Law of Democracy

Alfredo Attié Jr 1
Towards International Law of Democracy

A Comparative Study
2014
1
Alfredo Attié Jr Towards International Law of Democracy

Summary
2
Introduction 6
1. Sharing Experiences 17
2. Paths and Moments of Comparison: a World of Metaphors

35
Comparison and the Comparative Method 36

Law-Culture-Politics : Montaigne, Hobbes, Montesquieu 38
Figures of Speech: the Metaphor 45
Law, Narrative, Performance 53
Tragedy, Foundation of Law and Democracy 57
Pure Province: Circumscribing and Compounding History and Poetry 62
3. Democracy to Compare 78
Neither Framework nor Universal Apparatus 79

Medium or New Technology of Association 81
Obstacles to the Understanding of Democracy 86
2

Democracy Imprinted in the Human Condition and Memory 97

Foundations of the Modern Conception of Politics 101
Changing Qualities in the Modern Era 108
Ancient and Modern: The International Political Regime 111
A New Science of Politics for a New World 125 3
Different Perspectives 128

Triads for the Modernity 135
4. Cultures of Modernism: Novels for Nations Encounters in

the International Century 142
Towards a New International Era 143

Identities and Nations: Romanticism versus Modernism 149
Culture as Political Artifact 157
Inventions 159
Imagination 162
Americas’ Cases 166
“Der Zeit ihre Kunst, der Kunst ihre Freiheit” 171
Excavating Foundational Beliefs, Passions, and Interests 180
Denial of the Founders 197
Romanticism and Representation 201
“Reentrar no meu Povo, Reprincipiar minha Ciência” 209
Anguish of Identity 219
Macunaíma, Abaporu, “Make It New” 223
Hedonism-Hunger-Violence 225
Sovereignty-Oriented: the Anti-Narcissus 229
Democracy-Oriented: the Narcissus 235
3

Political Identity and Compulsion of Refounding 242

Civil Republicanism and Liberalism Walking 251
War, Commerce and Democracy 254
Democracy International and Multiple: a new Universalism 262
4
Conclusion 269
Acknowledgements 285
Bibliography 289
4

5
“… Ἔνισπε δ᾽ ἡµῖν ποῖ κεκύρωται τέλος, δήµου

κρατοῦσα χεὶρ ὅπῃ πληθύνεται...”1
“… la création d’êtres humains, vivant avec la

sagesse, et aimant le bien commun.”2

1
AESCHYLUS, SUPPLIANT WOMEN 601 (Herbert Weir Smyth trans., 1926). “Tell us — to what end has the decision been
2
CORNELIUS CASTORIADIS, La Polis Grecque et la Création de la Démocratie in DOMAINES DE L’HOMME, LES
CARREFOURS DU LABYRINTHE II 261-306 (1986).
5

6
Introduction
6

This book corresponds to the revised edition of the thesis

I have presented as a final assignment of my Master of Comparative
Law degree, an international program of comparative studies. It sets
a serious commitment on the exchange of knowledge among
professionals from several countries, mainly US and Brazil, 7
developing an international comparative law perspective, helping the

nations to understand better each other, and the increase of
cooperation on the subject of comparative studies and international
legal scholarship.
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 crowdy squares of traditional authoritarian
States, including Brazil. People on the move, interconnected by the
global artifacts, has left behind traditional passivity, and decided to
meet at public spaces, asking for changes in the political regimes of
their countries, starting unfinished riots, confronting rigid
institutions, established structures. Within movements destined to
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 subjection to Government authoritarian rule,
to obey it doesn’t matter the reason, by cultural inclination or
educational training, have been cutting off ancient linkages, adopted
7

hope instead of fear, and bravely decided to enter the political scene
and become actual actors of 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
8
legitimated 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 find out the roots and
origins of possibly 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. That
methodical research could be useful for national and international
actors to help peoples to choose better instruments to successfully
achieve a more peaceful and effective path to the implementation of
Democracy in their countries, but in constant dialogue with
international agencies, and also with other peoples’ experiences and
ideas.
I would propound the building of a comparative database

on democratic or political experiences and ideas, which can be
accessed and enriched by everyone.
8

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, diverse methods, in a
multidimensional and interdisciplinary perspective. In addition, only 9
recently, democracy and international law were taken together and

became a single object of study.
Being aware of the intrinsic difficulties of the subject and

the originality of the method I have chosen to deal with it, I took the
decision of dividing my research into two stages: a discussion of the
building of the democratic idea, in its political, legal and cultural
context; and the discussion of the possibilities of an actual
international law, in the light of a global or universal democratic
experience.
I hope the first one is to certain extend 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 apprehended 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 in them.
9

The book 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
Nations Encounters in the International Century. Each chapter is
divided into sections, in order to help the reader to identify the main 10
contributions of the thesis.
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 living a critical moment for the legal theory, in which the
international experience has become the most important one. 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 the present
legal theory and practice.
The legal theory, however, at the present moment, is

dominated by the domestic perspective. That is to say that the
concept of sovereignty becomes paramount. In this sense, my
argument, which I will develop in the fourth chapter, - Cultures of
Modernism - is that the major influxes to the building of the state,
nation-centric - or domestic law - predominance in legal theory or
practice, were provided in the Romantic era, during the 19th Century.
Besides, 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 the nations. To convey this idea, I will provide, in the third
10

chapter, - Democracy to Compare - some narratives of democracy, an

attempt to compare the differences between the concepts that were
imagined by the philosophers, and regimes created by the nations,
since the beginning of the modern history.
11
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 is useful to 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 US, by means of interpreting their
romantic and modernist literatures.
11

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 12
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.
The third chapter - Democracy to Compare – provides a

discussion about 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 concepts and experiences compared. The human being is a
political animal; politics is a part of its self. Therefore, I explain two
important ideas about democracy, 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 by 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.
12

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 – freedom-rights-commerce. It is important
to observe that the modern triad will not fit all the political 13
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.
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, the
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
13

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. 14
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.
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 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.
14

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 15
literary characters).
The main characteristic of the American international

political and legal thought is determined by the fact that US - in spite
of having established 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 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. 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.
In the conclusion, I discuss briefly the need 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.
15

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 the improving of the international coexistence of
different peoples, at the same time preserving and transforming rights 16
constitutionally secured. That is the reason why the International

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 book, 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 adequate
interpret metaphors, and depict an accurate picture of the
international system.
16

17
1. Sharing Experiences
17

The linkage, I have seriously 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 18
explain it very shortly.
Firstly, the sources. Their careful choice, a product of at

least a four-year research, 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 invoke 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

3
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).
18

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 19
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.
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

4
“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.
5
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.
19

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
20
approach to legal studies.7 The era of globalization, - in which the

6
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.”
7
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
20

interaction among the several actors of international 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, 21
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.

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 “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).
21

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 22
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.”
9
Calvino makes a distinction 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.”

8
ITALO CALVINO Lightness in SIX MEMOS FOR THE NEXT MILLENNIUM: THE CHARLES ELIOT
NORTON LECTURES 1985-1986 11, 12 (1993).
9
Idem, at p. 21.
22

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
23
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.
To conclude, 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 there is a great difference between law in
the books and law in the reality, even greater in Brazil than in 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.
23

My own work conveys two precise moments: the

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 24
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 reflects
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
24

Relations and Global Politics in state-centric ways, which has

entrenched theoretical and practical boundaries between domestic and
international spheres. However, as my research was growing on, I
realize that it would be more reasonable to postpone that second
intent of my thesis. It sounded more adequate to develop those ideas 25
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 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
work within the present work, are to develop 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
i n t e r r e l a t i o n s h i p b e t w e e n l a w , c u l t u r e , a n d p o l i t i c s . 10 I p r o p o u n d t h e
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,

10
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.
25

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 26
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 systematically 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
26

a s t h e t h i r d t e r m b e t w e e n t h e t w o e m o t i o n s c o n t r a s t e d . 11 I h a v e
defined Metaphor as a method to play 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 27
of the truth as simply empirical correspondence. It is an important

step in my work, because it introduces the method I intend to make
use, in dealing with literary sources. An illustration of that method

11
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); 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 temper 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 1'être.”
27

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 him, I
could advance the conception of law as an art of language, a 28
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 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 chapter one, 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
12
beginning and the end of the romantic idea of identity, and

12
In the third chapter, I put in opposition Romanticism and Modernism, as a means to, among
other things conveyed; demonstrate the illusiveness of the assumption of identity, and the correlated ideas
of nation and nationality.
28

insularity of law, the critique is still and even more necessary. In

f a c t , t h e p r e d o m i n a n t c o n t e m p o r a r y l e g a l d o c t r i n e s 13 a c t a s i f t h e i r
lessons were everlasting and undisputable. 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 29
cultural constraints behind Austin’s and Kelsen’s doctrines. The

question that remained – the relationship of 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.
Let throw out some of the propositions of my own. 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. Secondly, democracy is nor 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

13
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).
29

any other so-called 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 the Spinoza’s defence of the
democratic regime, as a demonstration of my suggestion of the 30
pregnant cognitive memory of democracy. As there is no universality

in the human experience of democracy, I thus propounded an analysis
14
of the prevailing narrative of its making. 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. Happiness is a translation for eudaimonia. It
poses the goal of public life, or the highest achievement of human
condition, represented by the polis model of association. Besides,
eudaimonia comprises the ideas of equality (isonomia, isegoria) and
pertaining, which stress my conception of democracy as a medium.
Freedom, as corresponding to eleutheros, is the disembarrassment
from the natural concerns of life, and the making of a human nature
printed in, impressed by the public life and participation in the

14
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.
30

political sphere. Finally, the life of the polis is a permanent internal

and external conflict or war, polemos. A continuous controversy,
permanent tension, a debate among equals, about public affairs. The
most important matter of public concern being exactly the conflict
itself, internal and external. The polis had been always concerned 31
about the maintenance of its freedom, from internal and external

menaces. Democracy was the invented technique of its maintenance
as a free city of free citizens. The last part of the second chapter is
devoted to the introduction of the discussion of international law and
democracy. The questions about that relationship, I have presented,
are to be further developed in the second part of my work. Indeed, in
the third chapter, I discussed the issues of cultural definitions of
democracy, and only advanced some of my points of view, in respect
to the making or foundation of an actual international law.
In the fourth chapter, I worked the triads law-culture-

politics and eudaimonia-eleutheros-polemos, having tried to define
the core aspects of the political experience of Brazil and US. I built
the concepts of Brazilian and American politics with the help of some
of their most representative writers, who I had chosen based exactly
on their capability to provide those concepts. Furthermore, they gave
me the opportunity to discuss at length the contrast between
Romanticism and Modernism, about which I have already spoken. As
I have said, there is no such a thing as national identity, because any
kind of image of something identical to itself is a result of
comparison. The Romanticism had an important role to the purpose of
creating an illusion of the organic view of nations. Modernism
deconstructed, and by means of the deconstruction, complemented the
idea of nation as something invented and imagined. I introduced
31

those aspects with the help of historians, who had worked with
nationalism, making even hyperbolic use of literary sources. My
conclusion was that the characteristics presented by Brazil and
United States as actors at the international community, the characters
of Brazilian’s and American’s International Law and International 32
Relations beliefs and acts, are but the result of the cultural and
political constraints I had pointed out, in analyzing and criticizing
their literary expressions. Brazilian anguish for identity, due to a
Thomistic-Machiavellian influence; and American compulsion to
refounding, as a consequence of a Lockean-Machiavellian background,
would generate different meanings and approaches to the dual agenda
of International Law and International Relations. I called those
meanings and approaches, the reflections and expressions of the
metaphors of, respectively, Anti-Narcissus and Narcissus. I proposed
also two different triads to sum up the conceptions of the modern
politics. One would fit the idea of modern liberty or democracy,
which includes the North American own conception: freedom-rights-
commerce. The second deals specifically with the Brazilian case:
hedonism-hunger-violence.
As a conclusion, I think the style and the proceedings, I

have adopted to the defining of the Brazilian and American beliefs
and acts in the International arena, could be useful to understand the
characteristics and the practices of other countries and actors. I can
propose an international task force to the completion of this idea, and
I hope it will help in informing and depicting a richer map and
picture of an actual international community.
32

The last attempt to adopt a comparative analysis for

15
International Law dates from 1980. I decided to recommence,
proposing a different approach, and providing a different method of
analysis. The purposes of this thesis were expository, comparative
and critical. On his brief book on International Relations, Professor 33
Paul Wilkinson underlines indeed “the urgent need for imaginative

and creative international statesmanship and for more effective
d i p l o m a c y f o r c o n f l i c t m a n a g e m e n t ” 16 i n t h e i n t e r n a t i o n a l a r e n a . T h e
imagination has an important role, because sometimes we cannot rely
on (past) experiences, because their number is poor or because they
were not as productive as we would like. However, knowledge of the
past theories and practices leads us to a more adequate point of view.
Those practices have motivated philosophers and theoreticians to
build standards and models. Those theories were used by statesmen
and politicians as a help to set their practical issues.
What I intended to accomplish, - even I am compelled to

by my commitment to the democratic ideas and my belief and hope

15
WILLIAM E. BUTLER, INTERNATIONAL LAW IN COMPARATIVE PERSPECTIVE (1980).
16
INTERNATIONAL RELATIONS 11 (2007) Wilkinson moves on:
“an important yet constantly neglected precondition for more effective diplomacy of
crisis management and conflict termination is a far greater knowledge and understanding of how
other states and non-states, and especially those who oppose our own states, perceive the world
and the disputes and conflicts in which they are involved. One is unlikely to win battles of ‘hearts
and minds’ if one has no understanding of the way other states, societies, and non-state
organizations see us and the rest of the world. Hence, we also need greater understanding of the
roles and capabilities of states, non-states, and intergovernmental organizations and the profound
global problems and challenges we all confront.”
My own thesis is a response to Wilkinson’s concern and hope to build an effective account of the
behavior of the international actors, and its meaning.
33

that they should be more and more diffused - is find out the
mainstreams of the ongoing process of the democratic regime. Point
out its virtuous aspects, which would be useful, in my perspective, to
reach the mind and heart of men and the set of nations that is
responsible for the building of a peaceful future. Then I can ask: 34
s h a l l g o o d i n t e n t i o n s b e l i f t e d ? 17
Between the passions that constitute hope and fear, let us

wait that the voice of the Poe`s Raven will be listened only by the
ones who rely solely on the latter.

17
EDGAR ALLAN POE, THE RAVEN (1845). The sole hope to free the poet from his sufferings and
torments would be lift out the poet’s soul, imprisoned in the bird’s shadow that lay on the floor, a
metaphor that maybe help him in his will to become free:
“And the raven, never flitting, still is sitting, still is sitting

On the pallid bust of Pallas just above my chamber door;
And his eyes have all the seeming of a demon's that is dreaming,
And the lamp-light o'er him streaming throws his shadow on the floor;
And my soul from out that shadow that lies floating on the floor
Shall be lifted - nevermore!”
34

35
Paths and Moments of Comparison: A World of

Metaphors
35

C om p ar ison an d th e C om p arative M eth od
The comparison is first of all a disposition of human

experience. It is quite a simple tendency of everyday life to compare 36
things, to measure others and ourselves, to judge acts and

circumstances, facts, setting up constantly values and designing
regularities, by the act of discriminating, finding out similarities and
distinctions. By comparison, humans brought about a certain order to
their lives, fixed norms by means of which they can preview events
and achieve stable relationships, common projects, arrange spaces,
discipline and reckon amounts of time.
A comparison is also a very important tool for language

and its functions. A very famous manual on Logic attributes to
language three uses: informative, expressive and directive: the first
is to communicate information, as science does; the second is
exemplified by poetry, which concerns to feelings, attitudes and
emotions, expressed or evoked; the third use purpose is causing or
p r e v e n t i n g o v e r t a c t i o n , a s c o m m a n d s a n d r e q u e s t s d o . 18 T a k i n g t h e s e
three functions or uses of language, one can verify how important
comparison is, as a component of each of them, - even informative,
expressive, and directive - by simply associating it to the set of
figures of speech that operate with the idea of comparison. It means,
by similarity, contrast, and association: metaphor, allegory, fable,
parable, personification; antithesis, oxymoron, epigram, irony,
sarcasm, innuendo, hyperbole, litotes, euphemism, pun; metonymy,

18
IRVING M. COPI, INTRODUCTION TO LOGIC 55-65 (5th ed., 1972).
36

synecdoche. In all of them, and in a certain degree, comparison

would be hidden by an operation of the mind, which gives the idea of
comparing without explicitly saying it. Hence, one can say that the
idea of comparing is in the core of the language, be the
communication connotative or denotative, it means whether the 37
communication is straightly or obliquely compound.
Comparison provides recognition and differentiation, the

main idea of identity and its counterpart, alterity (alteritas) or
otherness, by which fundamental aspects of the common life can be
conceived and worked.
The reader would concede us to pick and choose three of

those aspects of common life – law, culture, and politics. They are, at
the same time, products or results of acts of comparison, and the
comparison in action, on the move, the acts of comparison themselves.
As products, law-culture-politics crystallize the acts of comparison
into practices and statutes, with which situations and moments could
be comprehended or understood, accepted or refused, defined to
occupy a certain status, place or function among other signs. As acts,
they are evolving signs of adaptation, the constant effort to rule on
unexpected modifications of the environment and the behavior of the
components of a certain order, the permanent attempt to solve
conflicts between the establishment and what intends to resist, defy
or modify it.
L aw -C u ltu re-P olitics: M o n ta ig n e, H ob b es,

M o n tesq u ieu
37

Beginning to examine the three aspects we have picked out

from the whole composition of comparison, let us reflect a little on
the idea of comparison with the help, or in the light of certain
38
authors, - Montaigne, Hobbes, and Montesquieu - who can provide us
a p r e l i m i n a r y m e t h o d o f a n a l y s i s . 19
In fact, the first task of Montesquieu’s Spirit of Laws was

to find out principles of government that could apply to all systems
or regimes of legislation that can be observed in the world.
Montesquieu explains the variety of laws and regimes as a result of
the constant transgressions to the laws of nature (which governed the
physical world and are even rigidly observed by God himself) that
i n t e l l i g e n t b e i n g s d o . 20 L a w s o f n a t u r e d o n o t a p p l y t o m e n , s i n c e
they enter into the civil state, leaving the state of nature. Positive
laws are required, as particular cases of the reason, adapted to the
people for whom they are framed, “in relation to the nature and

19
MICHEL E. DE MONTAIGNE, THE ESSAYS (Charles Cottom trans. W. Carew Hazlitt ed. 1952) ;
CHARLES DE SECONDAT MONTESQUIEU, THE SPIRIT OF LAWS (Thomas Nugrent trans. J.V. Prichard rev.
1952) ; THOMAS HOBBES, LEVIATHAN (1651) ; ON THE CITIZEN (Richard Tuck and Michael Silverthorne
trans. and ed. 2003) ; DE CIVE (Howard Warrender ed. 2004).
20
SPIRIT OF LAWS supra note 19, at Book I, Chapter 2 and 3, p. 2:
“Man, as a physical being, is like other bodies governed by invariable laws. As an

intelligent being, he incessantly transgresses the laws established by God, and changes those of
his own instituting. He is left to his private direction, though a limited being, and subject, like all
finite intelligences, to ignorance and error: even his imperfect knowledge he loses; and as a
sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every
instant forget his Creator; God has therefore reminded him of his duty by the laws of religion.
Such a being is liable every moment to forget himself; philosophy has provided against this by
the laws of morality. Formed to live in society, he might forget his fellows-creatures; legislators
have therefore by political and civil laws confined him to his duty.”
38

principle of each government; whether they form it, as may be said of

politic laws; or whether they support it, as in the case of civil
i n s t i t u t i o n s ” . 21
Not only to the nature and principles of government, but

39
also
“in relation to the climate of each country, to the

quality of its soil, to its situation and extent, to the principal
occupation of the natives …; they should have relation to the
degree of liberty which the constitution will bear; to the
religion of the inhabitants, to their inclinations, riches, numbers,
commerce, manners, and customs. In fine, they have relations to
each other, as also to their origin, to the intent of the legislator,
a n d t o t h e o r d e r o f t h i n g s o n w h i c h t h e y a r e e s t a b l i s h e d ” . 22
Therefore, the consideration of all those aspects is but a

comparison of the characteristics of different regimes in the light of
the principles laid down after the observation of such an infinite
diversity of laws and manners:
“they were not solely conducted by the caprice of

fancy… Every nation will here find the reasons on which its
maxims are founded … It is not a matter of indifference that the
minds of the people be enlightened. The prejudices of
m a g i s t r a t e s h a v e a r i s e n f r o m n a t i o n a l p r e j u d i c e ” . 23
There would be, of course, much to comment on

Montesquieu’s pivotal opus on the science of law and society, but I

21
Id., at 2 and 3.
22
Id., at 3.
23
Id., at Preface, p.XXI.
39

think it could be useful to stress the ambiguities and paradoxes of his

i n g e n i o u s s t y l e 24. A t t h e s a m e t i m e , t h e J u d g e f r o m B o r d e a u x a f f i r m s
and denies the importance of human rationality and intelligence.
Indeed, if intelligence could make us skillful in discovering the laws
of nature and conceiving laws of society, it is nevertheless the reason 40
why we disobey both. It constitutes a paradox, that positive laws are

affirmed to be just special cases of the reason (considered as the law
itself), while human beings are not able to behave and act as rational
beings. They need the permanent intervention of different kinds of
law (religious, moral, political, and civil) to be reminded of their
duties vis-à-vis God, themselves, and the others.
On the other hand, in spite of assuming the Hobbesian idea

of the state of nature and contract, he takes it topsy-turvy: the state
of war corresponds to the state of society, and not to the state of
nature. The natural passion in the state of nature is fear (exactly like
in Hobbes’ Leviathan), but it will induce men not to attack each other,
but to associate with others. The idea of empire and dominion are
complex and will arise only in the state of society, as they are the

24
It is not easy, I must admit, to translate Montesquieu’s style. It has been said that he had
worked very hard to transform his own language, French, in an as concise as the synthetic Latin language,
trying to outdistance his master and model Tacitus, the Roman historian and theorist on the art of rhetoric,
and oratory. ALFREDO ATTIÉ JR, TÓPICA DAS PAIXÕES E ESTILO MORALISTE (Universidade de São Paulo,
1999).
40

s o u r c e s o f t h e s e n t i m e n t o f s u b d u i n g o n e a n o t h e r , s u b s t r a t e o f w a r . 25
Without common power, Hobbes affirms, there is perpetual war; with
common power, Montesquieu argues, there is perpetual war. This
difference could thus explain why for Hobbes, the organization of a
common power is sufficient to the architecture of law and state, 41
while for Montesquieu, a system of checks and balances would be

necessary to restrain the will to power and to subdue one another,
which is born in (the state of) society.
As we can see in the example of Hobbes and Montesquieu,

comparison plays an important role in the constitution of modern
society, but the objects compared are not restricted to the experiences
of their own times. Imagination and invention go pari passu with
comparison. One needs to imagine or to invent a term of comparison
even if reality does not provide an example to contrast. The way the
term is imagined or invented will have serious consequences for
living in society, and for organizing it.
Even if we realize that the political projects of both

Hobbes and Montesquieu are the building of monarchic regimes, the
conjunction of the imagined state of nature and the experienced state
of society will result in completely different worlds.
That is an important caveat. Comparison can be a very

useful instrument, but we must take extreme care with the use we

25
MONTESQUIEU, SPIRIT OF LAWS, supra note 19, at p. 2, and HOBBES, LEVIATHAN, supra note
19, at Chapter XIII: “warre of every one against every one”; and DE CIVE, supra note 19, at Preface,
Section 14: “ostendo primo conditionem hominum extra societatem civilem (quam conditionem appellare
liceat statum naturae) aliam non esse quam bellum omnium contra omnes; atque in eo bello jus esse
omnibus in omnia”.
41

make of it. Simply because we are not only playing with our language,
but we are also conforming and designing the world we live in at the
same moment we process the information we gather by the means of
our understanding faculties.
42
Besides, there is no neutral point of observation, as
M o n t a i g n e w o u l d w a r n u s i n h i s E s s a y o n C a n n i b a l s 26. W i t h t h e s a m e
taste for paradoxes, the mayor (and judge, too) from Bordeaux would
not only criticize the common sense that can lead us to prejudice and
superficial judgment, but also advise us against following blindly the
ways of reason. When we call any people or civilization barbarian,
we are acting upon prejudices, arguments that are given by the
common sense or are results of reasoning. We all learn prejudices and
manage them in our judgments, indifferently to our level of education
and information:
“we may call those people barbarous, in respect to

the rules of reason: but not in respect to ourselves, who in all
sorts of barbarity exceed them … The laws of nature … govern
them still, not as yet much vitiated with any mixture of ours …
What we now see in those nations does not only surpass all the
pictures with which the poets have adorned the golden age, and
all their inventions in feigning a happy state of man, but
moreover, the fancy and even the wish and desire of philosophy
itself; so native and so pure a simplicity .. could never enter in
their imagination, nor could they ever believe that human

26
MONTAIGNE, ESSAYS, supra note 19, at Book I, Chapter 30, p. 91/98. Be attentive to, for
instance, the first and ironic approach to the matter, by the citation of Plutarch: “When King Pyrrhus
invaded Italy, having viewed and considered the order of the army the Romans sent out to meet him: - I
know not, said he, what kind of barbarians (for so the Greek called all other nations) these may be, but the
disposition of this army, that I see, has nothing of barbarism in it.” Montaigne concludes: “By which it
appears how cautious men ought to be of taking things upon trust from vulgar opinion, and what we are to
judge by the eye of reason, and not from common report.”
42

society could have been maintained with so little artifice and

h u m a n p a t c h w o r k . ” 27
For Montaigne found guidance to his own observations - of

the indigenous people recently “discovered” by Europeans – in some 43
of his preferred ancient writers, among whom Plato, Virgil and

Seneca. The first gave him the conviction that the greatest and most
beautiful of things were given to men by nature and fortune, while art
had provided the most imperfect; Virgil gave him the idea of an
education provided only by nature (”Hos natura modos primum
dedit”); and Seneca, with the imagination of peoples that could just
be recently generated by gods (“Viri a diis recentes”).
There is an order given by nature or fortune, which

exceeds the order of society that men give to themselves, which could
be exemplified by the presence of the indigenous peoples. Montaigne
uses this image to criticize his own time and society. Comparison
here is again a product of imagination, as it puts apart any
circumstance that can trouble the whole interpretation and argument.
It assumes as true something that can be seen as absurd even for the
human nature: the absence of education provided by the society of
South American (or the Antarctic France) Indians, for they lived
presumably in a different kind of society, organized with certain
rules, maintained together due to the establishment of common
traditions and methods to deal with the natural resources, transmitted
from one generation to another by, of course, education. Montaigne
for sure knows that, but he very skillfully combines reality and
fiction, the image of the Indians brought to France by Nicolas Durand

27
Idem, at p. 95, 96 and 93, 94.
43

de Villegaignon, and the concepts or texts of the masters of ancient

times, confronting them with the actual situation of the European
countries, who are living the worst moment of the religion conflicts.
Religion, interests and dominion are vain motifs for wars, so the
Indians have different motivation to struggle with each other: 44
“their wars are throughout noble and generous, and

carry as much excuse and fair pretence, as that human malady is
capable of; having with no other foundation than the sole
jealousy of valour. Their disputes are not for the conquest of
new lands, for those they already possess are so fruitful by
nature, as to supply them without labour or concern, with all
things necessary, in such abundance that they have no need to
enlarge their borders… valour Men of the same age call one
another generally brothers, those who are younger, children; and
the old men are fathers to all. They leave to their heirs in
common the full possession of goods, without any manner of
division. If their neighbours pass over the mountains to assault
them, and obtain a victory, all the victors gain by it is glory
only, and the advantage of having proved themselves the better
in and virtue: for they never meddle with the goods of the
conquered … They demand of their prisoners no other ransom,
than acknowledgement that they are overcome … That is a
nation where there are no manner of traffic … no name of
magistrate or political superiority; no use of service, riches or
poverty, no contracts, no successions, no dividends, no
properties, no employments. … The very words that signify
lying, treachery, dissimulation, avarice, envy, detraction,
p a r d o n , n e v e r h e a r d o f ” 28.
And no reason for arguing about religion, because their

only duty, preached by their old men, is to demonstrate valour
towards their enemies and love towards their wives.

28
Id., at 94-96.
44

Montesquieu, writing in the middle of the 18th Century,

Montaigne, in the end of the 16th, and Hobbes, in the middle part of
the 17th, making use of comparisons, by means of imagination and
invention, were not only observing and describing their space and
time, but mainly trying to design new orders and capture the attention 45
of their contemporaries to the political projects they were conceiving.
The whole idea of law-culture-politics is at stake in their

works, as lawyers (and judges, in the case of both the French authors),
writers and political thinkers.
F igu res of S p eech : th e M eta p h o r
Hence, comparison is a method of research and reflection,

which allows imagination and invention to open their Pandora’s jar
(in Greek, pithos, πίθος). It is an important myth, which describes, as
told by Hesiod’s Theogony, the aboriginal woman, whose name
signifies All-Gift, ancient Greek Eve-equivalent, created by Zeus and
other gods and goddesses and sent down to earth to punish wretched
h u m a n s f o r t h e i r p r e s u m p t u o u s n e s s 29. W h e n t h e j a r w a s o p e n e d , a l l
goods and evils left it, in a manner that will turn a human condition
plagued by them all. When it was finally stoppered up again, only
one quality was left shut firmly within the jar: Elpis - ἐλπίς -, which
means hope or expectation.

29
PAUL CARTLEDGE, ANCIENT GREECE: A VERY SHORT INTRODUCTION 21, 22 (2011).
45

Disciplined, however, comparison can (and actually was

capable to) guide modern science to open new possibilities for the
orchestration of the political society.
We belong to a post-Nietzschean era; hence, we are

46
supposed to know that the orders created and founded by the acts of
comparison are not naturally but arbitrarily composed. That a motive
lies before, behind, or underneath any comparison. That around any
choice of language and figures of speech, to present or represent
comparisons there remains an order of conflicts, a context that
explains why we have taken that position instead of other, why we
have decided, or were compelled to opt to one side and not to another.
What Nietzsche called a “critique of moral values”, or the quest for
the value of the established values, “a knowledge of the conditions
and circumstance out of which these values grew, under which they
30
have developed and changed.”
Even that the orders designed by acts of comparison are

always disguised by figures of speech, those that are proper to
suggest the same idea of comparison, but in a more flexible way.

30
FRIEDRICH NIETZSCHE, GENEALOGY OF MORALS Chapter 6 (Walter Kaufmann ed. 1992):
“Morality as consequence, as symptom, as mask, as hypocrisy, as illness, as

misunderstanding—but also morality as cause, as means of healing, as stimulant, as scruples, as
poison, a knowledge of the sort which has not been there until now, something which has not
even been wished for. People have taken the worth of these ‘values’ as something given, as self-
evident, as beyond all dispute. Up until now people have also not had the least doubts about or
wavered in setting up ‘the good man’ as more valuable than ‘the evil man,’ of higher worth in the
sense of the improvement, usefulness, and prosperity of mankind in general (along with the future
of humanity) [. . .] What if the truth were the other way around? What if in the ‘good’ there lay a
symptom of regression, something like a danger, a seduction, a poison, a narcotic, something
which makes the present live at the cost of the future? Perhaps something more comfortable, less
dangerous, but also on a smaller scale, something more demeaning? [. . .]. So that this very
morality would be guilty if the highest possible power and magnificence of the human type were
never attained? So that this very morality might be the danger of all dangers?”
46

Like, for example, the case of the rule of thumb, a practical way to
measure or to solve problems, when certainty could not be achieved,
at least easily achieved.
The myth was of course one of those modes of showing

47
reality without pointing to it directly, an allegory or a fable.
Nevertheless, the most common of the figures, which

comes to our mind quite naturally, is the metaphor, in which, as set
b y d i c t i o n a r i e s , 31 a w o r d o r p h r a s e l i t e r a l l y d e n o t i n g o n e k i n d o f
object or idea is used in place of another to suggest a likeness or
analogy between them.
It means that connotation is maybe better to human

understanding, even the worst things and responsibilities of life, than
denotation. Firstly, because any connotation value of a word has
much more meanings than the simple denotation or definition, its
text-value. Connotation deals better with the context and calls for
emotional associations. Moreover, emotions, whether we are willing
or not to accept, are the actual core of communication.
Think about rhetoric, for instance. The whole scope of

discourses and dialogues is to move the recipient’ or hearer’s idea, or
to incentive him or her to act in a desirable way, by calling exactly
his or her passions, using words only as a means to carry on
emotional objects, the actual factors of persuasion. Aristotle
demonstrated that sentiments lead to decision, and that a well
prepared orator can move his or her audience to the needed state of
mind:

31
E.g., the MERRIAM-WEBSTER DICTIONARY, available at www.merriam-webster.com/dictionary.
47

“when people are feeling friendly and placable, they

think one sort of thing; when they are feeling angry or hostile,
they think either something totally different or the same thing
with a different intensity: when they feel friendly to the man
who comes before them for judgment, they regard him as having
done little wrong, if any; when they feel hostile, they take the
opposite view. Again, if they are eager for, and have good hopes 48
of, a thing that will be pleasant if it happens, they think that it

certainly will happen and be good for them: whereas if they are
i n d i f f e r e n t o r a n n o y e d , t h e y d o n o t t h i n k s o . ” 32
On the other hand, in a sort of literary register, poetics is

represented as a means to build facts or events in a way that could
lead to a more plausible way, as again Aristotle pointed out: “the
poet’s function is to describe, not the thing that has happened, but a
kind of thing that might happen, i.e. what is possible as being
p r o b a b l e o r n e c e s s a r y . ” 33

32
ARISTOTLE, RHETORIC BOOK 2, CHAPTER 1, 1377b AND 1378a (Roberts, W. Rhys trans.,
Honeycutt, Lee comp, available at http://rhetoric.eserver.org/aristotle/index.html):
“since rhetoric exists to affect the giving of decisions -- the hearers decide between one
political speaker and another, and a legal verdict is a decision -- the orator must not only try to
make the argument of his speech demonstrative and worthy of belief; he must also make his own
character look right and put his hearers, who are to decide, into the right frame of mind.
Particularly in political oratory, but also in lawsuits, it adds much to an orator's influence that his
own character should look right and that he should be thought to entertain the right feelings
towards his hearers; and also that his hearers themselves should be in just the right frame of mind.
That the orator's own character should look right is particularly important in political speaking:
that the audience should be in the right frame of mind, in lawsuits [. . .] There are three things
which inspire confidence in the orator's own character -- the three, namely, that induce us to
believe a thing apart from any proof of it: good sense, good moral character, and goodwill.”
33
ARISTOTLE, Poetics in ARISTOTLE; LONGINUS & DEMETRIUS. POETICS; ON THE SUBLIME &
ON STYLE 59/62 (Stephen Halliwell trans. 1995):
“The distinction between historian and poet is not in the one writing prose and the other
verse—you might put the work of Herodotus into verse, and it would still be a species of history;
it consists really in this, that the one describes the thing that has been, and the other a kind of
thing that might be. Hence poetry is something more philosophic and of graver import than
48

James Boyd White, in his famous advanced course on

reading and legal writing, suggests that the activities which
constitute the legal training are not but an enterprise of imagination,
“whose central performance is the claim of meaning against the odds;
the translation of imagination into reality by the power of 49
l a n g u a g e . ” 34 I t m e a n s t h a t e v e n t h e m o s t t e c h n i c a l l a n g u a g e b u i l t u p
to become a legal argument is nothing else but a literary art, whose
performance aims to control the language, and, I would add, to
control the world or the acting of people by the correct use of this
language. More curious than that is the fact that the demands of our
imagination start outside the legal language system, as Boyd White
insists, even outside any language, in a social or narrative
imagination, “a capacity to envision different versions of the
f u t u r e . ” 35 I t c o u l d b e n a m e d a c a p a c i t y o f p r e t e n d i n g , m o r e i m p o r t a n t
perhaps than the capacity of acting or simply meaning. When we
enunciate rules or opinions, address some question or matter, we
involve much more than concepts and techniques learnt, we imagine
and invent, create worlds.
In dealing with the figures of speech, which replace

comparison, we are in position to confront facts and fiction, even
assuming that fiction can be more real than fact. In contemporary
psychology, we confront the consideration that there are over two

history, since its statements are of the nature rather of universals, whereas those of history are
singulars. By a universal statement I mean one as to what such or such a kind of man will
probably or necessarily say or do—which is the aim of poetry, though it affixes proper names to
the characters; by a singular statement, one as to what, say, Alcibiades did or had done to him.”
34
JAMES BOYD WHITE, THE LEGAL IMAGINATION 758 (1973).
35
Id., at 758.
49

kinds of truth, which are as relevant as the traditional conception of

truth as empirical correspondence. Those two other kinds of truth are
truth as coherence with complex structures, and truth as personal
relevance. Empirical correspondence deals with factuality, while
coherence and personal insight are more appropriate to be understood 50
and dealt with fictional structures, as they both concede a central

r o l e t o e m o t i o n s . 36
And metaphor - a connotative way to compare, a method to

play with reality and imagination, an oblique and dissimulating
( d i s g u i s e d , h i d d e n , s l y , c o v e r t ) 37 m e t h o d t o e x p r e s s p e r s p e c t i v e s o f
truth - can be conceived as the most important among the
comparative figures, mostly because it is pervasive in human
experience and communication, and able to structure both experience

36
KEITH OATLEY, Why Fiction May Be Twice as True as Fact: Fiction as Cognitive and
Emotional Simulation, 3 REVIEW OF GENERAL PSYCHOLOGY 2, p. 101-117 (1999):
“Fiction can be twice as true as fact [. . .] Not all narrative is fiction. Aristotle made this
distinction: History is about the particular, about what has happened, whereas poetry (fiction) is
about the universal, about what can happen. One could add that empirical psychology, with its
convention of past-tense descriptions of data that have been gathered, can be grouped with history.
A further distinction of psychological interest is that (as many people have pointed out) whereas
nonfiction is primarily informational, fiction is concerned with the emotions. Vicissitudes tend to
elicit emotions ... Fictional narrative is that mode of thought about what is possible for human
beings in which protagonists, on meeting vicissitudes, experience emotions.”
37
There is a long tradition of disguised discourse, in the Iberian Culture. See, for instance,
BALTHAZAR GRACIAN, AGUDEZA Y ARTE DE INGENIO (1642), on the side of Spain, and ANTONIO VIEIRA,
SERMÕES (1679-1699), on the side of Portugal. The language I use here is inspired by a famous
description of a female character’s gaze (oblique and dissimulating – “obliquo e dissimulado”), in the
Brazilian writer MACHADO DE ASSIS’ novel DOM CASMURRO (1899), a masterpiece of Brazilian realist
literature.
50

a n d c o m m u n i c a t i o n . 38 D o n a l d D a v i d s o n p u n c t u a t e d t h e i m p o r t a n c e o f
metaphor as a kind of an upper level degree of communication that
requires a creative endeavor for both making and understanding
metaphor. Little guided by rules, metaphor making and understanding
cannot be distinguished, except in degree, from more routine 51
linguistic transactions:
“all communication by speech assumes the interplay

of inventive construction and inventive construal. What
metaphor adds to the ordinary is an achievement that uses no
semantic resources beyond the resources on which the ordinary
depends. There are no instructions for devising metaphors; there
is no manual for determining what a metaphor ‘means’ or ‘says’;
there is no test for metaphor that does not call for taste ... A
m e t a p h o r i m p l i e s a k i n d a n d d e g r e e o f a r t i s t i c s u c c e s s . ” 39
Metaphor is usually considered as something more

concerned with poetry or literary genders than with accepted,
everyday practice. Contemporary linguistic scholarship has shown
however that metaphor are more central to human language and to

38
ARISTOTLE, POETICS Section 3, Part XXXI (S.H. Butcher trans. available at
http://classics.mit.edu) defined metaphor as an “application of an alien name by transference either from
genus to species, or from species to genus, or from species to species, or by analogy, that is, proportion.”
(Section 3, Part XXXI).
39
DONALD DAVIDSON, What Metaphors Mean, 5 CRITICAL INQUIRY 1, p/ 31-47 (Autumn, 1978):
“Metaphor is the dreamwork of language and, like all dreamwork, its interpretation
reflects as much on the interpreter as on the originator. The interpretation of dreams requires
collaboration between a dreamer and a waker, even if they be the same person; and the act of
interpretation is itself a work of the imagination [. . .] There are no unsuccessful metaphors, just
as there are no unfunny jokes.”
51

our very thought: “metaphor is pervasive in everyday life,” and “it

m a y s t r u c t u r e o u r e n t i r e c o n c e p t u a l s y s t e m . ” 40
I n H e r a c l e s ’ B o w , J a m e s B o y d W h i t e , 41 d e a l i n g m a i n l y
with Gibbon’s History of the Decline and Fall of Rome Empire and
52
Aeschylus’ Oresteia, demonstrated how ostensibly factual narratives
are also necessarily fictional, scrupulously factual, however
expressing values. As a result, the confrontation of legal and social
narrative will let visible the vulnerabilities of the authoritatively
determined conclusions of the legal stories, placed against the
o r d i n a r y - l a n g u a g e n a r r a t i v e s f r o m w h i c h t h e y a l w a y s a r i s e . 42
The organization of the factual material or documents

collected, the way they are presented, the style the story is
reconstructed, the constant judgment of the sources, all those aspects
are not casual, accidental, or superficial, but essential to the
discourse, and to the life and structure of the work of the historian,
the poet, or the lawyer.
The disposal of the empirical and the theoretical

constituents of any argument brings the idea of poetics. Law is poetic

40
“As has been advanced most extensively by George Lakoff and Mark Johnson . . . also
O’Keefe, metaphor may, in fact, be far more central to human language, indeed to our very thought.
Lakoff and Johnson show how metaphor is pervasive in everyday life, and how it is more than just a
matter of language; it may structure our entire conceptual system.” STEVE R. HOWELL, METAPHOR,
COGNITIVE MODELS, AND LANGUAGE 1 (2000).
41
JAMES BOYD WHITE, HERACLE’S BOW 139-191 (1985). I will work mainly with chapters 7
(“Fact, Fiction, and Value”) and 8 (“Telling Stories in the Law and in Ordinary Life”).
42
Id., at 139.
52

because it works by narrative: “From the outside it can . . . be

described as a structure of rules or a set of institutions, as a tool for
policy implementation, and so on, but if it is looked at from the
inside, as an activity in which individual minds engage . . . it is
better talked about . . . as an art of language, as a way of creating 53
v e r s i o n s o f e x p e r i e n c e i n c o o p e r a t i o n o r c o m p e t i t i o n w i t h o t h e r s . ” 43
Law is about narration and not simple description: “The law always
begin in a story: usually a story the client tells … piece of
information to a narrative which the lawyer has been long … familiar.
It ends in story too, with a decision by a court or jury, or an
agreement between the parties, about what happened and what it
means. The final legal version of the story almost always includes a
decision or an agreement about what is to remain unsaid. Beyond the
s t o r y i s a s i l e n c e i t a c k n o w l e d g e s . ” 44
L aw , N arrative, P erform a n ce
Let see in Boyd White’s analysis of the historian Edward

Gibbon’s discourse, as a means to understand the idea of a legal
discourse that allows the reader only a restrict space, or a controlled
freedom to move. Gibbon’s style indeed can sound to the modern
reader as a kind of advertising or propaganda, a stripping of
complexity from life to language, as he represents the people acting
in the history scenario as mere caricatures:

43
Id., at 168.
44
Id., at 168.
53

“he offers us an impossibly reduced place to stand

and insists that we stand there with him; he admits, indeed, no
other possibility. This literature seems to be written not to
acknowledge and to assist the freedom and autonomy of the
reader, but to control him – to force the reader to accept a smug
and limited view of the world, in a language of caricature that
c a n n o t b e t r u e ” 45 54
not only historically, but also imaginatively as well. But

while Gibbon does not give meaning to his initially rather empty
terms in the way we most naturally expect (that is, by elaborating
increasingly rich and complicated definitions of them), he does give
his language meaning in other ways – by performance – and thus
expresses directly what he values in mankind and in civilization.
What does a free constitution mean for him? “The principal conquest
of the Romans were achieved under the republic, and the emperors,
for the most part, were satisfied with preserving those dominions
which had been acquired by the policy of the senate, the active
e m u l a t i o n o f t h e c o n s u l s , a n d t h e m a r t i a l e n t h u s i a s m o f t h e p e o p l e . ” 46
White explains:
“the republic of which this sentence speaks is

enacted in its structure. This is achieved not merely by the
balance, complexity, and directness of the sentence, though
these are important qualities of the republican form of
government as Gibbon conceives it, but by the nature of the
items thus placed in relation to each other. The senate, the
consuls, and the people represent divisions of the republican
constitution, while policy, emulation, and enthusiasm are the
contributions of each wisdom from the experienced,
performance from the excellent, and simplicity and strength of

45
Id., at 143.
46
Id., at 144.
54

sentiment from the multitude. In establishing these pairs Gibbon

defines each term by reference to its correlative, telling us at
once what to hope from each kind of actor and where to look for
each sort of contribution to the healthy republic. And, most
important, in writing this sentence Gibbon tells us that we can
look for the same kind of meaningful organization – of
composition – at once in our utterances and in our governments. 55
The sentence about the true constitution … employs a method of

defining value – I call it definition by performance – that will
prove central to the character and achievement of the History as
a w h o l e . ” 47
Spirit of moderation, then experience, and other statements

of values, instead of facts, serve as a tool to construe the separation
of Rome and the barbarian, and Rome and the nature. The barbarians
appear undifferentiated at the beginning; then the author names
specific peoples, like Germans, Persians, Goths, Mongols, Franks,
and Arabs, who will supplant Rome at the end and raise a new
civilization out of its ruins: “the most civilized of modern Europe
issued from the woods of Germany, and in the rude institutions of
those barbarians we may still distinguish the original principles of
o u r p r e s e n t l a w s a n d m a n n e r s . ” 48
By contrasting nature and civilization, he gives movement

and development for his structure of definition and measurement of
concepts: the use of values and their combination allows a concept,
very broad, of civilization: valor and conduct or discipline; freedom
and union. Opposite ideas, which the civil state achieves to interact.
Confronting ideals that the nature cannot tame, and, broken up,

47
Id., at 144.
48
Id., at 145.
55

dissociated, they present the status of non-civilized: “Britain was

inhabited by a people who possessed valour without conduct, and the
l o v e o f f r e e d o m w i t h o u t t h e s p i r i t o f u n i o n . ” 49
The English historian, Boyd-White pointed out, depicts the

56
Roman Empire as a composition, a putting together of material, an
arrangement “that balances unity with variety, and makes a new
o b j e c t : t h e l a w s , i n f a c t , a r e a r t s . ” 50 F o r h i s c o n c e p t i o n o f t h a t p i e c e
of art, the ideas of public monuments or public buildings, and the
cities with the roads that connected them, are essential: civilization
is special kind of art, by which the materials, both of nature and of
c u l t u r e “ a r e g i v e n o r d e r b y t h e m i n d . ” 51 T h e r o a d s i m p o s e a n e w o r d e r ,
they connect the elements of the composition, and, at the same time,
they unify those elements, “an enormous body of disparate material
u n d e r a s i n g l e b o l d d e s i g n , w h i c h m a k e s o n e t h i n g o u t o f m a n y . ” 52
T h i s i m m e n s e g a r d e n - “ u n i t e d b y l a w s a n d a d o r n e d b y a r t s ” - 53 i s
nevertheless a place of tension, not harmony (less even romantic
harmony), because the picture is disposed in time, a history that can
transform glory and greatness into corruption and decay:
“as architecture is about space, history – like music –

is in part about time, for both the events of which it tells and

49
Id., at 146.
50
Id., at 149.
51
Id., at 149.
52
Id., at 153.
53
Id., at 154.
56

the reading of the text itself take place in time: time is the
d i m e n s i o n i n w h i c h t h e y m o v e . ” 54
The idea of tension is carried by the historian by means of

his style, a tension that deals with the intent of history itself: 57
“between fact and meaning, between material and mind, between the
text as a ‘true’ historical record of a past world, forever dead, and a
text as a design or narrative constructed in and for the present, a
c o n t e m p o r a r y c u l t u r a l a r t i f a c t . ” 55 G i b b o n b u i l d s a m e t h o d , d e s i g n s a
style. He intends to carry the reader to assent to certain rules,
standards of judgment, to be applied elsewhere. Making fictions of
the factual material, he guides the reader to perform in his or her own
life, making use of the models, pictures, figures, and characters
p r e s e n t e d b y t h e h i s t o r i a n ’ s p i c t u r e , h i s s u m m a r y s t a t e m e n t . 56
T raged y, F ou n d ation of L aw an d D em ocracy
The language is taken in its performative function in

Boyd-White’s reading of Gibbon; and narrative, in his interpretation
of Aeschylus’ Oresteia. Law is “an art of language”, “a way of
creating versions of experience in cooperation or competition with
others”, a kind of telling a story, “the most basic way we have of

54
Id., at 157.
55
Id., at 161.
56
Id., at 167 and 165.
57

organizing our experience and claiming meaning for it”, as we make

narratives all the time, “engaged in the process of telling and
retelling the stories of our lives, trying to make sense of what is past
a n d t o a l l o w f o r t h e f o r c e o f w h a t m i g h t h a p p e n n e x t . ” 57
58
We represent in our lives a kind of Sisyphus (Σίσυφος),
the myth that tells the story of a man condemned by Gods to repeat
everyday and forever the same meaningless task of rolling a boulder
u p a h i l l , o n l y t o w a t c h i t r o l l b a c k d o w n , a n d s t a r t o v e r a g a i n . 58
Aware, however, of the meaning of the myth, we refuse to envision
our living as a mere animal state, whose conformity to an eternal
repetition of everyday experiences result from the absence of
consciousness.
Sisyphus is only a symbol of a solitary life, whose

communication is restricted to things and gods. He has no sense of
community; therefore, he needs no language at all. The idea of
community depends upon language and story. The myth provides a
narrative shared by the whole community, giving its members the

57
Id., at 168 and 169.
58
ALBERT CAMUS, LE MYTHE DE SISYPHE 132, 134 (1942) :
“les dieux avaient condamné Sisyphe à rouler sans cesse un rocher jusqu'au sommet d'une
montagne d'où la pierre retombait par son propre poids. Ils avaient pensé avec quelque raison
qu'il n'est pas de punition plus terrible que le travail inutile et sans espoir… Si ce mythe est
tragique, c'est que son héros est conscient. Où serait en effet sa peine, si à chaque pas l'espoir de
réussir le soutenait ? L'ouvrier d'aujourd'hui travaille, tous les jours de sa vie, aux mêmes tâches
et ce destin n'est pas moins absurde. Mais il n'est tragique qu'aux rares moments où il devient
conscient. Sisyphe, prolétaire des dieux, impuissant et révolté, connaît toute l'étendue de sa
misérable condition : c'est à elle qu'il pense pendant sa descente. La clairvoyance qui devait faire
son tourment consomme du même coup sa victoire. Il n'est pas de destin qui ne se surmonte par le
mépris.”
58

sense of pertaining to one and same tradition, the same reality.

N a r r a t i v e , l i k e r h e t o r i c , i s “ c u l t u r e - s p e c i f i c . ” 59
D e a l i n g w i t h t h e s t y l e o f t r a g e d y , 60 I i n v i t e t h e r e a d e r t o
experience an invention of the ancient Greeks, which is connected to
59
the organization of the political society, in the form of democracy.
The Oresteia, specifically, is a literary explanation of the new form
of law and legal institutions – and the new kind of method of
judgment and solving of conflicts - compatible with the new political
regime. It means that we are now confronting the core of the
relationship of law-culture-politics.
Indeed, the Aeschylus’ Trilogy Oresteia could be

interpreted as a kind of an ethic translation of the foundation of the
polis. The city comprehended as a legal arrangement, capable to take
care of its inhabitants and to distribute justice. A moral order, whose
quality is to be superior to each citizen, to each man’s and woman’s
desire and capacity to obtaining his or her own vengeance, to fight
alone or with only the help of his or her family and partners for
survival. A polis is a unity of language and justice. The judgment of
Orestes, who killed his mother, Clytemnestra, and her lover,
Aegisthus, who had been responsible for the murder of Agamemnon
(Orestes’ father and Clytemnestra’s husband) – a succession of acts

59
JAMES BOYD-WHITE. HERACLE’S BOW, p. 173.
60
In Tragedy, the authors “still adhere to the historic names; and for this reason: what convinces
is the possible; now whereas we are not yet sure as to the possibility of that which has not happened, that
which has happened is manifestly possible, else it would not have come to pass.” ARISTOTLE, Poetics in
ARISTOTLE; LONGINUS & DEMETRIUS. POETICS; ON THE SUBLIME & ON STYLE 59/62 (Stephen Halliwell
trans. 1995).
59

of vengeance or retaliation (since the father of Agamemnon, Atreus,

had served his brother and Aegisthus’ father, Thyestes, a dish made
from the bodies of two of Thyestes’ murdered children; and
Agamemnon himself had humiliated his wife, bringing with him his
lover, Cassandra, from Troy). Crime after crime, the house of Atreus 60
b e c o m e s t h e “ e m b o d i m e n t o f s a v a g e r y ” 61 , a n d f o r e a c h i n j u r y , t h e
victim and his or her family seek for repair.
In Athens, persecuted, and accused by the Furies, defended

by Apollo, Orestes will be finally acquitted by the new homicide
court, the Areopagus, established by Athena. The sacredness of law
and legal judgments will prevail upon the traditional costume, and
acceptable idea of kindred murder. The restoration by, and of justice
will become the right way to give to the victim and to the community
satisfaction, instead of restitution, in the case of homicide. Since
then, legal order would envision the future and the life of the
community, instead of restitute the past and compensate the victim’s
family: “The law will thus rescue us all from the unbearable
incoherence of the world that has been presented to us – an
i n c o h e r e n c e o f s t o r y , o f i n t e l l e c t , o f a c t i o n , o f t h e v e r y s e l f . ” 62
It is my opinion that the tragedy plays a central part in the

understanding of the triad law-culture-politics, not only within the
Greek coeval history, but also for the whole, so-called Western
civilization. Later on in this chapter, I will expound and criticize the
legal theory of the Austrian Hans Kelsen. In Kelsen’s time, the legal

61
ROBERT FAGLES. Preface in AESCHYLUS, THE ORESTEIA (1984).
62
JAMES BOYD WHITE, HERACLE’S BOW, supra note 40, at 180.
60

culture was inserted as the predominant aspect in the definition of the

Austrian tradition. In the third chapter, I intend to demonstrate in
which extend that predominance was a belief arising from the
Romantic age. In a significant manner, the image of the birth of legal
and political order, expressed in the Oresteia, will be a matter of 61
conflict between the representatives of the Romantic lineage (Kelsen

among them) and the representatives of Modernism (the artist Gustav
Klimt acting as their leader). Klimt, in fact, will recast the tragedy in
its depiction of Jurisprudence. He will show how the vivid richness
of the tragedy would have become just a formality in the hands of the
modern politics. Just a formal reference in the modern European
culture. Just a mask for the undertaking of actual injustices in the
modern legal theory and practice.
According with Boyd White, on the other hand, the

Oresteia marks a central connection between law and drama, “a way
of telling a story, fixing a meaning, and going on with the rest of
l i f e . ” 63 T h e p r e s e n c e o f l a w m a k e s p o s s i b l e t h e h u m a n w o r l d .
The law of the polis gives access to the unification of its

inhabitants’ own partial stories, to one single narrative. The different
versions of each one’s experiences compete, and can be compared
within the public space. A new way of judgment is a new possibility,
a possibility of building a unified vision with authority. The
comparison of the individual versions can result in a metaphor of the
entirely common life.
The idea of a poetical design and a narrative configuration

of the law affect our comprehension of the legal phenomena, as well

63
Idem, at p. 180.
61

as it stresses an important critique to the main currents of the legal

theory, even in both civil and common law traditions, and the
international law method and theory.
For the part of the legal theory, it will suffice to observe

62
the arguments of Hans Kelsen (for the Continental or Franco-German
legal tradition) and John Austin (for the Anglo-American one) in
defining law and its relationship with society and ordinary language.
P u re P rovin ce: C ircu m scrib in g an d

C om p ou n d in g H istory an d P oetry
It becomes very common to divide the evolution of

K e l s e n ` s c o n c e p t i o n o f l a w i n t h r e e p h a s e s , 64 e a c h o n e c h a r a c t e r i z e d
by a set of texts. The first is determined by the publication of his
m a j o r w o r k , t h e R e i n e R e c h t s l e h r e , 65 i n 1 9 3 4 . T h e s e c o n d c o i n c i d e s
with the publication of the revised edition of the same opus, in

64 “
Three phases of development in Kelsen’s theory can be distinguished: an early phase, ‘critical
constructivism’ (1911–21); then the long, ‘classical’ or ‘Neo-Kantian’ phase (1921–60), including in the
1920s the formation, around Kelsen, of the Vienna School of Legal Theory; and, finally, the late,
‘skeptical’ phase (1960–73)” STANLEY L. PAULSON. Hans Kelsen and Normative Legal Positivism in
THOMAS BALDWIN. THE CAMBRIDGE HISTORY OF PHILOSOPHY: 1870-1945. 739 (2008).
65
HANS KELSEN, REINE RECHTSLEHRE. EINLEITUNG IN DIE RECHTSWISSENSCHAFTLICHE
PROBLEMATIK. (1934); INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY (Bonnie L. Paulson and
Paul L. Paulson trans. 2002).
62

66
1960. The last period is generally recognizable in the thesis
expressed in his posthumously edited work on the theory of norms, in
1 9 7 9 . 67 C o n s i d e r e d o n e o f t h e m o s t i m p o r t a n t r e p r e s e n t a t i v e s o f l e g a l
positivism, he had played a very important role in the development of
the international legal doctrine and practice. In fact, he is one of the 63
legal theorists of the 20th Century, who was responsible for building
a bridge between the Franco-German and the Anglo-American legal
traditions.
Kelsen’s contributions to legal theory advancement were

more pervasive if compared to other German language expatriated
w h o , a s , f o r i n s t a n c e , G u s t a v R a d b r u c h , 68 h a d p e r f o r m e d t h e s a m e
role in the spread of German legal culture. Kelsen`s experience
indeed may be envisioned as most relevant. Not only had he the
opportunity to live and teach in the United States, but also he worked
for the establishment and enlargement of the role of the United
Nations in the international arena, and published seminal texts for
that purpose. For his part, Radbruch – an adversary of legal
positivism and supporter of the revival of natural law – had a most
large experience in the United Kingdom, and was more concerned
about the importance of the theory of comparative law, and has

66
HANS KELSEN, REINE RECHTSLEHRE (2nd. Edition, reprinted, 1992); PURE THEORY OF LAW
(Max Knight trans. 2005).
67
ALLGEMEINE THEORIE DER NORMEN (Kurt Ringhofer and Robert Walter ed. 1979); GENERAL
THEORY OF NORMS (Michael Hartney trans. 1991).
68
GUSTAV RADBRUCH, DER GEIST DES ENGLISCHEN RECHTS UND DIE ANGLO-AMERIKANISCHE
JURISPRUDENZ (2006); O ESPÍRITO DO DIREITO INGLÊS E A JURISPRUDÊNCIA ANGLO-AMERICANA
(Elisete Antoniuk trans. 2010).
63

studied further the historical relationship between the civil and

common law traditions, and perhaps their common ground. Kelsen
was the founder of the modern idea of judicial review, and the
conception of Constitutional Courts, in the European legal traditions.
He designed the Austrian’s First Republic Constitutional Court, and 64
even was one of its first justices. For the designing of that Court and
the Constitutional Court of the early Czech Republic, he had
naturally reflected on the United States Supreme Court original
conception. However, he had contributed to the enrichment of that
experience – and therefore influenced the development of
Constitutional Law after the World War era -, in conceiving the idea
of a concentrated process of judicial review, by which an act of the
Government or of the Parliament could be directly pronounced
unconstitutional, by means of a specific procedure of adjudication. In
fact, the history of the idea of a new Constitutional Court
(Verfassungsgerichtshof) began with Georg Jellinek, and the essay he
wrote in 1885, Verfassungsgerichtshof für Österreich. Subsequently,
the idea was adopted by the Chancellor Karl Renner, in a famous
speech delivered on October 30th 1918 before the Austrian
69
Provisional National Assembly.

69
Renner’s words were “In a not too distant future, we will revisit this point and instead of a State
tribunal we will have a constitutional court which will occupy itself not only with the protection of
citizens, but also with State provisions, the freedom to vote, and our public law.” See, among others,
SARA LAGI, Hans Kelsen and the Austrian Constitutional Court (1918-1929), 9 Co-herencia 16, p. 273-
295 (2012); HANS KELSEN, Foundations of Democracy, 66 ETHICS 1, Part 2, p. 1-101 (1955).
64

Kelsen defines law, attempting to eliminate from it what is

n o t s t r i c t l y l a w . 70 L a w c o i n c i d e s w i t h a n o r m c o n c e i v e d a s a s c h e m e
o f i n t e r p r e t a t i o n ( D e u t u n g s c h e m a ) 71. A l e g a l o r d e r i s c o m p o s e d b y a
compound of norms. So, the meaning of a legal order (national or
international) is given by the scheme of interpretation the norms 65
themselves give to it. The norm, which means, the law, is an

interpretation of human acts or human behavior, which can be judged
legal or illegal, licit or illicit, and leave room to the application of
a n i m m a n e n t s a n c t i o n : 72 “ a n o r d e r i s a s y s t e m o f n o r m s , w h o s e u n i t y

70
KELSEN, PURE THEORY OF LAW, supra note 62, at p. 1; “sie will die Rechtswissenschaft von
allen ihr fremden Elementen befreien. Das ist ihr methodisches Grundprinzip. Es scheint eine
Selbstverständlichkeit zu sein. Aber ein Blick auf die traditionelle Rechtswissenschaft, so wie sie sich im
Laufe des 19. und 20. Jahrhunderts ent-wickelt hat, zeigt deutlich, wie weit diese davon entfernt ist, der
Forderung der Reinheit zu entsprechen. In völlig kritikloser Weise hat sich Jurisprudenz mit Psychologie
und Soziologie, mit Ethik und politischer Theorie vermengt.”
71
Id., at 5: “Norm ist der Sinn eines Aktes, mit dem ein Verhalten geboten oder erlaubt,
insbesondere ermächtigt wird. Dabei ist zu beachten, dass die Norm als der spezifische Sinn eines
intentional auf das Verhalten anderer gerichteten Aktes etwas anderes ist als der Willensakt, dessen Sinn
sie ist. Denn die Norm ist ein Sollen, der Willensakt, dessen Sinn sie ist, ein Sein, Darum muss der
Sachverhalt, der im Falle eines solchen Aktes vorliegt, in der Aussage beschrieben werden: der eine will,
dass sich der andere in bestimmter Weise verhalten soll. Der erste Teil bezieht sich auf ein Sein, die
Seins-Tatsache des Willensaktes, der zweite Teil auf ein Sollen, auf eine Norm als den Sinn des Aktes.
Darum trifft nicht zu — wie vielfach behauptet wird — die Aussage: ein Individuum soll etwas, bedeute
nichts anderes als: ein anderes Individuum will etwas; das heißt, dass sich die Aussage eines Sollens auf
die Aussage eines Seins reduzieren lasse.”
72
Id., at 114: “Wird das Recht als eine Zwangsordnung, das heißt als eine Zwangsakte
statuierende Ordnung begriffen, dann erscheint der das Recht beschreibende Rechtssatz als die Aussage:
dass unter bestimmten, das heißt von der Rechtsordnung bestimmten, Bedingungen ein von der
Rechtsordnung bestimmter Zwangsakt gesetzt werden soll. Zwangsakte sind Akte, die auch gegen den
Willen der davon Betroffenen und, im Falle von Widerstand, unter Anwendung von physischer Gewalt zu
65

is constituted by the fact that they all have the same reason for their
validity, and the reason for the validity of a normative order is a
basic norm … from which the validity of all norms of the order is
d e r i v e d . ” 73
66
The main aspect of the legal conception of Kelsen can be
summed up by interpretation (Interpretation or Deutung, in German).
Defining the nature of the process of interpretation, Kelsen describes
an intellectual activity of deduction of the meaning of the rule to be
a p p l i e d o r o b e y e d “ f r o m a h i g h e r t o a l o w e r l e v e l ” 74: a r e l a t i o n s h i p o f
binding (Bindung) or determining (Bestimmung), as “the higher-level
norm determines not only the procedure in which the lower norm is
created or the act of execution is performed, but – possibly – also the
c o n t e n t o f t h a t n o r m o r t h a t a c t . ” 75 A t t h i s v e r y m o m e n t , t h e A u s t r i a n
lawyer acknowledges that his model, proposed since the first edition
of the Reine Rechtslehre, of hierarchical relationship between the
n o r m s , c a n n o t b e o v e r a l l s u s t a i n e d . 76 I n f a c t , t h e l e g a l s y s t e m w o r k s

vollstrecken sind … Unterlassung eines bestimmten Individuums. Sanktionen, im spezifischen Sinne
dieses Wortes, treten — innerhalb staatlicher Rechtsordnungen — in zwei verschiedenen Formen auf: als
Strafe (im engeren Sinn des Wortes) und als Exekution (Zwangsvollstreckung).”
73
KELSEN, PURE THEORY OF LAW, supra note 62, at p. 31.
74
Id., at 348, and REINE RECHTSLEHRE, supra note 62, at p. 346: “Interpretation ist somit ein
geistiges Verfahren, das den Prozess der Rechtsanwendung in seinem Fortgang von einer höheren zu
einer niedrigeren Stufe begleitet.”
75
PURE THEORY OF LAW, supra note 62, at p. 349, and REINE RECHTSLEHRE, supra at the same
note, at 346, 347.
76
INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY, supra note 61, at p. 78/81; REINE
RECHTSLEHRE, supra note 62, at p. 347-349 ; and PURE THEORY OF LAW, supra note 61, at p. 349-351.
66

merely as a frame (Rahmen). The norms, positioned within the frame,

move inside the parameters set by three kinds of interpretation:
authentic (the interpretation made by the law-applying organs),
nonauthentic (it is made by the individual who wishes to fulfill a
legal obligation by behaving in a certain way) and jurisprudential 67
(the work of the legal science). The criterion that distinguishes the
three species of interpretation is the possibility to create the law.
Only the law-applying organs (e.g., the Courts) are allowed to
interpret authentically the rules because their act of interpretation is
not a simple intellectual procedure of meaning determination: it is
not a mere act of cognition or recognition, but actually an act of will.
The law is created and re-created at each moment of interpretation,
when the organ has to exercise its power of execution.
Kelsen takes the term execution in its artistic meaning: the

technique or style with which an artistic work is produced or carried
out. The artist creates his or her own interpretation, by means of
which he or she re-creates the opus performed. The judge or the
administrator, they do the same with the rules they are supposed to
merely apply. They have within the frame more freedom than the
artist. Their work is not only a re-creation, but also an authentic
generation of law.
Therefore, the metaphor of the frame for the legal system

is more useful and adequate than the one of a pyramid, or the one of
a hierarchical stair. The commentators have stressed the latter two
metaphors, perhaps because they became more positivists than Kelsen
himself.
In spite of his own desire, Kelsen had to admit that the

presumably uniqueness and isolation of law are but a fiction, and that
67

t h e i d e a o f a G r u n d n o r m i s a f i c t i o n a l o u t s e t . 77 U n d e r t h e v e i l o f l a w
one would find only the terrific Gorgon head of power. This
statement contradicts the essence of the idea or postulate of
theoretical purity, and the aim of the whole pure legal theory or
doctrine: “as a theory, its exclusive purpose is to know and to 68
describe its object. The theory attempts to answer the question what
and how the law is, not how it ought to be. It is a science of law
( j u r i s p r u d e n c e ) , n o t l e g a l p o l i t i c s . ” 78 T h e p u r i t y d o e s n o t e x i s t . A s i t
is assumptive, a mere - even presumably relevant - postulate of the
m i n d , 79 i t c a n n o t a s s u r e t o a n y o n e , e v e n t o t h e s c i e n t i s t , a s a f e g u a r d
against the reality that hides itself under the shell of the
pretentiously logical system.

77
ALFREDO ATTIÉ JR, A RECONSTRUÇÃO DO DIREITO 115 (2003); HANS KELSEN, ALLGEMEINE
THEORIE and GENERAL THEORY OF NORMS, supra note 63; TEORIA GERAL DAS NORMAS (J. F. Duarte
trans. 1986).
78
PURE THEORY OF LAW, supra note 62, at p. 1.
79
See also TORBEN SPAAK, Kelsen and Hart on the Normativity of Law in PERSPECTIVES ON
JURISPRUDENCE: ESSAYS IN HONOR OF JES BJARUP 397-414 (2005) :
“After years of referring to the basic norm as a hypothesis, Kelsen changed his mind in
the beginning of the 1960’s, suggesting instead that we think of it as a fiction as that concept is
understood in Hans Vaihinger’s Philosophy of As-If. Having maintained for a long time that the
basic norm is really the meaning of an act of thinking, Kelsen now emphasizes that there is an
important correlation between will (Wollen) and ought (Sollen), so that there can be no norm
without a corresponding act of will. Accordingly, he explains that presupposing the basic norm
involves presupposing an imaginary authority, over and above the `fathers` of the historically
first constitution, whose act of will has the basic norm as its meaning. But, he points out, this
means that the notion of the basic norm contains a contradiction within itself, as it involves
presupposing the existence of an authority that could not possibly exist. Kelsen concludes that
the basic norm is best described as a genuine fiction in the Vaihingerian sense. Following
Vaihinger, he conceives of a fiction as an aid to thought (ein Denkbehelf) to be used when one
cannot reach one’s aim of thought (Denkzweck) with the materials. Kelsen’s aim of thought, as
we have seen, is to ground the normativity of the legal system, and he admits that he can achieve
this goal only by introducing a fiction, viz. the basic norm.”
68

Admittedly, that reality corresponds to power. The

category that attempts to hide the politics – the hidden determinant
a s p e c t o f l a w – i s j u s t a f i c t i o n : G r u n d n o r m . 80 K e l s e n h i m s e l f w o u l d
precociously admit it:
69
“The question on which natural law focuses is the
eternal question of what stands behind the positive law. And
whoever seeks an answer will find, I fear, neither an absolute
metaphysical truth nor the absolute justice of natural law. Who
lifts the veil and does not shut his eyes will find staring at him
t h e G o r g o n h e a d o f p o w e r . ” 81
However, the Grundnorm is one of the most important

categories, chosen by Kelsen because he had thought, following the
Kantian tradition, that it was capable to explain the whole validity of
his proposed scientific apparatus. It is usually translated for Basic
Norm. I would suggest a different translation. The Grundnorm plays
the role of a justification for the logical scheme. It is the reason, not

80
I propound Reasoned Norm as a translation to Grundnorm, instead of the usual Basic Norm.
Grund in German admits the ideas of either reason or foundation. The meaning of Grundnorm, as
intended by Kelsen, is not the setting of a basis to the legal system. The intention is but to explain the
reason why the subjects or citizens accept the system, and complain with it. It is a rationale. The
translation for Basic Norm takes the expression and the meaning of the metaphor upside down.
Grundnorm is the reason of obedience, and not the basis of the system. See infra.
81
The translation is mine. The original Kelsen’s text is: "Die Frage, auf die das Naturrecht zielt,
ist die ewige Frage, was hinter dem positiven Recht steckt... Wer den Schleier hebt und sein Auge nicht
schließt, dem starrt das Gorgonenhaupt der Macht entgegen." Gleichheit vor dem Gesetz in
VERÖFFENTLICHEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER 55 (vol. 3, 1927). See
also DAVID DYZENHAUS, Constitutionalism in an old key: Legality and constituent power, 1 Global
Constitutionalism 2, p. 229-260 (2012); MARIO G. LOSANO, Introdução in KELSEN, HANS. O
PROBLEMA DA JUSTIÇA (J.B Machado trans. 1998).
69

the basis, of the system. One can credit the postulation of truth of the
system, its reasonableness, because there is something beyond the
system: the Grundnorm, which says: - Submit yourself to it! Obey,
comply with the rules, carry out all their commands! The Grundnorm
is just the premise that support the compliance (sometimes even the 70
belief) of the subjects. So I propose that it would be more adequate

to translate this important term for Reasoned Norm because it works
to prevent the further thought, it opposes an obstacle for questioning.
As a fiction, the Reasoned Norm (Grundnorm) is, if I were

to choose an adequate metaphor, the Humpty Dumpty of the law. Let
me explain.
82
Adventuring Through the Looking-Glass, the young
Reverend Dodgson’s protagonist meet the egg-shaped Humpty
Dumpty, who intended to give her a lesson about the meaning of
words. He sustains that every name must have a meaning, adapted to
the shape of the one to whom that name is given: “Must a name mean
something? Alice asked doubtfully. Of course it must, Humpty
D u m p t y s a i d w i t h a s h o r t l a u g h : m y n a m e m e a n s t h e s h a p e I a m . ” 83
The conversation between them wasn’t running well, so Humpty tried
to start afresh, asking her how old she had said she were, explaining
that she could take advantage in receiving un-birthday presents:
“There are three hundred and sixty-four days you might get un-
birthday presents … And only one for birthday presents, you know.

82
LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND AND THROUGH THE LOOKING-
GLASS (Hugh Haughton ed. 1998).
83
Id., at 182.
70

T h e r e ’ s g l o r y f o r y o u ! ” 84 A l i c e , f o r s u r e , d i d n o t u n d e r s t a n d s u c h a n
unusual way of employing the word glory: “a nice knock-down
argument”, he tried to explain. It was incomprehensible, of course,
and the smart little girl wanted to continue questioning precisely
whether he can make words mean what he chooses them to mean. In a 71
scornful tone, Humpty Dumpty tied up the loose ends of the

conversation: “When I use a word … it means just what I choose it to
mean – neither more nor less … The question is … which is to be
master – that’s all”. With his original method of managing the whole
lot of words, “despite their temper”, Humpty Dumpty assumes that he
can explain all the poems that ever were invented “and a good many
t h a t h a v e n ’ t b e e n i n v e n t e d j u s t y e t . ” 85
The master of the law, disguised as the Reasoned Norm, is

but the politics, which powerfully and irresistibly manages the
meaning of its words. Such a master can choose all the meanings, a
legitimate act of will. It can be easily accomplished, because the web
of interpretation also disguises the act. Interpreting is not after all
finding the meaning, but founding it. The interpretation makes the
law. An act of will, because law is presented as an imperative
statement, an order. It conveys the idea of dominion and of subduing
individuals – subjects (in Kelsen’s own language), not citizens.

84
Id., at 185, 186.
85
Id., at p. 186, 187.
71

The analysis could be integrated with the exposition of

John Austin’s own definition of what he had called the Province of
J u r i s p r u d e n c e . 86
Austin is determined to set forth the law as a kind of a

72
command. What distinguishes the province of jurisprudence is the
essence of law: “the matter of jurisprudence is positive law: law,
simply and strictly so called: or law set by political superiors to
political inferiors … A rule laid down for the guidance of an
i n t e l l i g e n t b e i n g b y a n i n t e l l i g e n t b e i n g h a v i n g p o w e r o v e r h i m . ” 87 A
command is always a signification of a desire from one to another:
one is superior to other and expresses a command, by which the other
is bound or obliged, and will obey because the command is
sanctioned or enforced by the chance of incurring the evil:
“the ideas or notions comprehended by the term

command are . . . a wish or desire conceived by a rational being,
that another rational being shall do or forbear [. . .] An evil to
proceed from the former, and to be incurred by the latter, in
case the latter comply not with the wish [. . .] An expression or
intimation of the wish by words or other signs [. . .] Command,
duty, and sanction are inseparably connected terms: that each

86
JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (Wilfrid. E. Rumble ed. 2001).
The lessons collected in the book were prepared and delivered between 1828 and 1832, when they were
published, almost one century before the first edition of Kelsen’s Pure Theory. His wife described his life
as one of unbroken disappointment and failure: “he had very few clients, he was unable to attract many
students, and he wrote relatively little.” (WILFRID. E. RUMBLE, Introduction in AUSTIN, supra) Due to the
efforts of his wife, who revised and edited his lectures, Austin became maybe the most influential figure
of the British legal thought since 1860, one year after his death.
87
AUSTIN, PROVINCE, supra note 82, at p. 18.
72

embraces the same ideas as the others, though each denotes

t h o s e i d e a s i n a p e c u l i a r o r d e r o r s e r i e s . ” 88
The main idea is superiority, as it comprises the concepts

of command, duty, and sanction. As superiority means just might, or 73
“the power of affecting others with evil or pain, and

of forcing them, through fear of that evil, to fashion their
conduct to one's wishes [. . .] For superiority is the power of
enforcing compliance with a wish: and the expression or
intimation of a wish, with the power and the purpose of
e n f o r c i n g i t , a r e t h e c o n s t i t u e n t e l e m e n t s o f a c o m m a n d . ” 89
The elements stressed by Kelsen were already exposed by

Austin. For the attempts to distinguish law from any other field of
the human existence failed since their beginning. If law depends upon
an external element, that operates its own significance - the idea of
supreme authority, power, or might, grounded upon the terms
command, wish (or will), duty, and sanction – the whole system of
jurisprudence will be built on the grounds of politics, disguised by
the fictional conception of a Grundnorm or command. Both
presupposes the presence of a power that would enforces obedience,
obtain compliance.
Therefore, we continue to walk through the path of Hobbes
(“Covenants, without the sword, are but words and

of no strength to secure a man at all … This is the generation
of that great Leviathan … that mortal god to which we owe,
under the immortal God, our peace and defence. For by this

88
Id., at 24.
89
Id., at 30.
73

authority, given him by every particular man in the

Commonwealth, he hath the use of so much power and strength
conferred on him that, by terror thereof, he is enabled to form
the wills of them all, to peace at home, and mutual aid against
their enemies abroad. And in him consisteth the essence of the
Commonwealth … And he that carryeth this person is called
sovereign, and said to have sovereign power; and every one 74
b e s i d e s , h i s s u b j e c t . ” 90) ,
and Montesquieu
(“le désir que Hobbes donne d’abord aux hommes de

se subjuguer les uns les autres n’est pas raisonnable. L’idée de
l’empire et de la domination est si composée, et dépend de tant
d’autres idées, que ce ne serait pas celle qu’il aurait d’abord ...
Mais on sent pas que l’on attribue aux hommes, avant
l’établissement des sociétés, ce qui ne peut leur arrivé qu’après
cet établissement, qui leur fait trouver des motifs pour
s ’ a t t a q u e r e t p o u r s e d e f e n d e r . ” 91) ,
or, more precisely, the path of metaphors provided by

them.
No equality, superiors and inferiors, sovereigns and

subjects, law as a counterpart of right, subjection, of freedom. How
can we integrate law and democracy in a certain and the same model?
It has been important to stress the thesis on the poetic

determination of any language, and particularly legal language. As
we are trying to engage the reader in a reflection upon the idea of
democracy, in its cultural, political, and legal implications, it seems

90
THOMAS HOBBES, LEVIATHAN Book II, Chapter 17, p. 223, 227, 228 (1985).
91
MONTESQUIEU, De L’Esprit des Lois. Book I, Chapter, 2 in ŒUVRES COMPLÈTES 531 (1964).
74

to be relevant to understand how and in which measure the

engagement of individuals in a society or community is conditioned
by the mode by which mind and language conceive or imagine the
public sphere, the idea of a life in common with others.
75
Through Boyd White’s argument, it is possible to glimpse
the building of a different theory of law, a more flexible and
productive one. Indeed it protects us against the treads of the
traditionally normative conceptions of law and politics, which can
only lead to dead ends when managing legal branches, systems, and
regimes with lack of coercion force, that are reasonably resistant to
traditional modes of sanction, like international law and comparative
law themselves.
What I have in mind, in dealing with the triad law-culture-

politics, is to very briefly examine the implications of the three terms
in the modern theory of law and politics, showing how the modern
conceptions of democracy depend on that mutual connection.
Of course, if my thesis attempts to manage at the same

time comparative and international law, it could be quite useful to
criticize the absolute dependency of the modern idea of democracy on
the ideas of national states, nations, even nationalism, and national
culture and law, trying to build a different conceptualization, more
adequate to deal with the present global perspective of life.
The idea of a close relationship between poetics and law

finally defies an ancient distinction presented by the authority of
A r i s t o t l e h i m s e l f , 92 w h e n h e i d e n t i f i e s t h e i n c o m p a t i b i l i t y b e t w e e n

92
ARISTOTLE, NICOMACHEAN ETHICS I (Robert C. Bartlett & Susan D. Collins trans.2011).
75

p o i e s i s ( π ο ί η σ ι ς ) , a n d p r a x i s ( πρᾶξις) . B o t h a r e a c t i v i t i e s , b u t p r a x i s i s
an activity or action worthy in itself. Poiesis is an activity that aims
to produce something that is more valuable than the activity. Thus,
we can translate praxis for action, and poiesis for production. A
judge, however, is used to do both indistinctively. The activity of 76
judgment or solving conflicts, indeed, is at the same time action and

production. The same we can state about the ruler.
According to Aristotle, politics is the most important of

all activities, as it deals with the common matters, and aims
eudaimonia, or happiness. Law, in Aristotle, is convention (nomos,
νόµος), custom, it means choice and not a result of a natural
determination: “The noble things and the just things, which the
political art examines, admit of much dispute and variability, such
t h a t t h e y a r e h e l d t o e x i s t b y l a w a l o n e a n d n o t b y n a t u r e . ” 93 A n
adequate kind of science or knowledge for legal or political issues is
determined by the nature of the object: “for it belongs to an educated
person to seek out precision in each genus to the extent that the
n a t u r e o f t h e m a t t e r a l l o w s . ” 94
Let so explore the possible relationship between

international and comparative perspectives, by means of the
metaphorical method we set forth in this chapter.
Therefore, in the next chapter, I intend to present a non-

universalistic approach to democracy, and take from the narratives of
experiences and theories I have chosen, the main features of the

93
Id., at Book I, Chapter 3.
94
Id., at Book I, Chapter 4.
76

democratic regime. I will also criticize the misconceptions of this

regime.
It is my intention to prepare the disposition of the reader

to understand the literary analysis of the Brazilian and American
77
cultural, political and legal characteristics, - with the help always of
the metaphorical method - that I will set forth in the last chapter.
77

78
3. Democracy to compare
78

N eith er F ra m ew ork n o r U n iversal A p p aratu s
The narrative of democracy can be presented in several

ways, and indeed it has been thought and designed by different 79
writers, during the last six centuries, in the light of different points
of view, plural interests, taking into account diverse aspects, distinct
set of characteristics. There is neither impartiality nor neutrality in
human history. History is indeed the twin sister of politics.
The German philosopher Walter Benjamin pointed out that

the articulation of what is past is not a recognition of how it really
was. The historian is expected to empathize with the victors. The
same we can say about the rulers, who are the heirs of all those who
have been victorious. It means that the victors take control of the
memory:
“Whoever until this day emerges victorious, marches

in the triumphal procession in which today’s rulers tread over
those who are sprawled underfoot. The spoils are, as was ever
the case, carried along in the triumphal procession. They are
known as the cultural heritage [. . .] The cultural heritage is
p a r t a n d p a r c e l o f a l i n e a g e 95 [ . . . ] I t o w e s i t s e x i s t e n c e n o t
only to the toil of the great geniuses, who created it, but also to
the nameless drudgery of its contemporaries. There has never
been a document of culture, which is not simultaneously one of
barbarism. And just as it is itself not free from barbarism,
n e i t h e r i s i t f r e e f r o m t h e p r o c e s s o f t r a n s m i s s i o n . ” 96

95
In German, the term is Abkunft.
96
WALTER BENJAMIN, ON THE CONCEPT OF HISTORY VI, VII (1940).
79

Therefore, I think it is not adequate to adopt, since the

beginning of our reflection on the matter, a universal perspective. It
could lead to misunderstandings since the point of depart will not
actually be rooted in history. We will be universalizing local
conceptions and practices. Mainly, we will misinterpret arguments 80
presented in a very hard and strong debate, taking them for granted,
forgetting their role within the discussions of their time, presenting
them as arguments of reason, while they solely intended to be very
well and skillfully planned opinions to solve specific problems, to
prevail against political opponents, in the context of very
individualized and complex scenarios.
Hence, although we are very used to understand democracy

as a mere framework, I am proposing a different kind of approach.
From my point of view, democracy has always been involved in the
controversies; it was, to say the truth, one of the parties of the
arguments, an opinion among others. Thus, it is not anything we can
take off or out the context, in an abstract perspective.
Additionally it is not a simple ideal, but a very concrete

and experienced aspect of social life. It is the very core of society,
the aspect that gives to the social fabric its political foundation,
providing to the political its essence, the main aspect of politics
(being something like a synonym – or hyponym - to politics, against
the vindications of the others regimes).
It cannot be considered just a coincidence that both

d e m o c r a c y a n d p o l i t i c s w e r e i n v e n t i o n s o f t h e G r e e k s . 97 W e a r e a b l e

97
MOSES I FINLEY, DEMOCRACY: ANCIENT AND MODERN 14 (Revised Edition, 1996):
80

e v e n t o s u g g e s t t h a t d e m o c r a c y i s t h e o n l y a c t u a l p o l i t i c a l r e g i m e . 98
Indeed, the other regimes, notwithstanding their vindications to reach
the political status, get the characteristics of exclusiveness; they are
actually restricted to a certain class or category of individuals or
groups. Only democracy, at least in theory, is a regime opened to the 81
participation of the whole community. It opposes the several classes

or categories, groups and individuals, their passions, reasons, and
interests, within the public arena. It is public, and accordingly
political by definition.
M ed iu m o r N ew T ech n olog y o f A ssociation
If it is not just the framework, it could be taken as the

ambience within which the public life goes on. Signifying maybe the

“It was the Greeks, after all, who discovered not only democracy but also politics, the art
of reaching decisions by public discussion and then of obeying those decisions as a necessary
condition of civilized social existence. I am not concerned to deny the possibility that there were
prior examples of democracy, so-called tribal democracies … Whatever the facts may be about
the latter, their impact on history, on later societies, was null. The Greeks, and only the Greeks,
discovered democracy in that sense, precisely as Christopher Columbus, not some Viking seaman,
discovered America.”
98
JACQUES RANCIERE, LA MESENTENTE : POLITIQUE ET PHILOSOPHIE 31 (1995) :
“Il y a de la politique quand il y a une part des sans-part, une partie ou un parti des
pauvres. Il n’y a pas de la politique simplement parce que les pauvres s’opposent aux riches. Il
faut bien plutôt dire que c’est la politique – c’est-à-dire l’interruption des simples effets de la
domination des riches – qui fait exister les pauvres comme entité. La prétention exorbitante du
démos à être le tout de la communauté ne fait qu’effectuer à sa manière – celle d’un parti – la
condition de la politique. La politique existe lorsque l’ordre naturel de la domination est
interrompu par l’institution d’une part sans-part. Cette institution est le tout de la politique
comme forme spécifique de lien. Elle définit le commun de la communauté comme communauté
politique, c’est-à-dire divisée, fondée sur un tort échappant `` l’arithmétique des échanges et des
réparations. En dehors de cette institution, il n’y a pas de politique. Il n’y a que l’ordre de la
domination ou le désordre de la révolte.”
81

atmosphere: a place, in a favorable mood, pervading the whole space

with several loci or marks, to spread some sort of communication of
moves of anyone who cares about participation, for sharing his or her
points of view, showing or hiding intentions that can bring interests,
reasons, passions up at the political arena. On the other hand, the 82
ambience could be taken in the sense of the background noise, which

is often heard in public places, and characterizes the experiences
shared by those who pertain to the same community, and go into the
same areas, attend the same rituals, and so on and so forth. In
Portuguese, we call that noise bruaá, or brouhaha, in the meaning of a
raw and confused noise that arises from the multitude of people. Its
origin is the modification of the Hebrew expression bārūkh habbā
99
beshēm adonāī'. The Portuguese community misinterpreted the
expression, and would give to bruaá - at the time the word appeared
in Portuguese language, about 1548 - the meaning of an evil noise,
p r o v o k e d b y t h e d e v i l . 100 I t i s q u i t e a p u n c t u a l e v i d e n c e o f t h e I b e r i c
misconception of the public space, the presence of people in the
public arena or the agora: a space occupied by a multitude is
associated to evilness. It is just the opposite of democracy, which
requires not only the presence of the people, but also their active
participation, which is synonym of noise, not silence. There is no
democracy without public discussion and disagreement.
Democracy also represents, by exploring further the

metaphors, the medium, in the sense captured by Marshall McLuhan

99
Psalm 118, 26: “Blessed is he who comes in the name of the Lord.”
100
According to ANTONIO HOUAISS, GRANDE DICIONÁRIO DA LINGUA PORTUGUESA (2001).
82

a n a l y s i s : 101 “ a n y e x t e n s i o n o f o u r s e l v e s ” 102. A s s o o n a s d e m o c r a c y w a s
introduced in human history, it would result in social consequences,
in a new scale in our social life, a new degree in our common affairs.
Democracy is to be considered similarly a new technology

83
in the history of human communication, restructuring human
association. I would venture to affirm that it is a technique of
association. Instead of the fragmented experience of men and women
under the government of a monarch or an aristocracy, democracy
could have called for a new awareness of the affairs. That is possibly
the reason why the ancient texts spoke about the absolute
belongingness of the members to the community.
Let us briefly consider the most important testimony from

Athens democratic experience, the funeral speech delivered by
Pericles, as transcribed or construed by his contemporary, the Greek
g e n e r a l a n d h i s t o r i a n T h u c y d i d e s . 103
Consider these excerpts:
“Such is the Athens for which these men, in the

assertion of their resolve not to lose her, nobly fought and died;
and well may well every one of their survivors be ready to
suffer in her cause [. . .] Our stake in the struggle is not the
same as theirs who have no such blessings to lose, and also that

101
MARSHALL MCLUHAN, UNDERSTANDING MEDIA 7-80 (2003).
102
Id., at 7.
103
THUCYDIDES, History of the Peloponnesian War II, 34-46 (George Rawlinson trans.) in
HERODOTUS & THUCYDIDES, HISTORY & HISTORY OF THE PELOPONNESIAN WAR 395-399 (1952). I
consulted also the original text and the several versions at Perseus Digital Library, available at
http://www.perseus.tufts.edu, which main source is THUCYDIDES, THE PELOPONNESIAN WAR (1910).
83

the panegyric of the men over whom I am now speaking might

be by definite proofs established [. . .] For the Athens that I
have celebrated is only what the heroism of these and their like
have made her [. . .] If a test of worth be wanted, it is to be
found in their closing scene, and this not only in the cases in
which it set the final seal upon their merit, but also in those in
which it gave the first intimation of their having any. For there 84
is justice in the claim that steadfastness in his country's battles

should be as a cloak to cover a man's other imperfections; since
the good action has blotted out the bad, and his merit as a
citizen more than outweighed his demerits as an individual. But
none of these allowed either wealth with its prospect of future
enjoyment to unnerve his spirit, or poverty with its hope of a
day of freedom and riches to tempt him to shrink from danger.
No, holding that vengeance upon their enemies was more to be
desired than any personal blessings, and reckoning this to be
the most glorious of hazards, they joyfully determined to
accept the risk, to make sure of their vengeance and to let their
wishes wait; and while committing to hope the uncertainty of
final success, in the business before them they thought fit to
act boldly and trust in themselves. Thus choosing to die
resisting, rather than to live submitting, they fled only from
dishonor, but met danger face to face, and after one brief
moment, while at the summit of their fortune, escaped, not
f r o m t h e i r f e a r , b u t f r o m t h e i r g l o r y . ” 104
It is important to point out that the qualities that Pericles

so much value in his city, are given by its democratic regime, which
gives freedom to the citizens, in the measure that they submit
themselves to its laws:
“Our constitution does not copy the laws of

neighboring states; we are rather a pattern to others than
imitators ourselves. Its administration favors the many instead
of the few; this is why it is called a democracy. If we look to
the laws, they afford equal justice to all in their private
differences; if to social standing, advancement in public life

104
Idem, at 2, 41-42.
84

falls to reputation for capacity, class considerations not being

allowed to interfere with merit; nor again does poverty bar the
way, if a man is able to serve the state, he is not hindered by
the obscurity of his condition. The freedom which we enjoy in
our government extends also to our ordinary life [. . .] But all
this ease in our private relations does not make us lawless as
citizens. Against this fear is our chief safeguard, teaching us to 85
obey the magistrates and the laws, particularly such as regard

the protection of the injured, whether they are actually on the
statute book, or belong to that code which, although unwritten,
y e t c a n n o t b e b r o k e n w i t h o u t a c k n o w l e d g e d d i s g r a c e . ” 105
Thus, the essence of democratic technology could be

envisioned as centralist in depth, exactly the opposite of the
106
fragmentation installed by the machine technology as seen by
McLuhan. Democracy has shaped human condition since it was
introduced in the life of the community. As we will see, later in this
chapter, democracy meant, at the instant it was for the first time
experienced in human history, the desire of engagement in (public)
life. Centralism opposes fragmentation. Democracy, then, gave unity
to the human desires. The conception of politics in ancient Athens
was exactly the posing of responsibility into the citizen of sharing
opinions and deciding the public matters. The desires became, by
means of democracy, also obligation to care about the common
destiny. Right to participate became duty in relation to others.
Individual choices became collective choices. Democracy inaugurated
politics, gave meaning to social life. It transformed human society
into human association, a community of equals and free human beings.

105
Id., at 4, 37.
106
MCLUHAN, supra note 97, at p. 8.
85

O b stacles to th e U n d erstan d in g of D em ocracy
86
The reader is now invited, before the development of our
narrative, and as a prelibation to it, to a parcours through some of the
c o n c e p t i o n s o f d e m o c r a c y . A p a r c o u r s 107 i s a k i n d o f a s p o r t o f
running through an area, negotiating obstacles. The definitions we
have for democracy, they are indeed obstacles to our main target. As
Moses Finley warns any searcher or seeker of the meaning of
democracy, the modern times had set a large number of
embarrassments or constraints to the visualization of that object.
Exactly by assuming a certain kind of a (general or abstract)
consensus, a very superficial one, that averts any possibility of a
serious commitment to a serious practice. Democracy can be
everything, and, by consequence, nothing. Everyone can declare its
allegiance to the democratic idea, without any change in his or her
own habits and beliefs. As Moses Finley rightly observed, in the
Western World, everyone is democrat, a fact that was made possible
by the decrease of popular participation in the so-called modern
democracies:
“The spread of a theory justifying that reduction.

The elitist theory holds that democracy can function and
survive only under a de facto oligarchy of professional
politicians and bureaucrats; that popular participation must be
restricted to occasional elections; that, in other words, popular
apathy is a good thing, a sign of health in the society.”

107
Exactly as its derived English term, parkour.
86

He concluded that that kind of consensus “amounts to a

d e b a s e m e n t o f t h e c o n c e p t t o t h e p o i n t o f a n a l y t i c a l u s e l e s s n e s s . ” 108
In fact, the most important and influential attempt to

figure out a new theory of democracy was brought about by the
87
e c o n o m i s t J o s e p h S c h u m p e t e r , i n 1 9 4 2 . 109 H i s i n t e n t i o n w a s , a t t h e
same time, in criticizing some aspects of Marx’s historical
materialism – arguing that his theory had taken too much for granted
the determinative function of the structures of production -, to prove
that socialism was to come, as a necessary result of the capitalism
evolution; and to present a so-called realistic doctrine of democracy.
Schumpeter presents his thoughts on democracy, showing

the errors and failures of what he has called “the classical conception
o f d e m o c r a c y . ” 110 C l a s s i c a l t o h i m i s n e i t h e r t h e c o n c e p t i o n o f t h e
Greeks, nor their historical experience of it. To say the truth, the
economist is envisioning as object of his critique, the concepts of
representation and general will, provided by the 17th and the 18th
centuries, as read by the Utilitarianism (mainly the one advocated by
Stuart Mill, a bridge, Schumpeter believes, between Bentham and
R o u s s e a u ) 111.

108
FINLEY, DEMOCRACY, supra note 93, at IX of the Preface, and 10, and passim.
109
JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY. London/New York:
Routledge, 2003.
110
Id., at 250.
111
Id., at 248.
87

He is confusing democracy with theoretical conceptions of

representation. That is why he conceives a pretentious Eighteenth-
c e n t u r y d e f i n i t i o n o f d e m o c r a c y : 112 “ t h e d e m o c r a t i c m e t h o d i s t h a t
institutional arrangement for arriving at political decisions which
realizes the common good by making the people itself decide issues 88
through the election of individuals who are to assemble in order to

carry out its will.” Schumpeter agrees with the statement that
democracy is just a political method to establish decisions (a
p o l i t i c a l m e t h o d a m o n g o t h e r s , h e p o i n t s o u t ) 113. D e m o c r a c y i s n o t a
different method, is not a regime of a different degree, it has no ends
p e r s e . 114 A p o l i t i c a l m e t h o d i s t h e m e t h o d a n a t i o n u s e s f o r a r r i v i n g

112
Id., at 250.
113
Id., at 242:
“Democracy is a political method, that is to say, a certain type of institutional arrangement for
arriving at political—legislative and administrative—decisions and hence incapable of being an end in
itself, irrespective of what decisions it will produce under given historical conditions. In addition, this
must be the starting point of any attempt at defining it. Whatever the distinctive trait of the democratic
method may be, the historical examples we have just glanced at teach us a few things about it that are
important enough to warrant explicit restatement … being a political method, democracy cannot, any
more than can any other method, be an end in itself. It might be objected that as a matter of logic a
method as such can be an absolute ideal or ultimate value. It can. No doubt one might conceivably hold
that, however criminal or stupid the thing that democratic procedure may strive to accomplish in a given
historical pattern, the will of the people must prevail, or at all events that it must not be opposed except in
the way sanctioned by democratic principles.”
The same, at page 241:
“It is naïve to believe that the democratic process completely ceases to work in an
autocracy or that an autocrat never wishes to act according to the will of the people or to give in
to it. Whenever he does, we may conclude that similar action would have been taken also if the
political pattern had been a democratic one.”
114
Id., at 243:
“No more than any other political method does democracy always produce the same
results or promote the same interests or ideals. Rational allegiance to it thus presupposes not
only a schema of hyper-rational values but also certain states of society in which democracy can
88

at decisions: “such a method we ought to be able to characterize by

indicating by whom and how these decisions are made. Equating
making decisions to ruling, we might then define democracy as Rule
b y t h e P e o p l e . ” 115
89
It was really difficult to Schumpeter to situate a stable
conception of people. That is why he, at the end, succumbs to the
temptation of leaving to the national legislators the role to define it:
“ M u s t w e n o t l e a v e i t t o e v e r y p o p u l u s t o d e f i n e h i m s e l f ? ” 116 A n d t h e
same for the nature and the modus operandi of ruling (kratein),
because it is impossible to conceive an absolute power, one that is
able to control and reach absolute possession of all kinds of decision
making. Worst is the fact that it would be impossible “for people to
rule”, unless in places too small, in number of inhabitants, and
extension of territory (“primitivity of civilization and simplicity of
s t r u c t u r e ” , i n h i s o w n w o r d s ) . 117
I must say that the kind of thinking Schumpeter’s work

evolves, could be embarrassing, and constitutes a serious problem
nowadays, when the concept of people is so much valued by the
international community. At the point that the states cannot anymore
ignore international documents, and exclude parts of their
populations from the international human rights system, under no

be expected to work in ways we approve. Propositions about the working of democracy are
meaningless without reference to given times, places and situations and so, of course, are anti-
democratic arguments.”
115
Id., at 244.
116
Id., at 245.
117
Id., at 245.
89

circumstance or excuse. Exclusions cannot be even more admitted, in

the light of international law of human rights. We cannot accept a
restraining national concept or approach to the meaning of people,
which will lead, in any event, to not only preconceptions, but also to
restrictions in the exercise of rights and duties. 90
According to Schumpeter, nevertheless, participation in

the decision-making process is an illusion, as are fictitious the ideas
of the Volonté Générale, the Common Good, the contracts of
subjection to a prince (“contracts were fictiones iuris et de iure”).
Hence, what is for Schumpeter a realistic point of view must prevail.
H e p r e s e n t s a n o r i g i n a l t h e o r y , 118 b y w h i c h , n o t s u r p r i s i n g l y , a l l t h e
relevant aspects of an actual democratic experience will be
conveniently suppressed to fit the conception of politics as market.
His definition of democracy abolishes the (problems of)

the people and (the inconvenience of) its ruling: “the democratic
method is that institutional arrangement for arriving at political
decisions in which individuals acquire the power to decide by means
o f a c o m p e t i t i v e s t r u g g l e f o r t h e p e o p l e ’ s v o t e . ” 119
The participation of the people is only necessary and

eventually called for choosing the legislators who are competing for
the votes, and evicting those who do not correspond to the mandate
given by the election. It is not exactly to choose the rulers (maybe
something desirable only at the small local level) but to elect the

118
Id., at 269, 283.
119
Id., at 269.
90

parliament, who will assume the role of the people, in, only then,
picking up one of its members, to become the government.
A restricted area of participation of the people, no

f u n c t i o n o f d e c i d i n g o r r u l i n g f o r i t , a n d a s m a l l r o o m f o r f r e e d o m . 120
91
The people do not vote to achieve participation of any

k i n d i n t h e g o v e r n m e n t , b u t j u s t t o a c c e p t l e a d e r s h i p . 121
I must disagree, of course, with those Schumpeter’s

statements. If democracy is only a game designed to the acceptance
of leadership, there would not be any reason to preserving any
instance of participation and control by the people themselves. The
whole history of the struggle for political participation and to the

120
Id., at 272:
“Our theory seems to clarify the relation that subsists between democracy and individual
freedom. If by the latter we mean the existence of a sphere of individual self-government the
boundaries of which are historically variable—no society tolerates absolute freedom even of
conscience and of speech, no society reduces that sphere to zero—the question clearly becomes a
matter of degree. We have seen that the democratic method does not necessarily guarantee a
greater amount of individual freedom than another political method would permit in similar
circumstances. It may well be the other way round. But there is still a relation between the two. If,
on principle at least, everyone is free to compete for political leadership6 by presenting himself to
the electorate, this will in most cases though not in all mean a considerable amount of freedom of
discussion for all. In particular it will normally mean a considerable amount of freedom of the
press. This relation between democracy and freedom is not absolutely stringent and can be
tampered with. But, from the standpoint of the intellectual, it is nevertheless very important. At
the same time, it is all there is to that relation.”
121
Id., at 273:
“If acceptance of leadership is the true function of the electorate’s vote, the case for
proportional representation collapses because its premises are no longer binding. The principle of
democracy then merely means that the reins of government should be handed to those who
command more support than do any of the competing individuals or teams. And this in turn
seems to assure the standing of the majority system within the logic of the democratic method,
although we might still condemn it on grounds that lie outside of that logic.”
91

expression of the popular conceding to public decisions, and to the

perfection of political representation is denied.
To summarize the contribution of Schumpeter, we can call

it a competitive struggle for power and office, which would
92
incidentally bring to the society the satisfaction of the hedonistic
goods it seeks. Politics is a matter of professionally organized groups,
who have an ax to grind, in the measure that mass of people is
incapable to act. The law would provide the regulation of political
competition. The marketing is but the essential part of the political
life.
Of course, we can take the ingenious model conceived by

the Austrian American thinker as a brilliant description and
discussion about the engine of the political reality that he had
witnessed. However, that model is far from deserving the name of
democracy. It could be, in fact, just a lazy attitude to accept the
competition and the election as the only definers of a political regime.
The competition can compound any kind of political regime. Even in
an autocracy, competition is present, as a method to achieve
influence, and prestige over the government. Even in dictatorships we
can witness a very weak version of a so-called democracy (just like
one we have got in Brazil, from 1964 to 1986), when the people have
a very restricted right to vote. It is conceivable by means of strategic
rules, which give the impression of allowing participation, but are
really thought to make people apart from all substantial and relevant
matters and functions.
92

In a certain way, Schumpeter admits it, in calling his

122
model a “competitive leadership model.” His democracy is
paradoxally defined by the leaders, not by the people. The leaders
rule, in the name of the people. That is all. And his theory cannot
even be considered a theory of representation, because he didn`t 93
believe in it. He thinks, representation was one of the fictions

elaborated during the Enlightenment era.
In his market model, the people are able only to make

choices (not even rational choices, due to psychological constraints)
based upon the advertisements of parties. The consumer, for sure,
cannot be understood as the master of the market, as his or her will
and wishes are governed by the entrepreneur’s own decisions and
choices.
Schumpeter wants the government of the entrepreneurs, at

least a kind of an oligarchy (government of few), not a polyarchy
(government by many).
Perhaps, he achieves to describe the modern politics,

showing some impossibility to restoring democracy. But we can ask
him whether is reasonable to call such a different kind of regime a
democracy.
Let us explore other main conception of democracy, that of

H a n s K e l s e n . H e 123 d e p a r t s u n d e r t h e i n f l u e n c e o f S c h u m p e t e r . F o r
him democracy is a kind of a procedure, by which the government by

122
Id., at 284.
123
HANS KELSEN, Foundations of Democracy in 66 ETHICS 1, Part 2, p. 1-101 (Oct. 1955); A
DEMOCRACIA (Vera Barkow et al. trans. 2000).
93

the people is possible. In distinguishing, however, the statements by

the people and for the people, he criticizes the Schumpeter’s
conception: democracy is only the government of the people, as it has
no substance at all, it is a mere form of government. Any kind of
government can achieve, maybe even better than a democracy, the 94
ideal of governing for the people, but “this quality cannot be an

e l e m e n t o f t h e d e f i n i t i o n o f d e m o c r a c y . ” 124
Kelsen admits, exactly as Schumpeter has done, the

nonexistence of common goods. Because common good is a matter of
subjective value judgments, and there is no average man:
“It cannot be denied that the people as a mass of

individuals of different economic and cultural standards have
no uniform will, that only the individual human being has a
real will, that the so-called ‘will of the people’ is a figure of
speech and not a reality. But the form of government which is
defined as ‘government by the people’ does not presuppose a
will of the people directed at the realization of that which,
according to the opinion of the people, is the common good.
The term designates a government in which the people directly
or indirectly participate, that is to say, a government exercised
by majority decisions of a popular assembly or of a body or
bodies of individuals or even by a single individual elected by
t h e p e o p l e . ” 125
He attempts to create a conception that is able to avoid the

dangerous misuses of democracy:
“A more dangerous adversary than fascism and

national socialism is Soviet communism, which is fighting the
democratic idea under the disguise of a democratic terminology.

124
KELSEN, Foundations, supra note 119, at p. 2.
125
Idem, at p. 3.
94

It seems that the symbol of democracy has assumed such a

generally recognized value that the substance of democracy
cannot be abandoned without maintaining the symbol. Well-
known is the cynical statement …Hence the symbol must
change its meaning so radically that it can be used to designate
the very contrary: In Soviet political theory the dictatorship of
the Communist party, pretending to be the dictatorship of the 95
proletariat, is presented as democracy. It is of the greatest

importance to disclose the conceptual device through which this
d i s t o r t i o n o f t h e s y m b o l c o u l d b e a c h i e v e d . ” 126
There is again a lack of historical precedent for the

analysis, and a kind of a disregard for the idea – so dear to the
Greeks – of the government by the majority, a majority that
corresponds to the poor. Therefore, Kelsen writes about a procedure
with no care for any specific content of social order. Notwithstanding,
he has to admit that the antique concept of democracy was modified
by liberalism, which restricts the power of the government, in the
name of the individual freedom (in any event, a very relevant content,
although he was not able to acknowledge it). Unaware of the paradox
of his expression, he is only able to admit that the modern concept of
d e m o c r a c y i s j u s t a c a s e o f d e m o c r a c y . 127
It means that both theoreticians, despite their good

intention of re-founding the belief of the Western World in
democracy (belief which was object of so much contempt before and
during the Great Wars period, in the 20th Century), were concerned
about different types of political regimes, at which the importance of

126
Id., at 1, 2. Recent reports of an ”election” in North Korea provide an even more dramatic
example of this.
127
Id., at 3, 4.
95

the participation of people could be controlled by mechanisms of

restraint. The folly of totalitarianism would prevent them from
assuming the capacity of people or the majority to judge what was
actually adequate for itself.
96
Democracy became not even more an experience, but only
an ideal, a concept that cannot be defined, but ought to be something,
although something with no substance, pure form or method or
procedure. It means a disembodied democracy. A democracy with no
consequences at all, which does not carry the virtues and vices of its
historical experience – one of them, of course, and very relevant, was
the violence of war.
The commentators restrain themselves to admit the force

of the democratic idea. They usually figure out ideal standards or
models.
Observe, for instance, the recent Ronald Dworkin’s work

a b o u t t h e p o s s i b i l i t y o f d e m o c r a c y . 128 D w o r k i n i m a g i n e d t w o k i n d s o f
democracy, the majority model and the partnership model. He
establishes the shape of the models, and concludes that American
democracy does not fit any of them, because of the characteristics of
the present life, id est, the people’s lack of interest, skills,
information, and knowledge, and the curse of money. The free of
press does not help anymore, because of the prevalence of the
television over the newspapers, and the huge influence of
corporations’ investments and interests. Eventually, the making of
politics became a spectacle, in which the politicians say nothing

128
RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? PRINCIPLES FOR A NEW POLITICAL
DEBATE. (2008).
96

substantial, but are advised by their staff to work only on style. The
result is a vicious circle, through which only less interest, less
participation, and less quality of debate are achieved and diffused.
The commentators conform their arguments to an imagined

97
reality, or to an invented narrative of the experienced reality. They
acknowledge the limits and constraints of the situation (experienced
or invented), and make no substantial proposals to change it. The
point is that commentators describe something different from a
democratic experience, but insist to name this different regime with
the word democracy.
D em ocracy Im p rin ted in th e H u m an C on d ition

an d M em o ry
But can democracy be controlled at this point? If it is a

medium, - as I am proposing - that had transformed the public
experience, since it was exercised as an extension of human social (it
means, political) beings, can it be erased from our public interactions?
Or, by the contrary, once experienced, it will remain, and has
remained always a possibility, a capacity or a potentiality of the
political life (politics that coincides with democracy)?
At the beginning of the modern era, Spinoza will prove the

survival, the reminiscence, and the relevance of the democratic
regime, as I will describe infra. In any event, we can ask why his
acknowledgement of the importance of the democratic regime, or
97

comprehension of democracy as a second nature of human beings, as I

would advance, would wait so much time to be heard.
The same evidence we can find in Tocqueville, when he

describes American experience as democratic, an experience that
98
r e q u i r e s a n e w s c i e n c e . 129 A g a i n , w e c a n a s k w h e t h e r a n d h o w h i s
call for new theories and scientific practices was actually heard by
his successors.
I have suggested that democracy is not a political regime

exactly as the others recognized by the political theorists. It is a
regime of a different nature, governed by different principles. It is a
regime of its own. It defines politics, in a manner that can be
definitively distinguished of any different kind of human association.
I d o i t w i t h t h e i m p o r t a n t h e l p o f h i s t o r i a n s 130 a n d p h i l o s o p h e r s . 131

129
See infra, too.
130
MOSES I. FINLEY, DEMOCRACY: ANCIENT AND MODERN (1985); POLITICS IN THE ANCIENT
WORLD (1983); PIERRE VIDAL-NAQUET, LES GRECS, LES HISTORIENS, LA DÉMOCRATIE: LE GRAND
ÉCART (2000); LA DÉMOCRATIE GRECQUE VUE D’AILLEURS: ESSAIS D’HISTORIOGRAPHIE ANCIENNE ET
MODERNE (1990); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1998);
CLAUDE MOSSÉ, ATENAS: A HISTÓRIA DE UMA DEMOCRACIA. (J.B. da Costa trans. 1979); NICOLE
LORAUX, INVENÇÃO DE ATENAS. (Lilian Valle trans. 1994); LUCIANO CANFORA, CRÍTICA DA RETÓRICA
DEMOCRÁTICA (Valéria Silva trans. 2007). See also, MYRIAM REVAULT D’ALLONNES, POURQUOI NOUS
N’AIMONS PAS LA DEMOCRATIE. (2010) ; CONSEIL INTERNATIONAL DE LA PHILOSOPHIE ET DES
SCIENCES HUMAINES ED,. REINVENTER LA DEMOCRATIE ? DIVERSITE CULTURELLE ET COHESION
SOCIALE, 220 DIOGENE (Octobre-Décembre 2007) ; ASSOCIATION CAUSE COMMUNE, PENSER LA
DEMOCRATIE. 2 CAUSE COMMUNE (Automne 2007) ; ADRIAN CANGI & ARIEL PENNISI, PASIONES
POLITICAS (2013).
131
CLAUDE LEFORT, DEMOCRACY AND POLITICAL THEORY (David Macey trans. 1988);
COMPLICATIONS: COMMUNISM AND THE DILEMMAS OF DEMOCRACY (Julian Bourg trans. 2007); A
98

132
Indeed, democracy introduces a new civilizational
arrangement and a new way of thinking about living together. I would
say that it advances an actual changing in the human condition, at the
point that it prevents any reversal; it hinders any attempt to going
backwards. 99
I t i s n o t a n i d e a l , a s t h e c o m m e n t a t o r s 133 a n d p o l i t i c i a n s
are very used to say. But a very real and concrete aspect of our lives.
Sometimes envisioned as experienced, others as an object of desire.

INVENÇÃO DEMOCRÁTICA: OS LIMITES DA DOMINAÇÃO TOTALITÁRIA (Isabel Loureiro & Maria Leonor
loureiro trans. 3rd ed. 2011); Introduction in GORDON S. WOOD, LA CRÉATION DE LA RÉPUBLIQUE
AMÉRICAINE: 1776-1787 (François Delastre trans, 1991); CORNELIUS CASTORIADIS, The Greek Polis and
the Creation of Democracy; Culture in a Democratic Society & Radical Imagination and the Social
Instituting Imaginary in CORNELIUS CASTORIADIS READER (David Ames Curtis ed and trans. 1997);
JACQUES RANCIERE, LA MESENTENTE (1995); DISAGREEMENT: POLITICS AND PHILOSOPHY. (Julie Rose
trans. 1999); HANNA ARENDT, ON REVOLUTION (1990); THE HUMAN CONDITION. (1988); THE ORIGINS
OF TOTALITARIANISM (1958). RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999); PHILOSOPHY AS
CULTURAL POLITICS (2007); CONTINGENCY, IRONY, AND SOLIDARITY (1993). SEE ALSO: MARILENA
CHAUÍ, BETWEEN CONFORMITY AND RESISTANCE: ESSAYS ON POLITICS, CULTURE, AND THE STATE
(Maite Conde trans. 2011); GIORGIO AGAMBEN; ALAIN BADIOU; DANIEL BENSAID; WENDY BROWN;
JEAN-LUC NANCY; KRISTIN ROSS; SLAVOJ ZIZEK & JACQUES RANCIÈRE,. DEMOCRACY IN WHAT STATE?
(2010); JOHN KEANE, VIDA E MORTE DA DEMOCRACIA (Clara Coiloto trans. 2010); ROBERT DARNTON &
OLIVIER DUHAMEL, DEMOCRACIA (Clovis Marques trans. 2001).
132
NORBERT ELIAS, O PROCESSO CIVILIZADOR I: UMA HISTÓRIA DOS COSTUMES. (Ruy
Jungmann trans. 1994); O PROCESSO CIVILIZADOR II: FORMAÇÃO DO ESTADO E CIVILIZAÇÃO (Ruy
Jungmann trans. 1993); PETER BURKE, CULTURAL HYBRIDITY (2010); RICHARD RORTY, PHILOSOPHY AS
CULTURAL POLITICS: PHILOSOPHICAL PAPERS (vol. 4, 2007); CONTINGENCY, IRONY, AND SOLIDARITY
(1993); RICHARD SENNET, THE FALL OF PUBLIC MAN (1992); FLESH AND STONE: THE BODY AND THE
CITY IN WESTERN CIVILIZATION (1994); FERNAND BRAUDEL, GRAMMAIRE DES CIVILISATIONS (1993).
133
It is a peculiarity of not only the work of sociologists, historians and political analysts, in
general, but also of the brazilianists and latino-americanists here included the Brazilian writers since the
99

It can be better understood and studied in the light, and in

the limits of history.
This kind of approach can provide us with skills and

knowledge in our search for a renewed, actual, and useful science of
100
politics, which could correspond to the intentions, for instance, of
Hobbes, Montesquieu, and Tocqueville: “Il faut une science politique
n o u v e l l e à u n m o n d e t o u t n o u v e a u . ” 134
What I propose is to join history and political analysis, to

understand the nuances of democracy and the different points of view,
the distinct ideas that different authors put at stake, in the
controversial arena of history and politics.
Let me begin by telling one of the possible narratives of

democracy. Then it will be possible to understand the conception and
the context of the Anglo-American idea or experience of democracy
(as it is traditionally considered as taking part of the postulate
universality of a certain narrative) and plausible to contrast it with
the history of politics in Brazil, as a part of the Ibero-American

beginning of their reflection on the roots or origins of our culture. They are called “pensadores do Brasil”
(“Brazilian thinkers”), or “intérpretes do Brasil” (“Brazilian interpreters”), and have developed the basis
of the analytical theory on the Brazilian history and social and political background. Among them, we can
cite Sergio Buarque de Holanda, Gilberto Freyre, Caio Prado Junior, Celso Furtado, Raymundo Faoro,
and Oliveira Vianna.
134
ALEXIS DE TOCQUEVILLE, Démocratie en Amérique in ŒUVRES Introduction (1992) :“Une
grande révolution démocratique s'opère parmi nous, tous la voient; mais tous ne la jugent point de la
même manière. Les uns la considèrent comme une chose nouvelle, et, la prenant pour un accident, ils
espèrent pouvoir encore l'arrêter; tandis que d'autres la jugent irrésistible, parce qu'elle leur semble le fait
le plus continu, le plus ancien et le plus permanent que l'on connaisse dans l'histoire.”
100

history and culture (traditionally considered as a specific casus of the

universal narrative).
F ou n d ation s of th e M od ern C on cep tion of 101
P olitics
Thomas Hobbes set forth a new era in the history of

p o l i t i c a l t h o u g h t . H e p r o v i d e d a t l e a s t t w o b r e a k t h r o u g h s 135 t o t h e
conception of life in society, conception that was carried out in
medieval times almost exactly as it was conceived by the ancient
philosophy.
The first is that all men must be conceived equal in the

natural state that precedes the beginning of the society.
The second is his statement that man is not a natural social

being. Instead, his entry in society is an act of will, a decision to
keep away from the unsecure state of nature. Three passions lead men

135
THOMAS HOBBES, LEVIATHAN Chapter 11 (1985):
“By manners, I mean not here, decency or behavior . . . or other point of the small morals;
but those qualities of mankind, that concern their living together in peace, and unity. To which
end we are to consider, that the felicity of this life, consisteth not in the repose of a mind satisfied.
For there is no such finis ultimus, utmost arm, nor summum bonum, greatest good, as is spoken
of in the books of the old moral philosophers. Nor can a man any more live, whose desires are at
an end, than he, whose sense and imaginations are at a stand. Felicity is a continual progress of
the desire, from one object to another; the attaining of the former, being still but the way to the
latter. The cause whereof is, that the object of man`s desire, is not to enjoy once only, and for one
instant of time; but to assure for ever, the way of his future desire. And therefore the voluntary
actions, and inclinations of all men, tend, not only to the procuring, but to the assuring of a
contented life; and differ only in the way: which ariseth partly from the diversity of passions, in
divers men; and partly from the difference of the knowledge, or opinion each one has of the
causes, which produce the effect desired.”
101

to that decision: fear of violent death, desire for comfort and hope of
o b t a i n i n g i t t h r o u g h i n d u s t r y ( i n g e n i u m ) . 136 S o d i c t a t e s o r r u l e s o f
reason devise means to overcome nature and configure a different
state, a state in which all men will put their arms down and give to an
artificial man the right to decide their common destiny, in exchange 102
of the guarantee of a safe life. The instrument of this exchange is the

covenant or contract, from which political rights are alienated or
given and all political duties or obligations are derived.
Since Hobbes, society was conceived as made by human

beings, an artifact of them. It is not any more designed by any
external force nor will, it would not be any more considered as a
result of any instantaneous creation, neither of natural evolution. It
should be understood as an evolving artifact embedded in cultural
processes, which are results of the multiple kinds of relationships
that human beings are always setting, mainly conflicts, sometimes
compromises.
This statement would seem to be quite strange to the state

of mind of the ancient times and maybe for some of the conceptions
of social life that remain in the contemporary world scene. For,
although responsible for the very original conception of the
democratic regime, the ancient men understood social life as a
product of natural causes, since men were naturally designed to live

136
I summarize Hobbes’ description and discussion of the character and the transition from the
natural state to the civil state, as set forth in Leviathan and De Cive in THOMAS HOBBES, ENGLISH
WORKS passim (William Molesworth ed. London: John Bohn, 1841). See also LEO STRAUSS, THE
POLITICAL PHILOSOPHY OF HOBBES: ITS BASIS AND ITS GENESIS (Elsa M. Sinclair trans. 1984); MICHAEL
OAKESHOTT, HOBBES ON CIVIL ASSOCIATION (975); C.B. MACPHERSON, THE POLITICAL THEORY OF
POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1964).
102

in society, it did not matter whether they had wished it or not; and,
although social beings for natural reasons, men were understood as
unequal in natural conditions: some designed to order, others to obey;
some allowed to enter the political assembly to deliberate, others set
to work outside the Agora, Ἀγορά, for the benefit of the formers. 103
There were no individuals for the conception of the

ancient philosophers. Individuals are indeed a creation of the modern
times and Hobbes is maybe the most important step in the path of the
configuration of individual rights: making a clear distinction between
law and rights: law defined as a set of obligations, and rights as
synonym for liberties; setting the object of any society as to provide
ways to men of achieving their happiness: the continuous progress of
the desire.
But the most important desire of human beings, according

to Hobbes, is power after power, faculty that we share with other
human beings, in equal conditions, in the state of nature, in our fight
to fulfill our wish of everything we can see or feel, in a bellum
o m n i u m c o n t r a o m n e s 137, a w a r o f e v e r y m a n a g a i n s t e v e r y m a n 138.
Achieving the conclusion that it will be not possible to

obtain all things we want, without the permanent occupation of self-
defense, we decide to set forth peace, as peace is also a natural desire
or passion we share with others and concede to them, at the same
time they concede it to us, in equal conditions: “that a man be willing
when others are so too, as fare-forth as for Peace and defence of

137
HOBBES, DE CIVE, supra note 132.
138
HOBBES, LEVIATHAN, supra note 132.
103

himself he shall think it necessary, to lay down the right to all things;
and be contented with so much liberty against other men, as he would
a l l o w o t h e r m e n a g a i n s t h i m s e l f . ” 139
Individuals that have rights are able to agree with others,

104
conceding their rights to a third-party, a common-power, a monarch,
who will have government and control over everyone, but, for the
same agreement, is bound to assure the peace among everyone and the
safety of each one.
The Hobbesian analysis is quite similar to that of Spinoza,

i n h i s T h e o l o g i c a l - P o l i t i c a l T r e a t i s e . 140
At the beginning, Spinoza’s concern was to separate

philosophy from theology, advocating the freedom to philosophize.
But it would be necessary to discuss how far this freedom to think
a n d t o s a y c o u l d b e e x e r c i s e d “ i n t h e b e s t k i n d o f s t a t e . ” 141
In the state of nature, each person’s natural right is

determined not by sound reason, but by desire and power: “this is
unsurprising since nature is not bound by the laws of human reason
which aim only at the true interest and conservation of humans, but
rather by numberless other things that concern the eternal order of
the whole of nature (of which human beings are but a small part), and
all individual things are determined to live and behave in a certain

139
Id.
140
BENEDICT DE SPINOZA, THEOLOGICAL-POLITICAL TREATISE Chapters 16, 17 and 20
(Jonathan Israel ed. Michael Silverthorne & Jonathan Israel trans. 2007).
141
Id., at 195.
104

w a y o n l y b y t h e n e c e s s i t y o f t h i s o r d e r . ” 142 B u t m e n c a n n o t c o n t i n u e
to live under the laws of nature, because it is beneficial to them
according the laws and dictates of reason, because they desire to live
in security, with no fear:
105
“for there is no one who does not live pervaded with
anxiety whilst living surrounded by hostility, hatred, anger and
deceit and who does not strive to avoid these in so far as they
can. If we also reflect that without mutual help, and the
cultivation of reason, human beings necessarily live in great
misery . . . we shall realize very clearly that it was necessary
for people to combine together in order to live in security and
prosperity. Accordingly, they had to ensure that they would
collectively have the right to all things that each individual had
from nature and that this right would no longer be determined
by the force and appetite of each individual but by the power
and will of all of them together ... Thus, they had to make a
firm decision, and reach agreement, to decide everything by the
sole dictate of reason (which no one dares contradict openly for
fear of appearing perfectly mindless). They had to curb their
appetites so far as their desires suggested things which would
hurt someone else, and refrain from doing anything to anyone
they did not want done to themselves. Finally, they were
o b l i g e d t o d e f e n d o t h e r p e o p l e ’ s r i g h t s a s t h e i r o w n . ” 143
When Hobbes talks about a covenant of laying down arms

and granting the protection of security to a sovereign, Spinoza thinks
about settling an agreement in the interest of everyone: it
“can have force only if it is in our interest… It is

foolish to call for someone else to keep faith with oneself, in
perpetuity, if at the same time one does not try to ensure that
violating the agreement will result in greater loss than gain for
the violator. This principle should play the most important role

142
Id., at 197.
143
Idem, at p. 197 and 198.
105

in the formation of a state. For if everyone were readily led by

the guidance of reason alone and recognized the supreme
advantage and necessity of the state, everyone would utterly
detest deceit and stand fully by their promises with the utmost
fidelity because of their concern for this highest good of
preserving the state, and, above all things, they would keep
106
faith, which is the chief protection of the state [. . .] If,
therefore, willingly or unwillingly someone surrenders to
another a portion of the power they possess, they necessarily
transfer the same amount of their own right to the other person.
Likewise, it follows that the person possessing the sovereign
power to compel all men by force and restrain them by fear of
the supreme penalty which all men universally fear, has
s o v e r e i g n r i g h t o v e r a l l m e n . ” 144
Here the philosophers depart from each other. Spinoza

sustains that democracy is the primitive and best system of
government, while Hobbes defends the priority of monarchy.
For Spinoza it is perfectly possible to constitute the (state

of) society without alienating any natural right, the contract can be
preserved as a whole if every person transfer all the power not to a
sovereign, but to society. The society will retain the supreme natural
right over all things – the supreme power that everyone must obey,
either of their own free will or through fear of the ultimate
p u n i s h m e n t : “ t h e r i g h t o f s u c h s o c i e t y i s c a l l e d d e m o c r a c y . ” 145
Democracy is “the united gathering of people which

collectively has the sovereign right to do all that it has power to do.”
And there is less reason to fear absurd orders or proceedings in a
democratic state, because it is almost impossible that the majority of

144
Idem, at p. 199.
145
Idem, at p. 199, 200.
106

a large assembly could engage in an irrational choice or decision, due

to the fact that, when the agreement was set forth, everyone had
compromised to avoid the follies of appetite, to act within the limits
of reason, and to dwell in peace and harmony:
107
“the fundamentals of the democratic republic are
made sufficiently clear, this being the form of state I chose to
discuss first, because it seems to be the most natural and to be
that which approaches most closely to the freedom nature
bestows on every person. In a democracy no one transfers their
natural right to another in such a way that they are not
thereafter consulted but rather to the majority of the whole
society of which they are a part. In this way all remain equal as
they had been previously, in the state of nature. Also, this is the
only form of government that I want to discuss explicitly, since
it is the most relevant to my design, my purpose being to
discuss the advantage of liberty in a state. Accordingly, I
d i s r e g a r d t h e f o u n d a t i o n s o f t h e o t h e r f o r m s o f g o v e r n m e n t . ” 146
The Spinoza’s statement of the impossibility of the

multitude to engage in an irrational choice, is but - and again – an
attempt to control the idea of democracy, transforming this regime in
a moderate one. Historians have, on the contrary, acknowledge the
heat of democratic debates in the agora. Isegoria is the equality in
the agora, equal right and possibility to discuss, - freely speaking
( p a r r h e s i a - π α ρ ρ η σ ί α ) 147 - h e n c e u s i n g t h e r h e t o r i c a l t e c h n i q u e s t o
148
persuade others. And we cannot deny the “perils of rhetorical flux”

146
Id., at 200-202.
147
See MICHEL FOUCAULT, LE GOUVERNEMENT DE SOI ET DES AUTRES : COURS AU COLLEGE
DE FRANCE, 1982-1983 (2008).
148
RICHARD SENNET, FLESH AND STONE, supra, note 128, at p. 65 and 67.
107

and the fact that the free use of voice, free utterance, the exposed
v o i c e i n t h e p u b l i c s p a c e “ b e c a m e a f o r c e o f d i s u n i t y , ” 149 a n d l e a d t o
decisions that were, after the later acknowledging of the
consequences, so much regretted by the Athenian people. When we
think about democracy, we have to accept the consequences of its 108
historical experience as a whole. It is impossible to temper a regime

where the social and personal engagement in public affairs are
performed with heat energy.
The rescue of democracy, however, was not to be taken so

early in the modern era. The influence of Spinoza was to be heard
much more lately than Hobbes’.
The modernity opted for monarchy… only to fight against

that kind of regime, that manner to sustain the supreme power, a
century or two later.
C h an gin g Q u alities in th e M od ern E ra
Such a paradox: democracy with inequality for the ancient,

while monarchy (and democracy, in the case of Spinoza) with
equality for the modern. How could it be solved?
Two radically different conceptions of human life and

society. Two definitions of the relations between human beings and
politics. To those we could add perhaps so many others.

149
Id., at p. 66. On the idea of disunity and freedom, see PIERRE CLASTRES, SOCIETY AGAINST
THE STATE: ESSAYS IN POLITICAL ANTHROPOLOGY (Robert Hurley & Abe Stein trans. 1989).
108

Let us reflect for a while about that contradiction.
In 1748, Montesquieu brought to light his oeuvre de vingt

années, tracing the principles that had governed the relationship of
nations, peoples, and political regimes, De l’Esprit des Lois.
109
Montesquieu discussed the nature and the principles of the

three political regimes. He attached to democracy - the government of
the people, who are monarch and subject at the same time –, the
q u a l i t y o f a c e r t a i n p a s s i o n , n a m e d v i r t u e ( v e r t u ) , 150 o r a p a s s i o n o f
c o n s t r a i n t , a s I n a m e d i t . 151 T h e c i v i c v i r t u e s i g n i f i e s t h e l o v e o f t h e
country (patrie), the love of equality (égalité) and frugality
(frugalité). The virtue, as the founding principle of the republican
democratic regime, plays the role of the laws, and explains the
working of the political engagement.
To Montesquieu, the democracy was a regime of the

ancient times, no more viable in his own period, because there was no
more room to the civic virtue. Men and women conduct, then,
themselves by different passions, appetites, and desires. The modern
regime, par excellence, would be the monarchy, based upon the
principle of honor (honneur), “the prepossessions of every person and
e v e r y r a n k ” . 152 I n t h e a n c i e n t d e m o c r a c y , t h e p o l i s w o u l d s u b s i s t o n l y
dependent of the love of the country, the thirst of true glory, of self-

150
MONTESQUIEU, L’ESPRIT DES LOIS, supra note 87, at Book 2, p. 532 -537 and passim.
151
ALFREDO ATTIÉ JR, TÓPICA DAS PAIXÕES, supra note 24.
152
Id., at 538 : “l’honneur, c’est-à-dire le préjugé de chaque personne et de chaque condition.” Cf.
MONTESQUIEU, THE SPIRIT OF LAWS: A COMPENDIUM OF THE FIRST ENGLISH TRANSLATION. 121 (David
Wallace Carrithers ed. 1977).
109

denial, of the sacrifice of the dearest interests, “of all those heroic
virtues which we admire in the ancients, and which to us are known
o n l y b y s t o r y ” . 153
Hence, Montesquieu would advocate the monarchic regime,

110
because the civic virtues had disappeared in modern times, and the
monarchy can survive among the ambitions of the human condition,
and even is based upon them, and upon the competition for the
privileges, the ranks, for the influence and prestige, for power.
Vanities that explain the regime and its need for laws – which would
be unnecessary in democracies – to regulate the jeu des ambitions.
For Montesquieu, the difference between the two regimes,

and the two eras to which they correspond, can be explained by
passions: virtue and honor. These principles work as engines to the
regimes, they give them their particular movement, their
characteristics: “the spirit of monarchy is war and enlargement of
d o m i n i o n : p e a c e a n d m o d e r a t i o n i s t h e s p i r i t o f a r e p u b l i c . ” 154
The observations of Montesquieu about the ancient regime

of democracy are quite strange, if not paradoxical. His object of
analysis (and admiration) is less Athens than Sparta. He prays
Lycurgus (to whom he compares William Penn) and the almost
absolute detachment of the Lacedaemonians, the severe education of
the Spartans. He generalizes their spirit to the whole Greece, even
Athens (Thucydides would not definitively approve it). But he
emphasizes - against the presence of the warrior ardor, and the

153
Id., SPIRIT OF LAWS, at 118; cf. ESPRIT DES LOIS, 538.
154
Id., ESPRIT DES LOIS, p. 577; cf. SPIRIT OF LAWS vol 1, 166.
110

evidence of the war, a constant during all the classic era – an absent
feeling of peace, and a very controversial sense of moderation,
mainly in Athens.
Following the line of the theoreticians of the social and

111
155
political contract, Rousseau, will also compare the political
regimes, their principles and conditions to subsist in the modern
society. I intend to present very briefly and discuss his ideas
developed in the Social Contract’s third book, chapters I to XV.
The Genevan writer states the characteristics of the three

political regimes or three forms of government. Government to him is
an “intermediate body set up between the subjects and the Sovereign,
to secure their mutual correspondence, charged with the execution of
t h e l a w s a n d t h e m a i n t e n a n c e o f l i b e r t y , b o t h c i v i l a n d p o l i t i c a l . ” 156
There is a mathematical relation between the number of magistrates
who exercise the government and the number of subjects or citizens:
larger the state, with many subjects, less the number of governors. If
democracy is the government of many, hence it will subsist only in
small countries. The proportion of force of any state is always the
same, or invariable, so the more the government expends its force on

155
Du Contract Social ou Essai sur la Forme de la République (p. 279-346) was the first name of
the most famous and influential Rousseau’s book. For the definitive version, the subtitle has changed to
Principes du Droit Politique (p. 347-470) in JEAN-JACQUES ROUSSEAU,. ŒUVRES COMPLETES. (Vol. III,
1964); THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT (G.D.H. Cole trans. 1913. DU
CONTRACT SOCIAL was first published in Geneva, in 1762, and first translated to English in 1782. It is
available at http://www.constitution.org/jjr/socon.htm; Cf. also ROUSSEAU, HE DISCOURSES AND OTHER
EARLY POLITICAL WRITINGS. (Victor Gourevitch ed. trans. 1997).
156
THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT, supra note 150, at Book III,
Chapter 1.
111

i t s o w n m e m b e r s , t h e l e s s i t h a s l e f t t o e m p l o y o n t h e w h o l e p e o p l e . 157
T h a t i s t o s a y t h a t t h e w i l l ( o r t h e m o r a l a s p e c t o f a n a c t i o n ) 158 w o u l d
be greater, while the power (the physical aspect of an action, its
execution) would decrease. Democracy would be the weakest of
governments. 112
Differing himself from Montesquieu (with whom he seems

to dialogue, and whom he cites a lot), Rousseau will propose the
causation of the different kinds of governments not on the passions,
but on the number: “What causes the various kinds or forms of
government to be distinguished according to the number of the
members composing them: it remains in this to discover how the
division is made. In the first place, the Sovereign may commit the
charge of the government to the whole people or to the majority of
the people, so that more citizens are magistrates than are mere
private individuals. This form of government is called democracy. Or
it may restrict the government to a small number, so that there are
more private citizens than magistrates; and this is named aristocracy.
Lastly, it may concentrate the whole government in the hands of a
single magistrate from whom all others hold their power. This third
form is the most usual, and is called monarchy, or royal
g o v e r n m e n t . ” 159
But he is only echoing the Bordelais thinker, when he

becomes suspicious of the very existence of a democracy:

157
Id., at Chapter 3.
158
Id., at Chapter 1.
159
Id., at Chapter 3.
112

“there never has been a real democracy, and there

never will be. It is against the natural order for the many to
govern and the few to be governed. It is unimaginable that the
people should remain continually assembled to devote their time
to public affairs, and it is clear that they cannot set up
commissions for that purpose without the form of administration
being changed. In fact . . . when the functions of government 113
are shared by several tribunals, the less numerous sooner or

later acquire the greatest authority, if only because they are in a
position to expedite affairs, and power thus naturally comes into
their hands. Besides, how many conditions that are difficult to
unite does such a government presuppose! First, a very small
State, where the people can readily be got together and where
each citizen can with ease know all the rest; secondly, great
simplicity of manners, to prevent business from multiplying and
raising thorny problems; next, a large measure of equality in
rank and fortune, without which equality of rights and authority
cannot long subsist; lastly, little or no luxury [. . .] This is why
a famous writer has made virtue the fundamental principle of
Republics; for all these conditions could not exist without
virtue. Were there a people of gods, their government would be
d e m o c r a t i c . S o p e r f e c t a g o v e r n m e n t i s n o t f o r m e n . ” 160
Therefore, there wasn’t any kind of democracy, which, in

any case, is not possible to occur in the world of the moderns. And it
would be even unwanted or unnecessary for them, because
“there is no government so subject to civil wars and

intestine agitations as democratic or popular government,
because there is none which has so strong and continual a
tendency to change to another form, or which demands more
vigilance and courage for its maintenance as it is. Under such a
constitution above all, the citizen should arm himself with
strength and constancy, and say, every day of his life [. . .]
M a l o p e r i c u l o s a m l i b e r t a t e m q u a m q u i e t u m s e r v i t i u m . ” 161

160
Id., at Chapter 4.
161
Idem, at Chapter 4.
113

Rousseau enters in a paradox. He does not accept the idea

of representation, because sovereignty cannot be represented:
“it lies essentially in the general will, and will does

not admit of representation [. . .] The idea of representation is 114
modern; it comes to us from feudal government, from that

iniquitous and absurd system which degrades humanity and
dishonours the name of man. In ancient republics and even in
monarchies, the people never had representatives; the word
itself was unknown [. . .] Where right and liberty are everything,
d i s a d v a n t a g e s c o u n t f o r n o t h i n g . ” 162
Notwithstanding, moderns are not allowed to organize

their societies as direct democracies, because the number of
inhabitants is so great that only monarchies could fit the needs of
modern states. The moderns lack the advantages of the Greeks, whose
main concern, with their mild climate, the accent of their language,
was but liberty.
The experience of the ancients is not an object that we can

copy and paste, in spite of the possibility to acknowledge certain
degrees or variations in the rule of numbers,
“For democracy may include the whole people, or

may be restricted to half. Aristocracy, in its turn, may be
restricted indefinitely from half the people down to the smallest
possible number. Even royalty is susceptible of a measure of
distribution [. . .] Thus there is a point at which each form of
government passes into the next, and it becomes clear that,
under three comprehensive denominations, government is really

162
Id., at Chapter 15.
114

susceptible of as many diverse forms as the State has

c i t i z e n s . ” 163
The model again is Sparta, not Athens. But Rousseau does

not disguise its fondness for war. Even he admits the counterpart of 115
slavery to the freedom of the citizens:
“Is liberty maintained only by the help of slavery? It

may be so. Extremes meet. Everything that is not in the course
of nature has its disadvantages, civil society most of all. There
are some unhappy circumstances in which we can only keep our
liberty at others' expense, and where the citizen can be perfectly
free only when the slave is most a slave. Such was the case with
Sparta. As for you, modern peoples, you have no slaves, but you
are slaves yourselves; you pay for their liberty with your own.
It is in vain that you boast of this preference; I find in it more
c o w a r d i c e t h a n h u m a n i t y . ” 164
Rousseau, indeed, in his 1761 novel La Nouvelle

H é l o ï s e , 165 s t a t e s a v e r y i n t e r e s t i n g i n t e r p r e t a t i o n o f t h e i d e a o f v i r t u e ,
developed by Montesquieu: “la vertu est un état de guerre, et que,
pour y vivre, on a toujours quelque combat à rendre contre soi.”
Virtue and war are aspects of the intimate life, in both

Montesquieu and Rousseau. Because virtue, exactly as justice, is a

163
Id., at Chapter 4.
164
Id., at Chapter 15.
165
In English, “Virtue is a state of war, and to live in it means one always has some battle to
wage against oneself..” JEAN-JACQUES ROUSSEAU, JULIE OU LA NOUVELLE HELOÏSE: LETTRES DE DEUX
AMANTS HABITANTS D'UNE PETITE VILLE AU PIED DES ALPES 6th Part, Letter VII, Answer (René Pomeau
ed. Available at http://visualiseur.bnf.fr/CadresFenetre?O=NUMM-101488&M=tdm. 1761).
115

p a s s i o n o f c o n s t r a i n t , 166 w h i c h i s t o b e f o u n d o n l y i n d e m o c r a t i c
republics, the ancient democratic republics, and leads the sentiment
of equality and frugality to the members of the society. A passion of
constraint because it is at least an impediment (or a check) to the
flourish and expansion of other passions that could be harmful to the 116
democratic coexistence. Constraining to the freedom of action (as a

passion should not be, in its own nature, because a passion is exactly
a response to an action, the fact of being passive before an act), it is
actually a great endeavor of will, to hinder the desire to obtain what
we want, to impede the need to give free course to our desires and
vanities, to the amour propre. A war against ourselves, as stated by
Rousseau.
The reason why Montesquieu called virtue a civic value is

exactly due to the fact that it gives prevalence to the common welfare
over the individual’s profits or gains. Paradoxically, this kind of
sentiment of self-restraint constitutes an obstacle to conflict with
others, an invitation to peaceful relations. However, the historical
experience of ancient democracies was a constant state of war.
Democracies constituted regimes of war.
Originally, the word virtus was a quality of the warriors,

their ability to confront the forces of enemies. Later on, during
Italian Renaissance, Machiavelli would oppose virtù to fortuna.
Virtue would be the quality of the good prince, able to oppose the
natural forces of fortuna, and establish the dominance of a state, and
obtain victories against his competitor statesmen. Montesquieu would

166
I have developed the idea of a “passion of constraint” in ALFREDO ATTIÉ JR, TÓPICA, supra
note 24.
116

give to the word instead a meaning very near to the Christian

behavior. In a manner that he felt obliged to explain his use of the
language, in the Preface to the Esprit des Lois. Virtue, he then stated,
was taken from the moral of the old republics and not from the
Gospels, it had to be read as civic virtue. But, he should admit that 117
the sign was brought topsy-turvily from the old original meaning. The
warrior did not restrain himself, he is an aggressor. The
Montesquieu’s virtuous human being instead is a passive peaceful
figure. It would give the insight to Rousseau’s consideration of the
constant private conflict one takes against oneself. The Rousseau’s
war is an intimate war against the impulses.
The Rousseau‘s interpretation of virtue will lead to the

foundation of psychology, in the 19th Century, as we will see in the
next chapter. It constantly reminds us of the presence of conflict.
A n cien t an d M od ern : The In tern ation al

P olitical R eg im e
B e n j a m i n C o n s t a n t 167 - a l m o s t o n e c e n t u r y a n d a h a l f a f t e r
the publication of Hobbes` and Spinoza’s political works, sixty years
after the publication of Montesquieu’s most celebrated work, and
about fifty years after Rousseau’s Social Contract - would use a very
similar idea to distinguish the liberty of the modern men from the

167
BENJAMIN CONSTANT, ÉCRITS POLITIQUES (Marcel Gauchet ed. 1997); DE L’ESPRIT DE
CONQUETE ET DE L’USURPATION DANS LEURS RAPPORTS AVEC LA CIVILISATION EUROPEENNE (1986);
PRINCIPES DE POLITIQUE APPLICABLE A TOUS LES GOUVERNEMENTS (Etienne Hofmann ed. 1997).
117

liberty of the ancient world. In a famous speech, delivered in France

some years after the most dangerous period of the French
R e v o l u t i o n , 168 t h e p o l i t i c a l p h i l o s o p h e r w o u l d i n t e n d t o s u m u p t h e
characteristics of the old and new republics, under the analysis of
their concepts of freedom. 118
For Constant, there must be the same radical difference

between modernity and ancient times: modern men care for their own
business, their own private interests; ancient men care for the safety
of the community they belong to:
“Ask yourselves what an Englishman, a Frenchman,

and a citizen of the United States of America understand today
by the word ‘liberty’. For each of them it is the right to be
subjected only to the laws, and not to be arrested, imprisoned,
put to death or maltreated in any way by decision of one or
more individuals; the right of each person to express his
opinion, choose a profession and practice it, dispose of his own
property and even to misuse it; the right to come and go
without permission, and without explaining what one is doing
or why; the right of each person to associate with other
individuals — whether to discuss their interests, or to join in
worship, or simply to fill the time in anyway that suits his
fancy; and each person’s right to have some influence on the
administration of the government —by electing all or some of
the officials, or through representations, petitions, or demands
that the authorities are more or less obliged to take into
consideration. Now compare this liberty with that of the
ancients. The liberty of the ancients consisted in carrying out
collectively but directly many parts of the over-all functions of
government, coming together in the public square to discuss
and make decisions about war and peace; form alliances with

168
“Nous ne pouvons plus jouir de la liberté des anciens, qui se composait de la participation
active et constante au pouvoir collectif. Notre liberté à nous doit se composer de la jouissance paisible de
l'indépendance privée.” BENJAMIN CONSTANT. De la liberté des anciens comparée à celle des modernes.
In ÉCRITS POLITIQUES.
118

foreign governments; vote on new laws; pronounce judgments;

examine the accounts, acts, and stewardship of the magistrates;
call the magistrates to appear in front of the assembled people;
accuse the magistrates and then condemn or acquit them. But
while the ancients called this liberty, they saw no inconsistency
between this collective freedom and the complete subjection of
the individual to the authority of the group. You find among 119
them almost none of the jouissances that I have just listed as

p a r t s o f t h e l i b e r t y o f t h e m o d e r n s . ” 169
Freedom for the ancient world is the possibility to

everyone to give their lives to the city or state, because the main
concern of the city is to declare and make war. Citizens meet in the
public arena to decide public matters. Citizenship is a faculty given
to a very small part of the inhabitants of a city. To have the right to
participate, to discuss and decide the political matters is the supreme

169
THE LIBERTY OF THE ANCIENTS COMPARED WITH THAT OF THE MODERNS (Jonathan Bennett
ed. trans. 2010); De la liberté des anciens comparée à celle des modernes in BENJAMIN CONSTANT,
ÉCRITS POLITIQUES (1997):
“Ce que de nos jours un Français, un habitant des États-Unis de l’Amérique, entendent
mot de liberté c'est pour chacun le droit de n'être soumis qu'aux lois, de ne pouvoir être arrêté, ni
détenu, ni mis à mort, ni maltraité d'aucune manière, par l'effet de la volonté arbitraire d'un ou de
plusieurs individus. C'est pour chacun le droit de dire son opinion, de choisir son industrie et de
l'exercer; de disposer de sa propriété, d'en abuser même; d'aller, de venir, sans en obtenir la
permission, et sans rendre compte de ses motifs ni de ses démarches. C'est, pour chacun, le droit
de se réunir à d'autres individus, soit pour conférer sur ses intérêts, soit pour professer le culte
que lui et ses associés préfèrent, soit simplement pour remplir ses jours et ses heures d'une
manière plus conforme à ses inclinations, à ses fantaisies [. . .] Comparez maintenant à cette
liberté celle des anciens. Celle-ci consistait à exercer collectivement, mais directement plusieurs
parties de la souveraineté tout entière, à délibérer sur la place publique, de la guerre et de la
paix [. . .] à voter les lois, à prononcer les jugements, à examiner les comptes, les actes, la
gestion des magistrats, à les paraître devant tout un peuple [. . .] Mais en même temps . . . ils
admettaient, comme compatible avec cette liberté collective, l'assujettissement complet de
l'individu à l'autorité de l'ensemble. Vous ne trouverez chez eux presque aucune des
jouissances que nous venons de voir faisant partie de la liberté chez les modernes. Toutes les
actions privées sont soumises à une surveillance sévère. Rien n'est accordé à l'indépendance
individuelle.”
119

g o o d , t h e v e r y h a p p i n e s s . A s A r i s t o t l e 170 s a i d , d e l i b e r a t i o n o f p u b l i c
affairs was the actual eudaimonia (εὐδαιµονία). Participation in the
public affairs is the only way to the human flourishing or happiness,
to achieve the good destiny.
120
Before Aristotle, the great Athenian leader Pericles, in the
f a m o u s s p e e c h w e h a v e a l r e a d y a n a l y z e d , 171 w o u l d h a v e s a i d t h a t f o r
those who couldn`t have achieved the right to participate (isonomia,
ἰσονοµία, equality of conditions among the citizens), there would be
the sole possibility to fight for the nation, giving their lives, instead
of their voices (isegoria, ἰσηγορία, equal right to speech) in the
public space, (agora, Ἀγορά), in the assembly (ekklesia, ἐκκλησία),
for the public benefit: “These take as your model, and judging
happiness to be the fruit of freedom and freedom of valor, never
d e c l i n e t h e d a n g e r s o f w a r ” . 172 T h e s p e e c h 173 w a s i n d e e d d e l i v e r e d
during the funeral ceremonies of many young Athenians, victims of
the Peloponnesian War.
The Athenian democratic experience was brief. From the

Cleisthenes radical democratic empowerment, in 508/7 B.C. to 404
B.C., when Athens was forced to surrender to Sparta, at the end of
the Peloponnesian Wars (460-445 and 431-404). A very weak regime,

170
Politics in ARISTOTLE. THE WORKS OF (1952).
171
THUCYDIDES. THE PELOPONNESIAN WAR. I am using the version of Perseus Digital Library.
Available at http://www.perseus.tufts.edu
172
43, 4 (“οὓς νῦν ὑµεῖς ζηλώσαντες καὶ τὸ εὔδαιµον τὸ ἐλεύθερον, τὸ δ᾽ ἐλεύθερον τὸ
εὔψυχον κρίναντες µὴ περιορᾶσθε τοὺς πολεµικοὺς κινδύνους”).
173
THUCYDIDES, PELOPONNESIAN WAR, Book 2, Chapters 34-46.
120

which could not bear likeness to the democratic Golden Age, would
later be experienced by the most important Greek philosophers:
Socrates was condemned to death penalty in 399, Plato died in 347,
and Aristotle, in 322 B.C. In fact, the Greek philosophers did not
show any sympathy to the democratic regime, which they criticize for 121
several reasons. Perhaps, the only exception was Protagoras, the

sophist. Among the sophists, so much attacked in Plato’s Dialogues,
Protagoras was specially ironized by Plato. It demonstrates,
nevertheless, the importance of his thought, and how much Plato took
i t s e r i o u s l y , i n h i s a t t e m p t t o a d v e r t h i s f o l l o w e r s a g a i n s t i t s p e r i l s . 174
Freedom in the Athenian democratic world, as I envision

that experience, only could be defined within the triad happiness-
freedom-war (εὐδαιµονία-ἐλεύθερος -πόλεµος - eudaimonia-
eleutheros-polemos).
Ancient democracy was pregnant of conflict. At the

beginning, the stasis (στάσις), or the permanent tension and
competition among the nobles, oligarchs, or aristocrats (who sought
175
superiority or ideal: “αἰὲν ἀριστεύειν” - aien aristeuein), and

174
PIERRE VIDAL-NAQUET, Athènes au IVe siècle : fin d'une démocratie ou crise d'une cité? in
18 ANNALES. ÉCONOMIES, SOCIETES, CIVILISATIONS 2, p. 346-351 (1963); CLAUDE MOSSE, HISTOIRE
D’UNE DEMOCRATIE: ATHENES (1973); MOSES FINLEY, DEMOCRACY: ANCIENT AND MODERN (3rd ed.
1996); POLITICS IN THE ANCIENT WORLD (1983); PAUL CARTLEDGE, ANCIENT GREECE (2011);
ARISTOTLE. THE ATHENIAN CONSTITUTION (H. Rackham trans. 1935).
175
HOMER, ILIAD Book 6, 205-210 (A.T. Murray trans. available at http://www.perseus.tufts.edu):
“straitly charged me ever to be bravest and pre-eminent above all, and not bring shame upon the race of
my fathers”. Alternatively “he urged me again and again to fight ever among the foremost and outvie my
peers, so as not to shame the blood of my fathers who were the noblest,” in Samuel Butler’s version,
available at the same http://www.perseus.tufts.edu.
121

between them and the ordinary people, or the poors (demos, δῆµος),
only partially solved by the Solon’s Laws, in 594.
Freedom for the modern men is the right to stay aside the
public debates, living their own lives, taking good care of their
122
private businesses, trying to preserve their own interests even against
the state. It would be unthinkable for the modern mentality even the
possibility of imagining to dedicate the entire life for the benefit of
the community. Modern men seek their own pleasure, their own need.
The state must preserve this right. The modern times want peace for
the benefit of the jouissances privées, for the safety of the market
affairs.
In the background of the ancient democracy there was war;

in the background of modernity, a disguised peace – because
commerce is a kind of war, exerted with different means.
It is clear, in any event, that both ancient and modern

societies are conceived according to a perspective either comparative
or international.
Athens defined its political regime in contrast with Sparta,

with which it waged a war for almost one century. However, the
priority in announcing the sovereignty or the power (krátos, Κράτος)
of the people (dámos δάµος for the Spartans; demos, δῆµος for the
Athenians), - it means the entirety of the equal citizens (homoios,
ὅµοιος), those who are able to participate in the decisions about the
destiny of the city – was Spartan, as Herodotus recognized it in his
H i s t o r i e s . 176 N e v e r t h e l e s s , t h e A t h e n i a n s w o u l d d e f i n e t h e m s e l v e s a n d

176
PIERRE VIDAL-NAQUET, LES GRECS, LES HISTORIENS, LA DEMOCRATIE : LE GRAND ÉCART
163 (2000).
122

their political regime by signalizing the modernity of their political

organization, in contrast with the archaism of Sparta: Thucydides
“oppose de manière éclatante la modernité, l’innovation athénienne et
l ’ a r c h a ï s m e l a c é d é m o n i e n . ” 177
123
The Athenian demos would hold the power, after the fall
of the tyrants, finishing the dispute among aristocracies, exercising
the actual priority and dominance not only over the Greek world, but
also over the Mediterranean space, the core space of the ancient
history, for one Century and a half. A history, I would like to
emphasize my point of view, against the whole traditional
perspectives, of international democracy. Democracy for the ancients
was not a question of only domestic arrangement of government. It
was comparatively and internationally defined. The citizen of Athens
is free because Athens is free. The citizen is equal by comparison
with the other citizens. Athenian is a democracy by comparison with
the other cities or states, the whole set of Greek polis. In the case of
the international scenario, Athens, due to its democratic regime, is
not equal, but superior to other polis. The conflict and commerce
(international relations and international law) is established among
those polis, in order to guarantee the idea of the superiority of
democracy, which means, the superiority of Athens, leader of the
Delos Confederacy.
According to my point of view, the French historian Pierre

Vidal-Naquet express the fundamental connection between democracy
and imperialism :

177
Id., at 164.
123

“ce lien fondamental entre la démocratie et

l’impérialisme qui a été perçu tant par les partisans que par les
adversaires de la démocratie . . . il est doublement fondamental ;
la démocratie est ce qui a permis à Athènes de déborder hors
d’Athènes [. . .] Là est la modernité d’Athènes [. . .] En un
autre sens plus inquiétant : le bien vivre du démos athénien et
les œuvres qui sont les siennes dépendent pour une part non 124
chiffrable, mais nullement négligeable, des ressources apportés

par la domination qu’exerce Athènes sur les îles et les cités e
son domaine maritime. Les États-Unis n’ont pas été la première
R é p u b l i q u e i m p é r i a l e . ” 178
Thus, still according to my point of view, the comparative

aspect and international essence are not vices, but the very core and
virtue of democracy.
At its very beginning, democracy is an international

regime, which defines itself by comparison with other regimes. It is
the political regime par excellence, and essentially international. It
would be conceived as national, - and become national indeed - only
during the process of the constitution of the national states, during
the 18th and 19th century. It will coincide with the flourish of the
Romantic Movement, and the creation or invention of the concept of
nation, which will derive to nationalism. I intend to demonstrate this
statement in the next chapter.
For now, I would like to call the attention of the reader to

the fact that the majority rule, implied in the definition of democracy,
is the reason of the spill of the regime over the artificial boundaries
of the city. It means that – advancing the conclusion of my thesis –
only with the implementation of an international democratic regime,

178
Id., at 169.
124

we would be able to achieve the objectives of any understanding of

international law.
A n ew S cien ce of P olitics for a n ew W orld 125
The goals are different: subjects of the community, the

ancient men wanted the honor of deliberating with the other citizens
or the glory of dying while fighting for the nation; subjects to their
own desires, modern citizens stay apart, in their own private spaces,
protecting their own goods and deliberating about their own
businesses.
The ancient democracy requires submission; the modern,

frees men of the political and gives them the right to a proper life.
Were those configurations of society totally designed or

desired by their members, or mere accidents, not wished neither
consciously perceived?
Some years after Constant’s speech on modern and ancient

liberties, another great thinker would acutely observe new phenomena,
describing them as the signs of a new era. Alexis de Tocqueville
made his journey to America, half a century after its own revolution,
independence of England and new constitution. He interpreted the
facts he had seen as absolutely original.
The political practices of the inhabitants of the new world

were different from the ancient practices of the old regime. They
pointed out a new political regime, a concrete and actual democracy.
Those practices are desirable for the whole world. But there was no
125

language to describe them. They deserve indeed a new political

science.
Tocqueville perceived in what he had experienced a new

way of making politics. He initiated a new way of making science: a
126
comparative one.
Both Hobbes and Constant also made comparisons. But

they were comparing different periods of time. They were trying to
understand different moments in history, to understand and to explain
their own moments. They made comparisons and gave advice,
involved in the contemporary political arguments. Hobbes went
beyond any other until his time, trying to figure out the transition
from one time to another.
Tocqueville, following the steps of Montesquieu, compared

different societies, differences he had experienced in the same world,
in the contemporary scene. Societies that join the same moment in
history. One may learn with each other. The experience, the history
of individual societies can be exchanged. One might show the other a
particularity that would be useful. By its peculiar way of being, one
is able to point the future to other.
For Tocqueville, the new world is everywhere and shall be

everywhere: a great democratic revolution is happening.
H o w e v e r , T o c q u e v i l l e ’ s p e r s p e c t i v e c h a n g e d a l i t t l e 179 a t
the moment he wrote the second volume of his work on the America’s
Democracy. The first volume was written in 1835, and the second, in

179
KARL FRIEDRICH HERB & OLIVER HIDALGO, Once Upon a Time in America – Tocqueville on
the Beginning of the End of History in 52 AMERIKASTUDIEN 4, p. 545-560 (2007).
126

1840. He did not rely as much on the human ingenium to set a new
regime. Démocratie, liberté, égalité des conditions became restricted
by the aristocratic point of view of the author himself. Otherwise,
what is important for our argument, he had never left aside his
sympathy for the virtues of war, following Machiavelli and 127
Montesquieu as well: war “almost always enlarges the thought of a

p e o p l e a n d e l e v a t e s i t s h e a r t … W a r h a s g r e a t a d v a n t a g e s . ” 180
At the beginning of the twenty-first century, an American

p h i l o s o p h e r 181 r e p e a t s t h e l a n g u a g e o f h i s p r e d e c e s s o r s : “ h i s t o r y a n d
anthropology are enough to show that seeking objectivity is just a
182
matter of getting as much inter-subjective agreement” as one can
manage. He asks us to rely on the tolerance and decency of our
fellow human beings. Rorty urges us a democratic community, in
which human solidarity really matters, rather than knowledge of
something not merely human. As human beings of unique societies,
we share the same world, and in which the greatest achievements of

180
DEMOCRATIE EN AMERIQUE, supra note 130, at the same page.
181
RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE Chapter 1 (1999):
“Socrates and Plato suggested that if we tried hard enough we should find beliefs which
everybody found intuitively plausible, and that among these would be moral beliefs whose
implications, when clearly realized, would make us virtuous as well as knowledgeable [. . .]
Which moral or political alternative is objectively valid? For Deweyan pragmatists like me,
history and anthropology are enough to show that there are no unwobbling pivots, and that
seeking objectivity is just a matter of getting as much intersubjective agreement as you can
manage [. . .] You have [nothing] more to rely on than the tolerance and decency of your fellow
human beings. The democratic community of Dewey's dreams is a community . . . in which
everybody thinks that it is human solidarity, rather than knowledge of something not merely
human, that really matters. The actually existing approximations to such a fully democratic, fully
secular community now seem to me the greatest achievements of our species.”
182
Philosophy and Social Hope.
127

our species are the actual approximations to a fully democratic and

secular community.
But there are no unwobbling pivots, as Rorty advert us, as

intended by the ancient Chinese philosophy. No way to stay in
128
contemplation. Our needs and desires are in constant movement, as
Hobbes predicted. It is impossible for the human beings to rest and
satisfy themselves on the present moment with the present
achievements. We desire and need other things; we will certainly try
other experiences. We don`t want to be stuck in a rut.
D ifferen t P ersp ectiv es
So politics and democracy may become a dreadful subject

to write about.
Many authors have tried it, during the whole history of the
making of the western tradition, but no absolute conclusion could be
achieved. It is indeed an elusive subject. As soon as we feel we have
reached some definitions and some common aspects and conclusions,
new criticisms, new points of view and new claims appear.
Many have tried to avoid those difficult issues, by

claiming that both politics and democracy do not constitute an object
but are better conceived as a growing on process.
Whether it is true or not, politics and democracy become,

at the embarrassing and complex development of that tradition, a
subject that cannot be overlooked, avoided or waived. They have
been and continue to be a central aspect of our lives, a conditio sine
128

qua non of our ways of life, publicly and privately. For this simple
reason a compelling and permanent object of concern. Every single
attitude of every person in everyday`s life is conditioned and maybe
determined by the way the political regime works and the way it is
reflected in everyone`s practical attitude towards life, and the 129
conception anyone has about this issue.
Indeed, as the Greeks vindicated it, the human being is a

political animal (zoon politikon, ζῷον πολιτικόν, as sustained by
Plato and Aristotle).
The meaning of this expression, however, is controversial.

But it is essential to search this meaning, or, at least, to reflect about
the controversy about the issue. As we are trying to understand the
implications of democracy in Comparative and International Law, it
is quite relevant to set forth the idea of humanity, main and central
concept and concern of both disciplines.
The political animal, is it a definition of human kind or

just a characteristic chosen to initiate develop a discourse on the
political implications of living in society?
183
Hanna Arendt, indeed, would say that Aristotle has
presented others and best concepts of the human condition.
T o A r i s t o t l e 184 e v e r y p o l i s ( p o l i s , π ό λ ι ς ) i s a k o i n o n i a
(κοινωνία), and every koinonia reaches its higher level of quality in
the moment it becomes a polis, it organizes itself in the form of a

183
HANNA ARENDT, THE HUMAN CONDITION (2nd ed. 1998).
184
ARISTOTLE, POLITICS Book I, p. 30 (H. Rackham trans. 1959).
129

polis. The traditional translation for polis is state. I prefer the word
city, because of its similarity with citizen, citizenship, very
important characteristics of the democratic or political experience of
ancient Greece. The use of state is quite anachronistic. For koinonia,
the traditional translation is partnership, which is, to my point of 130
view, acceptable, but not the preferable choice. Instead, I would say
engagement, because it means a serious act of sharing in activities of
a group, and brings also the military idea. But it would be preferable
community, because it gives the idea of a permanent joint or
connection.
There is, however, no politics in singular. And for the

same reason that, or exactly as there is no unique language. Only in
theoretical studies language can constitute a single object. Because in
practical matters, we don’t find one language but different systems of
it, which we call, for instance, Latin, English, Chinese, Portuguese
and so on. Languages (always in plural) are always attached to a
certain community, a certain society, and a certain system. We will
never understand their meanings and scopes without penetrating the
very heart of each system, learning the methods to decode the ways
of communication, talking, writing, speaking, reading, and so on.
One can say that politics, as well as language, are

completely embedded in cultural systems. And culture differs, as any
anthropologist could guarantee by his or her experience.
The same we can say about law. Every single culture

constructs its own point of view of life and the way to express it.
Every single culture rules the way its members identify themselves
and their relations, as far as it sets the way they face and
communicate with others.
130

In the first chapter, we have deconstructed the idea of a

separation between law, culture and politics, pointing out the
relevance of politics in the definition of the legal system, and how
cultural constraints play an important role for the realization of legal
and political mechanisms. 131
The idea of power was at the origin of the conception of

every legal system, because there was the external force of constraint
that enables every system to obtain compliance, obedience by the
subjects (or citizens).
The question of power gives the answer to the question of

why people observe the laws, the norms. Disguised by the name of
reasoned norm, there was simply power.
We have now to explain further the role of the ingredient

of culture.
People observe the laws because there is a superior power,

which is absolutely expected (or thought like that) to use force when
the laws are contradicted by the behavior of the resisters, the ones
who try to obstacle the path of the laws.
But the reading of the reasoned norm, its observation,

could not be identical in any society, any community. It will depend
on some manners that at the end of the day not only define the
community of inhabitants, but also give sense to the legal system to
which they submit themselves.
The culture gives the answer to the relevant question of

how the system has to be read, how the norms must be understood,
and hence observed.
131

S i n c e A u s t i n , 185 t h e s o - c a l l e d p o s i t i v i s t s h a v e s o p h i s t i c a t e d
a l o t t h e i r a r g u m e n t s . K e l s e n 186 h a d c o n c e i v e d t h e i d e a o f a l e g a l
system as a Deutungschema, an interpretation device, with a nonstop
working mechanism. At every moment, the interpretation is doing its
job; norms are created by that mechanism. Even if we admit, however, 132
that the law system works like that, the very content of interpretation,
and the way by which it is exercised has to be defined by culture.
W h e n , f o r i n s t a n c e , R o b e r t A l e x y 187 t r i e d t o i n t r o d u c e t h e
idea – so worthy to the German Bundesverfassungsgericht (the
Federal Constitutional Court) – of the Verhältnismäßigkeitsprinzip
(the proportionality principle), the method to solve conflicts among
constitutional principles -, he is at least saying that there is no more
only one Grundnorm, but several, each one corresponding to one
constitutional principle (freedom, equality, etc.). His attempt is to
construe the theory of principles, based upon the idea that principles,
and not only the rules, are also norms.
We can argue, anyway, that the relationship between norms

is not only subjected to legal reasoning. The values are created in the
public life, they are aspects of the relationship among men and

185
See supra, at Chapter 1.
186
See supra, at Chapter 1.
187
ROBERT ALEXY, THEORIE DER JURISTISCHEN ARGUMENTATION (1991); THEORIE DER
GRUNDRECHTE (1986); TEORIA DA ARGUMENTAÇÃO JURÍDICA (Zilda Silva trans. 2001); TEORIA DE LOS
DERECHOS FUNDAMENTALES (Ernesto G. Valdés trans. 2001); TEORIA DOS DIREITOS FUNDAMENTAIS
(Virgilio A. Silva trans. 2008); A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans. 2002). SEE
ALSO GEORGE PAVLAKOS, LAW, RIGHTS AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY
(2007).
132

women in society. That is why they make presence in the legal texts
and contexts. Values are not only subjected to legal reasoning.
Politics and culture can explain not only the reason why they are
adopted by a certain legal order, but also mainly how they interact to
conform the reason of the law, and its life. 133
I would say that apparently Americans were vaccinated

against the virus of the specificity of the legal order. For them, law
has always been an instrument, a means to reach some pragmatic end,
188
being it the economy or the political. In his appraisal of the
Common Law, Oliver Holmes turned the attention of the reader to the
fact that to accomplish the task of understanding the legal order
“other tools are needed besides logic. It is something

to show that the consistency of a system requires a particular
result, but it is not all. The life of the law has not been logic: it
has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public
policy, avowed or unconscious, even the prejudices which
judges share with their fellow-men, have had a good deal more
to do than the syllogism in determining the rules by which men
s h o u l d b e g o v e r n e d . ” 189
He was calling the attention of the students to the

necessity of studying alternately history and the theories of
legislation. He pointed out the idea that law is not an end in itself,
but a means to achieve desired results of the society. As the goods

188
See also OLIVER W. HOLMES, THE ESSENTIAL HOLMES (Richard A Posner ed. 1996). For an
account of the use of law as a means to achieve economical goals, and the economic method of analyzing
legal tools, see RICHARD A. POSNER ECONOMIC ANALYSIS OF LAW (7th ed., 2007); ROBERT COOTER &
THOMAS ULEN, LAW AND ECONOMICS (1997).
189
OLIVER W. HOLMES, THE COMMON LAW 1 (2004).
133

envisioned by the community can not be mathematically

circumscribed – they are not a matter of an elaborated reasoning, but
mainly a constraint of history – the narrative becomes the master:
“the law embodies the story of nation’s development through many
centuries, and it cannot be dealt with as if it contained only the 134
a x i o m s a n d c o r o l l a r i e s o f a b o o k o f m a t h e m a t i c s . ” 190
That is a challenge to find out the meanings of different

cultures. A huge endeavor would be to pass beyond that and achieve
the ideal of setting relations among cultures.
Whatsoever, any narrative of democracy would pass

through the stations of Athens-Greece, England (The Magna Charta,
the Glorious Revolution and the Bill of Rights), France (the
Revolution of 1789, the Declaration of the of the Rights of Men and
Citizen, the Revolution of 1848), United States (the Revolution, the
Declaration of Independence, The Constitution, the First Amendments
or the Bill of Rights, the Civil War and the Abolition of Slavery, the
Civil Rights Movement). And will be supposed to explain and discuss
the ideas of philosophers or thinkers like Aristotle, Locke,
Montesquieu, Rousseau, Jefferson, Madison and Hamilton, Constant,
Tocqueville, for they constitute the classics of the democratic
t r a d i t i o n . 191

190
Id., at p. 1.
191
The misconception of the majority of commentators (even observed in the work of the
founders themselves) can explain the interference of aristocratic ideas and the paradoxes of democracy in
America: see Tocqueville, and, e.g. Jefferson’s view of slavery.
134

T riad s for th e M od ern ity
135
Let me conclude this chapter by pointing out three aspects
of my investigation. Firstly, the idea that ancient democracy would
be only conceivable connected to the conflict (stasis and polemos).
The second is Hobbes’ conception of the human nature connected to
the bellum omnium erga omnes. Finally, the Montesquieu transition
to the understanding of civil society (and no more the natural state,
as in Hobbes, or maybe Locke) as the space of constant war. And
Montesquieu’s search for the mechanical adjustment of its
components to free and contain or moderate the capacities and the
exercise of power, transformed into the idea of checks and balances
by the American Constitution.
The three aspects means the remaining character of

conflict.
The remaining character of conflict, however, acquires a

different qualification in the modern era: instead of war, commerce,
as stressed by Constant, one of the founders of the liberal thought.
Consequently, I would suggest the changing of the ancient

triad – eudaimonia-eleutheros-polemos – to the modern triad
freedom-rights-commerce.
Freedom, now, is connected to rights, and no more to

equality. Rights are comprehended as mechanisms of life outside the
public sphere, as a possibility of building relationships independent
from the political. I would suggest that modernity forged society as a
135

device that avoids politics. Observe, for a moment, the Constant’s

formula: “The effects of commerce extend even further: not only does
it emancipate individuals, but by creating credit it places authority
itself in a position of dependence. ‘Money’, says a French writer, ‘is
despotism’s most dangerous weapon and at the same time its most 136
powerful restraint; credit is subject to opinion; force is useless;

money hides or flees; all the state’s operations are suspended.’ Credit
didn’t have the same influence with the ancients; their governments
were stronger than individuals, whereas in our time individuals are
stronger than the political powers. Wealth is a power that is more
readily at any moment, more useful in the service of any cause, and
consequently more real and better obeyed. Power threatens and
wealth rewards; you elude power by deceiving it, but to obtain the
f a v o u r s o f w e a l t h y o u h a v e t o s e r v e i t ; s o w e a l t h i s b o u n d t o w i n . ” 192
The avoidance of politics led to the disdain of the virtue

of equality. As I will point out, in analyzing Montesquieu’s
contribution to the idea of politics, ancient democracy was a regime
conceived and practiced upon the passion of virtue, or the sentiment
of frugality and equality. Modernity has no longer virtue, it lives
based upon other principles, even if some of the modern experiences,
as we will see, tried to recover the idea of republican civism. The
conception of rights are thus a result of the model of conflict that
became predominant in modern times: commerce. Commerce is a way
of obtaining things without the use of force or rhetoric. One buys
things, instead of obtaining them, by imposing one’s force, or by

192
BENJAMIN CONSTANT, THE LIBERTY OF THE ANCIENTS COMPARED WITH THAT OF THE
MODERNS 12 (2010).
136

simple persuasion. Observe again Constant’s intuition of the new

regime:
“the use of our strength against the strength of

others — exposes us various obstacles and defeats. When we
turn to commerce, we are using a milder and surer means of 137
making it in someone else’s interests to agree to what we want.
War is impulse, commerce is calculation; and for just that
reason, a time must come when commerce replaces war. We
h a v e r e a c h e d t h a t t i m e . ” 193
It is interesting to observe how the connection of Hobbes

and Montesquieu, as I have pointed out, was obliterated from the
political tradition. The political philosophy has preferred to dedicate
its attention to Locke. The majority of the authors usually stress the
influence of Locke’s ideas on the conceptions of the Founders of the
American Republic. The Founder’s interpretation of Locke and use of
liberalism was nevertheless connected with other influences, the most
relevant of them having been Machiavelli’s, and the civic republican
tradition. In any case, Montesquieu, whose work was also of major
importance to them, made the reading of both Locke and Machiavelli
before the Founders. Montesquieu’s conception of politics and
society was closer to the civic republican tradition. The presence of
Montesquieu among the important sources of the American
revolutionaries could perhaps explain the dominance of the
republican thought over liberalism at the beginning of the American
history. Besides, I had the opportunity to compare further the
conception of Locke and Hobbes, and so far demonstrated the

193
Idem, at p. 4.
137

194
affiliation of Montesquieu to Hobbes. It is important to make
mention that Locke’s conception of the state of nature would not lead
to any idea of equality. Equality, indeed, in the state of nature is a
distinctive feature of Hobbes’ use of the term. At the Declaration of
Independence, Jefferson stated the fact of equality, among the 138
unalienable rights. It means that, in signing the new covenant, which

represents the birth of the modern republic, the American
comprehend themselves as equals. On the contrary, the covenant that
introduced political society, in Locke, was a covenant among unequal,
because (private) property had been already adopted in the state of
nature. The Declaration of Independence made no reference to
property, but to the pursuit of happiness, as well as to freedom, and
life. The fact of expressing life as a right endowed by the Creator, in
Jefferson’s language, constitutes another indication of the influence
of Hobbes, through Montesquieu. Indeed, life, in Locke’s system does
not belong to human beings, but is hold by God. In Hobbes,
differently, life is a human attribute. Montesquieu adopted Hobbes’
idea of equality and brought it to the society, having definitively
distinguished himself from Locke. Therefore, the Montesquieu’s
separation of powers will lead to a different world, when compared to
Locke’s one.
To sum up my argument, I would say that the triad

freedom-rights-commerce fits modernity, but we can come up with
two ways of interpreting it. The first is to take the Benjamin
Constant’s statement tout court, as it is: modernity is freedom from
the state, rights against the state, commerce as an instrument and a

194
ALFREDO ATTIÉ JR, TÓPICA, supra note 24.
138

medium to comprehend all human agency and interaction. The second

way would be to understand freedom in a moderate manner, it means
something between the ancient conception of liberty and the modern,
as defined by Benjamin Constant. By consequence, the rights would
be not only rights against the state (liberalism) but also rights of 139
taking part of the state, the political society (civic republicanism).

Commerce, nevertheless, remains the same. Commerce pervades
society, and introduces itself as an alternative to the (ancient
conception of) public life.
The second manner of modernity corresponds to the North

American choice.
Brazil chose instead, the first manner of modernity. The

influences to the constitution of its political society, in the moment
of its independence, paradoxally (or apparently), did not include the
Lockean thought, although Benjamin Constant’s thought had been
present. Brazil remained a monarchy, with the influx of Thomistic
a n d M a c h i a v e l l i a n d o c t r i n e s . 195 H o w e v e r , t h e c o n s t i t u t i o n , p r e p a r e d
under the instructions of the emperor, who had dismissed the
parliament, adopted, although in a different manner, Constant’s
c o n c e p t i o n o f t h e P o u v o i r M o d e r a t e u r . 196 B r a z i l a d a p t e d t h e p r i n c i p l e
to absolutism, which means that our first political regime adopted
from Constant’s lessons only the part of liberalism, without any
regard to democratic freedom. Among the sources of Benjamin

195
All those arguments will be reappraised and further analyzed in the third chapter.
196
Article 10, 98-101, IMPERIAL CONSTITUTION of 1824.
139

C o n s t a n t t h e r e w e r e b y p r e f e r e n c e F r e n c h a n d G e r m a n a u t h o r s . 197 T h e
two major influences to his political thought were Montesquieu and
Rousseau.
The founders of Brazilian monarchy were actually

140
interested only in Constant’s contributions to the building of a
moderate regime. They simply discarded any reference to the
sovereignty of people, but they kept freedom of commerce. They
included in the Constitution the idea of rights, but do not applied any
measure to build a bridge between the declaration and the practice.
Brazil would have a Commercial Code (1850, the first in Latin
America), with rights in respect to commercial relations. However,
the new state would not have a Civil Code, with rights regarding
citizenship, until almost thirty years after having become a
republican regime. There were of course attempts, during the
monarchic era, to enact a civil code, the most important of them, the
Teixeira de Freitas’ Consolidação das Leis Civis (1876). Actually,
nevertheless, our first civil code was enacted only after almost one
hundred years (1916) of Brazil’s independence (1822).
With the Civil Code of 1916, Brazil would have for the
first time stated: “all men have rights and obligations, in the civil
o r d e r . ” 198 F o r t h e f i r s t t i m e , t h e B r a z i l i a n l a w s t a t e d t h e i d e a o f t h e
universality of rights. If we compare it with the American
Declaration of Independence, we will have a gap of almost one
hundred and forty years. The modern triad does not fit Brazil. I will

197
See TZVETAN TODOROV, A PASSION FOR DEMOCRACY: BENJAMIN CONSTANT (Alice Seberry
trans. 1999).
198
Article 1st: “todo homem é capaz de direitos e obrigações na ordem civil.”
140

propose another triad specifically to Brazil, in the next chapter. The

shadow of slavery can be taken as partially responsible for the
Brazilian delay in the statement of the universality of rights.
Notwithstanding, as I intend to show, there were other cultural
factors. 141
Finally, Tocqueville, a Montesquieu’s and Constant’s

disciple, would see at last democracy in North America. The aspects
of his observation were exactly the manner of societal life that
reminded Constant’s conception of ancient liberty. Tocqueville asked
for a new science to describe… an old phenomenon, democratic
partnership. Even commerce, in Tocqueville’s description of
American experience, helped to improve association in the public
sphere. Tocqueville saw virtue in the new democratic republic.
Let us understand the reasons for all those differences and

nuances, further examining literary Brazilian and American
expressions, witnesses and actors of the making of Brazil’s and
United States’ political beliefs and practices.
In any event, every parcours is essentially comparative,

and it should include or comprehend other practices.
Therefore, in the next chapter, I intend to build a different

model of analysis of the cultural, political and legal features of the
beliefs, passions and interests involved in the international theory
and practice of US and Brazil.
I will continue my extensive use of literary sources, and

oppose the legacy of the Romantic Era to the critiques and proposals
of Modernism – taking into considerations the specificities of
European, Brazilian and American realities.
141

As I am looking for the foundations of an actual

international law perspective, I will criticize the conceptions and
assumptions of the idea of nation and nationalism. National or
domestic law is a product of the romantic imagination, an invention
of the romantic style par excellence, the novel. I intend to 142
demonstrate why and how the national novels have played an

important and decisive role, in featuring the characteristics of the
international approach of both nations.
I will propose new metaphors to understand those features.
142

143
4. Cultures of Modernism: Novels for Nations

Encounters in the International Century
143

T ow ard s a N ew In tern ation al E ra
Let me put aside the grand theories about the 20th Century
a n d t h e d e b a t e a b o u t i t s b e g i n n i n g , 199 a n d d e p a r t m y j o u r n e y f r o m a 144
p o i n t o f v i e w o f a h i s t o r i a n o f t h e c u l t u r e . 200 F r o m t h i s p e r s p e c t i v e ,
we can figure out the starting point of the new century with the
emergence of the European Avant-Garde or Modern movements in the
1890’s.
I chose this path to venture through because I would like

to explore a little further the triad I have proposed, with the help of
the Athenians, as emblematic of the historical democratic experience:
eudaimonia-eleutheros-polemos, or happiness-freedom-war.
International Law has admittedly two origins: the catholic-

colonialist origin, represented by the Spanish lawyers Francisco de

199
ERIC HOBSBAWN, THE AGE OF EXTREMES: HISTORY OF THE WORLD, 1914-1991 (1996); JOHN
LUKACS, A SHORT HISTORY OF THE TWENTIETH CENTURY (2013). Both began their narratives in 1914.
The impact of the Great War, which would spread its tentacles through the whole world, was considered
as a turning point in human history, and the distinctive of the changes we had experience during the last
Century.
200
PETER BURKE, VARIETIES OF CULTURAL HISTORY (1997); From Cultural History to Histories
of Cultures 1 MEMORIA Y CIVILIZACIÓN 7-24 (1998); O QUE É HISTÓRIA CULTURAL? (Sérgio G. de Paula
trans. 2nd ed., 2008); CULTURAL HYBRIDITY (2010); PETER BURKE & R. PO-CHIA HSIA, A TRADUÇÃO
CULTURAL NOS PRIMÓRDIOS DA ÉPOCA MODERNA (Roger M. Santos trans. 2009); CARL E. SCHORSKE,
FIN-DE-SIÈCLE VIENNA supra note 191; PENSANDO COM A HISTÓRIA: INDAGAÇÕES NA PASSAGEM PARA
O MODERNISMO (Pedro M. Soares trans. 2000); WILLIAM MCGRATH, POLÍTICA E HISTERIA: A
DESCOBERTA DA PSICANÁLISE POR FREUD (J.O. de Aguiar Abreu, 1988); PETER GAY, WEIMAR CULTURE:
THE OUTSIDER AS INSIDER (2001).
144

Vitoria and Francisco Suárez; and the protestant-nationalist origin,

201
whose prominent figure was the Dutch lawyer Hugo Grotius,
followed by the Saxon jurist Samuel von Pufendorf, and the Prussian
Emer de Vattel. I chose these names to spell out the main
characteristics of both schools. They influenced the development of 145
International Law until recently, with the colors of imperialism,

201
The most important European internationalist points out:
“It is widely agreed that international law has its origins in the writings of the Spanish
theologians of the 16th century, especially the so-called “School of Salamanca”, who were
reacting to the news of Columbus having found not only a new continent but a new population,
living in conditions unknown to Europeans and having never heard the gospel. The name of
Francisco de Vitoria (c.1492 – 1546) the Dominican scholar, who taught as Prima Professor with
the theology faculty at the University of Salamanca from 1526 to 1546, is well-known to
international law historians. This was not always the case. For a long time, international lawyers
used to draw their pedigree from the Dutch Protestant Hugo de Groot (or Grotius) (1583-1645)
who wrote as advocate of the Dutch East-India company in favour of opening the seas to Dutch
commerce against the Spanish-Portuguese monopoly. Still in the 18th and 19th centuries, the law
of nations – ius gentium – was seen as a predominantly Protestant discipline that drew its
inspiration from the natural law taught by such followers of Grotius as the Saxon Samuel
Pufendorf (1632-1694) and the Swiss Huguenot Emer de Vattel (1714-1767), followed by a series
of professors at 18th century German universities. It was only towards the late-19th century when
the Belgian legal historian Ernest Nys pointed to the Catholic renewal of natural law during the
Spanish siglo de oro that attention was directed to Vitoria and some of his successors, especially
the Jesuit Francisco Suárez, (1548-1617), who had indeed developed a universally applicable
legal vocabulary … The Spaniards had adopted from Aquinas the old Roman law notion of ius
gentium and through it had managed to construct a legal world that seemed astonishingly familiar
for late-19th century observers. Nys was followed by James Brown Scott (1866-1943), assistant
of the US Secretary of State Elihu Root, who made official the theory of the Spaniards as the
predecessors of Grotius and thus, also, as having initiated modern international law.”
MARTTI KOSKENNIEMI, COLONIZATION OF THE ‘INDIES’: THE ORIGINS OF INTERNATIONAL LAW,

available at http://www.helsinki.fi/eci/Publications/Koskenniemi/Zaragoza-10final.pdf. See also ERNST
NYS, LES ORIGINES DU DROIT INTERNATIONAL (1894); MARTTI KOSKENNIEMI,. THE GENTLE CIVILIZER
OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW, 1870-1960 (2001). About the conflict
between Iberians and Dutchs for the dominion of the international trade it would be interesting to read
Peter C. Emmer, The First Global War: The Dutch versus Iberia in Asia, Africa and the New World,
1590-1609, 1 E-JOURNAL OF PORTUGUESE HISTORY 1, p. 1-14 (Summer 2003, available at
http://www.brown.edu).
145

colonialism, nationalism, territory disputes, and commerce driven

interests. The conception of International Law is cognate to that of
the State, in the Modern Age. Hence, jurists have so much quarreled
about the nature of a branch of law that, apparently, lacks the force
of the sanction; which was not able to obtain compliance and 146
obedience, nor can be enforced in the same way the domestic

branches of law potentially (have the capacity to) work. I think
neither Hobbes nor Rousseau indeed thought it could be possible to
conceive the law out of the domestic relations between subjects,
c i t i z e n s , g o v e r n o r s , a n d r u l e r s . 202
I am convinced that neither conceptions, the catholic-

colonialist and the protestant-nationalist, could be considered
essentially international. De Vitoria’s and Suárez’s main concern was
actually the appropriation of the new discovered territories by the
Spanish Crown and the compulsory exploitation of the Indian
workforce, ends skillfully covered by the argument of the expansion
of the Christian faith to the New World. Grotius was arguing the
economic interests of the Dutch East-India Company in exploring the
commerce through the new sea routes discovered or first explored by
Portugal and Spain: a fight for trade predominance, within the

202
The same impression is shared by SIMONE GOYARD-FABRE, Les Silences de Hobbes et de
Rousseau devant le droit international 32 ARCHIVES DE PHILOSOPHIE DE DROIT 59-69 (1987):
“pour Rousseau comme pour Hobbes, l'affrontement des États est donc inévitable : le
pacte social n'engendre en effet qu'une volonté générale particulière á un État ; et i1 n'y a pas de
volonté générale des volontés générales. Le droit est étatique ; i1 n'y a pas de droit inter-étatique
ou supra-étatique. Le contrat social se révèle ainsi problématique : son pouvoir constructeur
comporte une déchirure essentielle puisque, d'un même mouvement, il érige l’ordre civil, c'est-à-
dire la souveraineté qui est l'essence du politique, et laisse subsister le désordre inter-étatique,
c'est-à-dire la rencontre conflictuel1e de souverainetés rivales. Or, cette situation n'est pas un
accident ou une déviation du droit politique: elle tient à la nature même du contrat social, qui
porte en lui un conflit dialectique par lequel la compétition est la règle entre les États.”
146

context of mercantilism, also skillfully disguised under the argument

for the end of the Iberian monopoly.
The only aspect of internationalism in the beginning of the

so-called “international” law doctrine was the idea of contrasting
147
different nations’ interests, conflict in which its advocates were
simply promoting benefits to their own nations over the comparative
advantages and disadvantages of other peoples’. This order of
international fighting of armed forces and arguments among states,
the national interests exposed and controverted in a presumably
international arena, will remain the standard of international
relations, crowned by the Westphalia sovereignties system (1648-
1814), complemented by the Congress of Vienna balance of powers
system (1814/1815-1914), until the world opened wars of the last
century. Conflicts that were in fact a result of that order, in which
the European potentates will menace each other, struggling for
predominance, for the pillage of the colonies settled in other
Continents, or the profits obtained through the unequally undergoing
international affairs or business.
We will actually find international arguments, in favor of

the building of an international public space, only in the 20th Century,
when nations took the decision of sharing common fora, for the
prevention and eventually resolution of international disputes, e.g.
the League of Nations, at the end of the Great War, and the United
Nations, at the end of the World War, besides the institutions created
203
at the Bretton Woods Conference, to provide means for the

203
The United Nations Monetary and Financial Conference at the Mount Washington Hotel, held
from the 1st to 22nd of July, 1944, when the General Agreement on Tariffs and Trade (GATT) was signed
147

reconstruction of the countries involved in the war, and safeguards

for the international relations, mainly for their commercial and
financial dynamics.
Two world wars were indeed necessary for the emergence

148
of an international culture. That need is something to consider, even
if we recognize that the founding fathers of the International
Organizations were inspired by their predecessors from the 19th
C e n t u r y . 204
205
War appears at the background of the tentative
theoretical mechanisms of international governance, as a result of
democratic nations initiatives, invoking republican and liberal views.
Tocqueville had indeed previewed the lasting and

irresistible force of democracy: “tandis que d’autres la jugent
irrésistible, parce qu’elle leur semble le fait le plus continu, le plus
a n c i e n e t l e p l u s p e r m a n e n t q u e l ’ o n c o n n a i s s e d a n s l ’ h i s t o i r e . ” 206
As a product of the 20th Century, which we can call the

most internationalist of all centuries, both International Law’s actual

and agreements were executed that later established the International Bank for Reconstruction and
Development (IBRD (today a part of the World Bank Group) and the International Monetary Fund (IMF).
204
See KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS, supra note 194.
205
“Ἡράκλειτος µὲν γὰρ ἄντικρυς ‘πόλεµον’ ὀνοµάζει ‘πατέρα καὶ βασιλέα καὶ κύριον πάντων” -
“for Heraclitus doth in plain and naked terms call war the father, the king, and the lord of all things” -
PLUTARCH, MORALIA (Gregorius N. Bernardakis ed. 1889); MORALS (William W. Goodwin rev. and cor.
1874, available at http://www.perseus.tufts.edu).
206
DE LA DÉMOCRATIE EN AMÉRIQUE I Supra note 130, at Introduction, p. 4. Tocqueville refers
democracy as the most continuous, permanent and ancient fact in history.
148

foundation, and Democracy’s recovered belief, deserve an effort of

comprehension that takes into account the renewed context that could
explain a joint conception: International Law of Democracy.
In contextualizing the reappraisal of our triad, we shall

149
immerse in the language of the arts. I am persuaded that the politics
of freedom manifested itself by means of the artifacts artists have
imagined to represent their age. These artifacts, at the same time,
express the artists’ own perspectives, fighting for the coming of new
standards, not only in the art branch they dedicate their talent for,
but mainly to the societies they belong.
Because of that migration of the political energies to the

207
field of arts, I would call the help of the Avant-Garde art
movements. They began in the end of the 19th Century in the old
European world, and then spread to the new worlds of Americas
during the first decades of the 20th one.
I will try to define modernism, as it has first appeared in

Europe. Then, I intend to demonstrate how that movement was used
by the artists both in United States and Brazil, not only for the
purpose of aggiornamento of the art styles and techniques, mainly in
the literature domain, but also in the searching and creation of
national identities and political projects.
With the help of contextualizing certain art objects, I will

state the cultural constraints of the democratic experience in both
countries. The projects of democracy they engendered during the
century. A century that could be understood, for the part of the

207
On the concept of field, see PIERRE BOURDIEU, THE FIELD OF CULTURAL PRODUCTION (1993).
149

United States as the building of their hegemony, and as for Brazil,

the tense and contradictory game between freedom and
authoritarianism, and its search for the recognition of its contribution
for the international arrangement of law and relations.
150
Culture, politics, and the law will play a shared role in the
reflection of the democratic project and its effects to the building of
a new international era.
Id en tities an d N ation s : R om an ticism versu s

M o d ern ism
It is widely recognized that Brazilian Modernismo – at the

same time a movement of aesthetic adjournment, renovation of the
techniques and styles, experimentalism, and search for a national
identity – was also a later reflection of the European Avant-Garde
movements.
The ideal of finding a sort of national identity - a

differential culture, which could determine the contours and
structures of a national behavior, a genuine and typical way of
thinking and acting - was of course not new. The Romanticism of the
19th Century was responsible for that search of a proper culture at
first place. We can affirm that during that Century, several countries
were rooting their languages, literatures, even their own national
legal systems, as the examples of the French Code Civil (1804, the
Code Napoléon), at the beginning of the century, and the German
Bürgeliches Gesetzbuch (1900), at its very end, illustrate.
150

The main idea was the organic relationship between the

roots of the nation and its cultural expressions. The 19th Century was
an age of consolidating the past, when the progress was perceived as
arriving to its accomplishment in every single aspect of human
knowledge. 151
This idea of accomplishment of the whole time would

return at the end of the 20th Century, just after the end of the Cold
208
War era, with the fall of Communist regime in East-Europe.
According to Francis Fukuyama, we were witnessing in “not just the
end of the Cold War, or the passing of a particular period of post-war
history, but the end of history as such: that is, the end point of
mankind's ideological evolution and the universalization of Western
l i b e r a l d e m o c r a c y a s t h e f i n a l f o r m o f h u m a n g o v e r n m e n t . ” 209 T h e e n d
of history is of course a metaphor chosen to the depiction of the
author’s contemporary life, in which, according to him, the “struggle
for recognition, the willingness to risk one's life for a purely abstract
goal, the worldwide ideological struggle that called forth daring,
courage, imagination, and idealism,” had disappeared. The
ideological debate, the fighting for liberty would be replaced by
“economic calculation, the endless solving of technical problems,
environmental concerns, and the satisfaction of sophisticated
consumer demands. In the post historical period there will be neither
art nor philosophy, just the perpetual care taking of the museum of

208
For instance FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992.
209
The End of History? THE NATIONAL INTEREST (available at http://nationalinterest.org,
Summer 1989).
151

h u m a n h i s t o r y . ” 210 W e c a n n o w a s k , i n t h e t r a c k o f t h e 2 1 s t C e n t u r y , i f
we are able to leave our economic calculation, the ability of solving
technical issues, the rhetoric of the environmental concerns, and the
ease of our sophisticated consumer goods, to start history once
a g a i n . 211 F o r t h e m o s t p a r t , w e c a n a s k i f t h e c l a i m s f o r d e m o c r a c y , i n 152
the abandoned agoras of the world, represent the retake of the path of
history, with its unavoidable revolutionary steps.
History, in the 19th Century, was the most important

discipline, because it was a kind of a lay religion of the state, fit to
e x p l a i n t o i t s p e o p l e t h e w h o l e p r o g r a m o f t h e i r e v o l u t i o n . F o l k l o r e 212

210
Idem. He adds,
“This is not to say that there will no longer be events to fill the pages of Foreign Affairs’
yearly summaries of international relations, for the victory of liberalism has occurred primarily in
the realm of ideas or consciousness and is as yet incomplete in the real or material world. But
there are powerful reasons for believing that it is the ideal that will govern the material world in
the long run. [. . . ] The end of history will be a very sad time [. . .] I can feel in myself, and see in
others around me, a powerful nostalgia for the time when history existed. Such nostalgia, in fact,
will continue to fuel competition and conflict even in the post historical world for some time to
come. Even though I recognize its inevitability, I have the most ambivalent feelings for the
civilization that has been created in Europe since 1945, with its north Atlantic and Asian
offshoots. Perhaps this very prospect of centuries of boredom at the end of history will serve to
get history started once again.”
211
It was indeed the question of the ETTORE SCOLA`s character Restif de la Bretonne to the
audience, at the end of the film LA NUIT DE VARENNES, a 1982 Franco-Italian production. See an
interesting review about the film, available at
http://www.nytimes.com/movie/review?res=9E0DE5D7123BF935A25751C0A965948260. The historical
episode named The Night of Varennes marked the end of monarchy in France. The King Louis XVI tried
to run away from France with his family, but was captured at the town of Varennes. The fact of a king
being caught by the people, the fall and loss of significance of monarchic importance and symbols,
mainly the end of the idea of the representation of the nation by the king, are the subjects of the
screenplay.
212
Or the Volkskunde, as the Germans name it.
152

was the means of discovering the actual and pure expressions of the
n a t i o n . T h e o w l o f M i n e r v a 213 c o u l d a t t h e e n d o f t h e h i s t o r y s o a r a n d
comprehend every single moment and act of the humanity, as the
r e a l i t y b e c a m e d e f i n i t i v e l y r a t i o n a l . 214 T h e G e r m a n p h i l o s o p h e r G e o r g
Hegel would affirm, as an actual representative of that age, assuming 153
that he had provided a complete scheme and an ultimate view of both

philosophy and history, that he and his contemporaries had reached
the age of the self-consciousness, it means the moment of
comprehension of the whole past. In that moment, the movement of
history broke up, because it was considered the achievement of the
scopes of humankind. According to Hegel, we are in history, what we
are we are through history, the acts and ideas, and works of the past
live in our bodies, in the things around us:
“The acts of thought appear at first to be a matter of

history, and, therefore, things of the past and outside our real
existence. But in reality . . . in the present, what we have as a
permanent possession is essentially bound up with our place in
history. The possession of self-conscious reason, which belongs
t o u s o f t h e p r e s e n t w o r l d . ” 215

213
The name that Romans gave to the Greek goddess of Wisdom Athena, the protector of the city
of Athens.
214
GEORG WILHELM FRIEDRICH HEGEL, GRUNDLINIEN DER PHILOSOPHIE DES RECHTS (1972):
“Was vernünftig ist, das ist wirklich; und was wirklich ist, das ist vernünftig … die Eule der Minerva
beginnt erst mit der einbrechenden Dämmerung ihren Flug.”
215
GEORG WILHELM FRIEDRICH HEGEL, LECTURES ON THE HISTORY OF PHILOSOPHY (E.S.
Haldan & F.H. Simon trans. reprinted 1983, available at
http://www.marxists.org/reference/archive/hegel/works/hp/hpconten.htm):
“the events of this history, while they perpetuate themselves in their effects like all other
events, yet produce their results in a special way [. . .] What the history of Philosophy shows us is
a succession of noble minds, a gallery of heroes of thought, who, by the power of Reason, have
153

The Romanticism assumed an important function to the

purpose of that organic view of the nations. It provided the essential
narrative of a history that had rooted its seeds in the past, evolving
the characteristics already contained in it, until the accomplishment 154
of the mission of the pioneering characters.
Novel, a recently discovered, and successfully developed

l i t e r a r y g e n r e , w o u l d f i t t o t h a t n a r r a t i v e . N o v e l s 216 w o u l d b e u s e d
everywhere to tell the romance of the nations. Nature, characters,
heroes, and new mythologies to explain the new sociability, a joint of
objects appropriated in the flux of a convincing plot, which end is

penetrated into the being of things, of nature and of spirit, into the Being of God, and have won
for us by their labours the highest treasure, the treasure of reasoned knowledge [. . .] This
possession must be regarded as previously present, as an inheritance, and as the result of labour -
the labour of all past generations of men. Just as the arts of outward life, the accumulated skill
and invention, the customs and arrangements of social and political life, are the result of the
thought, care, and needs, of the want and the misery, of the ingenuity, the plans and achievements
of those who preceded us in history, so, likewise, in science, and specially in Philosophy, do we
owe what we are to the tradition which, as Herder has put it like a holy chain, runs through all
that was transient, and has therefore passed away. Thus has been preserved and transmitted to us
what antiquity produced. But this tradition is not only a stewardess who simply guards faithfully
that which she has received, and thus delivers it unchanged to posterity [. . .] Such tradition is no
motionless statue, but is alive, and swells like a mighty river, which increases in size the further it
advances from its source. The content of this tradition is that which the intellectual world has
brought forth, and the universal Mind does not remain stationary. But it is just the universal kind
with which we have to do [. . .] This is the function of our own and of every age: to grasp the
knowledge which is already existing, to make it our own, and in so doing to develop it still further
and to raise it to a higher level. In thus appropriating it to ourselves we make it into something
different from what it was before. [. . .] The course of history does not show us the Becoming of
things foreign to us, but the Becoming of ourselves and of our own knowledge.”
216
IAN WATT, MYTHS OF MODERN INDIVIDUALISM: FAUST, DON QUIXOTE, DON JUAN,
ROBINSON CRUSOE (1997); THE RISE OF NOVEL: STUDIES IN DEFOE, RICHARDSON AND FIELDING (1957);
IRVING HOWE, A POLÍTICA DO ROMANCE (Margarida Goldsztajn trans. 1998); MIKHAÏL BAKHTINE,
ESTHETIQUE ET THEORIE DU ROMAN (Daria Olivier trans. 1975); FRANCO MORETTI, NOVEL 1: HISTORY
GEOGRAPHY, AND CULTURE (2006); NOVEL II: FORMS AND THEMES (2006); ATLAS OF THE EUROPEAN
NOVEL: 1800-1900 (1998).
154

known: - alternatively, simply desired: for some the triumph of the

establishment, for others, the harbinger of a revolutionary age - the
proper arrangement of the society depicted.
It was the role of historians and novelists to serve as

155
p r i e s t s o f t h a t r e l i g i o n , t h a t w e m a y c a l l n a t i o n a l i s m . 217
Nevertheless, the critical authors of the 20th Century

would cause a turning point in this seemly-accommodated tradition.
Actually, the revolt, as we have expounded, started at the second half
of the precedent century. Some thinkers were trying to dissolve the

217
BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD
OF NATIONALISM (Revised Edition, 2006); ERNEST GELLNER, NATIONS AND NATIONALISM (2nd ed. 2008);
CULTURE, IDENTITY, AND POLITICS (1995); S. HALL & PAUL DU GAY, QUESTIONS OF CULTURAL
IDENTITY (2003); ERIC HOBSBAWN, HISTÓRIA SOCIAL DO JAZZ (Angela Noronha trans. 1990); ERIC
HOBSBAWN & TERENCE RANGER, THE INVENTION OF TRADITION (2000); CASPAR HIRSCHI, THE ORIGINS
OF NATIONALISM: AN ALTERNATIVE HISTORY FROM ANCIENT ROME TO EARLY MODERN GERMANY
(2012) ; HANS ROBERT JAUSS, POUR UNE ESTHÉTIQUE DE LA RÉCEPTION (Claude Maillard trans. 1978);
TOWARD AN AESTHETIC OF RECEPTION (Timothy Bahti trans. 2010); HAYDEN WHITE, META-HISTORY:
THE HISTORICAL IMAGINATION IN NINETEENTH-CENTURY EUROPE (1975); TROPICS OF DISCOURSE
( 1975);; ANGEL RAMA, LA CIUDAD LETRADA (1998); MARILENA CHAUÍ, BETWEEN CONFORMITY AND
RESISTANCE: ESSAYS ON POLITICS, CULTURE, AND THE STATE (Maite Conde trans. 2011); EDMUND
WILSON, PATRIOTIC GORE: STUDIES IN THE LITERATURE OF THE AMERICAN CIVIL WAR (1994);
RICHARD J. SCHNEIDER, THOREAU’S SENSE OF PLACE: ESSAYS IN AMERICAN ENVIRONMENTAL WRITING
(2000); KRISTEN CASE, AMERICAN PRAGMATISM AND POETIC PRACTICE: CROSSCURRENTS FROM
EMERSON TO SUSAN HOWE (2011); MICHAEL MAGEE, EMANCIPATING PRAGMATISM: EMERSON, JAZZ,
AND EXPERIMENTAL WRITING (2004); D.H. LAWRENCE, ESTUDOS DE LITERATURA CLÁSSICA
AMERICANA (Heloisa Jahn trans. 2012); MARCEL PROUST, AGAINST SAINTE-BEUVE AND OTHER ESSAYS
(John Sturrock trans.1994); ITALO CALVINO, POR QUE LER OS CLÁSSICOS (Nelson Moulin trans. 1993);
MICHEL WINOCK, AS VOZES DA LIBERDADE: OS ESCRITORES ENGAJADOS DO SÉCULO XIX (Eloá
Jacobina trans. 2006); MARY LOUISE PRATT, IMPERIAL EYES: TRAVEL WRITING AND
TRANSCULTURATION (2nd ed. 2008).
155

bricks of the building of the self-confident soul of the nations. They

pointed out the blind spots of the grand narratives: there should be
gaps between the view of the narrators and the society he or she
attempt to describe. The blind spots or the inconvenient presence of
t h e c l a s s e s a n d i d e o l o g i e s ( K a r l M a r x ) 218, o f t h e u n c o n s c i o u s d e s i r e s 156
219
and constraints (Sigmund Freud), of the history and the others
( F r i e d r i c h N i e t z s c h e ) . 220 B u t i n a c e r t a i n w a y e v e n t h e c r i t i c s b e g a n a
n e w t r a d i t i o n 221 o f g r a n d h i s t o r i e s , f o r m i n g s y s t e m s o f t h e i r o w n ,
schemes that were even capable only few years later to the building
of new ideologies, failures of desires, deadlocks of engagement.
That is why, I think, the most important critique to the

delusions of completeness of the romantic narratives was to be made
by other artists, at the dawn of the last century. Art - and history
conceived as a political fiction – were responsible for nations’
illusions; art again would have the obligation to call for an
awakening, to alert against the romantic illusionary artifacts.

218
KARL H. MARX, DAS KAPITAL: KRITIK DER POLITISCHEN ÖKONOMIE (2009); THE
EIGHTEENTH BRUMAIRE OF LOUIS BONAPARTE (Saul K. Padover & Friedrich Engels Trans. 1937,
available at www.marxists.org); KARL H. MARX & FRIEDRICH ENGELS, MANIFESTO OF THE COMMUNIST
PARTY (Samuel Moore & Friedrich Engels trans. 1888, available www.marxists.org).
219
SIGMUND FREUD, THE FREUD READER (Peter Gay ed. 1989).
220
FRIEDRICH NIETZSCHE, BASIC WRITINGS OF NIETZSCHE (Walter Kaufmann ed.1992);
GENEALOGIA DA MORAL: UMA POLÊMICA (Paulo César de Souza trans. 1998).
221
With the exception maybe of Nietzsche, always taken as an outsider.
156

At this point, the modernists would confront the romantics.

Nation is an artifact. Nationalism is the means to build it;
nationalism made nations, not the opposite. Hirschi adverts:
“Although modernists theories differed significantly

from the start, they were able to care a new master narrative 157
that has been dominating the field of nationalism studies ever

since. It is based on two main arguments: the modernist turn,
according to which nations are an exclusively modern
phenomenon, emerging only in the late eighteenth or even in
the nineteenth century, and the constructivist turn, according to
which nations are not formed by objective criteria like common
territory, language, habits, ancestry, fate etc., but by the
common belief in such criteria; they were, in Anderson’s
famous formulation, imagined communities and, as Gellner put
i t , p r o d u c t s o f n a t i o n a l i s m , a n d n o t t h e o t h e r w a y r o u n d . ” 222
Of course, we are now experiencing a new era. Some of the

modernist approaches to art and history could be considered just a
cliché, from one point of view, or contestable, on the other hand.
Perhaps because their arguments have fallen in the same traps which,
they argued, pre-moderns were once prisoners.
For instance, Caspar Hirschi, in his new theory on

Nationalism, proposed a constructivist approach, but taken, in his
own words, downside up. It
“calls into question the understanding of

constructivism by Gellner, Hobsbawn and, to some extend,
Anderson [. . .] Gellner theory is much closer to Romantic
thinking than its rhetoric implies because it understands pre-
modern society as natural and real, whereas modern society is
viewed as artificial and mechanical. The key difference from the
Romantic position is that Gellner attributes the nation to the
latter and not to the former. Anderson’s labeling of the nation

222
CASPAR HIRSCHI, THE ORIGINS OF NATIONALISM, supra note 210, at p.6.
157

as imagined community sounds constructivist, too, but from a

constructivist point of view, it is, as he concedes himself,
meaningless: every community, from family to humanity as a
whole, has to be imagined in order to be real … As a result, the
term’s glorious career in nationalism studies has much to do
with its suitability for the denunciation of the nation as an
illusion or fabrication. This, indeed, is more an essentialist than 158
a constructivist undertaking and not very helpful for a thorough

u n d e r s t a n d i n g o f t h e m a t t e r . ” 223
Gellner, Hobsbawn, and Anderson (their books appeared in

1983) were responsible for the important turning point in nation and
nationalism studies.
C u ltu re as P olitical A rtifact
Gellner departs from a very accurate observation of

Sládeček book on ’68 (in Czech, Osmašedesátý): “our politics
h o w e v e r w a s a r a t h e r l e s s d a r i n g f o r m o f c u l t u r e . ” 224 T h e n , c r e d i t i n g
the definition of nationalism as a political principle, he gave two
different conceptions of nation, one cultural (the sharing of “the
same culture, where culture in turn means a system of ideas and signs
and associations and ways of behaving and communicating”), other
voluntaristic (citizens recognize others “as belonging to the same
nation. In other words, nations maketh man; nations are the artefacts

223
Idem, at p. 10.
224
ERNEST GELLNER, NATIONS AND NATIONALISM, supra note 210, at p. 1:“Politika u más byla
však spíše méně smělejší formou Kultury.”
158

of men’s convictions and loyalties and solidarities. A mere category

of persons – say, occupants of a given territory, or speakers of a
given language, for example – becomes a nation if and when the
members of the category firmly recognize certain mutual rights and
duties to each other in virtue of their shared membership of it. It is 159
their recognition of each other as fellows of this kind which turns

them into a nation, and not other shared attributes, whatever they
m i g h t b e , w h i c h s e p a r a t e t h a t c a t e g o r y f r o m n o n - m e m b e r s ” ) . 225 W i t h i n
those categories, he recognizes a link between nationalism and the
processes of colonialism, imperialism and de-colonization. Hence, he
traces an evolutionary picture of societies, trying to understand the
l i a i s o n s b e t w e e n c e r t a i n c h a r a c t e r i s t i c s 226 o f t h e m a n d t h e e m e r g i n g
age of nationalism. Mostly the implication of a legitimate interaction
between state and nation: the paradox, as he stresses, is that
“nations can be defined only in terms of the age of

nationalism, rather than . . . the other way round. It is not the
case that the age of nationalism is a mere summation of the
awakening and political self-assertion of this, that, or the other
nation. Rather, when general social conditions make for
standardized, homogeneous, centrally sustained high cultures,
pervading entire populations and not just elite minorities, a
situation arises in which well-defined educationally sanctioned
and unified cultures constitute very nearly the only kind of unit
which men willingly and other ardently identify. The cultures
now seem to be natural repositories of political legitimacy.
Only then does it come to appear that any defiance of their
b o u n d a r i e s b y p o l i t i c a l u n i t s c o n s t i t u t e s a s c a n d a l . ” 227

225
Idem, at p. 6 and 7.
226
Idem, at p. 41.
227
Idem, at p. 54.
159

In ven tion s
160
Hobsbawn and Terence Ranger put forward a new field of

research for historians, the invention of traditions: “it throws a
considerable light on the human relation to the past, and therefore on
the historian’s own subject and craft. For all invented traditions, as
far as possible, use history as a legitimator of action and cement of
g r o u p c o h e s i o n . ” 228 G i v e n t h e d e f i n i t i o n o f i n v e n t e d t r a d i t i o n ( “ a s e t
of practices, normally governed by overtly or tacitly accepted rules
and of a ritual or symbolic nature, which seek to inculcate certain
values and norms of behaviour by repetition, which automatically
implies continuity with the past”), three overlapping kinds of
invented tradition can be discerned: “those establishing or
symbolizing social cohesion or the membership of groups, real or
artificial communities”; “those establishing or legitimizing
institutions, status or relations of authority”; and “those whose main
purpose was socialization, the inculcation of beliefs, value systems
and conventions of behaviour.” Invented traditions commonly make
use of ancient elements to construe very original ends, in a repertoire
of symbols, rituals, practices and communications:
“plenty of political institutions, ideological

movements and groups – not least in nationalism – were so
unprecedented that even historic continuity had to be
invented … Entirely new symbols and devices came into

228
HOBSBAWN, THE INVENTION OF TRADITION, supra note 210, at p. 12.
160

existence as part of national movements and states … Nor

should we overlook the break in continuity which is sometimes
clear in traditional topoi of genuine antiquity … Such a break is
visible even in movements deliberately describing themselves as
traditionalist, and appealing in groups which were, by common
consent, regarded as the repositories of historic continuity and
t r a d i t i o n . ” 229 161
The attention of Hobsbawn is therefore attached to the

unprecedented mass-producing traditions during the years 1870-1914
(roughly between the Paris Commune – 1871 - and the First World
W a r – 1 9 1 4 / 1 9 ) . 230 O f f i c i a l o r p o l i t i c a l t r a d i t i o n s a n d s o c i a l t r a d i t i o n s
were invented, as a means to legitimizing governments and social
231
movements, whose rituals were approaching the theatrical
representation and apparatus, an important device for the emergence

229
Id., at 12.
230
Id., at.263/307.
231
Id., at 304:
“it may be suggested that another idiom of public symbolic discourse, the theatrical,
proved more lasting. Public ceremonies, parades and ritualized mass gatherings were far from
new. Yet their extension for official purposes and for unofficial secular purposes (mass
demonstrations, football matches, and the like) in this period is rather striking … Moreover, the
construction of formal ritual spaces, already consciously allowed for in German nationalism,
appears to have been systematically undertaken even in countries which had hitherto paid little
attention to it – one thinks of Edwardian London - and neither should we overlook the invention
in this period of substantially new constructions for spectacle and de facto mass ritual such as
sports stadia, outdoor and indoor.99 The royal attendance at the Wembley Cup Final (from 1914),
and the use of such buildings as the Sportspalast in Berlin or the Velodrome d'Hiver in Paris by
the interwar mass movements of their respective countries, anticipate the development of formal
spaces for public mass ritual (the Red Square from 1918) which was to be systematically fostered
by Fascist regimes. We may note in passing that, in line with the exhaustion of the old language
of public symbolism, the new settings for such public ritual were to stress simplicity and
monumentality rather than the allegorical decoration of the nineteenth-century Ringstrasse in
Vienna or the Victor Emmanuel monument in Rome; a tendency already anticipated in our
period.”
161

of the mass society and the mass politics. In addition, it is relevant

to point out that all mobilization of both governments and societies
engaged the whole movements in a conception of politics essentially
national:
162
“the state linked both formal and informal, official
and unofficial, political and social inventions of tradition, at
least in those countries where the need for it arose. Seen from
below, the state increasingly defined the largest stage on which
the crucial activities determining human lives as subjects and
citizens were played out. Indeed, it increasingly defined as well
as registered their civil existence (état civil). It may not have
been the only such stage, but its existence, frontiers and
increasingly regular and probing interventions in the citizen's
life were in the last analysis decisive. In developed countries,
the national economy, its area defined by the territory of some
state or its subdivisions, was the basic unit of economic
development. A change in the frontiers of the state or in its
policy had substantial and continuous material consequences for
its citizens. The standardization of administration and law
within it, and, in particular, state education, transformed people
into citizens ... See from above in the perspective of its formal
rulers or dominant groups, raised unprecedented problems of
how to maintain or even establish the obedience, loyalty and
cooperation of its subjects or members, or its own legitimacy in
their eyes … Its direct and increasingly intrusive and regular
relations with the subjects or citizens as individuals … became
increasingly central to its operations, tended to weaken the
older devices by means of which social subordination had
l a r g e l y b e e n m a i n t a i n e d . ” 232
In that process of massive invention of traditions, the

states were becoming a fundamental instance with respect to the
subjects, new citizens of a new so-called mass democracy. Even when

232
Id., p. 264, 265.At 283: “The most universal political traditions invented in this period were
the achievement of states. However, the rise of organized mass movements claiming separate or even
alternative status to states, led to similar developments.”
162

the social movements were trying to challenge the state authority,

they would make use of means and rituals that, at the end of the day,
would strengthen the state chains: “State, nation and society
c o n v e r g e d . ” 233
163
It means for our purpose of assembling the testimonies of
the constant interaction of politics, law and culture, that cultural
objects would put forward a project of national conception and
engagement, at the same time as the main conceptions and branches
of law and politics would settle their sediments. Among them, of
course, international law would set up its scope also nationally.
Im agin ation
Finally, one of the Benedict Anderson’s major intents was

to stress the New World origins of nationalism, what he actually
achieved, by pointing out some differences between the process of
consolidation of the Spanish and English former colonies in Americas.
Anderson proposes the neologism nationness. He wants to

capture and describe the phenomenon of the advent of a cultural
artifact of a particular kind. Nationness was created or came into

233
Id., at 265:
“The problems of states and rulers were evidently much more acute where their subjects
had become citizens, that is people whose political activities were institutionally recognized as
something that had to be taken note of – if only in the form of elections. They became even more
acute when the political movements of citizens as masses deliberately challenged the legitimacy
of the systems of political or social rule, and or threatened to prove incompatible with the state's
order by setting the obligations to some other human collectivity - most usually class, church or
nationality - above it.”
163

historical being, towards the end of the 18th Century, as a complex

distillation of a crossing of discrete historical forces. It “became
modular, capable of being transplanted, with varying degrees of self-
consciousness, to a great variety of social terrains, to merge and be
merged with correspondingly wide of political and ideological 164
234
constellations.” Inside the concept of nation, three paradoxes
coexist: “the objective modernity of nations to the historian's eye vs.
their subjective antiquity in the eyes of nationalists”; “the formal
universality of nationality as a socio- cultural concept - in the
modern world everyone can, should, will have a nationality, as he or
she has a gender - vs. the irremediable particularity of its concrete
manifestations”; and “the political power of nationalisms vs. their
235
philosophical poverty and even incoherence.” Thus, he
conceptualizes nation, with the help of the anthropological method:
a n i m a g i n e d p o l i t i c a l c o m m u n i t y , i n h e r e n t l y l i m i t e d a n d s o v e r e i g n : 236

234
ANDERSON, IMAGINED COMMUNITIES, supra note 210, at p. 4.
235
Idem, at p. 5.
236
Anderson quotes Ernest Renan, and coincides with Gellner in this particular comprehension::
“Renan referred to this imagining in his suavely back-handed way when he wrote that or
l’essence d'une nation est que tous les individus aient beaucoup de choses en commun, et aussi
que tous aient oublié bien des choses ... Gellner makes a comparable point when he rules that
nationalism is not the awakening of nations to self-consciousness: it invents nations where they
do not exist.” He would insofar agree with Hirschi’s critique: “the drawback of this formulation,
however, is that Gellner is so anxious to show that nationalism masquerades under false pretences
that he assimilates invention to fabrication and falsity, rather than to imagining and creation In
this way he implies that true communities exist which can be advantageously juxtaposed to
nations.” Therefore, he clarifies his own original conception: “communities are to be
distinguished, not by their falsity/genuineness, but by the style in which they are imagined.” Id.,
at 6.
164

237 238 239

the elements are: community, imagination, limitation, and
s o v e r e i g n t y , 240 a n d t h e y c o m p o u n d a p o s i t i v e i m a g e o f n a t i o n a n d
n a t i o n a l i s m . 241 H a v i n g f a c e d w i t h a k i n d o f k n o w l e d g e o f t h e w o r l d ,
242
in which the figuring of imagined reality was visual and aural,
nationness would benefit from the changes due to the revolutionary 165
vernacularizing of capitalism, which will give coherence to three

factors: the change in the character of Latin, as a result of the

237
“Regardless of the actual inequality and exploitation that may prevail in each, the nation is
always conceived as a deep, horizontal comradeship. Ultimately it is this fraternity that makes it possible,
over the past two centuries, for so many millions of people, not so much to kill, as willingly to die for
such limited imaginings.” Id., at 7.
238
“Members of even the smallest nation will never know most of their fellow-members, meet
them, or even hear of them, yet in the minds of each lives the image of their communion.” Id., at 6.
239
“Even the largest of them, encompassing perhaps a billion living human beings, has finite, if
elastic, boundaries, beyond which lie other nations. No nation imagines itself coterminous with mankind.”
Id., at 7.
240
“The concept was born in an age in which Enlightenment and Revolution were destroying the
legitimacy of the divinely-ordained, hierarchical dynastic realm. Coming to maturity at a stage of human
history when even the most devout adherents of any universal religion were inescapably confronted with
the living pluralism of such religions, and the allomorphism between each faith's ontological claims and
territorial stretch, nations dream of being free, and, if under God, directly so. The gage and emblem of
this freedom is the sovereign state.” Id., at 7.
241
“It would be short-sighted, however, to think of the imagined communities of nations as
simply growing out o f and replacing religious communities and dynastic realms. Beneath the decline of
sacred communities, languages and lineages, a fundamental change was taking place in modes of
apprehending the world, which, more than anything else, made it possible to 'think' the nation.” Id., at 22.
242
Id., at 22/23.
165

Humanists’ labors in reviving the ancient literature; the Reformation,

which owes much of its success to print-capitalism; and the spread of
particular vernaculars as instruments of administrative centralization
243
by well-positioned would-be absolutist monarchs. These three
conditions would facilitate the growing of nationness, in both 166
negative and positive sense. In the latter, we can acknowledge the

explosive interaction between a system of production and productive
relations – capitalism -; a technology of communication – print -; and
the fatality of human linguistic diversity -– nations in the plural,
which would be administered by their own bureaucracies, who would
make use of a distinct language.
However, we have to pay attention to the fact that

gradually a written culture is developing. Print-languages are
becoming the basis to national consciousnesses, as unified fields of
exchange and communication; as a means to establish a new fixity to
244
language; and expression of languages-of-power. Print-language
would unify populations, by imposing rules of vernacular
governments, by its potentiality to create not only a rational method
of expression of thoughts (reason) and communication of practical
everyday life issues (interests), but also simple, and sophisticated
means to express sentiments, and describe meanings (passions), as
well as inventing narratives – actual and fictional of the past
experiences, both believed to be actual experiences or not. I do not
need to add the conclusion that narratives of the past are essential to

243
Id., at 39-41.
244
Id., at 43, 44.
166

the creation of any community consciousness: stories are ways to

i n v e n t c o m m u n i t i e s . 245
A m ericas’ C a ses 167
Most original – and useful for our purpose – of Anderson’s

analysis is his attempt to conveying the different way in which the
idea and the experience of nationalism developed in Americas.
Let us have a look at the differences he has stressed

between British, Spanish, and Portuguese colonies, in their process of
achieving political independence, during the end of the 18th, and the
b e g i n n i n g o f t h e 1 9 t h C e n t u r y . 246
It is quite interesting that Anderson would address

independence movements, mainly in Spain zones of dominance – such
as Venezuela, Mexico and Peru - as an initiative of creole elites, who
were actually less concerned about becoming independent from the
metropolitan rulers, than building an independent apparatus as a
means to achieve control over the lower classes, whose political
mobilizations they were afraid of: “Liberator Bolivar himself once

245
See: BRIAN BODY, Evolution and Fiction in ON THE ORIGIN OF STORIES: EVOLUTION,
COGNITION, AND FICTION 129-208 (2009); DEREK BICKERTON. ADAM’S TONGUE: HOW HUMANS MADE
LANGUAGE, HOW LANGUAGE MADE HUMANS (2009).
246
ANDERSON, supra note 210. Citations will be taken passim from the Chapter named Creole
Pioneers at p. 47-66; and, as a means to establish a contrast with the Old World, Chapters Old Languages,
New Models at p. 67-82, and Official Nationalism and Imperialism at p. 83-111.
167

opined that Negro revolt was a thousand times worse than a Spanish
i n v a s i o n . ” 247 A n o t h e r i n t e r e s t i n g i n s i g h t f r o m A n d e r s o n w o u l d b e h i s
statement in opposition of the current ideas about the causes of the
independence movements, traditionally adduced as tightening of
Madrid’s control, and the spread of liberalizing ideas of the 168
Enlightenment, in the latter half of the 18th Century. In that matter,

he superbly provides a distinctive explanation for each zone of
influence: for the Portuguese-speaking colony of Brazil, the fact that
“the Enlightenment influenced the crystallization of a

fatal distinction between metropolitans and creoles. In the
course of his twenty-two years in power (1755-1777), the
enlightened autocrat Pombal not only expelled the Jesuits from
Portuguese domains, but made it a criminal offence to call
coloured subjects by offensive names, such as nigger or mestiço.
But he justified this decree by citing ancient Roman conceptions
of imperial citizenship, not the doctrines of the philosophes.
More typically, the writings of Rousseau and Herder, which
argued that climate and ecology had a constitutive impact on
culture and character, exerted wide influence. It was only too
easy from there to make the convenient, vulgar deduction that
creoles, born in a savage hemisphere, were by nature different
from, and inferior to, the metropolitans — and thus unfit for
higher office.”
Brazilian fate was also conditioned by educational

differences: while twenty-three universities were scattered in what
eventually would become thirteen different countries' in the Spanish
Americas, Portugal refused systematically to allow the organization
of any institution of higher learning in her colonies, not considering
as such the theological seminaries: “Higher education was only to be
had in Coimbra University, and thither, in the motherland, went the

247
Supra note 222.
168

creole elite's children, the great majority studying in the faculty of

248
law, [which includes] “different career possibilities for creoles;”
Not to forget the absence of a printing press in the colony, perhaps
attributed to the absence of an actually numerous literate elite,
except in certain areas, during certain periods – like, for instance, 169
the men who were responsible for the Inconfidência Mineira, at the
end of the 18th Century. The poets Claudio Manuel da Costa,
Alvarenga Peixoto, and Tomás Antonio Gonzaga (who was a judge,
and had written a treatise on Natural Law). In his book Cartas
Chilenas, Gonzaga treat with disdain and irony the rulers of Portugal.
We can also cite the case of Gregório de Matos, who lived in Bahia,
during the 17th Century, a writer that developed an important satirical
249
style, confronting the people of his time with demolishing sarcasm.
The case of Spanish colonies was slightly different. Spain

had to deal with a vast number of fellow-Spanishes in its colonies, as
they constituted simultaneously a colonial community and a local

248
JOSÉ MURILO DE CARVALHO Political Elites and State Building: The Case of Nineteenth-
Century Brazil, 24 COMPARATIVE STUDIES IN SOCIETY AND HISTORY 3, p. 378-399 (1982); STUART B,
SCHWARTZ, The Formation of a Colonial Identity in Brazil in NICHOLAS CAMY & ANTHONY PAGDEN,
COLONIAL IDENTITY IN THE ATLANTIC WORLD, 1500-1800). According to Schwartz, at p. 38, there was
“no printing press operated in Brazil during the first three centuries of the colonial era.” ANDERSON
quoted both, supra note 210, at p. 51.
249
For Gregório de Matos, see the superb monograph by JOÃO ADOLFO HANSEN, A SÁTIRA E O
ENGENHO: GREGÓRIO DE MATOS E A BAHIA DO SÉCULO XVII (2004). For the Inconfidentes, consult the
classical study on Brazil literary history by ANTONIO CÂNDIDO, FORMAÇÃO DA LITERATURA BRASILEIRA:
MOMENTOS DECISIVOS I (4th ed. 1971). On the influence of North American revolutionary ideas on the
Inconfidentes political ideas see KENNETH MAXWELL, O LIVRO DE TIRADENTES: TRANSMISSÃO
ATLÂNTICA DE IDEIAS POLÍTICAS NO SÉCULO XVIII (2013).
169

upper class, economically subjected and exploited, but essential for

the stability of the empire. At the same time, for administration needs,
the colonies did not constitute a unit, which had opened the
opportunity for a kind of sentiment of pertaining to a different
community. At the same time, jealously appeared in one or another 170
colony, for the attention of the crown to one instead of another

administrative center. Print spread early to New Spain, but it
remained under the control of the crown and church.
In Protestant North America, on the contrary, between

1691 and 1820, 2120 newspapers were published, on which 461 lasted
more than ten years. Printers starting new presses always included a
newspaper in their productions. Printer-journalists became an
important North American phenomenon, and established an alliance
with post-masters, as a means to obtain the attention of readers: “the
printer’s office emerged as the key to North American
communications and community intellectual life.” Not only
intellectual, but also for economic interests of everyday life, little by
l i t t l e , t h e p r i n t c o m m u n i c a t i o n a s s u m e d a p o l i t i c a l i m p o r t a n c e . 250
Anderson summarizes his argument:

250
The same would happen later in Spanish America. ANDERSON supra note 210, at 62:
“What were the characteristics of the first American newspapers, North or South? They
began essentially as appendages of the market. Early gazettes contained — aside from news about
the metropole — commercial news (when ships would arrive and depart, what prices were current
for what commodities in what ports), as well as colonial political appointments, marriages of the
wealthy, and so forth. In other words, what brought together, on the same page, this marriage
with that ship, this price with that bishop, was the very structure of the colonial administration
and market-system itself. In this way, the newspaper of Caracas quite naturally, and even
apolitically, created an imagined community among a specific assemblage of fellow- readers, to
whom these ships, brides, bishops and prices belonged. In time, of course, it was only to be
expected that political elements would enter in.”
170

“to explain the socio-economic bases of anti-

metropolitan resistance in the Western hemisphere between say,
1760 and 1830, than why the resistance was conceived in plural,
national forms —rather than in others. The economic interests at
stake are well known and obviously of fundamental importance.
Liberalism and the Enlightenment clearly had a powerful impact,
above all in providing an arsenal of ideological criticisms of 171
imperial and anciens régimes. What I am proposing is that

neither economic interest, Liberalism, nor Enlightenment could,
or did, create in themselves the kind, or shape, of imagined
community to be defended from these regimes' depredations; to
put it another way, none provided the framework of a new
consciousness — the scarcely-seen periphery of its vision - as
opposed to centre-field objects of its admiration or disgust. In
accomplishing this specific task, pilgrim creole functionaries
and provincial creole printmen played the decisive historic
r o l e . ” 251
It seems that Anderson was trying to assimilate the idea of

a nation to that of a certain media, the print, quite like the idea of a
Gutenberg Galaxy. McLuhan divides human history in four ages,
regarding the development of a certain technology of expression or
communication, it means a certain media: oral, manuscript, print, and
electronic. According to him,
“the old lawless democratic spirit has reference to

the decentralist, oral organization of society that preceded print
and nationalism. Centralism of the newly released national
energies required greatly increased interdependence. Here the
printed textbooks made themselves felt very soon. And just as
papyrus made the Roman road, print made for the speed and
visual precision felt in the new monarchies of the Renaissance.
It is fascinating to move ahead a century and to Cambridge to
o b s e r v e t h e s t r o n g c e n t r a l i s t a c t i o n o f t h e p r i n t e d b o o k . ” 252

251
Id., at 64/65.
252
Marshall McLuhan, The Gutenberg Galaxy: The Making of Typographic Man 210 (1962).
171

More than simple literacy, however, for Anderson the link

would be between nation and community of users (producers and
consumers) of a kind of media, the print.
172
“D er Z eit ih re K u n st, d er K u n st ih re
F reih eit” 253
Therefore, for us, in the second decade of the 21st Century,

a question can be raised about a technology of expression and
communication, with which we can reach the experience of an actual
international experience. This seems to be, after the electronic
revolution, the idea of a global village, which could overcome the
obstacle of the simple representation, cross the line of the national
frontiers, and present every citizen as a public figure. Mainly, we
must ask if law is able to provide adequate and useful instruments for
this new reality (if law is, or wants to provide it, and continue its
long history and process of adaptation to the figuring of new media).
If that instrument exists or is on the move, I would advance that
international law should adopt its role. It is maybe high time to

253
“To the Age its Art, to Art its Freedom” was the proclamation at the portals of the Sezession’s
Building, in Vienna, Austria. See CARL. E. SCHORSKE, FIN-DE-SIECLE VIENNA: POLITICS AND CULTURE
(1981).
172

surpass the Herder’s axiom: “Denn jedes Volk ist Volk; es hat seine
N a t i o n a l B i l d u n g w i e s e i n e S p r a c h e . ” 254
We may say the same for democracy, as we have to

acknowledge that the pervasive movement of nationalism coincides
173
with the revival of democratic ideas, whether in the critical
perspective of Gellner and Hobsbawn, or in the relatively positive
comprehension of nationalism, which is the Anderson’s point of view.
However, the coincidence would stain democracy and law with the
c o l o r s o f t h e n a t i o n . W a s n o t i t d i f f e r e n t f o r t h e a n c i e n t G r e e k s ? 255
What we have obtained from those three authors, among

other important things, was a very interesting overview of the shock
between the 19th and the 20th Centuries conceptions of history and its
role in portraying the identity of the nations: the excitement of the
Romantic era, that was gradually criticized by the realism and
naturalism conceptions of art, suddenly swelled by the river of
Modernism, which will intend to give to the placid and comfortable

254
Herder conveys the idea of every people having a sole identity, an unique formation and
language: “Wenn jede Nationalsprache sich nach den Sitten und der Denkart ihres Volks bildet: so muß
umgekehrt die Litteratur eines Landes, die ursprünglich und national ist, sich so nach der originalen
Landessprache einer solchen Nation formen, daß eins mit dem andern zusammenrinnt.” JOHANN
GOTTFRIED HERDER, SÄMMTLICHE WERKE ZUR SCHÖNE LITERATUR UND KUNST 17 (1805) IDEEN ZUR
PHILOSOPHIE DER GESCHICHTE DER MENSCHHEIT 186 (2nd Part, 7th Book, 2013) : “In so verschiedenen
Formen das Menschengeschlecht auf der Erde erscheint, so ist's doch überall ein und dieselbe
Menschengattung.” See also: HERDER, PHILOSOPHICAL WRITINGS (Michael N. Forster ed. trams. 2004);
ANOTHER PHILOSOPHY OF HISTORY AND SELECTED POLITICAL WRITINGS (Ioannis D. Evrigenis and
Daniel Pellerin trans. 2004).
255
I gave the answer to this question in the precedent chapter. Democracy was at its origin
international.
173

way of living, thinking and acting a brutal coup of embarrassment.

Modernism has entangled and stumbled the pretentiously
accomplished nation project.
In Vienna, to choose a very important example, taken from

174
the city that was called the capital of the Avant-Garde, Die Jungen
became the common name picked by the rebels, first in politics (in
the late 1870’s), then as a literary movement (Jung—Wien, at about
1890), challenging “the moralistic stance of nineteenth-century
literature, in favor of sociological truth and psychological –
256
especially sexual – openness.” As the historian Carl Schorske
observed, in the mid-nineties, the revolt against tradition spread to
art, using again the name Die Jungen, seeking for an international
passage and communication to the other modernists movements:
French Impressionism, Belgian Naturalism, English Pre-Raphaelites,
and German Jugend-stilisten, rejecting classical realist tradition.
Gustav Klimt was a key figure of the group, assuming the

leadership of the Secession cultural movement, and providing its
m o s t i m p o r t a n t r e p r e s e n t a t i o n s a n d s y m b o l s . 257 T r y i n g t o a c h i e v e a n
idea of regeneration of the real face of art, they have called their
magazine Ver Sacrum (a Roman ritual of consecration of youth in
times of national danger) or sacred spring, and chosen the image of
t h e R o m a n 258 s e c e s s i o p l e b i s a g a i n s t t h e m i s r u l i n g o f t h e p a t r i c i a n s .

256
SCHORSKE, FIN-DE SIECLE VIENNE, supra note 245, at p. 209, 210.
257
Id., at p. 211-278.
258
It is fascinating to notice that the person responsible for part of the ideology and for the
Secession’s magazine was a lawyer: “the formulation of the Secession’s Roman ideology was prepared by
Max Burckhard (1854–1912), a Nietzschean, a political progressive, and a high-placed reformer of
174

The metaphors took extreme significance as the young artists chose

the images of Greek deities and myths to reinterpret their own role as
revolutionaries of the society: Theseus (the mythological father of
Athens) defeating the Minotaur; Athena, wise virgin protectrix of the
polis; Nuda Veritas to offer the mirror - with an empty reflection to 175
the modern man’s lack of authenticity -, and the fire of true – to light
and burn the false comfort, and the artificial commitments of modern
society. In their contradictory intentions (“cultural renewal, personal
introspection, modern identity and asylum from modernity, truth and
pleasure”), the Secessionists shared a common rejection of the 19th
Century’s certainties.
The mirror is a very important metaphor. Prospero’s mirror,

in Shakespeare’s The Tempest, play in which he would contrast the
civilized Prospero and the savage Caliban (Cannibal), would be
reappraised by Oscar Wilde, in his explanation of art, in the preface
to The Picture of Doran Gray, and later by Richard Morse’s O
Espelho de Próspero. Later in this chapter, I will make use of this
metaphor of reflection and the myth of Narcissus, in defining the
character of the imagined identities and invented approaches of
Brazil and United States to international law and international
relations.
Particularly important for our reasoning is the very

skillful management of the relationship between culture and politics,

administrative law, who in 1890 had given up his legal political career to become Director of the
Burgtheater, a post which he had just lost when he became co-editor of the Secession’s journal, Ver
Sacrum. He became associated with die Jungen in all aspects: in politics, literature, and the visual arts.”
Idem, at p. 276.
175

which Schorske has found in that historical moment, and analyzed in

the acting of its participants. One of them, a Klimt’s adversary, was
Friedrich Jodl, the philosopher responsible for the spread of the
Anglo-Saxon empiricism and utilitarianism ideas in Austria, a
spokesperson for a variety of progressive social and political causes, 176
and founder of the Vienna Ethical Society, inspired by the American

Ethical Society movement for a scientific morality freed from
religious dogma. But Klimt’s side there were liberals too: proposers
of a renewed art history, with a non-teleological sense of flux, a
psychological-historical conception against the predominant absolute
aesthetics. Due to the implication of political issues, the imperial
government tried to support the Secessionist movement,
pragmatically thinking about a solution to the problems caused by an
intra-nationalities dispute that had led to a Parliamentary
obstructionism, and paralyzed the initiatives to solve the conflicts on
language rights, administration, and schooling. However, it was
exactly that contradictory support that would bring to Klimt not only
serious problems in the context of the Vienna’s tense political life,
but would also lead his career to a turning point. The commission to
the University of Vienna’s ceiling paintings on the arts of
P h i l o s o p h y , 259 M e d i c i n e , 260 a n d J u r i s p r u d e n c e ( 1 9 0 1 ) 261 g a v e r i s e t o

259
GUSTAV KLIMT, PHILOSOPHY, ceiling painting.
176

one of the most interesting debates ever, about art and its cultural
and political role. The three paintings – refused by the University,
due to the disapproval of the majority of its professors – and the
P a l l a s A t h e n a , 262 r e p r e s e n t e d t h e d r a m a t i c c h a n g e b r o u g h t b y t h e
modernists’ proposal. 177
Let me rely on Schorske’s description of the Jurisprudence:

the central figure is
“a helpless victim of the law [. . .] The male in the

tentacles of the law replaced in all-too-concrete realism the

260
GUSTAV KLIMT, MEDICINE, ceiling painting.
261
GUSTAV KLIMT, JURISPRUDENCE, ceiling painting
262
GUSTAV KLIMT, PALLAS ATHENA.
177

sheer, diaphanous impressionism of Justice ... with the static,

clammy calm of society’s execution chamber … now filled with
the frightening spectacle of the law as ruthless punishment,
c o n s u m i n g i t s v i c t i m s . ” 263
Klimt has bisected laterally the perspective into an upper 178
and a nether space: in the upper world
“far removed from us, stand the allegorical figures of

Jurisprudence: Truth, Justice, and Law … They perform no
mediating role to bring us closer to the mysteries of their sphere.
On the contrary, in their withdrawal to their lofty perch they
abandon us to the realm of terror to share the nameless fate of
the victim. Thus only the pretensions of the law are expressed
in the ordered upper portion of the picture. It is the official
social world: a denatured environment ... The judges are there
with their dry little faces, heads without bodies. The three
a l l e g o r i c a l f i g u r e s a r e i m p a s s i v e t o o … b l o o d l e s s . ” 264
But the nether world represents the reality of the law

(distinct from the “upper realm of stylized regularity and static
decorum”): “the vacuum-like space beneath, where justice is carried
o u t . N o c r i m e i s r e c o r d e d h e r e , o n l y p u n i s h m e n t . ” 265
The Furies preside over the judgment. The painter
“has endowed them with the cruel, Gorgon-like

character of classical maenads. Not the idealized figures above,
but these snaky furies are the real officers of the law ... Klimt’s
bisected world of law, with its three graces of justice above and

263
Id., at 211-278.
264
Id., at 211-278.
265
Id., at 211-278.
178

its three furies of instinct below, recalls the powerful resolution

o f A e s c h y l u s ’ O r e s t e i a . ” 266
As I have expounded, in Chapter 1, Athena established

Zeus’ rule of rational law over vendetta law, founding the idea of 179
polis, and, therefore, politics and justice, building the new court,
Areopagus (which foundation Aeschylus was praising in his – I would
say, political and even anti-aristocratic – trilogy), persuading the
Furies to become the court’s patrons, subduing their power by
integrating them into her shrine. But what had Klimt made of the
classical suggestion of the triumph of reason and civilization over
instinct and barbarism? He inverts the classic symbolism and restores
the Furies
“on their primal power … showing that law has not

mastered violence and cruelty but only screened and legitimized
it … Athena, whom Klimt had so often painted in so many roles,
is simply absent for him from the theater of justice that was
uniquely hers ... Thus in the final panel of his series that was to
celebrate the victory of light over darkness, stirring up hell as
he exhumed and exposed through the symbol of the furies the
power of instinct that underlay the political world of law and
order. In Aeschylus, Athena had enthroned justice over instinct.
K l i m t h a s u n d o n e h e r w o r k . ” 267
Nevertheless, I must add and observe straightforwardly

Klimt’s inversion of the narrative of Aeschylus’ Oresteia was not a
cry of an aristocrat against the victory of the democratic rule and
justice. Klimt had no allegiance to this kind of Weltanschauung. To

266
Id., at 211-278.
267
Id., at 211-278.
179

us, the painting could be a beautiful exemplar of the Beaux-Arts,

sometimes enigmatic. But to his contemporaries, it was clearly and
indistinctly a severe critique, even aggressive, to the cynical prospect
of a whole era. Klimt and his fellow secessionists were defying the
fake image of justice, political calmness, triumph of the rational law, 180
defended and disguised by the political and aesthetical elite of their

time. Advocating a revolution of the manners, in politics and in the
arts, he was advancing the modern project. The empty image reflected
in the mirror should be filled with a realist view of the society, but
preserving or, better, recovering the freedom and its dignity.
The freedom cry demands a new art. The new art requires a
new society. Then, before any request of liberty, the society must be
recognizable for itself. Society can accept no more the illusions of
the romantic age about its origins, and the pleasant but unplausible
conception of united nation. A serious search for the roots is
necessary. That is the new task modernism would assume, mainly in
the New World. The European precursors, fellow-modernists would
influence Americas’ artists, of course. However, the latter have
different notions and nations waiting to be expressed.
Therefore, the 20th Century will carry that mission, as

paradoxical again as it could be. To affirm the autonomy (and the
power, in the case of the United States) of the former colonies from
the New World, their specificities, but at the same time, introducing
them in the international game, leading to the blurring of the
distinctions among peoples and nations. The century of comparison
and internationality, thus of comparative law and international law.
180

E xcavatin g F ou n d ation al B eliefs, P assion s an d

In terests
181
The 1920s were a seminal decade in Brazilian history.
T h e c e n t e n n i a l o f i t s i n d e p e n d e n c e ( 1 9 2 2 ) 268 w a s n o t o n l y
an occasion for celebration, but also an opportunity to reflect about
its origins and achievements.
Any country, which has experienced a colonial origin,

feels a duty to find out or erect its own identity, and, simultaneously,
have trouble in cutting off its bounds with the mother country. Indeed,
it is not easy to get to know its own way of being and living, because
the links are deep rooted: language, habits and mainly, for our point
of analysis, law tradition.
Brazil was one of the latest American colonies to obtain

independence from the metropole. Like no other, after its political
independence, Brazil not only continued to be a monarchy (until
practically the end of the century – 1889), but also maintained a
dynastic tie with Portugal. Its first Constitution was not a product of
Parliamentary decision, as Brazil’s first Parliament was dismissed by
the Emperor, who ordered the writing of a Constitution influenced by
the concept of the Pouvoir Moderateur, The neutral power designed
by Benjamin Constant to balance the exercise of the government, and
to work as an obstacle to any attempt of radicalism. In fact, a device
to moderate the relationship of the state and the society. The device,

268
VICENTE LICÍNIO CARDOSO, À MARGEM DA HISTÓRIA DA REPÚBLICA I (1981); À MARGEM
DA HISTÓRIA DA REPÚBLICA II (1981); ALBERTO VENÂNCIO FILHO, NOTAS REPUBLICANAS (2012).
181

however, was taken, in Brazil, as a mechanism to allow the exercise

on an absolutist power by the emperor, who, by constitutional
definition, had neither duty of accountability nor of responsibility
before parliament or society. This meant the presence of an absolutist
institution in a supposedly constitutional monarchy. In other terms, 182
the Emperor personally took the role of tutelage of the other powers
– which were under his authority – and the whole nation.
Slavery also would not be abolished until the end of the

19th Century, in 1888, which meant practically only the obtainment of
a formal free status to the African-Brazilian. I would observe that
problems derived from the long experience of slavery are still
experienced in Brazil. The lawyer, politician, diplomat and writer
J o a q u i m N a b u c o 269 e x p l a i n e d t h e h i g h p r i c e p a i d f o r t h e m a i n t e n a n c e
of slavery, conforming the characteristics of Brazilians, in respect to
the relationship between the members of Brazilian society. In any
event, Nabuco considered the hypothesis of a later discovery and
colonization of Brazil – if only three centuries later, he exclaimed,
and slavery would not produce the result of belittling the Africans,
but their gradual raising, and Brazil would make more progress in a
hundred years than it had obtained since the 16th Century. Nabuco, 270
however, almost exactly as his predecessor José Bonifácio de

A n d r a d a e S i v a , 271 w a s b a s i c a l l y c o n c e r n e d a b o u t t h e b a d i n f l u e n c e s
brought to the Brazilian society by the “black race mental delayed

269
JOAQUIM NABUCO, O Abolicionismo in ESSENCIAL (Evaldo Cabral de Mello ed. 2010).
270
Id., at 56 and 52, 53.
271
JOSÉ BONIFÁCIO DE ANDRADA E SILVA, PROJETOS PARA O BRASIL (Miriam Dohnikoff ed.
1998).
182

d e v e l o p m e n t , p r i m i t i v e i n s t i n c t s , a n d r o u g h s u p e r s t i t i o n s . ” 272 N o t t o
mention his opinion on the “harmful influences to the lower strata of
the population, in the intellectual sense, the African diseases, the
corruption of language, of the manners, of the education, and other
results of the crossbreeding with an inferior race, in a less developed 183
s t a g e . ” 273
I cannot agree with Nabuco. Just changing the moment of

the discovery or the beginning of the colonization of Brazil would
not lead to a radical modification of the characteristics of its fate.
The ingredients of Brazilian condition, problems, failures, and
achievements, virtues and vices, took root in the history of the
constitution of the states and the political regimes and ideas chosen
in that process in Europe. Let us analyze that history, with the help
of the very original and remarkable work of the brazilianist Richard
274
Morse. We can regret a lot that the very important Morse’s
contribution to the interpretation of Latin America’s history and

272
JOAQUIM NABUCO, O Abolicionismo, supra note 256, at 56: “muitas das influências da
escravidão podem ser atribuídas à raça negra, ao seu desenvolvimento mental atrasado, aos seus instintos
bárbaros ainda, às suas superstições grosseiras.”
273
Idem, at 56: “a influência ativa e intense nas camadas inferiores . . . a ação das doenças
africanas sobre a constituição física de parte do nosso povo, a corrupção da língua, das maneiras sociais,
da educação e outros tantos efeitos resultantes do cruzamento com uma raça num período mais atrasado
do desenvolvimento.”
274
RICHARD M. MORSE, Toward a Theory of Spanish American Government 15 JOURNAL OF THE
HISTORY OF IDEAS 1, p. 71-93 (January 1954); O ESPELHO DE PRÓSPERO: CULTURAS E IDÉIAS NAS
AMÉRICAS (Paulo Neves trans. 1988); A VOLTA DE MCLUHANAÍMA: CINCO ESTUDOS SOLENES E UMA
BRINCADEIRA SÉRIA (Paulo Henrique Britto trans. 1990); A FORMAÇÃO HISTÓRICA DE SÃO PAULO: DE
COMUNIDADE A METRÓPOLE (1970).
183

culture did not receive the attention it deserves. With the honorable
exception of some important Brazilian scholars, among them Antonio
Candido and Walnice Nogueira Galvão, and the English brazilianist
Leslie Michael Bethell, editor of the Cambridge History of Latin-
A m e r i c a . 275 184
Morse is responsible for a tour-de-force in the scholarship

of political and cultural studies of Latin America. He took seriously
the circumstances of the formation of the monarchic systems in the
Península Ibérica, the ideas in context, the decisions and options
made by the rulers and their counselors, before and during the
process of dealing with the newly discovered America. He agrees
w i t h F i l m e r N o r t h r o p 276, i n c o l l a t i n g L o c k e a n p h i l o s o p h y w i t h U n i t e d
States political history, specifically Locke’s atomistic conception of
the sovereign individual. For the case of Spanish America, he
proposes the conflictual co-existence of two important streams of the
history of ideas: the medieval Thomistic conception of a spiritually
intransigent Christendom, and the secular Machiavellian virtuous
principality. The Castilian Isabella would personify the former
conception, and the Aragonese Ferdinand, the latter:
“If Isabella, in her enterprises to the south and

overseas to the west, symbolizes the spiritualist, medieval
component of the emergent Spanish empire, then Ferdinand
whose Aragón was engaged to the east and north, represents a
secular, Renaissance counterpart. His holdings (the Balearics,
Sardinia, Sicily, and Naples) and his Italian and Navarrese
campaigns confined his problems of rule, alliance and warfare

275
See BEATRIZ H. DOMINGUES & PETER L. BLASENHEIM, O CÓDIGO MORSE: ENSAIOS SOBRE
RICHARD MORSE (2010).
276
FILMER NORTHROP, THE MEETING OF EAST AND WEST (1946).
184

to the European, Christian community. Isabella presented the

unity of spiritually intransigent Christendom to infidel and
pagan. Ferdinand was committed to the shifting, amoral
statecraft of competing Christian princes in maintenance and
expansion of a domain which, within its Christian context, was
d i v e r s e l y c o m p o s e d . ” 277
185
After the death of Isabella (1504), and Ferdinand (1516),

Charles I took the Machiavellian route further, trying to enlarge the
conception of a cosmopolitan, pluralist, polyglot empire, even to the
extension of opposing the papal party during the Council of Trent, in
an effort to conciliate the Protestants, and allowing immigration of
Germans, Flemings, Italians, and other subjects After his reign,
Philip II returned the empire to the Scholastic path. A champion of
Catholicism and Hispanicism, he would cast the Spanish America to a
“dominantly Thomistic, with recessive Machiavellian
c h a r a c t e r i s t i c s . ” 278 T h e p e r m a n e n t m a r k w i t h w h i c h h e i n f u s e d h i s
colonies was the rigid political and social hierarchy, at every level
and in every department
“as Indians were absorbed … they were not

indiscriminately reduced to a common stratum, Certain of their
leaders retained prestige [. . .] Unlike prim New England
meetinghouses, moreover, the Spanish baroque church showed
the Indian’s craftsmanship [. . .] To his people it made a lavish
visual, auricular, ritual appeal, while its saints tacitly re-
embodied his native gods. English colonists mobilized militarily
against the Indian; Spaniards, apart from the actual conquest,

277
MORSE, Towards a Theory, supra note 261, at p. 73.
278
Id., at 75.
185

mobilized socially, politically, economically, religiously and

c u l t u r a l l y t o a s s i m i l a t e h i m . ” 279
All the hierarchical arrangement of the society would

serve ultimately to reaffirm the King’s authority as reconciler, 186
symbolic throughout his realm as the guarantor of status:
“in Thomistic idiom, all parts of society were

ordered to the whole as the imperfect to the perfect. This
ordering inherently the responsibility of the whole multitude,
devolved upon the king as a public person acting in their behalf,
for the task of ordering to a given end fell to the agent best
p l a c e d a n d f i t t e d t o t h e s p e c i f i c f u n c t i o n . ” 280
The mercantilism economy lacked the enterprising free

play of the state-guided commercial capitalism, showing the impress
of medievalism, with lack of credit and bank facilities, the use of
simplest forms of partnership. Even the Jesuits - whose history was
so much integrated with the Counter-Reform project of the Catholic
church; whose acting would be versed in modernism - would be
expelled, in 1767.
Most importantly, to my point of view, was the constant

reaffirmation of authority, the laws serving not for practical purposes,
not even to protect the subjects, but rather to discriminate them. The
law became an instrument of oppression, unrecognizable for the
common person, a world apart, written in opposition to the illiteracy
of the environment.

279
Id., at 75.
280
Id., at 76.
186

No enlightened despotism, nor even an actual idea of

constitutionalism. That background offered to the new independent
republics of Spanish America nothing but the Machiavellian image of
the Renaissance states of Italy, overlaid by the formal declarations of
independence and constitutions 187
“a Thomistic sovereign could not be created ex nihilo,

and Spanish America’s centrifugal separatism was for the first
unleashed. Another idiom than the Thomistic is therefore
n e e d e d t o b e p l a y e d a g a i n s t t h e r e p u b l i c a n e x p e r i e n c e ; ” 281
the British-French-American-type constitutions could not

fit peoples
“whose illiteracy, poverty, provincialism, political

inexperience and social inequalities rendered ineffectual the
mechanisms of constitutional democracy [. . .] At the moment
when the Thomistic component became recessive, the
Machiavellian component, latent since the sixteenth-century,
b e c a m e d o m i n a n t . ” 282

281
Id., at 78.
282
Id., at 78, 79.
187

283
The dawn of constitutionalism in Latin America was
impregnated with Thomism (recessive), Machiavellian (dominant),
and formal Liberal ingredients.
In Brazil, the element of the monarchic regime should be

188
added: the resilience of the Thomistic idea of temporal sovereignty of
the king under the divine sovereignty of God, a sovereign with two
bodies.
The concept of the two bodies of the king is an important

mediaeval reminiscence. It is a construct of the political or legal
284
theology. According to Kantorowicz, Maitland ironically kept the
concept as a product of the metaphysical (“metaphysiological”)
fantasy of the jurists under Tudor period, which he attributed to
Edmund Plowden’s Reports, an epitome of the arguments and
judgments made by the king’s courts. Plowden was a Middle Temple
apprentice, and he cites the decision taken in Calvin’s Case (as
referred by Edward Coke):
“For the King has in him two Bodies, viz . . . a Body

natural, and a Body politic. The Body natural (if it be
considered in itself) is a Body mortal, subject to all infirmities
that come by Nature or Accident, to the Imbecility of Infancy or

283
On the idea of Constitutionalism, see JOÃO CAMILO DE OLIVEIRA TÔRRES, A DEMOCRACIA
COROADA: TEORIA POLÍTICA DO IMPÉRIO DO BRASIL (1957); JOSÉ ANTONIO PIMENTA BUENO, DIREITO
PÚBLICO BRAZILEIRO E ANÁLISE DA CONSTITUIÇÃO DO IMPÉRIO (1857); ANTONIO MANUEL HESPANHA,
HÉRCULES CONFUNDIDO: SENTIDOS IMPROVÁVEIS DO CONSTITUTIONALISMO OITOCENTISTA (2010);
JORGE MIRANDA, O CONSTITUCIONALISMO LIBERAL LUSO-BRASILEIRO (2001); ROBERTO GARGARELLA,
TEORÍA Y CRÍTICA DEL DERECHO CONSITUCIONAL I: DEMOCRACIA (2010).
284
ERNST H. KANTOROWICZ, THE KING’S TWO BODIES: A STUDY IN MEDIAEVAL POLITICAL
THEOLOGY 7- 9 (7th ed. 1997).
188

old Age, and to the like Defects that happen to the natural
Bodies of other People [. . .] But his Body politic is a Body that
cannot be seen or handled, consisting of Policy and Government,
and constituted for the Direction of the People, and the
Management of the public weal, and this Body is utterly void of
Infancy, and old Age, and other natural Defects and Imbecilities,
which the Body natural is subject to, and for this Cause, what 189
the King does in his Body politic, cannot be invalidated or

frustrated by any Disability in his natural Body [. . .] Although
[the king] has, or takes, the land in his natural Body, yet to this
natural Body is conjoined his Body politic, which contains his
royal Estate and Dignity; and the Body politic includes the
Body natural, but the Body natural is the lesser, and with this
the Body politic is consolidated. So that he has a Body natural,
adorned and invested with the Estate and Dignity royal; and he
has not a Body natural distinct and divided by itself from the
Office and Dignity royal, but a Body natural and a Body politic
together indivisible; and these two Bodies are incorporated in
one Person, and make one Body and not divers, that is the Body
corporate in the Body natural, et e contra the Body natural in
the Body corporate. So that the Body natural, by this
conjunction of the Body politic to it, - which Body politic
contains the Office, Government, and Majesty royal - is
magnified, and by the said Consolidation hath in it the Body
p o l i t i c . ” 285
The king is, thus, considered in an abstract way, as a

metaphysical entity, coincidental with the Estate and Dignity royal. A
Corporation, it means an abstract way of conceptualizing the
personality. The Body politic never dies, as the Estate (or status) it
incorporates. Estate (state) in Latin languages might be the past
participle of stare (stand), something like the old usage of stare in

285
Id., at 7- 9.
189

E n g l i s h , 286 a s i n s t a r e d e c i s i s , t o s t a n d b y d e c i d e d m a t t e r s . O n e o f t h e
characteristics of the wise and effective Prince, according to
Machiavelli, is standing firmly in the presence of the multitude. The
doctrine of the two bodies will subtly lead to the passage from the
concrete estate (status) to the abstract state, the permanence of a 190
political entity over the casualties of the common life of the subjects.
It is interesting to observe that, although pervasive, the category
would find fertile soil in the Iberian, and therefore, Latin-American
tradition. For the Anglo-American tradition would prefer a more
concrete conception of the political body, under the name of
Government. In contrast, State is preferred in the Continental
tradition of public law. For the Continental tradition, the transition
was marked by the French Revolution of 1789, the demise of the
notion that individuals and peoples are subjects of the King. For the
Anglo-American tradition, the transition was made by the American
Revolution of 1776, the dying of the notion that peoples can be
transferred, ceded, protected in accordance with the interests of the
m o n a r c h . 287
Like Machiavellian Italy, an arena for the acting of

despots’ politics, Latin America’s republics would become a fertile
soil for caudillos (the Latin-American word for despots):
“the Spanish American nation-builder of c. 1825 had

to contend with nucleated city states, the rural masses being

286
From the Middle English “staren”, from Old English “starian (to
stare)”, from Proto-Germanic “starājanan (to be fixed, be rigid),” from Proto-
Indo-European “stere-, strē- (strong, steady).”
287
Cf. supra note 203.
190

passive and inarticulated . . . the absence of any communities

intermediate between such nuclei and the erstwhile imperium
[. . .] Only the somewhat arbitrary boundaries of colonial
administration defined the new nations territorially. Only
virulent sectionalism could define them operatively … The
Spanish American who held to constitutionalism and avowed the
existence in fact of a state-community was swept away before 191
w i n d s o f p e r s o n a l i s m . ” 288
Hegel described the life of South American republics as “a

continued revolution”, depending only on “military forces”, while
North America “would be comparable with Europe only after the
immeasurable space which that country presents to its inhabitants
shall have been occupied, and the members of the political body shall
h a v e b e g u n t o b e p r e s s e d b a c k o n e a c h o t h e r ” 289
The analysis would fit Brazilian constitutional history, if

we just think about the large number of revolts, during the
interregnum period of 1831-1840, named the Regency Era, and, of
course, during the beginning of the Republican period, as for the rest,
an age filled with military coups d’états. Even during the Monarchic
Era (1822-1831, 1840-1889), several revolutions swelled in the
country, defeated in the process of constructing the unified state of
Brazil. To the end of the reign of Pedro II (1840-1889), the design of
the state would shift from the central bureaucratic imperial practice,
to a regime of federal influence, more representative of the reality of

288
MORSE, Towards a Theory, supra note 261, at p.80. The first Argentina’s president, Rivadavia
would complain about the “lack of public spirit and of cooperation among the responsible men”, in that
way echoing Machiavelli’s writings.
289
HEGEL, LECTURES ON THE PHILOSOPHY OF HISTORY, quoted by MORSE, Towards a Theory,
idem, at p. 81.
191

t h e c o u n t r y , g i v i n g s o e x p r e s s i o n t o t h e C o r o n e l i s m o , 290 w h i c h w o u l d
be pervasive in the Old Republic (1889-1930), and continue, until the
p r e s e n t t i m e , t o b e a n e x a m p l e o f B r a z i l i a n c a u d i l l i s m o . 291
L e t u s o b s e r v e a l i t t l e f u r t h e r t h e B r a z i l i a n s p e c i f i c i t y . 292
192
Morse modified a little the classification proposed by Max Weber on

290
VICTOR NUNES LEAL, CORONELISMO, ENXADA E VOTA: O MUNICÍPIO E O REGIME
REPRESENTATIVO NO BRASIL (7th ed., 2010).
291
JOÃO FRANCISCO LISBOA, CRÔNICA POLÍTICA DO IMPÉRIO (1984); JORNAL DO TIMON:
PARTIDOS E ELEIÇÕES NO MARANHÃO (1995); EMÍLIA VIOTTI DA COSTA, DA MONARQUIA À REPÚBLICA:
MOMENTOS DECISIVOS (3RD ED., 1985); JOÃO DE SCANTIMBURGO, O PODER MODERADOR: HISTÓRIA E
TEORIA (1980); OLIVEIRA LIMA, O IMPÉRIO BRASILEIRO: 1822-1889 (1986); KEILA GRINBERG &
RICARDO SALLES, O BRASIL IMPERIAL I: 1808-1831 (2009); MIRIAM DOHLNIKOFF, O PACTO IMPERIAL:
ORIGENS DO FEDERALISMO NO BRASIL (2005); ISABEL ANDRADE MARSON, O IMPÉRIO DO PROGRESSO: A
REVOLUÇÃO PRAIEIRA EM PERNAMBUCO, 1842-1855 (1987;) ISABEL LUSTOSA, D. PEDRO I (2006); IVO
COSER, VISCONDE DE URUGUAI: CENTRALIZAÇÃO E FEDERALISMO NO BRASIL, 1823-1866 (2008); JOSÉ
MURILO DE CARVALHO, D. PEDRO II (2007); NAÇÃO E CIDADANIA NO IMPÉRIO: NOVOS HORIZONTES
(2007); A FORMAÇÃO DAS ALMAS: O IMAGINÁRIO DA REPÚBLICA NO BRASIL (1990); OS BESTIALIZADOS:
O RIO DE JANEIRO E A REPÚBLICA QUE NÃO FOI (3RD ED., 1991); A CONSTRUÇÃO DA ORDEM: A ELITE
POLÍTICA IMPERIAL & TEATRO DE SOMBRAS: A POLÍTICA IMPERIAL (1996); JOÃO CAMILO DE OLIVEIRA
TÔRRES, A DEMOCRACIA COROADA: TEORIA POLÍTICA DO IMPÉRIO DO BRASIL (1957); ALBERTO DA
COSTA E SILVA, HISTÓRIA DO BRASIL NAÇÃO: 1808-2010 I: CRISE COLONIAL E INDEPENDÊNCIA, 1808-
1830 (2011); JOSÉ MURILO DE CARVALHO, HISTÓRIA DO BRASIL NAÇÃO: 1808-2010 II: A CONSTRUÇÃO
NACIONAL 1830-1889 (2012); LILIA MORITZ SCHWARCZ, HISTÓRIA DO BRASIL NAÇÃO: 1808-2010 III: A
ABERTURA PARA O MUNDO, 1889-1930 (2012); ANGELA DE CASTRO GOMES, HISTÓRIA DO BRASIL
NAÇÃO: 1808-2010 IV: OLHANDO PARA DENTRO, 1930-1964 (2013); ALBERTO VENÂNCIO FILHO, NOTAS
REPUBLICANAS (2012); VICENTE LICÍNIO CARDOSO, À MARGEM DA HISTÓRIA DA REPÚBLICA (2 vol.
1981).
292
On Brazil and Latin America: MARSHALL C. EAKIN, THE HISTORY OF LATIN AMERICA:
COLLISION OF CULTURES (2007); EDWIN WILLIAMSON, THE PENGUIN HISTORY OF LATIN AMERICA
(Revised edition, 2009); DANIEL C. HELLINGER, COMPARATIVE POLITICS OF LATIN AMERICA:
192

t h e k i n d s o f p o l i t i c a l l e a d e r s h i p . 293 I n s t e a d o f c h a r i s m a t i c l e a d e r ,
Morse talks about the Machiavellian leader “who asserts himself by
dynamic personalism and shrewd self-identification with local
original principles, though never relinquishing government … to the
charge of many.” The charismatic leader can assume two sub-types, 193
whether he (we envision patriarchal traditionalism) dedicates himself

to molding the self-perpetuating traditions of a state-community, or,
he may set about exploiting the country as his private fief, winning
the armies allegiance, asserting control over several classes. This
kind of legitimation of domination would shift, in rare cases, through
bureaucratic competence and public respect for rational legal
s t a t u t e . 294 T h i s k i n d o f l i b e r a l c o n s t i t u t i o n a l i s m , a s r e a d a n d p r a c t i c e d
in Latin America, would lead to cynical declaration of rights, and
demagoguery appeals to the lower classes (during the so-called
populist governments). Finally, the third solution for legitimation
would be a “full-scale implementing of the Machiavellian blueprint.”
A personalist emerges but goes successfully to create a system, larger
t h a n h i m o r h e r s e l f , “ t h a t i s f a i t h f u l t o o r i g i n a l p r i n c i p l e s . ” 295

DEMOCRACY AT LAST? (2011); GIAN LUCA GARDINI & PETER LAMBERT, LATIN AMERICAN FOREIGN
POLICIES: BETWEEN IDEOLOGY AND PRAGMATISM (2011).
293
MAX WEBER, THE VOCATION LECTURES (David Owen & Tracy B. Strong ed. Robney
Livinsgtone trans. 2004).
294
Although in the moment of strong influx of foreign investments, that give to caudillos more
dependable leverage for control, governing in fact by remote control, adopting a bourgeois ton and paying
lip to constitutionalism, within a regime of oligarchic command, however. MORSE, Towards a Theory,
supra note 261, at p.85-90.
295
Id., at 85-90.
193

I would add that this third type is not only a schematic

approach to the Machiavellian Prince, but also the prospect of the
abstraction of the sovereign, as assuming the dualistic (but united)
nature of the two bodies medieval doctrine. Weber’s third category of
the authority of the eternal yesterday is the achievement of the joint 194
game of the political and natural bodies. At the same time, it

represents very accurately the idea of an imagined government or
state, in a perpetual length, as we have seen in analyzing the
historiography about nation and nationalism. The perpetual yesterday
is actually the invention of a tradition.
It would be useful to our journey, to sojourn in this

category. Morse was thinking about Spanish America experience, but
it is quite interesting to reflect a little on its consequences to the
Brazilian one for many reasons. As we have already singled out, the
case of Brazil is unique because of the permanence - until the end of
the 19th Century - of the monarchic regime. In addition, because its
shift to a republican regime was less due to a popular vindication -
even less a popular movement - than to a conspiracy of the elites of
the states or províncias, and to a military-civil complot - in which
the ideology of the militant Positivism played a role, but only for a
very brief time. Positivists themselves, of course, would like to say
that Positivism was more decisive than it really was. For instance,
Ivan Lins, in his very important account of Comte’s doctrine in
B r a z i l . 296 B u t t h e p r e s t i g e o f t h e P o s i t i v i s t s , a m o n g t h e m B e n j a m i m
Constant Botelho de Magalhães - one of the leaders of the Republican
takeover, who played a key role in the diffusion of positivist ideas

296
IVAN LINS, HISTÓRIA DO POSITIVISMO NO BRASIL (2nd ed., 1967).
194

through Brazil - began to decrease almost immediately after the

outset of the Republican Era:
“the peak of Positivist influence came during the

first months of the Republic, when Positivist-inspired proposals
such as the separation of church and state were adopted into law, 195
and the Positivist motto Order and Progress was included on the
new, Positivist-designed national flag [. . .] The enthusiasm for
Positivism was already in decline by 1891. In part it was due to
the fact that many Brazilians were attracted to it as an
intellectual fad and thus were quickly alienated by the rigor of
the religion and its moral code … In spite of this, some scholars
argue that orthodox Positivists remained an important political
force in Brazil, at least through the first decade of the twentieth
c e n t u r y . ” 297
During the monarchic period, the division of the society

(or better, the community) is categorized under the old regime term
of estates: nobility, clergy, and commons. The coming of the republic
would not change the conception, but only the name under which the
same attributes would play their role: peasants, workers, and
capitalists. In addition, the Catholic Church would maintain its status,
against the formal statement of the newly republican Constitution of
the separation of religion and state - another proof of Positivism’s
ideology defeat. In fact, the conception of the public law would
remain almost the same. Perhaps the only important change would be
the allocation of the power in the hands of the state oligarchies
instead of the central bureaucracy created during the 19th Century.

297
TODD A. DIACON, STRINGING TOGETHER A NATION: CÂNDIDO MARIANO DA SILVA RONDON
AND THE CONSTRUCTION OF A MODERN BRAZIL, 1906-1930 82-84 (2004). See also CRUZ COSTA,
CONTRIBUIÇÃO À HISTÓRIA DAS IDEIAS, supra note 210; JOSÉ MURILO DE CARVALHO, A FORMAÇÃO
DAS ALMAS, supra note 210. It is my opinion that Positivism plays a very modest role in the formation of
Brazilian culture, and even less important in our legal culture.
195

The permanence of the Roman Catholic culture (with its

Thomistic predominant approach to reality) would give to the
Brazilian condition not only the legitimation of the paternalistic
accent of the governments, but also a specific sense of community,
which would be an obstacle to the introduction of any idea of 196
individuality: individual responsibility and accountability,

entrepreneurship. It was, in a strictly cultural sense, the triumph of
traditionalism, marked forms of social and political hierarchies.
I would call it an artificial sense of community, as it is, in

fact, the submission of the individual to the traditional and
unreasonable hierarchy of a community pre-established, following
rules and principles to which the individual is not allowed to
contradict, and is not even supposed to know. The ethic of that
community is the ethic of obedience or submission. Tocqueville
demonstrated that the ethic of the Protestant society in North
America had led to a sense of community further rooted in the
individual conscience, thus tending to generate social responsibility
and compliance. I would call it an ethic of compliance or conformity,
because it demands an actual participation and comprehension of
rules and principles.
Besides, the constitutions would affirm without almost any

difference, the social assignment of the Government, as protector of
t h e p e o p l e a s a w h o l e , a n d o f c e r t a i n c l a s s e s i n p a r t i c u l a r . 298 T h e

298
As Frank Tannenbaum has said about Mexico, according to MORSE, Towards a Theory, supra
note 261, at 87: “the Revolution has certainly increased effective democracy in Mexico. It has also
increased, both legally and economically, the dependence of the people and of the communities upon the
federal government and the President. The older tradition that the king rules survived in modern dress: the
President rules.”
196

successive presidents, even in Brazil, notwithstanding dictators or

democrats, have conveyed to present themselves as somewhat
intimately linked to the people (or the poor people), hence from
original characters of the nation. In spite the rhetorical identification
of the nationality, they would adopt a 197
“broader, more sophisticated view of how modern

political power must be won, maintained and exercised [. . .]
[They] also know that, regardless of any nationalistic rhetoric
to which [they] may be committed, [they] must import more and
more blueprints and technical solutions from abroad. Such
solutions, however – whether socialism, fascism, exchange
control or river valley authorities – take on a new complexion
as they flash into amalgam with conditions of life wholly
d i f f e r e n t f r o m t h o s e b y w h i c h t h e y w e r e e n g e n d e r e d . ” 299
There would be a kind of an embodiment of the society

into the Government, an organic identification, forging a conception
of a denatured republic. Sovereignty incorporates the people,
reflecting not exactly a different type of representation, but more a
personification. The reality of things is not the exercise of
government by the people representatives, or the power of the people.
It is the government in the name of the nation (nation’s invented or
imagined principles and values). The name democracy of course does
not definitively fit to this regime. The amalgam of demos and krátos
produces a new category. The allegedly identification of power and
people is illusive, and serves as a means to let the people apart from
the politics. It is a mystical conjunction of power and people, which
results from the lasting of pre-political qualities and categories in the
process of conceiving the Latin-American political systems.

299
Id., at 89.
197

D en ial of th e F ou n d ers
198
Neither Machiavelli nor his later disciple Montesquieu
would call that regime free or democratic. The approach of
Machiavelli is concerned about the effectiveness of a political regime
not in providing directly freedom to the citizens, but in assuring a
free city. Quentin Skinner quotes Machiavelli’s Discourses, and
a s s e r t s : 300
“Experience shows that cities have never increased in

dominion or riches except while they have been at liberty [. . .]
It is a marvelous thing to consider to what greatness Athens
came in the space of a hundred years after she freed herself
from the tyranny of Pisistratus [. . .] Very marvelous to observe
what greatness Rome came to after she freed herself from the
kings [. . .] The opposite of all those things happens in those
countries that live as slaves. For as soon as a tyranny is
established over a free community, the first evil that results is
that such cities no longer go forward and no longer increase in
power or in riches, but in most instances, in fact always, they
go backward. What Machiavelli primarily had in mind in laying
so much emphasis on liberty is that a city bent on greatness
must remain free form all forms of political servitude, whether
imposed internally by the rule of a tyrant or externally by an
imperial power. This in turn means that to say of a city that it
possesses its liberty is equivalent to saying that it holds itself
independent of any authority save that of the community itself.
To speak of a free state is thus speak of a state that governs
itself.”

300
QUENTIN SKINNER, MACHIAVELLI.58, 59 (1996).
198

A free city will therefore assert freedom to its citizens.

The maxim is a free city is governed by its own judgment. As we can
see, the rule remains the same, from the ancient democratic city – as
I pointed out, in the precedent chapter - to the renaissance republican
city. 199
The idea of tyrants (or, in Latin America, caudillos) is

indeed a deviation from the meaning of Machiavelli’s ideas. The
miscue of tyranny corresponds nevertheless to the reading (or
m i s r e a d i n g ) o f h i s w o r k s . 301 H e n c e , w e c a n n o t c o n s i d e r M o r s e ’ s e f f o r t
as wrong in itself. He was correct in stressing the Machiavellian
spirit of the Aragonese Ferdinand and the perpetuation of his politics
on new independent Latin American countries, as they conceived
themselves as a myriad of small republics, rhetorically reproducing
the image of Renaissance Italy. He was also right in averting us from
the perils of simply transposing the cultural European ideas to the
different amalgam they produced in a different soil.
What I have in mind in calling the attention of the reader

to the contradiction between the Machiavellian statements and
proposals and the actual constitution of the New World states, is just
to announce the difficulties of assimilating those constitutions to the
idea of liberty well captured by the Florentinian writer.
The same advert I would present in respect to the reading

of Montesquieu’s own classification of political regimes, which is
based upon the prevalence of a certain passion or sentiment among

301
CLAUDE LEFORT, LE TRAVAIL DE L’ŒUVRE MACHIAVEL (1986).
199

t h e m e m b e r s o f a s t a t e . 302 T h e s o - c a l l e d p r i n c i p l e s o f G o v e r n m e n t p u t
the regime in motion. Laws ought to be more relative to the
principles than to the nature (the number of the rulers: many in a
republican democracy, few in an aristocratic republic, one in
monarchy and despotism) of the regime. Such passions are honor, in a 200
monarchy; fear, under despotism; an inferior virtue, or moderation, in

an aristocracy; finally, the superior virtue, or virtue stricto sensu
(l’amour de la patrie, civic virtue, love of frugality and equality), in
a democracy.
Here again, we cannot find any sign of a democratic

passion in the Latin American states, since the beginning of their
colonization till the postwar age at least. Formal liberal states
succeeded by disguised or opened dictatorships, but always under the
dominion of certain oligarchical elites, whose discourse had been
forged to impose the urgency of their presence and permanence, or
coming generally as a result of coup d’états more or less violent, as
rulers of the states. The process of elites imposing themselves to the
subjects was very accurately defined by Machiavelli’s Prince, which
w a s i n d e e d a m a n u a l t o t h e g o v e r n m e n t o f a s t a t e 303 n e w l y a c q u i r e d ,

302
MONTESQUIEU, SPIRIT OF LAWS, supra note, at Book III.
303
NICCOLÒ MACHIAVELLI, THE PRINCE Chapters I-III (George Bull trans. 1999):
“All states, all powers, that have held and hold rule over men have been and are either
republics or principalities. Principalities are either hereditary, in which the family has been long
established; or they are new. The new are either entirely new . . . or they are, as it were, members
annexed to the hereditary state of the prince who has acquired them[. . .] Such dominions thus
acquired are either accustomed to live under a prince, or to live in freedom; and are acquired
either by the arms of the prince himself, or of others, or else by fortune or by ability. I will leave
out all discussion on republics … and will address myself only to principalities. In doing so I will
keep to the order indicated above, and discuss how such principalities are to be ruled and
preserved [. . .] But the difficulties occur in a new principality. And firstly, if it be not entirely
new, but is, as it were, a member of a state which, taken collectively, may be called composite,
200

and to solve the difficulties arisen in the relationship of an external

prince with its people. To that manual, we must add the works of the
Thomistic tradition, as developed exactly by the Hispanic theologians.
Not by coincidence, they also would be responsible for the origin and
first developing influx of international law (in his catholic- 201
colonialist stream, as I have expounded). Sepulveda, Las Casas,

Suárez, de Vitoria were reflecting the Thomas Aquinas ideas, as they
could well serve the colonial interests of Spain, in detriment of the
original inhabitants of the territories, or protecting them as loyal
subjects submitted to the hierarchies of the Iberian regime.
Under the criteria set by Montesquieu, I would propose,

Latin American regime could be understood as follows. Love was not
an expression of virtue, but submission to the ruler, as he or she were
the only capable to represent the nation’s principles and interests.
The sentiment of love is not either an expression of civism (in its
ancient meaning, partially recovered by the Renaissance political

the changes arise chiefly from an inherent difficulty which there is in all new principalities; for
men change their rulers willingly, hoping to better themselves, and this hope induces them to take
up arms against him who rules: wherein they are deceived, because they afterwards find by
experience they have gone from bad to worse. This follows also on another natural and common
necessity, which always causes a new prince to burden those who have submitted to him with his
soldiery and with infinite other hardships which he must put upon his new acquisition. In this way
you have enemies in all those whom you have injured in seizing that principality, and you are not
able to keep those friends who put you there because of your not being able to satisfy them in the
way they expected, and you cannot take strong measures against them, feeling bound to them. For,
although one may be very strong in armed forces, yet in entering a province one has always need
of the goodwill of the natives [. . .] Now I say that those dominions which, when acquired, are
added to an ancient state by him who acquires them, are either of the same country and language,
or they are not. When they are, it is easier to hold them, especially when they have not been
accustomed to self-government; and to hold them securely it is enough to have destroyed the
family of the prince who was ruling them; because the two peoples, preserving in other things the
old conditions, and not being unlike in customs, will live quietly together [. . .] But when states
are acquired in a country differing in language, customs, or laws, there are difficulties, and good
fortune and great energy are needed to hold them, and one of the greatest and most real helps
would be that he who has acquired them should go and reside there.”
201

culture). Love can be said to play the role of a sub-sentiment in

relation to fear. Fear of the ruler who has obtained the allegiance of
the armies and (or the submission) of the traditional or new economic
elite. Finally, there would not be moderation, because it would be
always useful to the ruling class to impose itself in front of the 202
multitude. Wealth is a sign of power, and inflicts envy and fear. The
large gap between the richest and the poorest would protect any
reaction of the latter, mainly because they have scarce access to
information and education. Of course, my proposal is just a schematic
way to present some aspects of the conformation of the public space,
and eventually there would be differences according to diverse times,
regions, and countries.
R om an ticism an d R ep resen tation
Returning to the analysis of the process that has created

the political appearance and structure of Latin America, let us follow
briefly the steps that lead from Romanticism, through Realism and
Naturalism to Modernist revolt. Romanticism would play indeed a
decisive impact.
The 19th Century was not only the age of consolidation, as

I said before, but also of representation. The representative systems
would configure the whole image of society. Consolidation gave us
the sense of achievement – for instance in philosophy and law, in a
measure that we were able to affirm the end of history.
202

Representation, moreover, would be used and discussed to

the point of depletion. That exhaustion of the theme, in arts and
politics, could explain the reason why the Avant-gardes of the next
century would undervalue representation as a form of expression, and
despise it as a form of exerting politics. As the idea of democracy 203
would be definitively associated to representation, the 20th Century

not only would experience the suspicion of democracy, but also the
uprising of the totalitarian regimes. The modern idea of
representation is a reappraisal of the old republican conception of
consensus iuris. Totalitarianism went beyond representation,
attempting to forge an image of personification of nature and history,
w i t h o u t a n y i n t e r m e d i a t i o n , e v e n o f h u m a n k i n d o r h u m a n i t y . 304

304
HANNA ARENDT, ORIGINS OF TOTALITARIANISM 461, 462 (1962):
“Totalitarian lawfulness, defying legality and pretending to establish the direct reign of
justice on earth, executes the law of History or of Nature without translating it into standards of
right and wrong for individual behavior. It applies the law directly to mankind without bothering
with the behavior of men. The law of Nature or the law of History, if properly executed, is
expected to produce mankind as it send product; and this expectation lies behind the claim to
global rule of all totalitarian governments. Totalitarian policy claims to transform the human
species into an active unfailing carrier of a law to which human beings otherwise would only
passively and reluctantly be subjected. If it is true that the link between totalitarian countries and
the civilized world was broken through the monstrous crimes of totalitarian regimes, it is also true
that this criminality was not due to simple aggressiveness, ruthlessness, warfare and treachery,
but to a conscious break of that consensus iuris which, according to Cicero, constitutes a people,
and which, as international law, in modern times has constituted the civilized world insofar as it
remains the foundation-stone of international relations even under the conditions of war. Both
moral judgment and legal punishment presuppose this basic consent; the criminal can be judged
justly only because he takes part in the consensus iuris, and even the revealed law of God can
function among men only when they listen and consent to it. At this point, the fundamental
difference between the totalitarian and all other concepts of law comes to light. Totalitarian
policy does not replace one set of laws with another, does not establish its own consensus iuris . . .
does not create, by one revolution, a new form of legality. Its defiance of all, even its own
positive laws implies that it believes it can do without any consensus iuris whatever, and still not
resign itself to the tyrannical state of lawlessness, arbitrariness and fear. It can do without the
consensus iuris because it promises to release the fulfillment of law from all action and will of
man; and it promises justice on earth because it claims to make mankind.”
203

Democrats or liberals would fight against absolutism.

Doing so, they will try to conceive and defend the sovereignty of
people, instead of the sovereignty of the king. The exercise of power
would no more be thought as a delegation of the monarch but as a
delegation of the people. Representation became a key concept, as the 204
people were not considered to be prepared to directly participate and

exercise the power, which pertains to them. Hence, the liberals would
advocate a political system that could reflect the will of the citizens
represented. As the actual representative system was not accepted as
adequate to them, they would propose radical modifications, to open
u p t h e s u f f r a g e u n t i l i t b e c a m e t h e o r e t i c a l l y u n i v e r s a l . 305
T h a t w a s t h e m a i n i d e a o f S t u a r t M i l l ( 1 8 6 1 ) , 306 i n E n g l a n d ,
307
and José de Alencar (1868), in Brazil. The representative
government is presented as an intermediary system, between two
hurtful notions or practices: the government of one and the
government of the majority. Both would be obnoxious to human
beings. The first because it will produce the apathy of the majority;

305
SERGE BERSTEIN & MICHEL WINOCK, L’INVENTION DE LA DÉMOCRATIE: 1789-1914 (2002);
LETÍCIA BICALHO CANÊDO, O SUFRÁGIO UNIVERSAL E A INVENÇÃO DEMOCRÁTICA (2005); DOMENICO
LOSURDO, DEMOCRACIA OU BONAPARTISMO: TRIUNFO E DECADÊNCIA DO SUFRÁGIO UNIVERSAL (Luiz
Sérgio Henriques trans. 2004).
306
JOHN STUART MILL, Considerations on Representative Government in ESSAYS ON POLITICS
AND SOCIETY II (J.M. Robson ed. (1977). See mainly Chapter III, That the Ideally Best Form of
Government is Representative Government.
307
JOSÉ DE ALENCAR, O Sistema Representativo in DOIS ESCRITOS DEMOCRÁTICOS DE JOSÉ DE
ALENCAR: O SISTEMA REPRESENTATIVO 1868 & REFORMA ELEITORAL 1874 (Wanderley Guilherme dos
Santos ed. 1991).
204

the other because it will cause the oppression of the minorities.

Adequate representation would solve both problems, by asserting the
indirect participation of all, and respect to all.
But to understand and establish the adequate

205
representation, a further investigation of the real nature of the people
to be represented is necessary. The constituent part of the
government should appear as it is (or as the representative part would
like it to be). The investigation of the nature of the people would be
the main task of the Romantic movement. The representation of the
nation – actually invented or imagined, as we have expounded.
It is not by coincidence that José de Alencar would

become the main representative of the movement, the first original
Brazilian novelist. Well educated, as a member of the cultural elite,
in European manner, having played a leading role in politics – he was
Minister of Justice for two years, although he was not appointed
Senator by the Emperor (Alencar was a severe critic of the emperor’s
policies) – he was trying to contribute to the founding of the
independent nation, shaping its culture. He would try to design
Brazilian culture and origins, made up in the myths of the encounter
of the aboriginal inhabitants of the territory with the European:
I r a c e m a ( 1 8 6 5 ) 308 a n d O G u a r a n i ( 1 8 5 7 ) a r e t h e n o v e l s t h r o u g h w h i c h

308
JOSE DE ALENCAR, IRACEMA (Clifford E. Landers trans. 2000). See also: NAOMI LINDSTROM,
Foreword in ALENCAR, IRACEMA; ANTONIO CANDIDO, FORMAÇÃO DA LITERATURA BRASILEIRA VOL II,
supra note 334; LÚCIA MIGUEL PEREIRA,. HISTÓRIA DA LITERATURA BRASILEIRA: PROSA DE FICÇÃO DE
1870 A 1920 (3rd ed., 1973); ALFREDO BOSI, Cultura in JOSÉ MURILO DE CARVALHO, HISTÓRIA DO
BRASIL NAÇÃO VOL. II, supra note 334; LUÍS VIANA FILHO, A VIDA DE JOSÉ DE ALENCAR (2008);
BERNARDO RICÚPERO. O ROMANTISMO E A IDEIA DE NAÇÃO NO BRASIL: 1830-1870 (2004); FRANCO
MORETTI, NOVEL. VOL I, supra note 334; VIANNA MOOG, BANDEIRANTES E PIONEIROS: PARALELO
ENTRE DUAS CULTURAS (2nd ed. 1955); LUÍS AUGUSTO FISCHER, VIANNA MOOG. (2011); FLORA
205

the allegories would be developed. The romance between Indian and

Portuguese will generate a new race, represented by Moacir, their son.
Iracema (an anagram of America), the Tabajara indigenous woman,
and Martim, the Portuguese distinctive soldier and settler, will found
a new nation, blessed by the nature - a narrative that Alencar claims 206
to be a true local story. Alencar was an author with an agenda, as

Naomi Lindstrom pointed out in her preface to the English translation
of Iracema. The Indian character was essential for the romanticism,
as it could become a symbol of resistance to the colonial rule
( i m p o r t a n t t o a c o u n t r y i n s e a r c h o f i t s i d e n t i t y , i t s o r i g i n a l i t y vi s - à -
vis the mother country). The aboriginal character could also
contribute to the building of a new language, a Brazilian language,
constituted with elements of the aboriginal ones under the basis of
the Portuguese. Because of the new language, the literature could
become authentic (even if not from the retrospective point of view,
but for sure as a project of nationality, a prospective point of
analysis). He has enjoyed the respect of writers and scholars of the
next generations, due to his proposals to the foundation of a
Brazilian literary language. Indeed, he would be praised by authors
o f s t y l e s a n d l i t e r a r y p r o j e c t s a s d i f f e r e n t a s M a c h a d o d e A s s i s 309 a n d

SÜSSEKIND, CINEMATÓGRAFO DE LETRAS: LITERATURA, TÉCNICA E MODERNIZAÇÃO NO BRASIL (1987);
BEATRIZ SARLO, SIGNOS DE PASIÓN: CHAVES DE LA NOVELA SENTIMENTAL DEL SIGLO DE LAS LUCES A
NUESTROS DIAS (2012); DARDO SCAVINO, NARRACIONES DE LA INDEPENDENCIA: ARQUEOLOGIA DE UN
FERVOR CONTRADICTORIO (2010); MARY LOUISE PRATT, IMPERIAL EYES, supra note 334.
309
RAYMUNDO FAORO, MACHADO DE ASSIS: A PIRÂMIDE E O TRAPÉZIO (2nd ed. 1976); ROBERTO
SCHWARZ, A MASTER IN THE PERIPHERY OF CAPITALISM: MACHADO DE ASSIS (John Gledson trans.
2001).
206

M a r i o d e A n d r a d e , 310 f o r h i s c o m m i t m e n t t o t h e s e a r c h o f t h a t n e w
expression.
The idealized conception of the Indians, and the

reconciliation between them and the Europeans was but the sign of a
207
conservative wave, predominant after the strengthen of the imperial
or central government that had defeated the majority of the rebellions
around the country. The rebels had planned the decentralization, by
means of an actual federalism, or, at the most, secessionism.
Some years before and after Alencar, some of the most

important and original romantic Brazilian poets would present a most
likely narrative of the Indians and Africans conditions in Brazil.
Gonçalves Dias and Castro Alves, indeed, depicted the miserable
conditions of them, in an attempt to give them the voice they did not
get in the political and cultural history. Antonio de Castro Alves is
extremely important. He left a poetry of constant social concern, an
anxious feeling of freedom, seriously attached to a democratic

310
MARIO DE ANDRADE, MACUNAÍMA: O HERÓI SEM NENHUM CARÁTER (Telê Porto Ancona
Lopez ed. 1978); ASPECTOS DA LITERATURA BRASILEIRA (6th ed., 1978). See M. CAVALCANTI PROENÇA,
ROTEIRO DE MACUNAÍMA (6th ed., 1987); ANTONIO ARNONI PRADO, 1922: ITINERÁRIO DE UMA FALSA
VANGUARDA – OS DISSIDENTES, A SEMANA E O INTEGRALISMO (1983); CASSIANO RICARDO. MEMÓRIAS.
(1970); RAUL BOPP, MOVIMENTOS MODERNISTAS NO BRASIL: 1922-1928 (2012); GILBERTO DE
MENDONÇA TELES, VANGUARDA EUROPEIA E MODERNISMO BRASILEIRO: APRESENTAÇÃO DOS
PRINCIPAIS POEMAS METALINGUÍSTICOS, MANIFESTOS, PREFÁCIOS E CONFERÊNCIAS VANGUARDISTAS,
th
DE 1857 A 1972 (20 ed. 2012); JORGE SCHWARTZ, FERVOR DAS VANGUARDAS: ARTE E LITERATURA NA
AMÉRICA LATINA (2013); NICOLAU SEVCENKO, ORFEU EXTÁTICO NA METRÓPOLE: SÃO PAULO,
SOCIEDADE E CULTURA NOS FREMENTES ANOS 20 (1992); GWEN KIRKPATRICK, DISONANCIAS DEL
MODERNISMO (Luisa Borovsky & Eduardo Paz Leston trans.(2005); THE DISSONANT LEGACY OF
MODERNISMO: LUGONES, HERRERA Y REISSIG, AND THE VOICES OF MODERN AMERICAN SPANISH
POETRY (1989).
207

project. People had been fighting for reforms, for equality and
p o l i t i c a l r i g h t s s i n c e 1 8 4 8 311 a l l o v e r E u r o p e ; s l a v e r y w a s e n d i n g i n
several countries. Castro Alves was aware of those claims, and added
his voice to them, being a precursor of the abolitionist movement,
followed by Joaquim Nabuco, Rui Barbosa, Raul Pompéia, José do 208
Patrocínio and so many others.
On the other hand, only the next century would

acknowledge a more viable conception of the nation, and
paradoxically by means of a regional or local, and not national,
l i t e r a t u r e ( f o r i n s t a n c e i n G u i m a r ã e s R o s a 312 a n d G r a c i l i a n o R a m o s 313) .
Romanticism is considered a single literary movement (in

spite of being divided in three periods). It is the moment of searching
identities and an original nationality for the former colony. New
educational institutions were founded, among them the first Law
Schools, in Sao Paulo and Olinda (both in 1827. The Olinda Law
School moved to Recife, in 1854), giving birth to a legal culture. At
the beginning they were influenced by the scholastic tradition,
predominant in Portugal. By the second half of the Century, new
influx would come from Europe, giving raise to the swelling of
different doctrines, new schools of thinking, which would influence

311
See MIKE RAPPORT, 1848: YEAR OF REVOLUTION (2008).
312
JOÃO GUIMARÃES ROSA, GRANDE SERTÃO: VEREDAS - O DIABO NA RUA, NO MEIO DO
REDEMOINHO... (16th ed., 1984); THE DEVIL TO PAY IN THE BACKLANDS: THE DEVIL IN THE STREET, IN
THE MIDDLE OF THE WHIRLWIND (James L. Taylor & Harriet de Onís trans. 1963). See JOÃO GUIMARÃES
ROSA, ESTAS ESSTÓRIAS (4th ed., 1985); PRIMEIRAS ESTÓRIAS (14th ed., 1985); WILLI BOLLE,
GRANDESERTÃO.BR: O ROMANCE DE FORMAÇÃO NO BRASIL (2004).
313
GRACILIANO RAMOS, VIDAS SECAS (123rd ed. 2013); SÃO BERNARDO (93rd ed., 2012).
208

the development of the Brazilian law system. Liberalism (French and

English) against Positivism (Comte, Littré, Lafitte); Positivism
against Evolutionism (Spencer); the Exegetical school, derived from
the interpretation of the Napoleon Civil Code against Pandectists;
then the Historical School. The 19th Century was one of codifications, 209
project closed in on the German Civil Code. It was a century of the

building of cultures and (technical) languages, in literature and the
arts in general, in the sciences, and in the law.
All the monuments of the romantic national unity would be

eroded by realist and naturalist styles and critiques. “Um bando de
i d e i a s n o v a s ” 314 w o u l d b r e a k u p t h e i m p e t u s f o r m o r e r e a l i s t i c a n d
f r e e w a y s o f e x p r e s s i o n . 315
“R een tra r n o m eu p o v o, rep rin cip iar m in h a

ciên cia ” 316

314
SILVIO ROMERO, Foreword in TOBIAS BARRETO, VÁRIOS ESCRITOS (1926), qouted by
ALFREDO BOSI, Cultura, p. 256, 257: “a bunch of new ideas”.
315
JOÃO CRUZ COSTA, CONTRIBUIÇÃO À HISTÓRIA DAS IDEIAS NO BRASIL: O
DESENVOLVIMENTO DA FILOSOFIA NO BRASIL E A EVOLUÇÃO HISTÓRICA NACIONAL (1956); IVAN LINS,
HISTÓRIA DO POSITIVISMO NO BRASIL (2nd ed., 1967).
316
MARIO DE ANDRADE, O carro da Miséria in POESIAS COMPLETAS Poem XIV, p. 227 (5th ed.,
1980): “I shall immerse in my people, to start my science again.”
209

Soon after Alencar, another important figure of Brazilian

literary history would appear: Machado de Assis. The debate among
historians spun around the adequacy of his ideas to the Brazilian
environment. Some would talk about ideas out of place, exactly like –
as their interpretation would like to explain – the ideas and ideals of 210
European liberalism. Displaced to the periphery of capitalism, they

w o u l d p r o v i d e a c o m p l e t e l y d i f f e r e n t a p p r o a c h t o r e a l i t y . 317 R o b e r t o
Schwarz’s importance to the historiography of the period mainly
resides in his attempt to sum up and present a synthesis of some of
his contemporaries (Fernando Henrique Cardoso, Fernando Novais,

317
JOHN GLEDSON, Introduction in ROBERTO SCHWARZ. MACHADO DE ASSIS: A MASTER, supra
note 294, at p. VI-VIII. The brazilianist John Gledson explains briefly the importance of both, the novelist,
and his interpreter:
“in 1880, the Brazilian writer Joaquim Maria Machado de Assis (1839–1908) began to
publish his fifth novel, the Memórias Póstumas de Brás Cubas, in the Revista Brasileira; the
following year, it appeared in book form. This is one of the major events of Latin American
literary history. The first great novel to appear in the region, the Memoirs …need not be read for
extraneous reasons—because of its importance in the history of literature, say, or because it is
Brazilian, because its author was mulatto, because it gives a portrait of a slave-owning oligarchy,
or any number of other motives. We can read it simply because it is a great work of art, with a
unique atmosphere that imposes itself on the reader from the start, an artistic unity and tone, a
brand of humor that may have affinities with other books but that is also sui generis and still has
its effect today, whether the reader is Brazilian or not [. . .] In 1990, Roberto Schwarz published
this book, the first to give a convincing account of this extraordinary literary event. Previous
explanations were often biographical or philosophical in nature, or combined the two, often in
simplistic ways. Machado, a successful and hard-working civil servant, had to ask for leave from
work in Rio de Janeiro, to recover in the spa town of Nova Friburgo from an illness that
apparently threatened his sight. Some have speculated that the sharply satirical, sarcastic tone of
the Memoirs was brought on by increased pessimism. Others have given overriding importance to
literary influences, most obviously that of Laurence Sterne, mentioned in the opening note To the
Reader, on the novel’s digressive, quirky organization. None of these explanations was ultimately
satisfactory, if only because they were one-sided, concentrating on either style or content when
what was needed was something that embraced both [. . .] The great achievement of A Master, I
think, is to explain an apparent paradox: how is it that a writer so rooted in his own time, writing
in a slaveowning cultural backwater, is also, in many ways, so advanced? Schwarz’s great
perception, which lies at the root of a good deal of his achievement, is that the modernity
paradoxically arises, to a considerable degree, out of the backwardness, and does not merely
happen in spite of it.”
210

and Mara Sylvia Carvalho Franco) and predecessors (Antonio

Candido), on the understanding of the complexities and singularities
of the Brazilian experience. Their suggestion that ideas follow the
destiny of any other goods. Transferred from one side to another, by
means of the market system, they could become misplaced: “In a 211
famous formulation, which represented for him a kind of aim to work

toward, Machado said that the writer could be a man of his time and
his country, even when he deals with subjects remote in time and
space. The critic was trying to secure for Brazilians the right to deal
with every kind of subject matter, as opposed to the point of view
that only recognizes national qualities in works that deal with local
topics. One could also say that he laid claim to the best portion of the
Romantic legacy—the sense of historicity—as against the fashionable
conjunction of the picturesque and the patriotic, which at that time
was already turning out to be a straitjacket for the intelligence. That
said, the Brazilianness that Machado had in mind, and would bring
into being in the second phase of his work — an interior
Brazilianness, different and better than if it were purely superficial—
i s n o t e a s y t o d e m o n s t r a t e i n d e t a i l e d , c o n c r e t e t e r m s . ” 318
History is the legacy of Romanticism, but a history of

different kind. A history that represented the search for an imagined
origin, which would be able to justify disgusting evidences of cruelty,
in the course of the colonization of the country: oppression,
exploitation of slaves and poors. A history that could work as an

318
SCHWARZ, Idem, at p. 1. See MACHADO DE ASSIS, THE POSTHUMOUS MEMOIRS OF BRÁS
CUBAS (Gregory Rabassa trans. 1998); DOM CASMURRO (John Gledson trans. 1998). For a different point
of view, see ALFREDO BOSI, DIALÉTICA DA COLONIZACÃO (1992), Chapters 7 A Escravidão entre dois
Liberalismos and 8 Sob o Signo de Cam.
211

illusion of integration of diverse peoples, under the leadership of the

Portuguese, giving dignity to the language and culture brought from
Europe to the New World.
On the contrary, Machado de Assis’ own conception of

212
narrative would look for real stories, characters with flesh and blood,
and no interest for origins. There is a kind of pragmatism in his
intents, or a sociology of results. Irony would be the most important
figure of speech, to show the conformity of the writer with his time
and experiences. No intent to change the nature of things, just to
present it straight. Machado abandons the history for a sociology of
the everyday life. A good example of his ironic style is the story that
he had told many times, of the rich man, who was walking through
the street, and saw a poor woman crying. Just beside her, there was a
very modest dwelling on fire. – Is it yours, asked the man, pointing
to the house burning; - Yes, she answered, complaining about her loss.
Surprisingly, the man shows no sorrow or sympathy. He only asks
permission to light his cigar: because he takes the notion of property
on high esteem, explained Machado. The reality has no origin and
there is no perspective of changing: it is to be assumed as it is.
Machado de Assis’ talent and ideas were not misplaced. He

was only aware of the characteristics of his place and time, reflecting
them from the point of view of the ideas that were circulating around
the world and should be present in Brazil. Exactly as merchandises
were sold elsewhere. His use of the ideas was legitimate. The
liberalism that defends property rights conformed itself to the
transformation of everything, every single being into a property.
Masters and slaves cannot be considered as outsiders of the capitalist
system.
212

Between 1889 and 1930, Brazil would live a period called

First or Old Republic. The end of the 19th Century experienced the
319
conflict of Historicism versus Positivism. The fight for
predominance between process and social fact. Which one of them
would occupy the central epistemological place in the reign of the 213
sciences? The past would cause and explain the real; or the
constraints of the fait social would sum up and comprise every single
relevant aspect of reality, providing the generality, abstractness,
objectivity, or exteriority necessary for the comprehension of the
living events. For the law, is the past undeniable, acting as a
compelling master of values, building norms that should be rigidly
observed by the legislators or the judges? Or is the present situation
of things a comprehensible guide that should be the sole object of
interpretation for the conception of norms? In another terms, the
proceedings of the sciences should choose between two standards:
narrative or hermeneutics.
However, the 20th Century would bring another ingredient

to that tension. The discovery of language, first as the criterion of
t r u t h ( t h e f i r s t W i t t g e n s t e i n , i n t h e t r a d i t i o n o f R u s s e l l ) , 320 t h e n , f r o m
a critical point of view, as the unique possible theory of knowledge

319
See: MARIA ODILA LEITE DA SILVA DIAS, Prefácio: Hermenêutica e Narrativa to NICOLAU
SEVCENKO, ORFEU EXTÁTICO NA METRÓPOLE: SÃO PAULO, SOCIEDADE E CULTURA NOS FREMENTES
ANOS 20 XVI (1992). I would advance that the analysis of Professor Sevcenko is mutifaceted and rich in
details, complex and insightful, inscribing himself among our best historians, in the tradition of Sergio
Buarque de Holanda, Maria Odila Leite Dias da Silva Dias, and along with José Murilo de Carvalho, and
Lilia Moritz Schwarcz.
320
LUDWIG WITTGENSTEIN, TRACTATUS LOGICO-PHILOSOPHICUS (1963); BERTRAND RUSSELL,
BASIC WRITINGS. (Robert E. Egner & Lester E. Demonn ed. 2009).
213

( t h e l a s t W i t t g e n s t e i n , a n d t h e P r a g m a t i s m ) . 321 T h e m e a n i n g o f t r u t h
and word is matter of social practice, pragmatic context. The word is
a playful artificer and object of a reality that might only be
apprehended by the diverse uses of language. Modernity (Modernism
criticism, Avant-Garde movements) would provide a myriad of uses 214
and connotations to signs. The time of Historicism would become

non-linear, the process of evolution (so important to the
Evolutionism) would be abruptly interrupted, and giving rise to
innumerous different, renewed points of depart. The facts would be a
place to contestation, different voices would struggle for the right to
interpret and give meaning to them. The advent of mass culture. The
break of the limits between private and public spaces, making
intimacy a political matter, bringing new themes to the public arena,
which would transform into spectacle. The identities pretentiously
built, imagined, invented during the Romanticism would not be ever
more acceptable. The society would seek for exotic experiences
elsewhere, bringing to the sense of place and time new connotations.
Nationality would become something more flexible. The framework
of languages, references, values, and signs would suddenly change.
The world is never more an object of representation. To represent
becomes more closely to acting than to reflecting things. Sense gives
its place to sensations, excitements.
That was the ambience of rupture, with which Modernism

had faced the past. No more the past certainties, but the uncertainty
of the moment.

321
LUDWIG WITTGENSTEIN, PHILOSOPHISCHE UNTERSUCHUNGEN (2003); RICHARD RORTY,
OBJECTIVITY, RELATIVISM, AND TRUTH: PHILOSOPHICAL PAPERS (1991); DONALD DAVIDSON, THE
ESSENTIAL DAVIDSON. (Ernie Lepore & Kirk Ludwig ed. 2006).
214

Mario de Andrade and his fellows Modernists would try to

respond to the question about the meaning and the role of Brazil, by
figuring out new models, new standards, new characters, and new
myths. Macunaíma is a “hero without characteristics”. He is inserted
in history and geography; his successive appearances would provide 215
images of facts, visits to places, times and stories, an amalgam of

legends. Nevertheless, even the history is over
“and its glory has faded away. There is no longer

anyone left ... The places they knew … they are all now as
solitary as desert. An immense silence … No one on this earth
knows how to speak the language of this vanished tribe, nor how
to recount its flamboyant adventures. Who can know anything of
the hero? (…) The vanished tribe, the family turned into ghosts,
the tumbledown hut undermined by termites, Macunaíma’s
ascent to heaven, how the parrots and macaws formed a canopy
in the far-off times when the hero was the Great Emperor,
Macunaíma: in the silence of the Uraricoera only the parrot has
rescued from oblivion those happenings and the language which
had disappeared. Only the parrot had preserved in that vast
silence the words and the deeds of the hero … Macunaíma, the
h e r o o f o u r p e o p l e . T h e r e ’ s n o m o r e . ” 322
The hero is fictional, as are the people, the history, and

the facts. The novel is at the same time a critique of the Romantics’
attempt to tell a coherent history of origins and formation of
nationality, and paradoxically an achievement of the Romanticism
project: a coherent history that is actually all invented. But the
Modernist narrative is assumed as fictional. A history without
witnesses, without proofs, it can be anything. Even the hero could be
capable of victory, to free his people. The author instead has opted
for the realistic defeat: history is over, victory has faded away (it is

322
MARIO DE ANDRADE, MACUNAÍMA. (E.A. Goodland trans. 1984).
215

a Brazilian idiomatic expression: “Acabou-se a história, morreu a

vitória”, the vanishing meaning of every victory, even of any attempt
to win). This kind of feeling is a commonplace, a locus communis of
the Brazilian culture. Machado de Assis used the expression: “Ao
vencedor as batatas” (“the winner gets the potatoes”), with the same 216
meaning.
Macunaíma was published in 1928, six years after the

Semana de Arte Moderna – Week of Modern Art -, which took place
in the Theatro Municipal de São Paulo, from February 11 to 18, and
marked the start of Brazilian Modernism. By the beginning of the 20th
Century, in fact, São Paulo had become the economic center of Brazil,
due to its coffee plantations and trade. There was large-scale
immigration from Europe, and Asia accounted for the city's growth
and multiple cultural influx. A perfect place to experiment in arts and
social life, in contrast with Rio de Janeiro, at that time the political
capital of Brazil, a place connected to the official conception of
culture. Painters, Sculptors, Musicians, and Poets presented their
works to a very participative audience, who welcomed the
performances with cheers and jeers. Some of the artists had spent
time in Europe, mainly in Paris, but also in Berlin. They brought to
Brazil, even a little later, some of the styles, cultural programs and
manifestos, and political platforms of the European Avant-gardes.
The response was controversial, but the modernists had

achieved their aim, provoking an energetic reaction, it did not matter
whether for or against the ideas, works, lectures, and performances.
In 1942, Mario de Andrade would reflect on the movement, in the
216

323
famous article “O Movimento Modernista.” He talks about a
renewed aesthetics, poetical passions of a group inclined to face the
conformism of the elite of the time. The world was not the same, and
required new manners of expression, a new language, new projects,
new prospects. There was a crossing of styles and genres, among 217
several arts, and a very superficial philosophical justification.

Aggiornamento of Brazilian conceptions and artistic status was a
serious commitment of the artists. But the modernists remained
searching the Brazilian specificity, the expression of the country,
which should be free of the constraints of academicism, and any
political control. They propose freedom of expression, in an
ambience of continuous merry meetings, feasts that configured
actually a declaration of war against the accommodated national
Intelligentsia. Mario de Andrade explained the three principles of the
324
Modernist project: the permanent entitlement to aesthetic
investigation, the updating of the Brazilian artistic intelligence, the
stabilization of a national creative consciousness. He acknowledged
the importance of the spirit and the currents of the European
movements, and the aristocratic character of the Brazilian Modernism.
The Movement grew up in the salons of the traditional São Paulo
aristocracy, during feast after feast, in a delightful environment:
balls, festivals, meetings, trips. The Modernist movement prepared
and created the revolutionary spirit that would carry away the
political changes, the destruction of the old order, and dissolution of
the Old Republic in the outbreak of the Revolution of 1930, a

323
MARIO DE ANDRADE, ASPECTOS DA LITERATURA BRASILEIRA supra note 295, at 231-255.
324
Id., at 242.
217

culmination of other rebellions against the predomination of the

oligarchy, after the first thirty-nine years of republican constitution.
A social movement of destruction of the old, claiming for a renewal
of the society organization, which, in the end, would be restricted to
the arts. If the advent of the Republic did not bring any changes in 218
the social order, the revolution of 1930 would end up in a new period
of dictatorship, now under a new political project: the Estado Novo
(New State, new regime). The political movement would keep only
the cry for modernization and renewal, leaving aside the spirit of
freedom.
The reader would for sure observe that there is no mention

of democracy in the course of modernism, nor ever before. The most
vigorous utopia of modernism was the anthropophagy, something like
a r e t u r n t o t h e m a t r i a r c h a l r e g i m e o f P i n d o r a m a . 325 T h e i d e a l o f a
communal living, with no private property, where the ethic of the
cannibal - the Abaporu (which means in Tupi language the

325
OSWALD DE ANDRADE, Manifesto Antropófago 1 Revista de Antropofagia. I (May 1928); A
Crise da Filosofia Messiânica. (1950) in A UTOPIA ANTROPOFÁGICA (1999).
218

326
anthropophagus, human-eating) - would prevail: one shall be
interested only for what does not pertain to him or her, a process of
perpetual appropriation of goods and ideas from the others. I would
say a nature state of love of everyone for everyone, attachment that
involves the faculty of devouring the enemies, who will become one 219
within the devourer.
What is the meaning of cannibalism for democracy? The

adaptability of the Brazilian hero, always hungry, voracious,
prepared to adopt and adapt to new ideas, is a denial of the political.
There is no agora or public space. No will to deliberate with others,
and achieve common decisions. The only interest is the desire to
satisfy its own appetites, by transforming itself into the images of
others.

326
TARSILA DO AMARAL, ABAPORU, Oil on Canvas painting, 1928. For
the meaning of Anthropophagy, its cultural and political implications, and the discussion of the
historiography on the different interpretations and uses of the indigenous ritual, see ALFREDO ATTIÉ JR, A
RECONSTRUÇÃO DO DIREITO (2003).
219

A n gu ish of Id en tity
We can thus acknowledge a tendency to criticism, a

deconstructive force in Brazilian literature. Meanwhile, it lacks the 220
constructive capacity. The same happens in the political thinking and

practice: they fail in conceiving any serious project. Revolts,
revolutions, and changes carry on delusion. The political discourse
does not present any meaning, exactly as representation is but a kind
of performance with no commitment to the society. The language
presents a performative function, but in a very different way. It
induces not the performing of an act, but the building of a different
reality, an invented one.
That is the reason why law has been taken more like a
promise than like an accomplishment. Brazilians are prone to be
disappointed. They do not have rights. They have the right to have
rights, with no surety of enforcement. Which means that everyone can
imagine a state of perfection, even if it does not exist in the present.
The words of the law project realities, but do not indicate the means
by which they would be reached.
L i m a B a r r e t o 327 h a d a l r e a d y c r i t i c i z e d t h e p r a c t i c e o f t h e
republican program under the presidency of Floriano Peixoto,
Brazil’s second president and dictator. Lack of legitimacy and
commitment with republican principles:
“the image of our country, which lives within the

projects and aspirations of our collective consciousness,

327
LIMA BARRETO, TRISTE FIM DE POLICARPO QUARESMA (2012).
220

continues to largely reflect the spirit of imperial Brazil, not

only in this idealized concept of the state domestically valid,
but also we find it impossible to conceive any different role on
the international stage. Whether it is made manifest or not, we
prefer our reputation abroad to that of a giant full of elevated
goodwill toward all nations of the world [. . .] It wanted to
prevail only through the greatness of its self-made image [. . .] 221
We have no ambition for the prestige of a conquering country,

and we notoriously detest violent solutions. We want to be the
most gentle and well-behaved people in the world. We fight
constantly for principles universally held to be the most
moderate and rational. We were one of the first nations to
legislatively abolish the death penalty, ever after abolishing it
much earlier in practice. We model our conduct among nations
to a standard that follows, or seems to follow, the most
educated countries, and thus we are proud to be in excellent
company. All these are characteristic features of our political
arrangements, which engage in disarming all the less
harmonious expressions of our society and in rejecting any
national spontaneity. The unique instability resulting from this
anomaly is obvious and has not escaped observers [. . .] The
separation in our country between politics and social life has
reached the maximum. The power of the alienation of politics
f r o m r e a l i t y h a s r e a c h e d t h e h e i g h t s o f t h e a b s u r d . ” 328
Several works would depict the oligarchy, the bourgeoisie,

and the profound gap between their manners and the lives of the
common people. Inequality and disconnection. The fragmented
society would be carried on through the successive regimes. The
interpreters of Brazil did not write directly on democracy. They call
f o r a r e v o l u t i o n : 329

328
SERGIO BUARQUE DE HOLANDA, ROOTS OF BRAZIL143, 144 (2012).
329
Idem, at p. 150, 151, from a Weberian point of view, shared by RAYMUNDO FAORO, OS
DONOS DO PODER: FORMAÇÃO DO PATRONATO POLÍTICO BRASILEIRO (3rd ed., 2001); A REVOLUÇÃO
INACABADA (Fábio Konder Comparato ed 2007); and SIMON SCHWARZMAN, BASES DO AUTORITARISMO
221

“in Brazil and in Latin American countries in general,

apparent political stability was ensured wherever personalism –
or oligarchy, which is the extension of personalism in space and
time – succeeded in abolishing liberal resistance … Peoples in
Latin America find the idea of a nonmaterial and impersonal
entity hovering over individuals and presiding over their
destinies generally unintelligible. We often imagine that we 222
prize democratic and liberal principles when we are really

fighting in favor of one personalism or against another. An
intricate political and electoral machinery is continually
occupied with hiding that fact from us. But when the welcoming
laws of personalism are supported by a respectable tradition or
h a v e n o r b e e n p l a c e d i n d o u b t , t h e y a p p e a r w i t h o u t d i s g u i s e . ” 330
Perhaps democracy is a misplaced idea. Machado de Assis

himself has shown this possibility of misplacement, when, in
Posthumous Memoirs, he made Quincas Borba explain his own
philosophy. Cubas, telling his Posthumous Memories, remembers his
encounter of his old fellow Borba, who explains his philosophical
system. It is original and, at the same time, dialogues with other
philosophers’ convictions. But, of course, no one can take it
seriously, as it only affirms the supremacy of what appears to be
obvious: the struggle for life, that is simply determined by hunger.
Humans are conscious of their hunger. Fighting consciously for
hunger is a decisive proof of human’s superiority. There is no meta-

BRASILEIRO (2nd ed., 1982). See also: CAIO PRADO JR, A REVOLUÇÃO BRASILEIRA; EVOLUÇÃO POLÍTICA
DO BRASIL; FORMAÇÃO DO BRASIL CONTEMPORÂNEO, from a Marxist perspective, shared by
FLORESTAN FERNANDES, A Revolução Burguesa no Brasil in SILVIANO SANTIAGO ed. INTÉRPRETES DO
BRASIL. GILBERTO FREYRE”s influences include the anthropologist Franz Boas and the American
sociology: Casa Grande e Senzala; Sobrados e Mucambos & Ordem e Progresso in SILVIANO
SANTIAGO ed. INTÉRPRETES DO BRASIL.
330
SERGIO BUARQUE. ROOTS OF BRAZIL, supra note 313, at p. 143, 144.
222

physics, only physics, or the nature, which is equal to humanity,

every human being considered as a whole. A philosophical or
practical system, which message can be summed up in few words:
seek what is necessary and what represents pleasure, and be prepared
to fight for it. If two people or two tribes fight for potatoes, the 223
winner gets the potatoes. That is all. The name of the doctrine is
Humanitism, which
“enjoyed easy accommodation with the pleasures of

life . . . and that, quite the contrary, frugality could be an
indication of . . . the perfect expression of human idiocy [. . .]
There is truly only one misfortune: that of not being born [. . .]
It is clear that no man is fundamentally opposed to another man,
whatever contrary appearances may be [. . .] The universal
principle, distributed and summed up in every man [. . .] War,
which looks like a calamity, is a convenient operation …
Hunger is proof that Humanitas is subject to its own entrails …
The man who fights over a bone with a dog, has the great
advantage over him of knowing that he’s hungry … It remains to
be seen whether or not it’s more worthy for a man to fight over
it by virtue of a natural necessity or to prefer it in obedience to
religious, that is, mutable, exaltation, while hunger is eternal,
l i k e l i f e a n d l i k e d e a t h . ” 331
Machado proposes a parody of the ideas that were

circulating in the New Country. Outside ideas, they are superficially
adopted - even if we consider that their proselytes ardently take them
seriously. As soon as those philosophies come closer to the political
actors, they transform themselves into just a game to obtain power
after power, in a struggle for domination.
It may be considered that the interpreters of Brazil were a

consequence of the Modernist movement, influenced by their program,

331
MACHADO DE ASSIS, POSTHUMOUS MEMOIRS. Supra notes 294 and 303.
223

trying to assume the posture of the free aesthetic researchers, forging

once again the identity of Brazil. It is actually, since Romanticism, a
never-ended project, which I could call the anguish of identity.
224
M a cu n a ím a , A b a p o ru , “ M a k e It N ew ” 332
The Brazilian intellectuals are spinning around the same

theme: what Brazil is. That is something impossible to discover, for,
among other reasons, it reflects exactly a fear whether of being
Brazilian or to admit what means to be a Brazilian. An
unaccomplished idea for an undesirable definition. Leaving the
Brazilian nation notion unfinished, deals with the unacceptance of
the troublesome of what should be designated by the name. If we
have no definition at all, we are allowed to continue our process of
searching and even of formation. We deny origins and ends to
ourselves. Mario de Andrade summarizes our absence of historical
sense, in naming our hero Macunaíma, who has no characteristics at
all, which means he can shift his own shape, humor, dressings, ideas,
philosophy as he likes or needs it. He is the master of deceit,
following the main character of his tribe, the Tapanhumas, which is
hedonism and laziness. He is very proud of being as he is (or always
turns to be), which is proven by his admirable success with women.
At the end of the rhapsody, Macunaíma ascends to heaven

and becomes a major point of reference and admiration, the

332
EZRA POUND, MAKE IT NEW (1935). It is considered to be the cry of North American
Modernism.
224

constellation Ursa Major. It is the opposite movement, or the

movement towards a different direction, if we compare the ascension
of Macunaíma to the descent of Narcissus, in its own myth. The
metamorphosis of Macunaíma is anti-narcissistic. The Brazilian hero
did not become a star because he once admired himself. He had 225
transformed into a natural important point of reference because he

wanted to be admired. The Narcissus’ move was an attempt to capture
his own image, which he had been admiring for a long time. The
transformation would prevent him to admire himself again. Later on
this chapter I intend to explore further the metaphor. For now, I can
say that it signifies also the appropriation of a northern hemisphere
symbol.
I prefer to define Macunaíma as a non-character (instead

of anti-hero, as he is usually named). His main characteristic is the
absence of characteristics, because he is able to transform himself
into almost everything, eternally challenging the other characters of
the story and the reader. Could Brazilian democracy be considered a
kind of Macunaíma’s gift? Or is it just the unsolved process of
permanent anthropophagy? Macunaíma or Abaporu? Cultural
cannibalism could indeed be apprehended as a counterpart of the
absence of characteristics. Brazilian culture is always prepared to
absorb, adapt, and adopt other cultures’ experiences. With
Macunaíma, we would adopt a new mask, disguising ourselves over
and over again. The disguise, however, would have the power of
changing our undefined character. With Abaporu, every novelty could
be transformed into a part of ourselves. We are defined not for the
absence of characteristics, but for keeping them all.
225

War (or violence), hunger and hedonism, to return to

Machado Assis’ categories. Could they be taken for the Brazilian
translation of the triad eudaimonia-eleutheros-polemos, or happiness-
freedom-war? Without democracy, however.
226
When we think about the cultural constraints to the
political and legal categories, we have to take into account not only
the desire and the importance of valuing the self-determination of
peoples, but mainly the consequences (political and legal) of their
cultural characteristics to the building of the international public
space.
H ed on ism -H u n ger-V iolen ce
Our political regimes and their tentative policies are but

ideas of sociability – if I may say, societal sociability, and not
political sociability. Brazilian is not a zoon politikon, but a zoon
koinomikon, not a polis-being, but a koinomia-being. As I propose,
not a being designed to live in a political society – which is the
highest achievement of human associations (as Aristotle had
conceived), but to live in just a community, with no political
prospects, which end is not eudaimonia, or the happiness obtained by
sharing not only the same destiny, but by sharing the capacity of
deciding, of choosing the ends of, and the means to achieve that
common fate.
226

The main distinction for the Greeks, however, was between

333
the zoon-politikon and the zoon-oikonomikon. The being as a
member of the political association (polis), and as a household-being
(oikos). Aristotle defined the different kind of leadership, by
distinguishing the political leadership from the social dominancy: 227
from the political side, πολιτικὸς (politikos) and βασιλικὸςν

(basilikos); for the social side οἰκονοµικὸς (oikonomikos) and
δεσποτικὸς (despotikos). There is a difference in the nature -
Montesquieu would use the term principles instead of nature - of the
capacities and powers exerted in the public and in the private spaces.
The only one who keeps the name and the qualities of the polis and
may be considered political, is the political leader, the politikos. The
king or basilikos is attached to the political space, but does nor
exercise any political action. Because the polis is the public space of
equality, and between equals there is no master and obeyer.
Democracy is, as I mentioned supra, the only political regime that
334
deserves its name. The polis-being is conceivable only in a
democratic regime, the only one that allows participation to the
whole demos.
We, Brazilians were not able to create politics, and resume

ourselves to social-makers, as a means to accommodate the social or
societal relationships to the models of Thomistic and Machiavellian
categories. Politics would determine a civic or republican Bildung, an

333
See, for the meaning of that distinction, MOSES I FINLEY, ANCIENT ECONOMY 152 (1973).
334
See ARISTOTLE, POLITICS (available at http://www.perseus.tufts.edu), Chapter 1, Paragraphs
1252 a, b, 1253, a, b and passim; NICOMACHEAN ETHICS. (available at http://www.perseus.tufts.edu),
Book V, passim.
227

education for the public life, conceived as more important than the
private affairs. It would require an education for the practice of
equality and freedom in the public space. But our education and our
practice are only means to reproduce traditional forms of dominancy,
which brings us to the terms of oikonomikos and despotikos, modes 228
of arrangement of the private space. The exercise of power is

conceived as a relation of order-obedience, recasting the relationship
of the master and the slave. There are social relations, but not
political relations. The idea of order (a command given by a superior)
is constantly repeated, and impregnated in our vocabulary. We do not
have, as in English language, for the word ordering, the neutral or
rational meaning of a comprehensible arrangement of separable
elements. To order is simply dictating commands, even when we are
paying for a certain kind of service, as making our haircut.
In addition, there were no attempt to found an original

philosophy, exception made to the ironic Machado de Assis’
Humanitismo, and the Oswald de Andrade’s Antropofagia. Oswald de
Andrade’s thesis was refused by the academic establishment, when
presented to the Universidade de São Paulo.
Mario de Andrade said that the Modernists had a very

superficial and distant relation with philosophy. I would say that
literature should be considered the locus for the philosophical
thinking in Brazil. Our authors have always been reflecting on their
own works’ meaning and role within the Brazilian culture - in lower
degree, they sometimes include something beyond their own country
as object of reflection. The most universal of our writers was maybe
João Guimarães Rosa, whose background in philosophical studies
(self-educated, as it was the case of the majority of our writers)
228

allowed him to fill the language of our backlands with the most
complex and sophisticated philosophical concepts of his time (a mix
of philosophy of language and phenomenology). But the same concern
with filling the gap of philosophical formal education we can find in
other writers, e.g., Sousândrade, Machado de Assis in his later works, 229
etc. The most original and coherent was eventually Rosa.
The other Brazilian thinkers tried to adopt one or other

335
foreign philosopher’s system, and used it as something like a
patron or champion.
Humanitism, as we have seen, is nothing but a system of

conformity to a certain conception of human nature – a cycle around
itself. There is the struggle for life, which acquires a sublime
significance, because men know why they fight. Hunger is an eternal
and noble reason – more important than, for instance, religion, which
is not eternal. Humanitism recognizes the vanity and the envy as
virtues. So it is servanthood. The natural order of things is the order
presented at a certain moment. No occasion or reason to rebel
against it. Humanitas is the human being considered as a whole. Each
human is a reflection of Humanitas. That is all. The whole philosophy
sounds like a blague, or an irony of the empty rhetoric discourses of
its time. There is no proposal, however. Nothing to substitute the
mistakes of the cultural environment. However, it contains a very

335
JOÃO CRUZ COSTA, CONTRIBUIÇÃO À HISTÓRIA DA IDEIAS NO BRASIL, supra note 300;
MIGUEL REALE, FILOSOFIA EM SÃO PAULO (1976); ONÉSIMO TEOTÓNIO ALMEIDA,
On the Diversity of Brazilian Philosophical Expression; FRED GILLETE STURM,
Philosophy in Brazil Today in JORGE J.E. GRACIA & MIREYA CAMURATI, PHILOSOPHY AND
LITERATURE IN LATIN AMERICA: A CRITICAL ASSESSMENT OF THE CURRENT SITUATION 18-24, 25-35
(1989).
229

interesting intuition about the Brazilian condition, which I intend to

analyze later.
230
S overeign ty -O rien ted: th e A n ti-N arcissu s
Based upon my analysis of the literary sources, - Brazilian

and American - I propose a distinction between the main orientation
and trends of Brazil and US towards International Relations and
International Law. Brazil’s International Law and Relations are
defined as sovereignty-oriented and United States’, as democracy-
oriented. I define Brazilian and American orientation, with the help
of the concept of Narcissism, a complex of relations brought about by
Freud, which I discuss and criticize with the help of the analysis of
Brazilian and American sources.
The absence of democracy -therefore, a word and a

practice that became underestimated in Brazilian history - would
e x p l a i n w h y B r a z i l i a n i n t e r n a t i o n a l l a w a n d i n t e r n a t i o n a l r e l a t i o n s 336

336
See: GIAN GARDINI & PETER LAMBERT LATIN AMERICAN FOREIGN POLICIES: BETWEEN
IDEOLOGY AND PRAGMATISM (2011); H. B. JACOBINI A STUDY OF THE PHILOSOPHY OF INTERNATIONAL
LAW AS SEEN IN WORKS OF LATIN AMERICAN WRITERS (1954); DANIEL C. HELLINGER, COMPARATIVE
POLITICS OF LATIN AMERICA: DEMOCRACY AT LAST? (2011); MARSHALL C. EAKIN, THE HISTORY OF
LATIN AMERICA: COLLISION OF CULTURES (2007); EDWIN WILLIAMSON, THE PENGUIN HISTORY OF
LATIN AMERICA (rev. ed., 2009); GILBERTO FREYRE, NEW WORLD IN THE TROPICS: THE CULTURE OF
MODERN BRAZIL (1959); SÉRGIO BUARQUE DE HOLANDA. ROOTS OF BRAZIL, supra note; PAULO
FAGUNDES VISENTINI, A PROJEÇÃO INTERNACIONAL DO BRASIL: 1930-2012 (2013); ANGELO DEL
VECCHIO, BRASIL E ESTADOS UNIDOS NO CONTEXTO DA GLOBALIZAÇÃO(2012); TEREZA MARIA SPYER
230

reflect two tendencies of our cultural imagination: the (obsessive)

quest for identity, and the protection of sovereignty.
The first explains the search for an autonomous approach

to international relations. This is not bad in itself, of course,
231
although it represents just a rhetorical declaration of successive
governments. Indeed, Brazil has always needed the inputs of the
international thought, and the support of other countries for the
efficacy of its international politics. The last, nevertheless, leads to
the endorsement of foreign non-democratic regimes. On the other
hand, it also explains the remorse of Brazil vis-à-vis the weaker
countries.
Remorse, in Machado de Assis’ critical appraisal of

Brazilian society, is the reverse of the feeling of superiority.
Superiority is the satisfaction anyone feels when comparing oneself
to others. The self-admiration of a beautiful woman looking into a
mirror, as exemplified by Machado de Assis. Superiority in status and
means, said Machado, is “one of the most legitimately pleasant things
for the human organism”. Remorse is the “twitch of a conscience that
s e e s i t s e l f r e p u g n a n t . ” 337 R e m o r s e i s a k i n d o f t o r m e n t , a f e e l i n g o f
regret for something misdeed. Brazilian culture carries on remorse.

DULCI, AS CONFERÊNCIAS PAN-AMERICANAS (1889-1928): IDENTIDADES, UNIÃO ADUANEIRA E
ARBITRAGEM (2013); DAWISSON BELÉM LOPES, POLÍTICA EXTERNA E DEMOCRACIA NO BRASIL: ENSAIO
DE INTERPRETAÇÃO HISTÓRICA (2013); PAUL W. DRAKE, BETWEEN TYRANNY AND ANARCHY: A
HISTORY OF DEMOCRACY IN LATIN AMERICA, 1800-2006 (2009).
337
MACHADO DE ASSIS, POSTHUMOUS MEMORIES, supra notes 294 and 303, at Chapter CXLIX.
231

F r e u d 338 w o u l d l a t e r d i v i d e h u m a n i m p u l s e s i n t w o k i n d s : “ t h o s e
which seek to preserve and unite” (“erotic” in the Plato’s use of the
word), and “those which seek to destroy and kill” (grouped together
as “aggressive or destructive instinct”). It was a letter to Einstein, in
which he reflected on the reasons of war. Freud developed those 232
ideas on the polarity of human experience, between love and hate,

e r o t i c a n d d e s t r u c t i v e i m p u l s e s , i n C i v i l i z a t i o n a n d i t s D i s c o n t e n t s . 339
In other words, love and hate, a “fundamental relation to the polarity
o f a t t r a c t i o n a n d r e p u l s i o n . ” 340
B r u n o B e t t e l h e i m 341 m a d e r e m a r k s o n t h e s e v e r a l m i s t a k e s
the Standard Edition translation of Freud’s works had committed.
Most of them were due to the attempt of James Strachey and his
collaborators to transform Freud’s very careful and poetic use of
German language into a (pseudo-) scientific language. Besides, Freud
was a practitioner of psychoanalysis (or the Tiefenpsychologie, as he
liked to call it), whose intention was leading the patient to engage in
his or hers own cure. Thus, he chose words accessible to the patients’
vocabulary, helping them to deal with their own problems and find
out the best response to their concerns. In a letter to Carl Gustav

338
SIGMUND FREUD, Why War? in JOHN RUNDELL & STEPHEN MENNELL, CLASSICAL READINGS
IN CULTURE AND CIVILIZATION 139-147 (1998). Freud obtained the Doctorate degree in Medicine in the
same year of the publication of Machado’s Posthumous Memoirs (1881).
339
SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS (James Strachey trans. 1962); DAS
UNBEHAGEN IN DER KULTUR (1930).
340
Idem, at p. 143.
341
BRUNO BETTELHEIM, FREUD AND MAN’S SOUL (1984).
232

Jung, quoted by Bettelheim, Freud even observed, “psychoanalysis is

in essence a cure through love.” The majority of the concepts adopted
by Freud were actually taken from literature, like, for instance,
sublimieren (sublimate) a neologism introduced by Goethe. Others
were picked up from patients’ expressions of their feelings, like the 233
very important - and quite simple for the user of German language -
Ich, Es and Über-Ich, wrongly translated to Latin, instead of English,
becoming unusual to the patient understanding of the Soul’s
mechanisms, Ego, Id and Superego, and more abstract that they were
conceived to be. Indeed, it would be more pleasant and useful to say
simply I, It, and Over-I. Problems that to be comprehended and
solved by psychoanalysis are Soul’s (Seele – the term used by Freud),
not Mind’s (or intellectual – Verstand, Intellekt,) issues. That is
because they involve an accommodation of the whole being, not just
the faculty of thinking. To the same extent, Freud used Trieb
(impulse), instead of Instinkt (instinct), to mean a human act and not
j u s t a n a t u r a l c o e r c i o n . 342
According to Freud, remorse is a response to an actual

experience, whereas guilt is an abstract reaction to the fact that we
had abandoned our primeval aggressiveness as a means to constitute
or to enter into society. If so, it is more adequate to assimilate
Machado’s remorse to Freud’s guilt. That is to say, that it is an
abstract, but additionally not a constructive compulsion.
We came through the system proposed by Freud, - a

Machado de Assis’ contemporary - because it could be useful to

342
For the understanding of the origin and use of the main concepts of psychoanalysis, see JEAN
LAPLANCHE & JEAN-BERTAND PONTALIS. VOCABULAIRE DE LA PSYCHANALYSE (Paris, 2005).
233

understand why different cultures can generate diverse conceptions of

the political, both internally and externally. For instance, we can
f i g u r e o u t w i t h M a r k E d m u n d s o n , 343i n h i s i n t e r p r e t a t i o n o f F r e u d , t h a t
narcissism is but an equation of submission to an absolute power,
exactly as, in the original myth, Narcissus, deeply falling in love 234
with his own image, submitted himself to the power of the image of
perfection, and, trying to take possession of it, ultimately died. The
image proposed by Machado de Assis, at first, complements Freud’s
equation. The anti-Narcissus would not have any pleasure in
envisioning its own image. It will project hate to its peers, trying to
achieve the image or sentiment of superiority denied by the mirror. In
that way, Machado de Assis’ philosophy would contradict Freud
political interpretation in a very relevant aspect. As the sentiment of
perfection (or superiority, in Machado de Assis’ language) would
satisfy Narcissus, to the point of giving its life to join its image. The
remorse, instead, with the dissatisfaction, would generate a
destructive humor. The dictator is an anti-Narcissus. Applied to the
image of the society, the remorse (or guilt, in Freud’s words) will
generate a system of perpetual domination, and not a democracy.
The Machado de Assis’ intuition explains a lot about the

Brazilian incapacity of generating the values of freedom and equality,
essential to a (political and) democratic regime. If we add the
ingredient of the deceitful Macunaíma, it will result on the evidence
that our anti-Narcissus not only hates, but also denies to accept its
own image. The Abaporu, whose identity is the permanent process of

343
MARK EDMUNDSON, Introduction in SIGMUND FREUD, BEYOND THE PLEASURE PRINCIPLE
AND OTHER WRITINGS10-18 (John Reddick trans. 2003).
234

adopting, and adapting to the identities of others, explains

Macunaíma’s transformations. Finally, the remorse or guilt are
confirmed by the condition of Iracema (the America itself). Married
to the European, she became enslaved, and lost her characteristics
a n d i d e n t i t y , k i l l i n g h e r o w n b r o t h e r : 344 235
“thus the rosy cactus, blossomed into beautiful

flower, envelop in a bud its perfumed heart … The evil spirits
of the night have clouded Iracema’s soul … Tupã abandoned his
virgin … The stamen of her flower had been broken .. From the
crest of the coconut, the jandaia still sang, but no longer did it
repeat the melodious name of Iracema. On earth, all things pass
away.”
At the beginning of the novel, Alencar described Martim

leaving his land of exile, accompanied by his son Moacir. Jandaia is
the cawing parakeet, from which song comes the name of Alencar’s
homeland, the Brazilian State Ceará: “Green, impetuous seas of my
native land, where the Jandaia sings amid the carnauba fronds. Green
seas, that gleam with liquid emerald in the rays of the rising sun,
skirting alabaster beaches shaded by coconut trees. Be still, green
seas, and softly caress the ranging wave so the intrepid boat may
calmly float above the waters.” At the end, her son, or the first
Brazilian, left his homeland. José de Alencar asks, “Did this presage
t h e d e s t i n y o f a r a c e ? ” 345
D em ocracy -O rien ted : th e N arcissu s.

344
JOSE DE ALENCAR, IRACEMA Chapters XVIII, XVII, XXXII, XXXIII.
345
JOSE DE ALENCAR, IRACEMA at Chapters XVIII, XVII, XXXII, XXXIII.
235

It would be definitively different if the image obtained

were delightful, and apt to generate the sentiment of pleasure or
superiority. Let us return to the political interpretation of Freud’s
236
t h e o r y 346 F r e u d ’ s n a r c i s s i s m a p p l i e s t o a u t h o r i t a r i a n r e g i m e s . T h e
eternal succession of domination, rebellion against domination, and
back to domination. When the regime is actually political, - as I
suggest in the previous chapter - democracy is installed, there is no
room for inequality or domination. How can the Freudian Narcissus
act among equals? It is satisfied with the pleasure its image gives to
it. It will continue to admire itself, as Machado de Assis suggested,
feeling the pleasure of its superiority. It would not interact with its
peers, as it would not leave the mirror. Its relationship with others
would reproduce its own pleasure (maybe of an egoistic nature). It
would become the benefactor of others, and would treat them as the
beneficiaries of its policies, the benefactees of its actions. It will
seek neither to affirm its identity, nor to reaffirm autonomy through
sovereignty. It will not respect sovereignty either, because its
superiority is affirmed through the comparison with others, which
should be, therefore, similar to it.
The image of a country is a result of the identity it is

capable to forge (imagine, invent) to itself. Freud, for instance, based
his theory upon myths of origin, inspired by the myths of Antiquity,
as reflected by his contemporary European cultivated (and repressed)
society. His ideas would be presumably different if he had lived in
another time and another place. His very brief experience in America

346
EDMUNDSON Introduction, supra note 327, at p. 18-22.
236

did not provide him with the subsidies to confirm his brilliant new
science. It was indeed designed to another kind of society; it was a
depiction of another reality.
The myth of origin is different for any society. It depends

237
upon the moment it is conceived, and the choices made to its
conception.
United States can reflect their image as a narcissistic one,

b e c a u s e i n t h e m o m e n t o f t h e i r f o u n d a t i o n , 347 a g r o u p o f a d m i r a b l e
men was embedded with the enlightened ideas of republic and
democracy. The Declaration of Independence, in fact, is a birth
certificate, always cited, and venerated even for those who did not
take part of the nation envisioned by the original subscribers of its
terms. It casts anti-absolutism principles, as well as fundamental
rights, among them freedom and equality. Successive peoples inside
and outside United States would claim to obtain those rights, and to
become participants of that original community. Under the Espionage

347
ALLAN BLOOM, CONFRONTING THE CONSTITUTION: THE CHALLENGE TO LOCKE,
MONTESQUIEU, JEFFERSON, AND THE FEDERALISTS FROM UTILITARIANISM, HISTORICISM, MARXISM,
FREUDIANISM, PRAGMATISM, EXISTENTIALISM. (1990); BERNARD BAILYN, THE IDEOLOGICAL ORIGINS
OF THE AMERICAN REVOLUTION (rev. ed., 1992); LYNN HUNT, INVENTING HUMAN RIGHTS: A HISTORY
(2007); GORDON S. WOOD, THE IDEA OF AMERICA: REFLECTIONS ON THE BIRTH OF THE UNITED STATES
(2012); THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1998); THE AMERICAN REVOLUTION:
A HISTORY (2002); THE RADICALISM OF THE AMERICAN REVOLUTION (1993); ALAN GIBSON,
INTERPRETING THE FOUNDING: GUIDE TO THE ENDURING DEBATES OVER THE ORIGINS AND
FOUNDATIONS OF THE AMERICAN REPUBLIC (2010); SEAN WILENTZ, THE RISE OF AMERICAN
DEMOCRACY: JEFFERSON TO LINCOLN.(2005); WINSTON CHURCHILL, A HISTORY OF THE ENGLISH-
SPEAKING PEOPLES IV: THE GREAT DEMOCRACIES (1997); AN ESSAY ON THE AMERICAN CONTRIBUTION
AND THE DEMOCRATIC IDEA (David Widger ed.); HOWARD ZINN, A PEOPLE’S HISTORY OF THE UNITED
STATES: 1492-PRESENT (2005); DECLARATIONS OF INDEPENDENCE: CROSS-EXAMINING AMERICAN
IDEOLOGY (1990); J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT
nd
AND THE ATLANTIC REPUBLICAN TRADITION (2 ed. 2003); HANS J. MORGENTHAU, THE PURPOSE OF
AMERICAN POLITICS (1960); GEORGE C. HERRING, FROM COLONY TO SUPERPOWER: U.S. FOREIGN
RELATIONS SINCE 1776. (2011); CHRISTOPHER HITCHENS, THOMAS JEFFERSON: AUTHOR OF AMERICA
(2005).
237

Act of 1917, which prohibited demonstrations against the acts of the

government, and limited the exercise of liberties, leading to the
prison lots of opponents to the United States engagement in the Great
War, the anarchist Emma Goldman spoke to the jury, just before
having been sentenced to prison, for opposing the draft: “it is 238
despotism – the cumulative result of a chain of abuses which,

according to that dangerous document, the Declaration of
I n d e p e n d e n c e , t h e p e o p l e h a v e t h e r i g h t t o o v e r t h r o w . ” 348
That is because Thomas Jefferson, with one sentence,

turned a “typical 18th Century document about political grievances,
i n t o a l a s t i n g p r o c l a m a t i o n o f h u m a n r i g h t s . ” 349 S p e a k i n g i n c l e a r a n d
ringing tones - “We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness -” he inaugurates a new era. He would even influence
the social movements and revolts, and revolution in Europe, land
from where he had absorbed the ideas developed in his original
statement.
The Declaration presents a grave protest against despotism,

and provides to the other nations the explanation of the reasons for
secessionism, by which the thirteen colonies reclaim independence
from the metropole. In addition, it affirms certain inalienable rights
of the individuals (“all men”). Therefore, the document cannot be
described only as the concrete achievement of a Lockean project,

348
Quoted by HOWARD ZINN, PEOPLE’S HISTORY. supra note 330, at p. 372
349
HUNT, INVENTING HUMAN RIGHTS, supra note 330, at p.15.
238

Locke whose ideas were in fact reflected in the 1689 British Glorious
R e v o l u t i o n . 350
P o c o c k 351 d e p i c t e d a p i c t u r e f a r m o r e c o m p l e x t h a n t h e
simple traditional acknowledgement of the reception of Locke’s
239
liberal or revolutionary ideas. According to Pocock, the intellectual
and practical life of the 18th Century was covered by the debate about
virtue and passions, land and commerce, republic and empire, value
and history, thus American independence and revolution can be
envisioned as a part of that wider context. At the same time, they
could be understood as the “last act of the civic Renaissance, and that
of the civic humanism tradition – the blend of Aristotelian and
Machiavellian thought concerning the zoon politikon”, providing a
“key to the paradoxes of modern tensions between individual self-
awareness on the one hand and consciousness of society, property,
a n d h i s t o r y o n t h e o t h e r . ” 352 S o A m e r i c a n f o u n d e r s h a d l i v e d a g a i n t h e
Machiavellian Moment of crisis in the relation of personality and
society, virtue and corruption.

350
For the influence of ideas in the revolutionary contexts, see HILL. INTELLECTUAL ORIGINS,
supra note 330. Recalling Daniel Mornet’ Les Origines Intellectuelles de la Révolution Française. Hill
observes, “Ideas were all-important for the individuals whom they impelled into action; but the historian
must attach equal importance to the circumstances that gave these ideas their chance. Revolutions are not
made without ideas, but they are not made by intellectuals.” (Introduction to the original edition). He
reminds in addition, “Neither stimulated conscious revolutionary thinking about society in the way that
English experience, even as summed up by Locke, stimulated it in eighteenth –century France.”
351
POCOCK, THE MACHIAVELLIAN MOMENT, supra note 330, at p.462-467.
352
Idem, at p. 462.
239

The tension between Lockean and Machiavellian ideas can

thus define that kind of crisis or conflict. On the one side the
statement of republican values, in the tradition of Renaissance
thought. On the other, the seeking of individual satisfaction, by
appropriation of natural goods, possession and dominion, following 240
t h e l i b e r a l i d e a s b r o u g h t a b o u t b y t h e E n g l i s h G l o r i o u s R e v o l u t i o n . 353
Differentiating the North American background from the

Iberic America, we thus can find not only the Lockean presence, but
also a similitude of the Machiavellian influence. However, the
interpretation and use of Machiavelli’s ideas by the founders of the
American Republic would be diametrically opposed to the very
pragmatic conception of Ferdinand of Aragon, and his caudillos heirs.
For the North American took seriously the possibility of founding an
actual republic regime, setting up principles of coexistence, that
could afford the building of a new polis, even of large extension.
The Americans’ major concern from now on would be the

founding (and re-founding) of the Nation. They would not discuss the

353
For an accurate description of Locke’s influence on the American Founders, see THOMAS
PANGLE, The Philosophic Understanding of Human Nature Informing the Constitution in ALLAN BLOOM,
CONFRONTING THE CONSTITUTION; supra note 330, at p. 9-76. GORDON S. WOOD gave a superb
description of the ideological context of the Revolution, in the first part of his THE CREATION OF THE
AMERICAN REPUBLIC; supra note 330, at p. 1-124: The Ideology of the Revolution. CLAUDE LEFORT, in
his Introduction, p. 5-28, to the French translation of Wood’s now classical study of the first years of the
American Republic, talks about the paradoxes of the democratic principle, a tension between
disconnection of social and political experience, and “l’image d’un pouvoir organiquement lié à la société”
- p. 27/28. See for sure JOHN LOCKE, TWO TREATISES supra note 330; and ALAN GIBSON, INTERPRETING
THE FOUNDING, supra note 330, at Chapters 3, 4, 5, and, mainly 6, The Multiple Traditions Approach).
Finally, NICHOLAS GUYATT, PROVIDENCE AND THE INVENTION, supra note 330, at Chapter 3, Becoming
a Nation: Providentialism and the American Revolution.
240

question of the constitution of their own identity. Because they found

out a new principle of identity. It has been depended neither on
natural, nor even cultural constraints, as it is essentially political. Of
course it is not a product of a single formula (again, “all men”,), but
a result of a permanent performance of its interpretation by 241
successive generations, who would, instead of challenging the

principle and the nation resulted by its application, adopt both the
principle and the nation as a component of themselves. Having a
political nature, the identity can act as a conversion device.
My statement does not deny the injustices, conflicts, the

struggles, and the difficulties of minorities to obtain formally and
materially the recognition and the exercise of whole citizenship under
that principle. Most of the United States history, as Howard Zinn and
others have accurately demonstrated, is a narrative of those conflicts,
which involves not only virtues, in the victories obtained by the
Afro-Americans, immigrants, aboriginal populations, women, and so
on, but also the disastrous vices of prejudices, among which racism.
Notwithstanding, the fight for recognition of rights, has been always
based upon the same political principle, always recasted, as a means
to ever stretched out its interpretation and use.
P olitical Id en tity an d C om p ulsion of

R efou n d in g
241

During the 19th Century, therefore, we do not see the

anguish of searching an identity, as we have defined for Brazil. The
Romanticism in the United States was a movement of different kind,
242
as it would be its antipode Modernism.
First, there was the rupture of the Civil War, which

provoked not the rethinking of the identity, but the re-foundation of
the nation. It was made through, again, public statements, the most
important of them, the simple formula of Abraham Lincoln’
Gettysburg Address (1863). Lincoln called the testimony of history,
and the attachment of the founders to the idea of democracy.
However, he stressed that the action of the citizens had to be
considered of higher importance. The ground was indeed hallowed by
the common people, living and dead. It was for them the mission of
recasting repeatedly the “government of the people by the people for
t h e p e o p l e ” 354 a n d n o t l e t t i n g i t p e r i s h . I t c a l l s f o r a c o n s t a n t r e b i r t h
of freedom.
L i n c o l n , a s E d m u n d W i l s o n 355 p o i n t e d o u t , q u o t i n g h i s l a w
partner in Springfield, having read Voltaire, Volney, Paine, Darwin,
Spencer, and Feuerbach, grew up into the belief “of a universal law,
evolution, and from this never deviated … A firm believer in
evolution and … in laws that imperiously ruled both matter and
mind … The past to him was the cause of the present, and the present
including the past will be the cause of the grand future and all are

354
Available at http://www.ourdocuments.gov/doc.php?flash=true&doc=36.
355
WILSON, Abraham Lincoln in PATRIOTIC GORE, supra note 330, at p 99-130.
242

one, links in the endless chain, stretching from the infinite to the
finite.” He was very fond of the American Revolution, from which he
had written, earlier in his political career: “our political revolution
of ’76 … has given us a degree of political freedom, far exceeding
that of any other of the nations on the earth. In it the world has found 243
a solution of the long mooted problem, as to the capability of man to

govern himself. In it was the germ which has vegetated, and still is to
g r o w a n d e x p a n d i n t o t h e u n i v e r s a l l i b e r t y o f m a n k i n d . ” 356 H e h a d a
firm belief in history as a power that takes possession of men. Very
coherent, his style was “cunning in its cadences, exact in his choice
of words, and yet also instinctive and natural, and it was inseparable
from his personality in all of its manifestations. This style pervades
Lincoln’s speeches, his messages to Congress, his correspondence
with his generals in the field as well as with his friends and family,
his interviews with visitors to the White House and his casual
conversation.” From that style resulted not only his conception of the
Civil War and his role as a leader, but also the opinion he molded for
America, as a matter of imagination and moral authority, cogent
argument, and obstinate will. Lincoln “conveyed his own legend to
p o s t e r i t y . ” 357
Linking past, present, and future, the idea of democracy

was adamant. As it was considered at the moment of the nation’s
origin, it will become the imperious motive power of the nation’s
evolution. Above all, coherently of his brief statement in Gettysburg,

356
Id.
357
Id.
243

it was a force of Nature, captured by men, turning into a kind of

s e c o n d n a t u r e , w i t h n o n e e d o f d i v i n e i n t e r v e n t i o n . 358
Taking the Declaration of Independence and the

Gettysburg Address together, we can interpret that once the Creator
244
had endowed human beings with inalienable rights, human beings
captured them, to hold them as if they were self-evident. Since then,
the presence of the Creator was no long necessary. The road of human
beings to freedom became just a matter of their own concern.
Democracy turned into an innate characteristic of humankind. The
cycle of birth and rebirth, humans would take possession of a little
more of rights, refounding the structure of their society and
relationships.
I would call it compulsion of refounding, to distinguish

the American condition from my definition of Brazilian one, which I
have named anguish of identity. This compulsion can be exemplified
by the Walt Whitman’s endeavor of rewriting during his whole life
his poem Leaves of Grass, which was first published in 1855.
W h i t m a n w a s i n f l u e n c e d 359 b y t h e f i r s t A m e r i c a n a t t e m p t t o b u i l d a n
original philosophical reflection, Ralph Waldo Emerson’s
Transcendentalism.

358
Lincoln made only one statement of his religious views, to respond to an accusation of
infidelity made by a political opponent. And it did not commit him to anything, even did not say that he
had affirmed the truth of the Scriptures. Idem, at p. 101.
359
The poem is Whitman’s response to the Emerson’s call for an original American poetry -
RALPH WALDO EMERSON, The Poet in ESSAYS: SECOND SERIES (available at
www.emersoncentral.com.1844).
244

“For we are one,” exclaimed the poet, just few years

before the outbreak of the continental bloody conflict of 1861-1865.
Nevertheless, he dedicated To a Historian the following verses:
“ You who celebrate bygones,

Who have explored the outward, the surfaces of the races, the life 245
that has exhibited itself,

Who have treated of man as the creature of politics, aggregates,
rulers and priests,
I, habitan of the Alleghanies, treating of him as he is in himself
in his own rights,
Pressing the pulse of the life that has seldom exhibited itself,
(the great pride of man in himself,)
Chanter of Personality, outlining what is yet to be,
I project the history of the future.” 360
The poet shows the same confidence in human nature and

optimism about its future. He urges the authentic expression of
human being, body and soul united. A human being in itself is an
individual, a personality in its own rights. It means that the pulse of
life involves the person considered as a whole, with its individual
and social attributes. The historian only takes care of formal aspects
of human life, thinking about humans as actors, performing roles in
public and private spheres. However, there is the human in itself,
who acts not as a ruler or a priest, but in its own rights, expressing
its capacities, an individual who distinguishes itself from the
provinces of the politics and aggregation. A separate person:
“ One's-self I sing, a simple separate person,

Yet utter the word Democratic, the word En-Masse.
Of physiology from top to toe I sing,

Not physiognomy alone nor brain alone is worthy for the Muse, I say
the Form complete is worthier far,

360
WALT WHITMAN, LEAVES OF GRASS. Book I Inscriptions (available at www.gutenberg.org).
245

The Female equally with the Male I sing.
Of Life immense in passion, pulse, and power,

Cheerful, for freest action form'd under the laws divine,
The Modern Man I sing.” 361
This separate human being must be the poetic object. It 246
has been already considered as member of the community, en-masse;

it is democratic, in the sense of zoon politikon. As an individual,
although, it will not lose those characteristics. It will express them,
and act freely and equally, a life immense in passion, pulse, and
power.
It seems that the destiny of the individual is considered

together with the fate of the nation, the Form complete is worthy for
the Muse. An individual free and equal in both conceptions, social
and self. The idea is perhaps that democracy goes beyond the social
space, and hold its plenitude in the freest expression and action of
one’s-self.
Along with Whitman and other 19th Century writers, Ralph

Waldo Emerson and Henry David Thoreau gave a different character
to Romanticism, and its devotion to the return to nature. Nature was
not an imagined place of peaceful rest, a refuge to the urban
turbulent life, the needs that progress had been gradually installing
during the industrial revolution. Nature to them was an actual
experience, with which they have to deal with all their skills, a place
to live in, and to live by, fighting with and against its forces, to
survive and to build a constructive science, and a different poetic
style. To be in the nature was an activity, and not a moment of rest.

361
Id., One’s-Self I Sing.
246

N a t u r e i s a p l a c e t o s a u n t e r i n g l y w a l k , a s e x p l a i n e d b y T h o r e a u : 362
“the art of Walking, that is, taking walks, - who had a genius, so to
speak, for sauntering, which word is beautifully derived from idle
people who roved about the country, in the Middle Ages, and asked
charity, under pretence of going à la Sainte Terre … till the children 247
exclaimed, - There goes a Sainte-Terrer - a Saunterer, - a Holy

Lander … For every walk is a sort of crusade … to go forth and
reconquer this Holy Land from the hands of the Infidels.” The contact
or the close interaction to nature is an activity that demands
preparation and effort, which prize will be leisure, freedom, and
i n d e p e n d e n c e , b e n e f i t s t h a t “ n o w e a l t h c a n b u y . ” 363
Emerson made a fascinating connection between those

ideas of sauntering (or just walking) and refounding. For he thought
the idea of emancipation would only work if we make a strong
reading of the meaning of the foundational documents. It means that,
the only way to progressively enlarging the idea of liberty would be

362
HENRY DAVID THOREAU, WALKING, supra note 330, at p. 5-7.
363
Id., at 7. See RICHARD J. SCHNEIDER, Climate Thus Does React on Men; Wildness and
Geographic Determinism in Thoreau’s Walking & TED OLSON, In Search of a More Human Nature in
RICHARD. J. SCHNEIDER, THOREAU’S SENSE OF PLACE, Supra note 334, at p. 44-60 and 61-69; ANNE D.
WALLACE, WALKING, LITERATURE, AND ENGLISH CULTURE, supra note 330, at p. 175 e 178:
“This is not a mental recollection of impressions and the making out of something from
them, but a direct making of self by walking that seems to involve active thinking . . . a deliberate
physical/intellectual/emotional cultivation of self.” Commenting a passage from William Hazlitt’s
On Going a Journey, it is remarkable that Anne Wallace reaches the conclusion that American
and British writings on walking activity diverge in significant ways, although she did not address
those divergences at all. Anyway, he quotes Elizabeth D. Harvey, who suggested that Thoreau’
Walking “not only advocates the dissolution of boundaries, and the decomposition of the past in
his text, but engages in these activities through the language of the essay … The essay purports to
be ‘walking’ itself, then Thoreau would seem to propose a non-excursive walking quite distinct
from Wordsworth’s.”
247

actively imagine new conceptions of liberty – as a means to overcome

its actual status, which cannot be considered satisfactory. In other
terms, thinking about the actual state of liberty as representing non-
liberty: “to make good the cause of freedom against slavery you must
364 248
be … Declaration of Independence walking.” Michael Magee,
interpreting Emerson gnomic or concise language, suggests that
Emerson believed that “convincing the nation that words such as
democracy and freedom had come to signify their opposites was the
prerequisite for the generation of new vocabularies – vocabularies
that could better serve the principles on which such words as freedom
365
and democracy were originally based.” Emerson thus turned
signification upside down. He stated that the essence of America was
366
the “idea of Emancipation,” or freedom on the move. Therefore,
democracy itself must be considered as if it is moving, walking,
always acquiring new and enlarged meanings, for the sake of the
people to whom the words adapt and serve.
Emerson, before Whitman, observed that “in dealing with

the State, we ought to remember that its institution are not
aboriginal … that they are not superior to the citizen: that every one
of them was once the act of a single man: every law and usage was a
man's expedient to meet a particular case: that they all are imitable,
all alterable; we may make as good; we may make better. Society is
an illusion to the young citizen. It lies before him in rigid repose,

364
Quoted by MICHAEL MAGEE,. Id. supra note 330, at 3-5.
365
Quoted by MICHAEL MAGEE,. Id. at 3-5.
366
Quoted by MICHAEL MAGEE,. Id. at 3-5.
248

with certain names, men, and institutions, rooted like oak-trees to the
centre, round which all arrange themselves the best they can. But the
old statesman knows that society is fluid; there are no such roots and
centres; but any particle may suddenly become the centre of the
m o v e m e n t , a n d c o m p e l t h e s y s t e m t o g y r a t e r o u n d i t ” 367 249
I would say, however, that Whitman and Lincoln, on one

side, and Emerson, on the other, differ exactly in the measure that
they represent the two different traditions upon which the American
political thought and practice were erected.
Whitman pleads to the expression of the individual, but he

does not consider the inversion of the center of gravity between
individual and society. The coming of the whole human being is not
the suppression of politics, but the integration of individual and
political projects, to stretch out the experience of democracy.
Lincoln advocates the importance of the evolution of the social life
for the development of the individual capacities. The evolution of the
political will allow the individual to search freely for its own
interests and passions. Society, in its evolution, will abolish human
slavery. For both Whitman and Lincoln there is the precedence of
society, in terms of moral value. Whitman wrote “yet utter the word
democratic”, meaning, as I understand, that the poet can only sing the
coming of the self after society evolves to a superior political regime,
exactly as Lincoln recognizes. They inscribe themselves in the
tradition of the civil republicanism, thus representing the
Machiavellian character of the Anglo American inheritance.

367
EMERSON, Politics in ESSAYS: SECOND SERIES, supra note 342, at the same place.
249

Emerson, on the contrary, intends to invert the position of

individual and society, and attributes to the latter the role of merely
giving course to the human interests. The citizen is superior to the
State, and the acts of the citizen are but the interests of the single
man. At least, “every law and usage was a man's expedient to meet a 250
particular case”, which means that there is no public affairs, only the
particularity of human interests, reflected in the public sphere. Laws
are written to protect a particular interest. That is the Lockean
tradition on the move. Rights are interests, particular cases, to
Emerson. Law’s role is to express and protect them, solving conflicts
or cases based upon the model of relation expressed by the idea of
property. Before politics or the political society, Locke conceives a
state of nature that absolutely opposes the Hobbes’ own conception.
Within Hobbes’ state of nature, there is no history. It’s the cycle of
the war of everyone against everyone, that will permanently repeat,
until men decide to accept a covenant, by means of which they will
concede to the political state the power to decide their common life,
in exchange of security, peace, comfort, and the possibility to freely
develop their ingenium. Locke instead narrates a story that evolved
during the state of nature. His state of nature is dynamic, and does
not remain the same until the foundation of the political community.
In the state of nature, men would find property, found their rights
and duties, and become unequal. By means of the labor of the first
men, work will allow the exclusive appropriation of the land.
Dominion would become a right, property – the right to protect the
possession of the land. After the complete acquisition of the land, the
sole labor will not give right to any new appropriation. The
counterpart of the work would be just the salary. After the
development of this history, and only after it, the political state
250

would be founded, exactly to protect the rights set during the state of
nature. State and property became two but the same object of the
s o c i a l c o n t r a c t . 368
It is the second main stream of Anglo American experience.

251
It was recessive at the instant of the foundation of the Republic. The
Declaration of Independence, v.g., did not refer the word property.
Maybe because the founders were then concerned about finding the
proper form of state, so more with propriety than with property. Soon
or later, it would become dominant, because, for sure, a nation cannot
rely only upon ideas and ideals.
C ivil R ep u b lican ism an d L ib eralism W alk in g
S a n t a y a n a , 369 e x a m i n i n g t h e 1 9 t h C e n t u r y t h o u g h t i n t h e
American writers, proposes that it had two points of contact with the
n a t i o n a l e x p e r i m e n t : e l o q u e n c e a n d e n j o y e d r e f l e c t i o n . 370 E l o q u e n c e
is a republican art, he says, conveying in fact the idea of democracy,
because he compares it to conversation, which represents the art of
aristocracy. Anyway, the oratory expresses itself in any kind of

368
JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Thomas I. Cook ed. 1947), supra note
330, passim.
369
GEORGE SANTAYANA, Character and Opinion in the United States in THE GENTEEL
TRADITION IN AMERICAN PHILOSOPHY & CHARACTER AND OPINION IN THE UNITED STATES 23-119
(James Seaton ed. 2009).
370
Idem, at p. 25, 26.
251

cultural object, expressing the “impulses of the community”, by

which the nation could be mobilized not only for the sake of action,
but for the enjoyment of the elevation of thought. When reflection
“in man becomes dominant, it may become passionate, it may create
religion or philosophy – adventures often more thrilling than the 252
humdrum experience they are supposed to interrupt.”
Having been exempted from the mission of digging for an

identity, the American thought, during the 19th Century, could devote
i t s e l f t o t h e f i n d i n g o f a c t u a l p h i l o s o p h i e s , 371 c a p a b l e t o e x p r e s s i t s
concerns about the issues of life, art, and science, and present an
original contribution to the debate of ideas. That was, after
E m e r s o n ’ s t e n t a t i v e p h i l o s o p h y , t h e c a s e o f P r a g m a t i s m , 372 w h i c h
became the real mark of American thought.
The important thing to retain is that the compulsion to

refounding is a prospective behavior. As the anguish for identity is
retrospective. The first is more compatible with democracy and
emancipation. The latter is just speculative, at least aristocratic, and
is not capable to concede the enjoyment of reflection. If you are
prepared to found, all you want is to take another chance, to start
over again, do better. If you are looking for something that is lost in
the past, you will not be prepared for action. Before acting, you have
to solve your doubt. The problem is that the question for the identity
or the origin is infinite, as it is the desire to refounding.

371
See: KRISTEN CASE, AMERICAN PRAGMATISM AND POETIC PRACTICE (2012), in which she
attempts to compare the philosophical speculation of some American writers with the poetic of others.
372
A comprehensive coverage of the history of Pragmatism, from Peirce to Rorty, in their own
texts, is SUSAN HAACK, PRAGMATISM OLD AND NEW (2006).
252

That difference explains why the nature of modernism was

also diverse in the Anglo America. The Avant-garde movements will
f i n d N o r t h A m e r i c a p r e p a r e d t o p a r t i c i p a t e o f t h e w o r l d n a r r a t i v e . 373
Meanwhile, Brazil would adjourn the state of its art, just to come
back to its own pensive mood very soon. 253
Mario de Andrade confessed the aristocratic character of

Brazilian modernist artists and movement. They visited Europe just
to work with, and learn from the European Avant-garde masters. At
the same time, American writers engaged themselves in the
libertarian European movements, taking active part not only in the
claims for aesthetic changing, but also in the revolutionary political
conflicts, e.g., the Spanish Civil War. The narrative of war and post-
374
war experiences that we can read in the works of Ernest
375
Hemingway, for instance, would not be find in any Brazilian
w r i t e r . 376

373
CATHERINE MORLEY, MODERN AMERICAN LITERATURE (2012).
374
RONALD BERMAN. TRANSLATING MODERNISM: FITZGERALD AND HEMINGWAY (2009);
FITZGERALD, WILSON, HEMINGWAY: LANGUAGE AND EXPERIENCE (2003); MODERNITY AND PROGRESS:
FITZGERALD, HEMINGWAY, ORWELL (2005); KEITH GANDAL, THE GUN AND THE PEN: HEMINGWAY,
FITZGERALD, FAULKNER, AND THE FICTION OF MOBILIZATION (2008). See also: ELCIO CORNELSEN &
TOM. BURNS, LITERATURA E GUERRA (2010).
375
ERNEST HEMINGWAY, A FARWELL TO ARMS (2012); FOR WHOM THE BELL TOLLS (2002);
THE SUN ALSO RISES (2002); THE COMPLETE SHORT STORIES (2007).
376
There are narratives of conflicts, for instance in EUCLIDES DA CUNHA’s OS SERTÕES,
(REBELLION IN THE BACKLANDS), 1902, and in GUIMARÃES ROSA’S GRANDE SERTÃO: VEREDAS (THE
DEVIL TO PAY I
N THE BACKLANDS), 1956.
253

To sum up, I would say that, although democracy is deeply

rooted in American culture, there remains a sentiment of
incompleteness, which is perhaps responsible for the continuous
character that I have called compulsion to refounding. Differently
from Brazil, North America does not tend to idealize or romanticize 254
the conception of its nation. Nation and nationalism are very concrete
issues, pervasive in American life, and as necessary as they are
permanently put in effect in the international relations As the
international relations of the United States include actually the issue
of war, we can say that nation and nationalism must be reinterpreted
(and so refounded). The nation is led to think about itself, when it
questions the reason of its involvement in international conflicts.
W ar, C om m erce, D em ocracy
Perhaps emblematic to the comprehension of that necessity

o f a b s o r p t i o n 377 o f t h e r e a s o n s o f i n v o l v e m e n t , t h a t o p e n s t h e r o o m t o
the redefinition of the nation, are the 20th Century conflicts, mainly
the two world wars. The historian Howard Zinn, from a Marxist point
of view, refers the need for suppressing the diversity of classes, the
conscience of differences, and the struggle of classes, within the

377
EMERSON, in his essay on POLITICS, supra, wrote about the fluidity of the State. Fluidity, as
opposed to rigidity, is the characteristic of the democratic regime. Tocqueville said that aristocratic
societies made a “chain of all members of the community, from the peasant to the king”, but democracy
“breaks that chain and severs every link of it”, DEMOCRACY IN AMERICA, BOOK 2, quoted by F.R.
ANKERSMIT, AESTHETIC POLITICS: POLITICAL PHILOSOPHY BEYOND FACT AND VALUE 296 (1996).
254

nation, as a reason to the decision of participating in the major

c o n f l i c t s o f t h e l a s t C e n t u r y . 378
However, as we could observe in the birth of democratic

idea, in ancient Athens, war (polemos) was pervasive through the life
255
in the polis. It was the major matter of discussion in the people’s
assembly. There is no reason to assume that that very relevant
characteristic of democratic life would be different in our modern
times. Tocqueville, the most praised thinker of democracy, said that
the kind of patriotism - that he had observed in the United States, and
would be notice at its higher intensity elsewhere in time of
international conflict – is inconceivable in feudal, aristocratic
society: “Patriotism or nationalism presupposes not so much an
awareness of the national character as the end of the objective
existence of the social chain of beings; it therefore is a prelude to the
d e a t h o f a r i s t o c r a c y . ” 379
Democracy, as the government of the people, presupposes

neither a hierarchy of ranks, nor a dense and integrated society, from
the top to the bottom. On the contrary, democracy is the only regime
in which the conflicts of the different (class, groups, parties, etc.)
can flourish, emerge, be absorbed and solved. On one side, the
engagement in a war can forge a unit from a multitude. However, it
brings also the other side of the coin. It makes explicit what was
before latent. Instead of diminishing the passions involved in any

378
HOWARD ZINN, PEOPLE’S HISTORY, supra note 330, at Chapters 14 and 15, p. 359-406, in
which he describes the involvement of US in the two world wars. The title of chapter 14 is a quotation of
the radical writer Randolph Bourne: War is the Health of the State - p. 359.
379
ANKERSMIT, AESTHETIC POLITICS, supra note 358, at p. 297.
255

conflict, by definition war inflates emotions, brings animosity. The

modern meaning of animus is a feeling of will arousing hostility. Its
etymology, however, recalls the simple meaning of the noun mind
(idea, intellect, judgment, and attention). On the other hand, among
many meanings of the verb mind, we can find “to be bothered or 256
offended by some attitude”, and “to be alert, be cautious, beware.”

War recasts all these meanings.
In his response to Albert Einstein’s concerns about the

causes and meanings of war, Sigmund Freud, defining the factors of
instability of the communities, reminded that the same factors could
lead to legislative evolution, too: “the attempts by members of the
ruling class to set themselves above the law's restrictions and,
secondly, the constant struggle of the ruled to extend their rights and
see each gain embodied in the code, replacing legal disabilities by
e q u a l l a w s f o r a l l . ” 380 V i o l e n c e c a n n o t b e a v o i d e d , 381 b u t t h e e v o l u t i o n
of society will bring the idea and the practice of peaceful means to
solve conflicts, as believed by the founder of psychoanalysis.
Reflecting about the relation of war and writing,

Hemingway once said that war could be a great experience for the

380
FREUD, Why War? Supra note 323, at p. 139-147.
381
Id.:
“Thus we see that, even within the group itself, the exercise of violence cannot be
avoided when conflicting interests are at stake. But the common needs and habits of men who
live in fellowship under the same sky favor a speedy issue of such conflicts and, this being so, the
possibilities of peaceful solutions make steady progress. [. . .] Yet the most casual glance at world
history will show an unending series of conflicts between one community and another or a group
of others, between large and smaller units, between cities, countries, races, tribes and kingdoms,
almost all of which were settled by the ordeal of war. Such war ends either in pillage or in
conquest and its fruits, the downfall of the loser. No single all-embracing judgment can be passed
on these wars of aggrandizement.”
256

writer, because “it groups the maximum of material and speeds up the
action and brings out all sorts of stuff that you originally have to
w a i t a l i f e t i m e t o g e t . ” 382 War, according to him, sums up life
experiences. It means that, there is no difference between war and
life times, except the acceleration of the features. 257
Walter Benjamin distinguishes the storyteller tradition

form the modern novel style. For him, the storyteller is a kind of
narrator, who can deal with the oral tradition, who conveys and
carries on experiences shared by the communities. The novelist
writes in solitude, conveying his or her individual approach to the
literary form. The most important turning point, in his conception,
was the end of World War I. The soldiers, when returning from the
battlefields were not anymore able to tell their experiences, to share
with others their stories, because they had returned to a transformed
w o r l d , w i t h w h i c h t h e y c o u l d n ’ t c o m m u n i c a t e . 383 T h a t m a r k e d t h e e n d
of the age of narration or storytelling. Hemingway explores that kind
of mood in Soldier’s Home. There was nothing to say by the warrior,
in returning home, because “he came back too late”, the world had
changed. His town had heard too many atrocity stories, nobody
w a n t e d t o h e a r w a r s t o r i e s a n y m o r e . 384
In Benjamin’s interpretation, the fact is that the ability to

tell stories was lost,

382
KIRK CURNUTT, COFFEE WITH HEMINGWAY 54 (2007).
383
WALTER BENJAMIN, THE STORYTELLER: REFLECTIONS ON THE WORKS OF NICOLAI LESKOV
1 (1936.).
384
ERNEST HEMINGWAY, Soldier’s Home in IN OUR TIME (2002).
257

“there is embarrassment all around when the wish to

hear a story is expressed. It is as if something that seemed
inalienable to us, the securest among our possessions, were
taken from us: the ability to exchange experiences. One reason
for this phenomenon is obvious: experience has fallen in value.
And it looks as if it is continuing to fall into bottomlessness”
With the First World War, a process began to become apparent 258
“men returned from the battlefield grown silent—not richer, but

poorer in communicable experience [. . .] For never has
experience been contradicted more thoroughly than strategic
experience by tactical warfare, economic experience by inflation,
bodily experience by mechanical warfare, moral experience by
those in power. A generation that had gone to school on a horse-
drawn streetcar now stood under the open sky in a countryside
in which nothing remained unchanged but the clouds, and
beneath these clouds, in a field of force of destructive torrents
a n d e x p l o s i o n s , w a s t h e t i n y , f r a g i l e h u m a n b o d y . ” 385
I quote Benjamin’s text because it can be quite useful to

my purpose to understand and stress the characteristics of that period
of history. Changes in cultural life lead to a set of reflections about
the past and its meaning in several countries. It was an important
moment in post colonies, mainly in the Latin American area.
Something that Benjamin did not say, however, would be also very
important in my thesis. The idea that novels would become a very
relevant instrument of building nationalities, sense of pertaining to a
unique historical experience, the building of a common language
within new nations, which was the work of the novelists. That
process will lead also to the building of national laws, national
systems, consolidation and codification of statutes, mainly, of course,
in the civil law tradition. The most important example is the process

385
WALTER BENJAMIN, THE STORYTELLER: REFLECTIONS ON THE WORKS OF NICOLAI LESKOV
1 (1936.).
258

that resulted in the writing of the BGB, the Bürgerliches Gesetzbuch,

1881-1900, in Germany, end of process which had begun with the
controversy between Anton Friedrich Thibaut and Carl Friedrich von
Savigny, on the need of a written Civil Code for Germany, in 1814,
following the path of the French Civil Code, enacted by Napoleon, in 259
1 8 0 4 . B u t w e c a n f i n d s i m i l a r c a s e s e v e r y w h e r e , e . g . , i n B r a z i l . 386
The conflicts of life present themselves wholly and

explicitly in times of war. We can say with von Clausewitz, that “war
is a mere continuation of policy by other means - der Krieg ist eine
b l o ß e F o r t s e t z u n g d e r P o l i t i k m i t a n d e r e n M i t t e l n . ” 387 T h e m e a n i n g o f
policy (Politik), in the context of the citation, is politics. That is why
the tradition has rephrased the original formula by “war is merely the
continuation of politics by other means”. The whole passage is,
“war is not merely a political act, but also a real

political instrument, a continuation of political commerce, a
carrying out of the same by other means. All beyond this which
is strictly peculiar to war relates merely to the peculiar nature
of the means which it uses. That the tendencies and views of
policy shall not be incompatible with these means, the art of
war in general and the commander in each particular case may
demand, and this claim is truly not a trifling one. But however
powerfully this may react on political views in particular cases,
still it must always be regarded as only a modification of them;
for the political view is the object, war is the means, and the
m e a n s m u s t a l w a y s i n c l u d e t h e o b j e c t i n o u r c o n c e p t i o n . ” 388

386
AUGUSTO TEIXEIRA DE FREITAS, CONSOLIDAÇÃO DAS LEIS CIVIS (3rd ed.,1876).
387
CARL VON CLAUSEWITZ, ON WAR Chapter 1, 24 (J.J. Graham trans. available at
http://www.gutenberg.org/files/1946/1946-h/1946-h.htm, 1909).
388
CARL VON CLAUSEWITZ, ON WAR Chapter 1, 24 (J.J. Graham trans. available at
http://www.gutenberg.org/files/1946/1946-h/1946-h.htm, 1909).
259

There is thus not only a resemblance, but also a continuum

between the states of war and peace. Von Clausewitz talks about the
political commerce (commerce in the sense of relations),
distinguishing politics as an act from politics as an instrument. War 260
is both act and instrument; war is politics.
The acceleration of life since the beginning of the 20th

Century, reflected in the fields of science and arts, and so accurately
represented in modernist literature, resulted in the outbreak of the
world wars, and, after their end, in a permanent sense of war, with
the bipolarized world. Politics was performed as if there were an
actual war in action, while the military arsenal of both United States
and Soviet Union was increasing.
As I said before, the 20th Century was the more

i n t e r n a t i o n a l t h a n a n y t h a t h a d p r e c e d e d i t . A c c o r d i n g t o E r i c
Hobsbawn, in his account of the “short twentieth-century”, it
experiences total war, economic abyss, the social and cultural
r e v o l u t i o n s , d e c a d e s o f c r i s i s , t h e b i r t h a n d d e a t h o f A v a n t - g a r d e s . 389
Its brief length, - from the outset of the Avant-gardes,

through the outbreak of the First and the Second World War, the
long-suffering of the Cold War, and the upraise of liberal-
democracies – was a time of the difficulty accommodation of states
and nations to the interaction required by the coming of globalization.
Westphalian order (1648) and Viennese system (1815) came to an end,
as the regimes of sovereignties and European balance of powers
ultimately were succeeded by the International organizations system

389
ERIC HOBSBAWN, THE AGE OF EXTREMES: A HISTORY OF THE WORLD 1914-1991 (1996).
260

– at first the fragile League of Nations, then the United Nations, with
its Security Council. Wars and international relations, for the best
and the worst, were the instruments of the texture of the complex web
we now experience.
261
It was also the century of the triumph of democracy. At its
beginning, democracy was put at risk, as totalitarian projects
attempted to (and for certain time actually did) replace its
representative form. Democracy was underrated, it was even
considered as “the worst form of government, except for all those
o t h e r f o r m s t h a t h a v e b e e n t r i e d f r o m t i m e t o t i m e . ” 390 I t w a s t r e a t e d
with a kind of resentment or bitterness. Representation had been
criticized a lot, but the results of its replacement by Fascism,
National Socialism or Communism, proved the atrocities of political
experiences that had disregarded individual freedom, in favor of an
unrealistic image of society.
D em ocracy In tern ation al a n d M u ltip le: a N ew

U n iversalism
Democracy survived, but in a completely new garment. The

most important aspect of its new clothes, as I see it, is a result of the

390
A famous Winston Churchill’s dictum, from a House of Commons speech on Nov. 11, 1947,
referring, for sure, the fact that he had been (in his own words) “kicked of” (or given the “Order of the
Boot”) the government, after leading England to victory in the Second World War.
261

questioning of its implication with the idea of nation, and the

national state. That is to say that, the cultural attachment of the
democratic idea was put at stake.
Contrary to the very diffused idea of the fall of

262
universalism, I would say that what is questioned is not the concept
of universality, but the way universality has been used and
interpreted. The universal cannot continue to be perceived as
something created by a certain culture and imposed to others, whether
by means of rational or emotional persuasion or by the force.
Universality must take into account the sum of the attributes of its
parts, and even the possibility of a different conception of its own
meaning.
The French philosopher François Jullien recasts the history

of philosophy, reflecting on the usages of universality, uniformity,
and commonness, urging a re-search for the meaning of humanity, as
a n o u t c o m e o f d i v e r s e c u l t u r e s . 391

391
FRANÇOIS JULLIEN, IS. DE L'UNIVERSEL, DE L'UNIFORME, DU COMMUN ET DU DIALOGUE
ENTRE LES CULTURES 263, 264 (2008).
“L’enquête sur la diversité des cultures … n’est pas plus dès lors un simple
supplément … de la réflexion poursuivie traditionnellement par la philosophie. Elle en est même
beaucoup plus qu’un nouveau développement. Car elle est désormais le lieu, décisif, ou se joue
cette exploration de l’humain : ainsi invite-t-elle la philosophie à sortir de son histoire pour in
autre travail … Tous ces schèmes d’universalité … sont toujours aussi désespéramment pauvres ;
cette grammaire universelle n’est pas plus convaincante, dans son réductionnisme, que les
précédents formalismes. A défaut par conséquent de pouvoir s’appuyer sur quelque universalité
donne, quelle autre source d’information touchant l’humain pourrons-nous exploiter que celle
d’une enquête minutieuse de ses possibles essayes, diversement développés, et donc l’écart
apparu entre des cultures ? De là ce dispositif d’auto-réfléchissement de l’humain dans lequel la
pensée contemporaine est engagée : l’humain se réfléchit … dans ses vis-à-vis divers. Il se
découvre à travers les facettes qu’en éclairent et qu’en déploient les multiples cultures, se
dévisageant patiemment entre elles : dans la traduction résistante entre langue de départ et
d’arrivée ; dans la dé- et re- catégorisation impliquées pour passer transversalement, sans plus
262

The sociologist Ali Rattansi analyses the changing of the

contemporary narrative from multiculturalism, or an essential
approach of the cultural differences, to interculturalism, a result of
the interaction of peoples and cultures in Europe. He sustains that we
are now “a part of an era of ever-expanding transnationalism in which 263
the interconnections between migrants, their descendants, and their

previous home counties are becoming more complex, and in many
c a s e s a r e i n t e n s i f y i n g . ” 392
The historian Peter Burke discusses the terms and

metaphors used by scholars to describe cultural hybridity, which is a
growing phenomenon of our time. One of the metaphors is exactly
that of cannibalism. Burke reminds that, Francis Bacon had already
adopted the idea of digestion of culture, in Renaissance England. In
any event, we need terms, concepts, and metaphors. They are
important, because we actually
“need a number of them to do justice both to human

agency . . . and to changes to which the agents are unaware [. . .]

pouvoir suivre le fil de l’Histoire… L’humain ne connaitra lui-même plus de limite – de peur u de
réticence – pour croitre et se développer.”
392
ALI RATTANSI, MULTICULTURALISM: A VERY SHORT INTRODUCTION 160, 164 (2011):
“National and ethnic minority identities have been changing in response to more intense
globalization, and the proliferation of multiple identities has now been widely documented … In
this new transnational, cosmopolitan phase, a genuinely dialogic interculturalism within state
borders is not only more vital but also more possible.” However, we must be aware of the
limitations of the concept, as it cannot by itself address and solve problems of “racism, ethnic
minority inequalities, nor wider class and gender inequalities, which are vital to multiethnic
civility and the preservation of social bonds in increasingly privatized, consumerist societies
facing the challenges of de-industrialization, separatist regional demands by substate national
minorities, and drastic cuts to welfare services. Interculturalism also requires that bridges are built
along cross-cutting lines of gender, age, and a variety of other identities and interests; it most
move away from a world which privileges ethnicity and faith above all other forms of
identification. And it leaves untouched the global inequalities which are major drivers of the
migration of people from South to North, and East to West.”
263

An awareness of alternative concepts offers a defence against

the confusion of concepts with the world they are used to
a n a l y s e . ” 393
The lawyer Günter Frankenberg not only calls for an

264
ethnological perspective, but also for the consideration of
comparative law as an intellectual adventure of learning with the
experience of others, different as it could be that experience, in order
to make auto criticism possible and valuable to the changing of our
o w n b e l i e f s . 394
Finally, the philosopher Richard Rorty compared Brazil’s

and US’ social classes, criticizes a Brazilian philosopher’s assertion
on the threats to the mutual understanding of peoples, and called for
the rescue of the utopian universalism of the post-Second War
thinkers. I totally agree with Rorty’s idea of a universalism that
encourages

393
PETER BURKE, CULTURAL HYBRIDITY.64, 65 (2010). The chapter on Varieties of Terminology
could be particularly interesting.
394
GÜNTER FRANKENBERG, AUTORITÄT UND INTEGRATION: ZUR GRAMMATIK VON RECHT UND
VERFASSUNG (2009). See, mainly, Chapter XII, „Kritische Vergleiche Versuch, die Rechtsvergleichung
zu beleben“, p. 299-363, e.g.:
„Mit meiner Kritik des wissenschaftlichen Diskurs habe ich anzudeuten versucht, dass
Rechtsvergleichung dennoch ein intellektuelles Abenteuer sein kann und dass von dem, was uns
fremd, marginal oder extrem erscheint, noch viel zu lernen ist. Eher als eine Art Therapie statt
Theorie habe ich vorgeschlagen, dass wir uns den Risiken allzu fester Grundlagen (oder
kultureller Vorurteile) oder zu dürftiger Grundlagen stellen müssen, wenn wir lernen wollen.
Mein Plädoyer für Selbstkritik, Nicht-Legozentrismus und Toleranz von Ambiguität sollte ein
erster Schritt sein, unsere Position als teilnehmende Beobachter ernst nehmen. Meine
methodologischen Vorschläge – wie etwa die deviante Lektüre vergleichender Studien, die
Identifikation solcher Mechanismen, mir der Perspektivität verleugnet wird, und die Analyse des
Materials, das in offiziellen Diskurs ausgelassen, marginalisiert oder für selbstverständlich
erachtet wird – sind dazu gedacht, unseren ethnologischen Blick.“ P. 362/363)
264

“people to have a self-image in which their real or

imagined citizenship in a democratic republic is central. This
kind of anti-authoritarian philosophy helps people set aside
religious and ethnic identities in favour of an image of
themselves as part of a great human adventure, one care on a
g l o b a l s c a l e . ” 395
265
Bossuet, Leibniz and Kant can exemplify the traditional

meaning of interpreting the universal as artificially uniformizing
E u r o p e a n c o n c e p t i o n s . 396 T h a t p e r s p e c t i v e h a s n o l o n g e r s u b s i s t e d ,
since a pluralistic approach becomes more viable to a plurilateral
(and even plurilingual) dialogue among the nations and states.
The contributions of the so-called Third World, and post

colonialist cultures, politics, and law systems, have increased the
idea of internationalism, giving to the idea of universality new
meanings. According to Anghie, the most important achievement of
the new or post-colonial countries was the liquidation of imperialism,
and the gain of their own sovereignty: their attitude can be
summarized in
“the liquidation of imperialism in its widest meaning,

with all its political, military, economic and psychological
implications. For the newly independent states, sovereignty is
the hard won prize of their long struggle for emancipation. It is

395
RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE 238-239 (1999.) See the chapter on
Globalization, the Politics, and Social Hope, p. 229-239.
396
JACQUES BÉNIGNE BOSSUET, Discours sur l’Histoire Universel in ŒUVRES (2011);
GOTTFRIED WILHELM VON LEIBNIZ, Essais de Théodicée: sur la Bonté de Dieu, la Liberté de l’Homme et
l’Origine du Mal in ŒUVRES (1842); IMMANUEL KANT, Idee zu einer allgemeinen Geschichte in
weltbürglicher Absicht in KLEINE SCHRIFTEN (1793). See also PATRICK RILEY, LEIBNIZ’ UNIVERSAL
JURISPRUDENCE: JUSTICE AS THE CHARITY OF THE WISE (1996).
265

the legal epitome of the fact that they are masters in their own
house. The great task initially begun by the Mandate System
was to be continued by the United Nations, which made the
issue of decolonization one of its central concerns. The doctrine
of self-determination, that had been developed in the inter-war
period principally in relation to the peoples of eastern Europe,
was now adopted and adapted by the United Nations to further 266
and manage the transformation of colonial territories into

i n d e p e n d e n t , s o v e r e i g n s t a t e s . ” 397
Therefore, different cultures and different interests

became part of the international discourse. They constitute new
approaches, although I would consider them as new arguments
designed to fit the same structure. Affirming their own sovereignty,
their right to self-determination, the new countries were, at least,
reaffirming the system of sovereignties and power balance, against
the ideals envisioned by the post-Second War order.
The Post-Second War order was indeed designed not only

to maintain the stability of international relations (mainly by
providing openness of debate within the Assembly, and the control of
the most important security issues by the Security Council, at the
United Nations – an international organization, which attempted to
perfection the League of Nations’ idea and brief experience), but also
to allow the ever-growing participation of states. That is the meaning
and the intention of the Multilateral Fora. Ruggie advocates the cause
of the international organizations, and a new era for international law
and international relations:

397
ANTONY ANGHIE; BHUPINDER CHIMNI; KARIN MICKELSON & OBIORA OKAFOR, THE THIRD
WORLD AND INTERNATIONAL ORDER: LAW, POLITICS AND GLOBALIZATION (2003); ANTONY ANGHIE,
IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW (2004).
266

“institutionalization in the international polity takes

place on at least two levels. The first is among states as we
know them today and comprises the realm of international
organization, broadly defined [. . .] The second level is the
very system of states: that is, the system of states itself
constitutes a form of institutionalizing political relations on
t h e p l a n e t . ” 398 267
He attempts to give an answer to the issue of what makes

the world hang together, by managing two different approaches, the
neo-utilitarian and the social constructivist, trying to complement the
virtues and supplement the limits of each one by using the virtues
and acknowledging the limits of the other.
In the next chapter, I intend to discuss briefly the state of

the art in the path of building an actual International Law.
The new universalistic approach that I am proposing,

depends on the considerations of the contributions of the whole
peoples and cultures involved in the international arena. In any event,
it demands also a critique of those contributions, and a careful
selection of them.
As you have seen, not all the acts and desires of the states
involved help, exactly because not all of them bring democratic

398
JOHN GERARD RUGGIE, CONSTRUCTING THE WORLD POLITY: ESSAYS ON INTERNATIONAL
INSTITUTIONALIZATION (1998). See also KLAUS DINGWERTH; MICHAEL BLAUBERGER & CHRISTIAN
SCHNEIDER, POSTNATIONALE DEMOKRATIE: EINE EINFÜHRUNG AM BEISPIEL VON EU, WTO UND UNO
(2011); DONALD J. PUCHALA; KATIE VERLIN LAATIKAINEN & ROGER A. COATE, UNITED NATIONS
POLITICS: INTERNATIONAL ORGANIZATION IN A DIVIDED WORLD (2007); KELLY-KATE S. PEASE,
INTERNATIONAL ORGANIZATIONS: PERSPECTIVES ON GOVERNANCE IN THE TWENTIETH-FIRST CENTURY
(3rd ed. 2008).
267

beliefs and practices. A sovereignty-oriented interest would lead to

the acceptance of non-democratic regimes, which can put at risk any
endeavor to build a democratic international experience.
The chapter corresponded to the conclusion of this thesis

268
is actually an itinerary, a kind of a guide to the transition to my next
study on the foundation of the international law of democracy.
268

269
Conclusion
269

In addressing the different conceptions arising from

political and cultural characteristics of Brazil and United States, I
intended to demonstrate how those cultural, political, and legal issues
could be combined to understand the consequences of their adoption
in the dialogue among nations. 270
The conclusion was that when one affirms the self-

determination principle tout-court, or the sustaining of sovereignty,
one is not contributing to improve the international law and the
international relations. One is even opposing serious and traditional
obstacles to its building.
I think I have demonstrated that the decision to be

attached to such a style is not entirely a matter of choice. It is in fact
a result of cultural conditions.
I analyse how those cultural aspects inform the reality of

law and politics, and how they appear in the international order.
My suggestion is that we scholars can work together to

understand those characteristics, using the method of comparison, to
adequately interpret metaphors, and depict an accurate picture of the
international system. For that purpose, we cannot rely only, not even
mainly, in the information provided by law documents and law books.
Because we have to comprehend issues that are not revealed, even are
not rightly understood by legal professionals, as they continue to
work apart of other disciplines, which include not only science, but
also arts.
We have to learn to study and apply International Law

with Comparative Law methods.
270

That is for now my contribution to the debate and to

development of democracy, and to fill up the dual agenda of
I n t e r n a t i o n a l L a w a n d I n t e r n a t i o n a l R e l a t i o n s . 399
Continuing my research I intend to start from

271
philosophical basis I have set forth in this thesis, revise the
International Law and International Relations literature, and build
new critical ideas, and concepts, as a means to contribute to the
foundation of an actual international law, which I would name
International Law of Democracy.
Working on this International Law and Democracy agenda,

it would be, at first, relevant to understand the passage from the state
of war – which corresponds to the ancient conception of democracy –
t o t h e s t a t e o f c o m m e r c e – c o r r e s p o n d e n t t o t h e m o d e r n c o n c e p t i o n . 400
The first way to set the relation of democracy, war and commerce was
through war:
“War precedes commerce, because they are merely

two different ways of achieving the same end — namely,
coming to own what one wants to own. If I want something that
you own, commerce — ·i.e. my offer to buy it from you ·— is
simply my tribute to your strength, ·i.e. my admission that I

399
ANNE-MARIE SLAUGHTER BURLEY, International Law and International Relations Theory: a
Dual Agenda, 87 AMERICAN JOURNAL OF INTERNATIONAL LAW 205-239 (1993); ANNE-MARIE
SLAUGHTER. A NEW WORLD ORDER (2004). Professor Slaughter is a distinguished American
internationalist, whose researches are opening important paths to the spread of the peoples-to-peoples
dialogue, beyond the states relationship, therefore, infusing democracy in international theory and
practice of international law and international relations.
400
It would allow us to comprehend in a unified theory Public and Private International Law. See:
ALEX MILLS, THE CONFLUENCE OF PUBLIC AND PRIVATE INTERNATIONAL LAW: JUSTICE, PLURALISM
AND SUBSIDIARITY IN THE INTERNATIONAL CONSTITUTIONAL ORDERING OF PRIVATE LAW (2009).
271

can’t just take the thing I want·. Commerce is an attempt to get

through mutual agreement something that one has given up
hope of acquiring through violence. A man who was always the
s t r o n g e s t w o u l d n ’ t e v e r c o n c e i v e t h e i d e a o f c o m m e r c e . ” 401
As Michael Walzer pointed out, 272
“certainly political and moral philosophy ought to

help us at those difficult times when we choose sides and make
commitments. But it does so only indirectly. We are not usually
philosophical in moments of crisis; most often, there is no time.
War especially imposes an urgency that is probably
incompatible with philosophy as a serious enterprise. The
philosopher is like Wordsworth’s poet who reflects in
tranquility upon past experience (or other people’s experience),
thinking about political and moral choices already made. And
yet these choices are made in philosophical terms, because of
previous reflection … Our anger and indignation were shaped
by the words to express them, and the words were at the tips of
our tongues even though we had never before explored their
meanings and connections. When we talk about aggression and
neutrality, the rights of prisoners of war and civilians,
atrocities and war crimes, we were drawing upon the work of
many generations of men and women, most of whom we had
never heard of. We would be better off if we did not need a
vocabulary like that, but given that we need it, we must be
grateful that we have it. Without this vocabulary, we could not
have thought about the Vietnam war as we did, let alone have
c o m m u n i c a t e d o u r t h o u g h t s t o o t h e r p e o p l e . ” 402
The main contribution of modern times was to realize

that although political animals, we initiate our lives by confronting
the others, instead of agreeing with them (Hobbes and his idea of the

401
CONSTANT, THE LIBERTY OF THE ANCIENTS COMPARED WITH THAT OF THE MODERNS 3
(Jonathan Bennett ed. trans. 2010).
402
MICHAEL WALZER, JUST AND UNJUST WARS. XIX. (4th ed. 2006).
272

war of every man against every man, as we have seen above). More
than that, modern authors have reached a point of comparison
between ancient and modern times by exploring the subject of war:
Benjamin Constant, as we have seen, said exactly that modern liberty
differs from the ancient one because the ancient is concerned with 273
war, although the modern is concerned with commerce. A society of

war demands the absolute commitment of each member in the matter
of war, and so ancient freedom only might be the right and the duty
to participate in the state matters. Indeed, less a right than a duty.
The commerce, instead, demands absolute commitment to its proper
business. Modern freedom would be better described by the capacity
and the right to take care of each one`s business without the
interference of the state.
War and the building of peace as soon as commerce are

matters of permanent concern in the international studies.
In fact, there has not been yet a similar transition in the

international level as there was in the internal or national, domestic
one, from a so called state of nature to a civil state. The main actor
in international relations is the state:
“we live in a world in which states are still the key

actors in international relations. As there is no world
government and no system of world law enforcement, and no
sign of any such systems being established, knowledge of states
is likely to remain a necessary, though of course not a sufficient,
requirement for any serious understanding of international
relations for the foreseeable future. It is mere wishful thinking
t o p r e t e n d o t h e r w i s e . ” 403

403
WILKINSON, PAUL. INTERNATIONAL RELATIONS 17 (2007).
273

Indeed, accordingly to international law, all states have a

legal personality, even the smallest and least powerful one. The
recognition of a full statehood, nowadays, is achieved by the United
Nations, as a sine qua non condition. Theoretically, this recognition
depends on the fulfillment of certain traditional characteristics: a 274
defined territory, a permanent population, and a government which is

capable of maintaining effective control over its territory and
conducting international relations with other states. But in the real
world, there remains an enormous variation in the degree to which
states meet these criteria.
There is a certain amount of tension, hostility and outright

conflict in the international arena, intra and inter states. There is
also a huge amount of conflicts between nations and states, several
nonstate movements, separatist groups, national liberation movements,
even armed groups acting inside states, without any control of
governments, threatening not only the stability of the region where
they are located, but also the stability and the safety of a large
amount of population elsewhere.
The Völkerwanderung or the people permanent move

around the world – as one of the main characteristics of humankind –
continues, resulting in several internal conflicts, and remaining a
motivation not only for claims of recognition, equality of rights and
integration of minorities, but also for resistance of traditional and
radically conservative groups, who want to preserve identities
through separation or segregation.
Besides all those tensions, there is lack of trust among

nations and countries, but also inside states, resulting in a spectrum
274

of foreign policies, state alliances and, sometimes, submissions to

others.
States internally governed by coercive power, like

dictatorships, or other ruled more liberally tend to reflect their
275
political internal shape in international relations.
International scholars previously set a taxonomy of state

coerciveness, classifying countries from least coercive (operative
liberal democracies) to most coercive (like personal tyrannies,
totalitarian one-party states), passing through moderately coercive
(traditional autocracies), and highly coercive (dictatorships with
some countervailing checks on power).
But how may we evaluate states in their external relations

with others - their styles of setting commercial relations (more
protective, less protective) and to deal with conflicts and attempts to
conflicts, besides their ways to deal with international organizations,
international courts, even nongovernmental organizations, their
respect for issues of environment, and so on -, by the mean of a
typology of their internal configuration (more or less democratic)?
Internal tradition or culture matters, when we think about

the international relationships. We may establish an operational
concept of democracy, deal with it, trying to achieve a taxonomy of
the conception of international law (at the same time theoretical and
based on the practice) derived from the kind of political regime
experienced by the members of a certain state. In addition, there is a
relation between level of respect to human rights in the internal legal
system and democracy in international relations. However, the
respect for human rights is not a sufficient condition to analyze the
275

democratic issue. Democracy evolves its own characteristics, which

level of sufficiency could be placed under, above or in the same of
the human rights standard.
There seems to be also a difference between democracy

276
and rule of law in international law. As compliance to agreements as
not always a sign of respect to democracy. As I pointed out, a
sovereign-oriented policy (Brazil is the example) will disregard
respect to democracy or human rights, at the moment of signing an
agreement.
As we have seen, there are no levels of democracy, but the

acting of different regimes in the internal and international spheres.
We cannot compare “democracies”. All we can do is set up a
taxonomy of political regimes, and find out the reasons why a state
acts in a certain manner, due to cultural constraints. Legal issues,
institutions, laws, practices cannot alone satisfy a criteria. We need
to observe accurately the way the triad law-culture-politics interact.
As we could understand, by the brief historical journey we made,
democracy often acquires different meanings. It depends on cultural
factors, knowledge, opinions, interest, passions of different societies.
The question is how we can manage differences, disagreements,
dynamic changes of points of view, to set a secure international
perspective. May we rely on historical influences from one
experience to another? And migration of concepts from one country
to another? Or must we be suspicious of coercive changes of local
characteristics set by recent or old experiences of colonization or
mere occupation of territories?
Peace by itself or peaceful relations with others are not

sustainable criteria. Because peace among sovereign-oriented
276

countries does not signify respect to democracy. Notwithstanding,

intellectuals of Kantian affiliation usually connect liberal states with
peaceful relations and nonliberal states with war: “liberal states have
shown a definite tendency to maintain peace among themselves, while
nonliberal states have shown themselves to be generally prone to 277
make war. The historical data since 1795 seems to indicate that even
though liberal states have become involved in numerous wars with
nonliberal states, liberal states have yet to engage in war with one
another. Doyle concedes that liberal states have behaved aggressively
toward nonliberal states, but he attributes this fact precisely to the
difference in regimes. Conversely, nonliberal states have frequently
behaved aggressively among themselves. Therefore, only a
community of liberal states has a chance of securing peace, as Kant
thought. Should people ever fulfill the hope of creating such a liberal
international community, the likehood of war will be greatly
r e d u c e d . ” 404 O f c o u r s e , t h e s t a t e m e n t i s q u i t e a b s t r a c t , a n d i t i s b a s e d
upon criteria established under a different international system, pre-
United Nations era.
The same for the respect for human rights:
“the requirement of respect for a human rights as a

foundational principle of international law is even more
straightforward: Governments should be required by
international law to observe human rights because that is the
right thing to do (…) Kant defends the universal requirement of
human rights and democracy as grounded in the purity of its
origin, a purity whose source is the pure concept of right. The
empirical argument is then offered in addition to this normative
one. The normative argument is addressed to those who rank

404
F. R. TESON, The Kantian Theory of International Law, 92 Columbia Law Review 53 (1992)
reprinted in ANTHONY D’AMATO, INTERNATIONAL LAW ANTHOLOGY 347-350.
277

justice over peace; the empirical argument, to those who rank

peace over justice. Liberal democracies, ranging from laissez-
faire states to welfare states, are the only ones that are likely to
secure individual freedom, thereby allowing human beings to
develop their potential fully. Therefore, the only way in which
international law can be made fully compatible with the freedom
of individuals to pursue and act upon rational life plans is if it 278
contains a strong obligation for governments to respect human

rights. International Law must be congruent with individual
autonomy – the trait for Kant that sets human beings apart from
o t h e r s p e c i e s ” . 405
But the argument disregard the evidence of conflict, as

constitutive of the democratic historical experience.
Those requirements are less empirical than normative.

They derive from the fact that international law addresses states,
which means governments. The treatment of individuals is a matter of
the states. So if the respect of human rights is a decision of the state
(whether a result of a cultural environment or not), the international
law stays in a passive position, which depends almost totally on the
state configuration, which constitutes a problem, at least while we
give granted to the non-intervention principle, or the self-
determination of peoples, comprehended as self-determination of
states. It means while the predominance of states, as the key actors of
international law, remains. It means that the sovereignty concept and
principle remains on top. But the predominance of the sovereignty
principle has already been challenged in the European Union by the
European Convention on Human Rights.

405
Id. It is the point of view presented by JOHN RAWLS, in his LAW OF PEOPLES.
278

More important, to our interest and point of view, could be

to try to go backwards to the foundation moment of the modern
democracies. England arises from the civil revolution and the
glorious revolution process as a democratic model to other nations.
What statute granted the quasi-democratic constitution? In fact, no 279
one. The Bill of Rights has never been actually enacted as a statute.
It has remained a persuasive statement, at most a moral binding set of
guarantees. The American founders proclaimed some inalienable
principles, by which men are created equal and with the same right
for freedom and the pursuit of happiness (subverting here the
Lockean principle of property). Principles that have adhered to the
Constitution only by the first ten Amendments. Natural Law has
become king. The Declaration of the Rights of Citizen, in France,
was conceived as principles rising above the Constitution. They are
empirical examples which defy the normative perspective, maybe
showing the prevalence of culture over law or the strict relationship
between them.
Indeed the contemporary international law is living a

turning point. International law of Human Rights begins to address
also to individuals, who are becoming actors of international law.
Perhaps, the developing of International Law of

Democracy would be dependent on the overtaking of the sovereignty
border, or, at least of the sovereignty-oriented approach to
International Law and International Relations.. Considering that,
International Law of Human Rights could be a step – just a step - in
the building of International Law of Democracy.
The purpose of such a study should be at first analyze

whether or not to vindicate the existence of such a new subject relies
279

mainly on a substantial international practice. This practice would

allow us to propose a valid theory, the new science Tocqueville
invited us to find. We have to acknowledge that important scholars
have bravely begun to raise this trail. In fact,
280
“since the early 1990s democracy has become a topic
of great interest in international law and relations” ... [The]
“victory of democracy across the world quickly led to claims
that there now exists a right to democracy in international
human rights law, as well as the existence of democracy as a
guiding principle of general international law. … Supporters of
democracy as an international legal principle have shown a
tendency towards an unquestionable acceptance of the existence
of new legal rules that appeared almost overnight. This sudden
appearance, and unquestioning acceptance, creates numerous
difficulties … Before the collapse of the communist regimes in
Europe most states in the world claimed to be democratic in one
way or another, even though there were drastic and noticeable
differences between the various forms of democracy. Owing to
the variety of democratic practices and the fact that one word
passed as common currency in several different languages,
democracy was once an idea not taken seriously at the
international level except in the context of ideological struggles.
Now, it is claimed, the situation has changed and everyone is
speaking the same democratic language allowing for a single
notion of democracy to be seen as part of international law and
relations. It is undeniable that there has been a shift towards
democracy in the international system, yet what it means to be
democratic or how democracy is manifested in law and practice
a r e i s s u e s n o t a d e q u a t e l y ” s o l v e d . ” 406
In his review article, Richard Burchill tried to test the

very precursors in attempted to build a new perspective to understand

406
RICHARD BURCHILL, The Developing International Law of Democracy, 64 Modern Law
Review 1, p. 123-134 (2001).
280

international relations. He listed the various points of view embraced

by the books he was reviewing.
It would be very relevant to embrace the impact and

potential that democracy has for individuals and societies:
281
“the difference between unquestioned assumptions of

the victory of democracy in the world and the real and actual
events in the day-to-day lives of many individuals often means
that the New World Order appears more like a boot in the face
than a triumph of democracy and the rule of law. A second
difficulty that arises is the almost instantaneous creation and
acceptance of international legal rules that embrace democracy.
The emergence of this difficulty has resulted in a general lack
of critical perspective concerning the creation and development
o f i n t e r n a t i o n a l l e g a l p r i n c i p l e s o f d e m o c r a c y . ” 407
The critical approach is essential to understand the reason

why, in spite of the long history of democracy, only in the last
twenty years it has become a subject of concern for the international
law:
“it is significant that state practice has only recently

allowed for discussions of democracy in international law.
However, we must acknowledge that even though the basis for
democracy as a principle in international law may have an
established history, it has never been embraced to the extent it
is today. The recent global process of democratization has
fuelled the growth of democracy as a topic of international law.
The current trend embracing democracy is differentiated from
past developments in the extent to which there are political
changes moving in a democratic direction at all levels of society
- locally, nationally, regionally and globally. The impact of
democracy in the international system is widespread, as

407
Id., at 123-134.
281

international institutions are becoming more active in requiring

t h a t t h e i r m e m b e r s t a t e s m a i n t a i n d e m o c r a t i c s y s t e m s . ” 408
In my perspective, the origins of the democratic

entitlement may be traced to the adoption of the Charter of the 282
United Nations and its provisions regarding the role of the

organizations in assisting former colonial territories in obtaining
self-rule through the Trusteeship system. For international law,
“reliance upon procedure as indicative of democracy

makes life easier by associating democracy with an identifiable
process. If the process is carried out and deemed to be
acceptable then governments which engage in the process are
seen to be legitimate holders of power. The process of
recognition in international law has taken on the requirement of
democracy for determining the legitimacy of states and
governments. Traditionally international law only required
effective control to be exercised over a population for a
government to be seen as legitimate. How control was
established or maintained was not a concern for international
law. The emerging requirement of democracy for recognizing a
legitimate government is limited to the holding of elections and
t h e u s e o f e l e c t i o n m o n i t o r i n g . ” 409
An interesting recurring example of a standard has been

the replacement of the British Prime-Minister at the Conference of
Potsdam, immediately after the World War, in July 1945. United
Kingdom provided then an admirable example of what democracy
means:

408
Id.
409
Id.
282

“elections were held … while the conference was

going on; Winston Churchill, the great wartime leader of his
country was defeated – and immediately replaced at the
meetings (Stalin must have been astonished) by Clement Attlee,
the leader of the Labor Party.” This was a classic democratic
moment and a valuable example of the importance of the
elections: “the ability of the opposition to challenge and 283
possibly defeat a powerful leader is surely the crucial test of a

d e m o c r a t i c c o n s t i t u t i o n . ” 410
The Declarations of Rights usually call the attention to

other formal criteria, like the separation of powers. That is something
411
we can observe by reading the several constitutions of states. But
we cannot trust only the texts.
Another relevant issue is how tolerant democracies should

be with regard to groups who hold beliefs that are detrimental to the
democratic system. We have to include the reflection about
intervention action, including the use of force, to promote, protect
democracy.
Different perspective can be the embrace of the belief

democracy and market based economies as the logical progression of
the development of the international system:
“the belief in democracy as the end we have been

striving for, and that elections are indicative of the victory of
democracy, results in numerous essential issues being sidelined.
Focusing on democracy as only elections overlooks the diversity

410
WALZER. JUST AND UNJUST WAR IX (2006).
411
BURCHILL, supra note 387.
283

of values, ideas and principles that exist in a particular

s o c i e t y . ” 412
Burchill also examines the issues of globalization and the

real exercise of power, and the truth about the democratic peace that 284
are removed from the discussion, “pointing to the need to look more
deeply at the actual impact that democracy has upon the individual
and society. If the exercise of power remains essentially unchanged
then the façade of democracy is no better than unmitigated
r e p r e s s i o n . ” 413
A major force behind the development of an international

law of democracy has been the activities of international
organizations and the support they have given to democracy.
International organizations do have a limited role in the development
of an international law of democracy.
Regardless of the great deal of progress that International

law has made, improving human development and welfare, notably
through the attention to international human rights. It is important to
find out if there rests a space to political manoeuvre to the
International Law of Democracy, to enlarge and deepen the
achievements of the international community.
Democracy shall aid in the progress of International Law,

by improving its methods and adding new subjects to those it has

412
Id.
413
Id.
284

already codified. It may also contribute to the improvement of the

methods of problem solving.
In fact, International Law nowadays conforms and provides

a corpus of codified law to several important matters. Democracy
285
could give to International Law and to that corpus their actual mean,
a most relevant significance.
Most important in my point of view, democracy can lead

the interpretation of those rules and assume the role of giving to the
whole corpus a dynamic style of permanent development.
The main lesson of democracy is its constant seeking for

perfectionism.
Let democracy become the medium of International Law.
I invite the readers to walk through this new path together.
285

A ck n ow led gm en ts
286
The writing of an academic work is not a solitary effort.
Indeed, it involves the interaction of many actors, and the author

himself is only the conductor of a collective and intergenerational endeavor.
I am indebted to all professors, colleagues and friends, for their

encouragement.
I would like to thank my Professors, at Cumberland School of Law,

and at Sidney-Sussex College, for their lessons, suggestions and advice. Their
commitment and willingness to give their time so generously have been very
much appreciated.
I would like to mention Professor and Director of International

Studies Michael D. Floyd; Harvey J. Davis Professor of Constitutional Law and
Director of the Center for Children, Law and Ethics David M. Smolin;
286

Professor and Director of Lawyering Skills and Legal Reasoning Belle Howe
Stoddard; Professor Adrian Aleksander Jenkala; Professor Brannon P. Denning;
Professor Michael E. DeBow.
I thank them all for the convivial moments at Samford campus and
in Birmingham and Cambridge, the visits to the Federal and State Courts, in 287
Birmingham and Montgomery, and to the Royal Courts of Justice and the
Middle Temple Inn of Court, in London. The pleasure and the importance of
those experiences will last forever, as a turning point in my personal, academic
and professional life.
I would like to thank the University Dean and Ethel P. Malugen

Professor of Law John D. Carroll, the Vice-Dean James N. Lewis, and the
Director of International Studies and Professor Michael D. Floyd for their visit
to São Paulo, and the very important and pleasant moments and conversations
during our visit to the Museu de Arte de São Paulo, Centro Cultural Banco do
Brasil, São Paulo downtown, and to the restaurant, which name made us recall
the Samford mascot, the brave dog Rascal.
Special thanks are due to the Vice-Dean James N. Lewis and to the
Director of International Studies and Professor Michael D. Floyd and their
families, for the kindly reception to my family in Cambridge, at the Sidney-
Sussex College.
I wish to acknowledge the help and kindly assistance provided by

all Cumberland School of Law, Samford University, Sidney-Sussex College,
Samford University Library, Beeson Library and Cambridge University Library
faculty members and staff. Among them, I would like to offer my special
thanks to the Vice-Dean Mr. James N. Lewis, the Director of Students Services
Ms. Pamela Nelson, and the Program Assistants for International Studies Ms.
Erin Carroll, Ms. Susie Parks and Ms. Laura Howell, and the Librarians Ms.
Brenda Jones, Ms. Grace Simms, Ms. Alice Bullington, and Mr. Ed Craig Jr.
I am very grateful to the committee that, under the supervision of

Professor Michael D. Floyd, grant me the scholarship to the Master of
Comparative Law program.
287

To all my colleagues, with whom I share moments of study,

discussion about hard but fascinating, primary and secondary sources, statutes,
cases, directives, leastwise the love for the legal science, its theory and
practice.
I would like to thank them all for helping me to keep my attention 288
to my obligations to the international community. Their presence transformed
those duties into moments of everyday pleasure.
To Professor Jenkala, whose classes, incentive and advice - during

an important and pleasant conversation, in a summer afternoon, at a pub near
Sidney-Sussex College, were determining to my decision to maintain a
philosophical approach to international law.
I wish to express my very grate appreciation to Ms. Laura Howell,

for the important revision of the text, corrections, suggestions on style, and
very kindly appreciation of my work.
Assistance provided in the revision and correction of my citation

notes and footnotes format by the Editor-in Chef of the Cumberland Law
Review Ms. Sarah Sutton was greatly appreciated.
I would like to express my deep gratitude to Professor Michael D.

Floyd, Professor of Political Science William Collins, and Professor of Law
William Ross, whose kindly reading of my drafts, revision notes, critiques and
insights were very helpful in the improving of the text and in the clarification
of my arguments and ideas.
Above all, I would like to offer my most special thanks to

Professor Michael D. Floyd for his firm and very demanding orientation,
incentive and disposition to help me in any moment and put all the resources of
the University at my disposal. The completion of this thesis could not have
been accomplished without his encouragement and support.
I would like to dedicate this work to Roberta, Francisco and

Thomas, the actual reason of everything.
288

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Towards International Law of Democracy

2. Paths and Moments of Comparison: a World of Metaphors

Comparison and the Comparative Method 36

Neither Framework nor Universal Apparatus 79

Democracy Imprinted in the Human Condition and Memory 97

Different Perspectives 128

4. Cultures of Modernism: Novels for Nations Encounters in

Towards a New International Era 143

Political Identity and Compulsion of Refounding 242

“… Ἔνισπε δ᾽ ἡµῖν ποῖ κεκύρωται τέλος, δήµου

“… la création d’êtres humains, vivant avec la

CARREFOURS DU LABYRINTHE II 261-306 (1986).

This book corresponds to the revised edition of the thesis

developing an international comparative law perspective, helping the

Considered by some critics as simply reduced to a brand,

Whether in Africa, Asia or Latin America, people whose

As a political regime, experience, or ideal, as a mode of

Mainly, this is a study on the foundation of democratic

I would propound the building of a comparative database

Democracy and international law are, even if considered

recently, democracy and international law were taken together and

Being aware of the intrinsic difficulties of the subject and

I hope the first one is to certain extend accomplished by

Let me briefly describe the path I have followed to build

The book is divided in four chapters: Sharing Experiences;

contributions of the thesis.

In the first chapter, - Sharing Experiences - I provide an

The legal theory, however, at the present moment, is

Besides, even the concept and practice of democracy

chapter, - Democracy to Compare - some narratives of democracy, an

The choice of the metaphorical method is useful to the

Literary sources can provide a more realistic

At the end of the second chapter, I propose a critique of

To sum up, Paths and Moments of Comparison is conveyed

The third chapter - Democracy to Compare – provides a

As a medium, democracy became imprinted in the human

As an international regime, democracy has always dealt

Then, I propose the triads that work as driving forces of

experiences of the modern times. In that sense, specifically for the

At the end of the third chapter, I discuss the different

Cultures of Modernism is the last chapter and leads the

I return to the critique of the state-centric conception of

I begin my critical analysis by rendering clear the

the help of the interpretation of the European avant-garde political

Gustav Klimt provides us an example that justifies our

In this chapter, I make extensive use of literary sources,

I compare the romantic and modernist Brazilian and

My argument is that the cultural and political

Finally, in defining the contributions of both countries to

The main characteristic of the Brazilian international

The main characteristic of the American international

I chose the mythical character of Narcissus, by means of

In the conclusion, I discuss briefly the need and the

The building of an actual international order is a great

It must depart from the modernist critiques to the romantic

constitutionally secured. That is the reason why the International

I propose not to abandon universalism, but to figure out a

The new universalism, I think and hope, must be realistic,

To realize that selection, it is necessary to understand the

In this book, I suggest a method to achieve that goal of

The final proposal will be a joint effort of scholars to

The linkage, I have seriously propounded, between law,