An essential theme since the beginnings of the Christian order, free will has spent oceans of ink on the most diverse indoctrinators. One of the first to defend the thesis of human choice in common acts and faith, Saint Justin (100-165) states that “If man does not have the power to avoid evil and pursue good by free choice, he is not responsible for acts of any kind.” Law defines human and divine relationships. An individual is only responsible for his/her actions if he/she is free. The cold necessity, defended by Stoic philosophers, has no meaning for political or religious salvation. Only the person responsible can be condemned or given praise. And only those who are free can be responsible. The core of Christian teaching is thus completely marked, but with strategic adjustments. Saint Augustine recognizes free choice, but places it before time. When sinning in paradise, man used free will. He chose Evil. After the Fall, without Grace he is a condemned being. In the Middle Ages and the Reformation the subject generated passions, philosophical and physical wars. Even in the 17th century, Jansenism brought violent disputes in Europe, clashes that last to this day. Erasmus of Rotterdam wrote the Of free will. Luther harshly criticizes him in a fierce reply, the Of Arbitrary Servant. Machiavelli defends free will. Hobbes and Spinoza refuse it.
Freedom in human choice is connected to a force greater than him. For those who defend free will, the person responds to the divine being. For God to be fair, his laws must allow right and wrong, virtue and vice. When the divine figure becomes pale in the human scenario, with the process of cultural and political secularization (the twilight of the gods, or disenchantment of the world) freedom has Nature as its limit. Hobbes indicates natural law as something to be controlled, since in it the war of all against all prevents coexistence. Spinoza shows the identity between God and Nature, something that emerges in an invincible way if only the physical aspect of people is considered. There, force reigns: “natural law is the right of the big fish to devour the small one”. As the divine Substance arises in us under the attributes of extension and thought, it is to the latter that we must resort to control the force. In both Hobbes and Spinoza, reason faces obstacles to overcome the brutality of nature and human beings. To overcome the natural world and run society freely, science and political arts are essential. Spinoza follows different paths from those taken by Hobbes. I will not develop the opposition between the two thinkers here. [I]
In Hobbes, given the impossible salvation in the field of nature, where war continues perennially, the republic is established in which the sovereign (individual or assembly) is endowed with the power of arbitration. Such strength is attributed to sovereignty by those who choose to live in peace, under laws. The sovereign's discretion is based on the power of the entire political body. From the 18th century onwards, as a result of the Puritan revolution in England, the Independence of the American colonies, and the French Revolution, the source of sovereign power moved towards the people, which required rulers to obey the highest law, the Constitution. Both the sovereign people and their representative, however, renounce agency, which marks the faltering steps of the Rule of Law. The government's discretion was defended in practices and doctrines opposed to liberal theses, heirs of the revolutions that occurred in the 17th and 18th centuries. In the political concept of decision, Carl Schmitt takes up the discretion that should, in his opinion, be attributed to the head of State , in an authoritarian reading of the laws. Der Führer schützt by Recht... [II]
The movement, easily verified, in Brazilian legal forms towards unfettered absolutism granted to certain public agents, especially those linked to the judiciary, is worrying and frightening. Arbitration, in Brazil, remains today either as a remnant of absolutist power, or as a defense of the authoritarian State – the Vargas dictatorship and that of 1964, with its jurists like Francisco Campos, leave traces in the state law of our country –, or as disobedience of public officials and government officials to the principle that governs the rule of law. Let us look at the broader and current meaning of agency, in internal and cosmopolitan terms.
It is necessary to start with what would be obvious by assumption. Arbitration defines a necessary practice when two or more bearers of rights are unable to resolve their disputes under the rule of law. At the internal level of nations or in the international order, a third party, supposedly not bound by a commitment to any of the parties, receives the difficult mission of making decisions in favor of one or another of the contenders. In a way, and remembering the lessons of Max Weber, in the case of arbitration there is a return, more sophisticated, to the famous Cadi justice. The latter applies to each case and does not generate jurisprudence external to collective custom. As for the international level, there is no Cadi of the world, according to Hegel's well-known statement. The hegemonic force, at least since the episode that occurred on the Island of Melos, narrated by Thucydides, is the one who decides. In addition to force, throughout history and especially in modernity, ways of resolving conflicts between peoples and states have been devised, Perpetual Peace Project from the Father of Saint Pierre to Kant's text on the same topic. After Kant, especially with Fichte and Hegel, confidence in the judgment of an international arbitrator decreases. Let us remember that for millennia the Pontiff of the Roman Church fulfilled that role. But with the Peace of Westphalia he lost his status as supreme judge in the dissolved respublica christiana.
The current definition of arbitration can be stated as follows: “a conventional way of resolving disputes by individuals (arbitrators) chosen by the parties and invested with the mission of judging in place of state jurisdictions”. [III] Given the characteristics of discretion, it is expected that decisions are made not against the laws, but without their strict obedience. In this case, there would be a variant of epikéia, that is, attenuation of the legal letter in favor of justice. In the doctrine of Albert the Great and Thomas Aquinas, from Aristotle,[IV] Epikéia is responsible for a part of justice taken in a general sense, moderating the observance of the letter of the law. [IN]
According to Hobbes, as we saw above, the sovereign is an arbiter who administers the natural right of each and every human being. He banishes judgments with private origins from public order, as they resume the war of all against all. There is no common measure for moral judgment and different individuals perceive things differently and develop different passions. No one agrees about good and evil, right or wrong, fair or unfair. And each person's judgment tends to expand to infinity, in the measure of desire. The universal war is not just physical, but psychological, envy and hatred prevail and each person thinks they are smarter than the other. It is impossible to strip men of their physical strength, but it is possible to force them not to express their private opinions. Everyone must lose the “right” to impose their own judgment on others. Since everyone, within nature, has an equal right, everyone can enter into the pact. But everyone submits to the judgment of an arbitrator. Only the sovereign guards natural law and uses physical strength and his own judgment without restrictions. The sovereign concentrates the power to judge in all matters in laws, administration, courts, war and peace. Such is the prerequisite for limiting the infinite desires of citizens. In the pact that defines the genesis of the State, little is left for the right of resistance. There are differences between reality as we see it and as it exists because we build a world through imagination which, in turn, is moved by nerves. The intellect of individuals does not have perfect knowledge of other men. Strategic in the individual order “it is not the truth but the image that makes passion. Tragedy really affects the killer, if done well.” (The Elements of Law). Passion and image generate rebellions. Individuals disagree about right and wrong and are incompetent to make such judgments. “Men, vehemently in love with their own new opinions (the most absurd) and obstinately determined to maintain them, gave opinions the revered name of conscience, as if they thought it illegal to change them or speak against them.” If the sovereign limited himself to applying laws according to the letter, there would be controversy among jurists, priests, teachers, military personnel, and all kinds of people who imagine themselves capable of resolving everything based on personal convictions. Hence the epikéia and the sovereign's discretion, to which everyone bows.
Note that Hobbes reserves the right to arbitrate for the sovereign, and for him alone. No employee can demand that prerogative. And here we enter the heart of the matter, when we refer to the return, in Brazil today, of the arbitrariness and subjectivism seen in recent times among those who should only follow the determinations of justice (including the prudent epikéia), that is, judges , prosecutors, police.
The first example of the fateful passage of Justice officials, of strict obedience to the law emanating from the sovereign (the Constitution, according to which sovereignty belongs to the Brazilian people) we have in the famous 10 Measures to combat corruption, presented by members of the Public Ministry apparently on the orders of millions of Brazilians. I say apparently, because it is a strange logical leap to go from signing a proposal towards full agreement with the document presented to the legislative authorities. Many may have signed without agreeing with the text written in their name. The decalogue presented, however, fails in many essential points.
Summoned by the Special Committee of the Chamber of Deputies, defined to examine Bill 4850/16, which would establish measures against corruption, I presented myself there on 22/08/2016. As usual, I read a detailed text to parliamentarians on various items of the aforementioned 10 Measurements. After making considerations about absolute power and its harm, I indicated the harm that sycophants bring to any and all governments. For a good connoisseur, one word is enough: given the maximum value given to whistleblowing (whether awarded or not) in attacks against corruption, especially in the so-called Lava Jato, it is healthy to warn against the dangers of entrusting the fate of political and legal processes to whistleblowers . I indicated Article 38 of the bill as a terrible ethical path: “The third party who, not being a defendant in the related criminal action, spontaneously provides information in an effective manner or contributes to obtaining evidence for the action referred to in this law, or even collaborates in locating the assets, will be entitled to retribution of up to 5% of the proceeds obtained from the liquidation of these assets. The retribution referred to in this article will be fixed in the sentence.”
After asking for serious reflection on the measure, I cited Lísias, according to which the informer gains more from the innocent, which is the mark of blackmail. It is against public faith, I said, “to move paid whistleblower professionals”. I then proceeded to the so-called “integrity test” to be applied to State employees. I showed their inanity and the legal dangers they would entail, in addition to political ones such as widespread persecution, secrecy, dissimulation that would diminish citizens' trust in their equals. And I ended the item as follows: “In the integrity test, the individual is lonely, without support from their representatives such as unions and associations, etc. in the face of an invisible power that only responds a posteriori, but that must silence the name and conditions of the person being questioned. I ask you to forgive me, but we are in the domain of the book The process, written by an author who exposed the abuse of secrecy. This author, everyone knows, is Kafka.” In other words, the objective conditions of the defense and the accusation disappear in the 10 Measurements. The whistleblower is paid, which undermines his credibility, the accused does not know who is accusing him or what is causing it. We fall into full control of our will.
Finally, the splendor of arbitrary subjectivism placed in 10 Measurements: the proposal to consider evidence obtained illegally as valid, “but in good faith”. I analyzed, for the parliamentarians (I don't know if with any benefit) the philosophical and legal theses about good faith, showing how much the Public Ministry's proposal contained subjectivity and discretion to be controlled. [YOU]
Operation Lava Jato is full of discretion manipulated by the Public Ministry, judges and police. The literature on the case grows with each new day. I will not discuss here the arguments presented by jurists and movements in defense of civil rights against procedures that have become habitual in that way of monitoring and punishing. I note that the discretion that, in 10 Measurements, demanding acceptance of illicit evidence in the name of “good faith” is now extended, in the project presented to the Legislature by the Minister of Justice, Sergio Moro, for uniformed employees who cannot, in any way, follow their own subjectivity. The text item according to which “the judge may reduce the sentence by up to half or stop applying it if the excess is due to excusable fear, surprise or violent emotion” is an explicit return to discretion, something that restrains judges and loosens the bonds of public servants who now enjoy of a power of life and death. How the “good faith” of 10 Measurements, the subjectivity of those who act in the name of the State sovereignly orders what will be imposed on citizenship.
I return to free will: in Christian thought it has as its counterpart a superior divine force, without which it loses its meaning. In modern thinkers, it requires the universal consent of citizenship and only the sovereign can play the role of arbitrator. It is up to judges, police officers, ministers, and the entire body of the State to act according to the law, not according to personal and subjective will.[VII] When Institutional Act number 5 was proclaimed, vice president Pedro Aleixo criticized its arbitrary content, with predictable abuse of power. A minister argued that Costa e Silva would never use the repressive instrument to harm citizens. “The president, no. But what about the guard on the corner?” With the reply he lost the presidency, when the head of state fell ill. Costa e Silva was replaced by a Military Junta, whose discretion was exceptional, even for an exceptional regime. With the “moralizing” measures introduced in recent times, the discretion legally attributed to the corner guard returns. And such discretion is far from free, especially for victims of the state monopoly of force. We are dealing with a new type of arbitrary servant. From the police to judges and from them to the Public Ministry, discretion spreads across Brazilian legal and political forms. I end with a tremendous proclamation from the head of state on March 7, 2019, in a speech to the Marines: “The mission will be accomplished alongside the good people of our Brazil, those who love the country, those who respect the family, those who want to get closer to countries that have a similar ideology to ours, those who love democracy. And that, democracy and freedom, only exists when the respective Armed Force wants it”. (The state of Sao Paulo). According to the correct doctrine of the democratic order, the regime of freedom exists when the only sovereign, the people, chooses it. Outside of such practice, any and all volitional “consent” by the sovereign’s employees, in toga or uniform, is a usurpation of power and tyrannical will. Today it is up to democratic minds and hearts to guard against forms that oppose the Constitution. Tomorrow is always late.
[I] I developed the theme in a article published in Foglio Spinoziano (Italy): “Democracy and Natural Law”
[II] I analyze the point in an article entitled “On Carl Schmitt and Hegel, the concept of decision in Hegel”.
[III] Gabrielle Kaufmann-Köhler and Antonio Rigozzi, Arbitrage international, Droit et practice à la lumière de la LDIP, Weblaw, 2nd edition, 2010, page 5
[IV] “Epikeia is the correction of the law where it fails due to its universality" .(Nicomachean Ethics, V, chap. X, 14).
[V] For an extensive commentary on the term and the problem Cf. Günter Virt: “Moral Norms and the Forgotten Virtue of Epikeia in the Pastoral Care of the Divorced and Remarried” in Melita Theologica, Journal of the Faculty of Theology and University of Malta63/1 (2013): 17-34.
[VI] The text read by me can be found at Chamber of Deputies page and also in video
[VII] I examined these aspects in March 15, 2010 on II State Congress of Magistrates of Pernambuco.
