The glaring example of
this fact is the article
16, Law n. 6368/76,
which punished with the
deprivation of freedom
the user of forbidden
psychoactive drugs. The
new Law 11.343/2008, in
its art. 28 brought the
modification and the
punishment went on to be
a warning for the
damages of the drug. And
the art. 26 of this new
Law foresee treatment.
In thirty years it was
understood that there is
pathology in the usage
of psychoactive drugs.
We took thirty years to
consolidate a conquest
of knowledge in
legislation. However, to
the aforementioned sick
ones which commit
ordinary crimes such as
robbery to obtain
resources to acquire the
drug, the guilt is the
same and the punishment
is the deprivation of
freedom as well as the
detainee which is not a
user.
Reality is that even
though we can
superficially evaluate
the intention of the
agent by his external
behavior, the one who
analyzes such a conduct
has shown to be unable
to penetrate the mind,
the psyche, the Spirit
(being) of who’s being
judged and obtain the
desired certainty (by
the judger – the
analyst). He analyzes
the external conduct
such as the doctor
analyzes the symptom of
a disease. He prescribes
the medicine for the
symptoms, without going
deeper into the reasons
for that. For all
felonious modalities the
respective punishment –
the penicillin of Law –,
but he has no clue
whether the punishment
will conduct the being
to be cured
(conscientious
assimilation of the
false movement of the
soul, which distances
himself from the
objective of the
creation of the human
existence), avoiding the
a relapse or simply
hides the disease he
thinks he killed and
that invariably resides
in the human spirit and
not in his external
behavior.
But today the conflicts
in courts refer to a
crowd of depressed, drug
addicts, sex addicts,
forgers, and privacy
invaders, virus
developers, of
spoliators of private
and public property. Of
tax contractors,
outstanding debtors, tax
evaders, compulsive
consumers, negligent
parents, violent
spouses, uncontrolled
adolescents, corrupt
authorities everywhere.
I see in those who incur
in a negative behavior
being it civil or penal,
just an egoistic
behavior, exclusively
centered in their own
interest (conscious or
not); e goes over his
fellow, to harm, going
against his obligation,
committing a crime. It’s
the expression of the
human primitivism in the
language of today. Still
the human necessity of
supremacy, subjugation,
domination, feeling
superior to others,
owning the truth and
imposing it, conquest of
territory, his field of
action, his market, his
security line, his
comfort, his nest. It’s
worth to point, I think
it’s important to call
attention to the
anteriority, the
thoughts, the feelings
and necessities of the
being in conflict and
agent of negative
conduct by Law, once
such elements determine
the will.
“It troubles us the
question about what the
sufficient conditions to
impute someone to
something are, or acquit
him totally or
partially. Since
Aristotle those are the
two fundamental
conditions that answer
this question. That the
subject is aware of the
circumstances and
consequences of his
action and that
motivation of his
conduct are free”. (Silvane
Maria Marchesini – The
Foreigner in the Subject
and the Faculty to Judge
in Contemporary – Second
Journey of Law and
Psychoanalysis –
Intersections from “The
Foreigner” by Albert
Camus, under
coordination of Jacinto
Coutinho.) (Lúmen Júris,
2006, p.94.)
We see then the
inability of the judge
in penetrating these
meanders essentially
subjective to the
defendant, who sees
himself forced to fall
back on other
disciplines and
reflection. To be said:
a new stance, because
it’s important to
scrutinize his own inner
world, what a few dare.
The mechanical operator
of Law, what juxtaposes
Law and the fact, is an
incapable judge to
attend the subjective
human demand that the
conflict between the
parts brings in its core
and the composition
given by him in a
sentence, maybe it’s of
a great technical
brilliance, but of a
moral poverty of the
same extent.
3 – THE
JUDGE – THE ANALYST AND
HIS RESEARCH
It’s interesting to
notice that the most
recent doctrine starts
to change at least the
terminology of the
impartial judge,
aggregating some very
interesting adjectives,
such as pointing the
long and winding
subjective way to be
followed by the judge.
Aury Lopes Júnior, in
his Procedure of
Criminal Law and its
Constitutional
Conformity, vol.1,
2nd ed., 2008, Lúmen
Júris, says:
“The judge, aware of his
job, cannot give up his
human nature because of
his role. He needs to
rationalize even his
fears. He must have the
democratic function
conferred by the
Constitution, never
claiming to be a
punisher, being
responsible for the
immunologic system of
society, acting stricter
than the police; more
persecutory than the
plaintiff itself.
Tolerance, humanity,
humility are attributes
that cannot be forgotten
or overwhelmed by
power.” (p.120) (my
highlight)
I can’t go any further,
without reading the
human mind first,
according to the
psychology of Carl
Gustav Jung. For this
subject we prefer a
Spiritist view, which
considers the being in
its integrity, body and
soul (in fact body,
perispirit and spirit).
Mind as something
immaterial.
“Jung, to understand the
human creature, not
having a religious
definition, though he
descended from a
Lutheran pastor and
lived in a mystical
familiar environment,
though a bit troubled,
decided to adopt this
religion for some time,
pro-form. He said
religion was fundamental
to keep a healthy mind,
saying that whatever it
was would help the
individual keep his
balance, getting over
the neurotic disorders
more easily, differing
from what happens to the
non-religious or those
who disdain religion,
for disregarding this
psychological stick that
would support them.
This way, Jung started
thinking how the origin
of the Universe and the
human creature would be,
not to be attached to
the Bible canons,
looking for a reason for
so many conflicts.
We consider that our
psyche (later Spirit),
from a Spiritist point
of view, has passed
through various
kingdoms: mineral,
plant, animal... We
bring a baggage, which
was typical of our
necessities there. Also,
from a materialist point
of view, we inherited
from this
anthropological
evolution, since the
fetus repeats, in the
various periods of its
development, the
different shapes where
the human life has
passed. From zygote to
birth, the being
represents all the
primary manifestations
of evolution, and as a
heritage of this period,
three instincts, which
are called basic ones,
since they preserve
life: eating,
reproducing and resting.
Jung looked for a word
to bunch the idea that
we are heirs of previous
generations. He found it
in the traditions of
Christianity –
archetypal – and also
present in the Greek
culture, originated from
archaico
(ancient) and typos
(shape, mark), ancient
marks.
Jung also showed that we
are bearers of two
unconscious minds: the
individual one, family
heritage and the
collective one,
universal heritage. The
latter is inherent in
us, and we unconsciously
know of things that
happened in previous
generations. Therefore,
Jung did an adaptation
of the term archetype,
which had already been
used by Saint Irenaeus
and the ancient Greek,
updating it. The
archetype became an
ancestral heritage,
which is in our
unconscious mind and
takes us to some stances
without being realized
by us.
Jung started expanding
this concept of
archetype. One of them
is capital, where lies
all the myths.
His psychology is very
beautiful, in which is
also implied our
existence to be product
of myths. Are there any
cities or countries
without myths? The myth
of Negrinho do
Pastoreio,
Boitatá,
Saci-Pererê (*) and
many others, all fixed
on our unconscious mind.
Archetype is the symbol
which everything comes
from. Jung set a
primordial archetype, as
it was the basic one,
that we would call God,
Cause, Nature; the
terminology is secondary
compared to the thing
itself.
The primordial archetype
would originate three
other fundamental
archetypes, which follow
us during our existence.
The first is called
Selbst, which was
translated to English
being called as Self,
stating that we have a
personality we
exteriorize, the ego. We
are not Ego but, Self.
We have an ego, but we
are self. The second,
anima/animus, the male
and female percentage,
which harmonizes our
inner self. The third,
the shadow. The shadow,
according to Jung, is
the negative side of our
personality, the evil,
the ignorance, that we
look to hide, the secret
desires, many times and
auto destructive ones.”
(“A meeting with Jesus”,
Divaldo Franco, ed.
Leal, 2007, pp.
295-297.)
Well, Aury Lopes Júnior,
quoting Lídia Reis de
Almeida Prado, in his “The
Judge and Emotion –
Aspects of Logic in the
Judicial Decision”,
paraphrasing Jung, says:
“In the role of a judge,
a rupture between the
archetypal poles can
occur, where one of them
remains conscious and
the other one
suppressed, stays in the
unconscious mind and is
projected over the parts
in the process. It’s the
situation of the judge
that believes that crime
has nothing to do with
him (as if he and all of
us weren’t criminals...)
and that evil is only
present in the
defendant, a creature
which inhabits a very
different world from
his. He forgets he has
“as a possibility a
defendant inside
himself” and starts to
consider the justice
incarnated. This
phenomenon is called
inflation of persona,
which happens when the
magistrates are so
identified with gowns,
and they can’t undress
in family or social
relations”.
“This judge lacks the
conscience of his own
shadow, the capacity to
be at the same time,
judged-judger. It’s
also, an exercise and
abstraction or even
altruism, respecting
others in their
diversity and taking his
place and, absolutely
fundamental for the
exercise of such role,
but unfortunately this
is not quite what
happens”. (op.cit.
p.118.)
It’s worth it to mention
here, for his
importance, the judge
from the state of Santa
Catarina Alexandre
Morais da Rosa in his
book “The Foreigner,
the Exception and the
Law”, at the Second
Journey of Law and
Psychoanalysis –
Intersections from “The
Foreigner” by Albert
Camus, under
coordination of Jacinto
Coutinho. (Lúmen Júris,
2006, p.59.):
“This meeting with a
human judge, bearer of a
subjectivity which
operates inside of an
’Institution’, to find
emotions, desires,
complexes, it’s a way
towards the
democratization of the
decision-making act...”
Understand with Sérgio
Alves Gomes (in his
wonderful Constitutional
Hermeneutics – A
Contribution to the
Construction of the
Democratic State of Law,
Ed. Juruá, 2008, p.310)
that “the freedom to
interpret, understand,
build new senses
conforming to new
horizons, through the
responsible use of
reason, will and human
feelings in
contraposition to the
power of previously
determining the
interpretation and only
sense to be obeyed” – as
referred to the struggle
between power and
freedom in the multiple
hermeneutic schools – is
essential in this path
of a new stance.
It’s worth it to quote
the reference made by
him on pp. 314-315 of
his book:
“For the
phenomenological
thinking, the idea of
justice comes from the
world lived. The feeling
of justice inhabits the
world of life. The
feeling of justice has
existed before anyone
claimed what is fair or
unfair. Any normal human
person, as rude as his
spirit can, is endowed
with the feeling of.
It’s not fair to kill
others, to hurt animals,
our brothers, to make
children suffer, and so
on. The feeling of
justice originates law.
From this lived justice
we have the normative
idealizations in the
juridical order. [...]
The being of justice is
inseparable from the
human being. All
juridical hermeneutics,
every act of
interpretation and
comprehension is
subjected to the opening
of the human being –
which Heidegger would
call as Dasein = being
and time – the own
living of justice.
Practicing justice means
to interpret and
understand. But
interpret and understand
is a human act towards
humans”. (Aquiles Côrtes
Guimarães, Phenomenology
and Law, p. 57-58.)
To sum up: the absence
of a more in-depth
scrutiny of the judge,
of the defendant, of the
judge himself, of the
time and the current
necessities, will be the
result of the
insufficiency of
jurisdiction – I quote
Jacinto Coutinho:
“We from the Law need to
learn from the
psychoanalysts that this
is no mere (especially
for us) and it has
produced, among other
things, a disastrous
effect, and this is
serious. There is a
distinction, however.
The psychoanalysts treat
about the chance of
people to balance. We
don’t! We kill people,
because the strength of
our pen is; it produces
a hole where if you put
your head it will be cut
off”.
Kelsen starts his “What
is Justice” quoting
the dialogue between
Jesus and Pilate to
determine the question
of what is Truth and
what is Justice.
As for me, I bring to
reflection the following
reading:
“Jesus was in Jerusalem.
It was a sunny day, and
he was going to the
temple when a group of
Pharisees, with other
impassionate people,
dragged a woman by her
hair as she was caught
in adultery. The
adultery committed by
the woman was, then,
liable of capital
punishment.
The woman was
discriminated, and being
dragged to be taken to
the proper place for the
act, she would be tied
to the pole and be
pebbled to death.
How barbarians we have
been, and sometimes keep
being!
In many religious
doctrines, the woman is
still pebbled to death,
the thief has his hand
cut off, in the
arbitrary regimes, the
shooting is applied,
showing the bestial
predominance in people,
when it comes to
spiritual values.
The Pharisees saw Him,
peaceful, and were
tempted to provoke him.
It was an excellent
opportunity to set up a
trap to surprise Him in
any mistake, to make him
liable for punishment.
They took her to His
direction, and threw her
at His feet.
Mellifluous, an insolent
Pharisee came up to
Jesus, and asked Him:
– So, what do we do? The
Law of Moses prescribes
that every adulterer
woman should be pebbled
to death, and she is an
adulterer. She was
caught by her husband,
who is here, and found
her cheating on him. He,
outraged, asked for
justice, but you preach
forgiveness, and we,
embarrassed, how should
we act? Forgive her or
punish her?
As we can see it was a
trap which in our
everyday lives we face
and not always do we
have the conscience for
a good answer,
disembroiling us from
the pusillanimous with
an arrogant stance in
our personality.
But Jesus was
untouchable, and came up
with the answer.
I wonder: what would I
answer? So I see the
immense, colossal
difference between me
and Him.
– Follow the law! She
has to be pebbled.
However, but only those
who never made a mistake
can pebble her, people
with an unspotted
reputation.
It was a shock. They
look at themselves. They
wanted to make justice,
but they were also
liable for punishment...
The Gospel tells us that
everybody left, the
older ones before.
The woman cried, fearing
a cruel punishment.
Then, Jesus realized
they were alone. He
asked her:
– Woman, where are your
accusers?
She looked around. Taken
aback, she said:
– They are gone!
– No one condemned you?
– No.
– So I won’t do it
either. Go on and don’t
sin anymore.
We have here a beautiful
lesson of ethics,
compassion and justice,
never proposed by
anybody. Everybody was
prosecuting the
adulterer. Where was the
man who committed it?
The woman only committed
an offense because
someone pushed her down.
No one falls alone;
there is always a set
up, in which we fall
unwarily.
When Jesus dismissed the
adultery, it was not
only the women’s one,
but the moral defection
of anybody.
As no one referred to
the adulterer man, Jesus
requested the ones who
had no faults to pebble
her.
This wonderful lesson,
in an incomparable
dialogue of frankness
and love, has been
object of many
controversies. The
opponents of the Gospel
– and they are many –
say that Jesus agreed
and cooperated with
adultery, acquitting the
defendant.
He certainly didn’t do
so. He just didn’t
convict her. She didn’t
make the woman more
unhappy than she was. He
never said she was
right.
Not to condemn is to not
establish punishment;
this is not to agree,
which is different.
Our world is
paradoxical.
What we should bear in
mind, parents and
educators, is the
necessity to recognize
the mistakes of our
pupils, helping them, to
avoid more mistakes;
never condemn them, it
doesn’t mean we agree
with them. We are
against their action,
not them.
The psychotherapeutic
proposal is to free the
sick from the sickness
and not to kill the
sick”. (3)
4 -
CONCLUSION
The legal judgment has
its roots in the
conquests of ethics and
law, in the cultural
development of the
people and men, allowing
the defendant the
opportunity of defense
while the proper
measures are taken to
preserve the human
values, the citizen
ones.
This difference between
the conduct of
civilization in relation
to barbarism, of the man
conqueror over the
shadow dipped in it.
The bad conduct of
someone who committed an
offense is examined, for
sure, but this one is
still a human being, and
thus he requires dignity
and mercy, as heinous as
the crime can get, in
order to not match his
rudeness and
primitivism.
The judgment, though,
when insensate,
arbitrary and faulty,
comes from the
inferiority of the
opposition, which just
sees its own image
projected and hates it,
hungry for destruction
to get rid of a heavy
burden, harming others,
being coward and cruel.
The analysis of a
mistake is always a
must, when it’s not done
with evil intentions,
totally apart from the
law of love and charity.
Analyze to help,
correct, educate, is a
valuable contribution to
the construction of the
moral, psychological and
spiritual being.
This way, it’s
inevitable that, every
time we come across the
events of our everyday
life, our own critical
sense and discernment
precedes the judgment,
examining the attitude,
the behavior, not taking
on, however, the stance
of a censor, responsible
for the society he
thinks he’s protecting.
The subtlety is found in
the capacity to not
convert the appreciation
and exam of the
situation which requires
punishment, but
solidarity or auto
precaution to avoid the
mistake again.
Thanks to this behavior
the human maturity is
manifested, which knows
how to understand the
difference between right
and wrong, the
dignifying act in
confrontation with the
reproachable one, the
comparison between
healthy and sick...
The pharisaism remains
in the human
relationships with many
masks, harming or trying
to bother the march of
idealist men, of those
who are building the new
society for a better
world in the future.
The shadow in projection
becomes judgment that
the sane conscience and
the psychological
harmony dilute in
perfect identification
of the values from Self,
triumphing over the
whims of ego.
Before the judgments
directed by servile
feelings and systematic
judgers consider
yourself, then,
carefully the lessons by
Jesus:
“Thou hypocrite, cast
out first the beam out
of thine own eye; and
then shalt thou see
clearly to cast out the
mote out of thy
brother's eye.”.
(Matthew, chap. VII,
v.5.) (4)
The argument by Jesus,
to my understanding, is
philosophical and
psychological and cannot
be simply rejected by
the academic prejudice
in relation to religion,
to the existence of God.
without a doubt,
regardless of the
personal convictions
(and let’s have Alterity),
the wisdom and love will
be the completeness of
the judge and its
jurisdiction, dignifying
the mistaken who is the
defendant, that’s why we
put the words by Sanson,
registered by Allan
Kardec, in the pages of
The Gospel According
to Spiritism.
When I say
multidisciplinarity, I
refer to a state of
spirit emanated by the
judge, where his intern
individuality is
revealed and the
hermeneutic autonomy
according to such
individuality, where the
rational covers the Law,
the social, the
economical, the
psychological and
philosophical, as well
as the feelings
(humility, tolerance,
patience, comprehension,
compassion) bottled in a
set, which is cast as a
sole truss over the
decision-making act.
“The most delicate apex
of sentiment is love,
not the vulgar sense of
the word, but that inner
sun which condenses and
reconciles all
aspirations and
superhuman revelations
at its ardent focal
point...” (5)
ESSENTIAL
NOTES
But for those who the
words by Jesus, in the
humility of a carpenter,
are not enough, be for
disbelief, or
conviction, shall we
quote the doctrine, the
philosophy, in
complementation.
– “In the act of
sentencing, accept it or
not, he suffers an
ethic-social tension
that comes from his
inner self, from what he
fells and knows by his
own experience and the
social values that fall
upon his personality.
Following, Adam Smith
recalls, one of the
founders of the
Economical Science, for
whom the act of judging
is very hard, because it
presupposes the capacity
of putting himself in
position of others. The
judge must be impartial,
but the right of his
decision depends,
according to Reale, on
this psychological
capacity. That’s why; he
concludes that the
secret of justice lies
in the fact that the
judge knows that
neutrality doesn’t mean
to break away from the
people in litigation,
but wearing their
boots.” [...]
Nalini ponders that “the
judge shall give the
sentence with feelings
and not to reduce to a
mere bureaucrat repeater
to others’ opinions, in
order to please the
majority”. (6)
– Another philosopher
that emphasizes the
influence of
psychological attributes
of the judge in the
sentence is Joaquim
Dualde. Influenced by
Bergson and by the
School of Free Law,
Dualde understands that
the universe of rules
and concepts is, in a
great part, founded on
feelings, forgotten by
the traditional logic.
That’s why, it’s
necessary that the judge
uses the sensitivity and
intuition as a method to
penetrate the reality,
correcting the
disfigurations that come
from the search of
knowledge through
concepts. The author
emphasizes that: [...]
