the work of Louis Gernet, the authors say that the real theme of the tragedy was the specific social thought of the city, especially the legal discourse still in process of elaboration and debate. The tragedies had a close connection with cases brought to Greek tribunals. The tragic poets used the new legal vocabulary as means to play deliberately with its uncertainties, fluctuations, lack of precision. It was the passing from a religious culture to a legal one.
Greeks did not have the idea of an absolute law, organized in a coherent system such as the modern legal systems. Local authorities versus sacred powers, world order versus Zeus' justice are some of the problems they faced in law. Besides that, moral problems were shown in legal disputes, putting in evidence human responsibility and its meaning (6). It's also important to understand the tragedy institutional status at that time: it was not only a form of art but a social institution that the city placed side by side with its political and judicial bodies (VERNANT; NAQUET, 2011). Tragedies were performed by exclusively male actors and produced at sacred festivals in honour of Dionysus, god of wine, dancing and illusion. Every year there was the tragedy competition in which three tragedians competed against each other with the aim of persuading a jury (democratically selected) to award the first prize which brought prestige and fame (HALL, 1994).
Antigone is the most political of Sophocles tragedies. Creon assumes power after Oedipus' two sons (Polyneices and Eteocles) kill each other. The first law that Creon passes is that Polyneices, the traitor who attacked the city, is to be refused burial. Antigone disrespects this decree and buries her brother's corpse, defending that she would not contradict the unwritten law protecting the rights of the dead. Creon's decree and Antigone's reaction start the catastrophic events that will cause the terrible deaths of Antigone, Creon's wife (Eurydice) and son, Haemon.
Following Brandao (1992), in the tragedy Sophocles opposes the ancient law to a sort of new conception that find its basis in the Sophists influence. The play is not only about the accepted dike (7), but the new legal frame consisting in the athemistia's law, that could be seen as adikia, that is injustice and illegality. According to Nussbaum, Antigone is a play about practical reason, ending with the assertion that practical wisdom (to phonefn) is the most important element of the good living (eudaimonia) (NUSSBAUM, 2009, p. 44). Each of the protagonists has a vision of the world that can be simplistic but at the same time it is a vision that cannot be allocated in sides of rightness or wrongness. That is what allows us to say that the Greek tragedies are not themselves tragedies on 'jurisprudence', but certainly on the construction of morality that considers the ethical and legal contingency.
Nussbaum accurately asserts that Creon, despite being Polynieces's (the traitor) uncle, cannot treat him like one because he betrayed the city. His nephew was not an ordinary enemy (whose corpse would be returned to relatives for an honourable burial) but was a traitor who would not deserve such consideration (NUSSBAUM, 2009). Having to choose between family ties or the city, Creon's edict demonstrates how easily, without any trace of doubt, he chose the city over Polynieces.
This edict: (...) (...) I have proclaimed to Thebes that none Shall give him funeral honours or lament him, But leave him there unburied, to be devoured By dogs and birds, mangled most hideously. Such is my will; never shall I allow The villain to win more honour than the upright; (Antigone, 194) In the tragedy, on the other hand, Antigone is Creon's extreme opposite. While Creon is closed in himself, denying any chance of tragic conflicts (as any conflict that might appear shall be solved in favour of the city), Antigone also denies any heterogeneity. But, in her case, she chooses family instead of the city. All her life is structured around a simple set of rules and values that prioritizes her choices. Creon's values are circumscribed to the city's civic life; Antigone's are limited to the dead (VERNANT; NAQUET, 2011). (8) Both are narrow minded, unilateral, closed to the perception of another set of values. They want to eliminate the conflict, trying to suppress contradictions and doubts.
Contingencies, however, are part of life, as they will understand. Despite Haemon and Teiresias warnings (in favour of flexibility, against rigidness), Creon will learn the results of his insensitive deeds. Nussbaum remembers that Creon's intention had a civilizing character but turned out to be grotesquely uncivilized (NUSSBAUM, 2011, p. 70). Justice is a dispute indeed and the tensions that give rise to these disputes are, at the same time, part of the values themselves. Antigone, in the passage...
Para continuar a ler
PEÇA SUA AVALIAÇÃOCOPYRIGHT GALE, Cengage Learning. All rights reserved.
