Lusophone jurisprudence in Iberoamerican Legal Philosophy
| Autor | Paulo Ferreira da Cunha |
| Ocupação do Autor | PhD Univ. Paris II, Univ. Coimbra, PostDoc University São Paulo (USP). Full Professor, Oporto University, Portugal.Interdisciplinary Juridical Institute, Director |
| Páginas | 507-522 |
Special Workshop: Reinventing Legal Philosophy in Iberoamerica? • 507
Lusophone jurisprudence in
Iberoamerican Legal Philosophy
Paulo Ferreira da Cunha1
Abstract: Several authors in the eld of pure Philosophy have argued the exis-
tence of a Luso-Brazilian philosophy. There is even a Luso-Brazilian Institute
of Philosophy (Instituto de Filosoa Luso-Brasileira) that develops in alternate
years, among other activities and publications, the colloquium Tobias Barreto
in Portugal, and the colloquium Antero de Quental in Brazil.
The central idea of our intervention is to apply the same paradigm of
inter-national philosophies (based on common language, and lasting dialogue
at the cultural heritage level), to the philosophy of law, especially the non-
academic one (the academic seems to be more cosmopolitan). Is there a Legal
Luso-Brazilian philosophy? And what may be its place in the context of a Latin
American legal philosophy?
Some of our previous works, already approached the question, such as
our books Temas e Pers da Filosoa do Direito Luso-Brasileira, Lisboa, Imp-
rensa Nacional-Casa da Moeda, 2000 and Pensamento Jurídico Luso-Brasileiro,
Lisboa, Imprensa Nacional – Casa da Moeda, 2006 and the more recent article:
Do Jusracionalismo Luso-Brasileiro e da Unidade Essencial do Jusnaturalismo
– Reexão Problemática Filosóco-Histórica, in “Collatio”, n.o 12, Septem-
ber-December 2012, pp. 17-30, electronic version: hp://www.hoopos.com/
collat12/17-30FC.pdf.
So far, the research allows us to conclude that there is a large universe
of studies waiting for new scholars.
Key words: Old Iberian Liberties, National Philosophies, Iberoamerican Juris-
prudence
1
PhD Univ. Paris II, Univ. Coimbra, PostDoc University São Paulo (USP). Full Professor,
Oporto University, Portugal.Interdisciplinary Juridical Institute, Director.
508 • XXVI World Congress of Philosophy of Law and Social Philosophy
I. The Old Iberian Liberties
In Iberia (or Hispania), a peninsula which later would expand
and give birth to the Iberoamerican (Hispanoamerican) world (and oth-
er social and sociological and cultural fruits of other diasporas and new
communities), we may very clearly see a strong feeling of honor and
personal dignity.
The Portuguese poet and former lawyer Teixeira de Pascoaes,
friend and comrade of leers with Miguel de Unamuno and other Span-
ish writers, called our aention to the fact that, while in Northern Eu-
rope countries still made human sacrices to pagan gods, we already
imposed our kings a contractual form: rex eris si recte facies, si non facies
non eris. And it was not a mere rhetorical formula: it happened that bad
kings were deposed and replaced. In Portugal in the XIIIth and XVIIth
centuries that concretely happened: kings Sancho II and Afonso VI were
deposed, just to give two main examples.
This Idea of honor and dignity (capable, in its negative side, of
moments of arrogance and even hubris – that are already part of His-
tory) are the principium sapientiae of a Law really worthy of that name.
Eventually with some anachronism or “chronocentrism”, we would say
these traits maybe seem too modern, or avant-la-lere. In fact, we use to
consider those ideas as contemporary or at least modern. But it depends
on the style and colours they show... Not always these concepts are very
rigourous in the current textbooks and alike. If the old constitutionalism,
pre-modern one, is present in those academic books, that fact is that for
many years it was almost absent or in the shadows. And the coexistence
of Lassalle’s historical-universal concept of constitution with some hid-
den or shadow prejudices against old and material constitutions seemed
not to bother anyone.
Let’s put some questions to these paradigms. How came into life
this specic legal culture, which will even cross the oceans?
Surely it was built from many dierent materials: Roman law, of
course, Christianity (the idea of equality, as it is nowadays remembered
for instance by Luc Ferry, is dicult to conceive in cultures long de-
prived of the Christian legacy or alien to it), and also Visigothic legacy...
But a deeper study of how and why this vision of Law was born still
seems to await the interest of researchers.
And what is the style proper to the common law of the peoples
of the Iberian Peninsula? May we dare to ask that?
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