Law and Justice. Law and Ethics. A conflict to be solved
José Carlos Monteiro de Moura

1. Giorgio Del Vecchio, one of the greatest names of Philosophy of Law, professor at the University of Bologna, the oldest and most traditional in Europe, begins his classical work named JUSTICE (Saraiva edition, São Paulo, 1960, page 1) remembering the many and serious disputes that have been happening around the notion of law and stressing that "many are however the doubts and disagreements that move around the concept of justice: as it is sometimes taken as synonymous equipollent of the first and, sometimes, on the contrary as different and superior to it”. "It highlights the true tautology that has been established around the matter, stating that "in a sense, justice is made to consist of being in accordance with a law, but on the other hand, it is stated that law should be consistent with justice."

The issue is extremely worrying, and indiscriminately afflict all branches of Law.A long militancy in the criminal area, especially in a trial by jury, allowed us to face, over and over again, with the terrible conflict between legal and fair, because the Jury, in Brazil, in terms of its constitutional authority, judges the crimes against life (murder, solicitation, inducement or assistance with suicide, infanticide and abortion), and their decisions, both acquittals and condemnatory, can hardly be taken as models of justice. Larceny (kill to steal), commonly called robbery, is not part of this list, because it is crime against property. The judgment of who commits it is a matter for the Court Judge.

2.The Jury's decisions may point toward authentic ethical anomalies, notwithstanding fully covered up, legitimized and safeguarded by law.Besides the Court being composed of laymen, who strangely undergo complex questions of law, its origins do not recommend it. Some; as Vicente de Paulo Vicente de Azevedo stresses (COURSE OF JUDICIARY CRIMINAL LAW, Saraiva Edition, São Paulo, 1958, Volume 2, page 176); will find them in Greece and Rome. These were citizens of a lower level in culture and education, who judged in the open air (hence the name heliastas, a word derived from helios, sun). Their most notable decisions were the exile of Aristides, because they found themselves feeling tired of hearing him call for justice, and the condemnation of Socrates to drink hemlock (cicuta) for identical and petty reasons.

Brazil is one of the few countries that insist on keeping the trial by jury

 In Rome, researchers found common traits with the current Grand Jury with those of judice jurati. The Roman model, such as the example of Brazil, adopted the option of some jurors to be refused. However, the reasons for refusals did not dignify them, since or in view of the jury to sell itself for such a vile price that all concerned could afford and, therefore, no one felt sure of the verdict; or the sale was for a price which was so high, that only the wealthy could benefit from their decisions!

However, its proximate origins date back to 1215, when the Fourth Lateran Council abolished the ordeals or judgments of God.  According to this way of judging, the accused should prove his innocence by plunging, without damaging, his hand in boiling oil or water or putting it on a hot iron; when the accused was not forced to submit to a duel, in which usually strength or dexterity prevailed, which did not always correspond to his alleged innocence. In light of the Council prohibition, the English clergy, invoking the traditions and beliefs that dominated the times of that epoch, created the Grand Jury. Its base rests on the conviction ruling that, as the twelve apostles had received the visit of the Holy Spirit, twelve men of pure consciousness, meeting under the invocation of God, would inevitably attract the truth into their midst. From England, the Grand Jury method went to France after the Revolution of 1789, as a way to practice democracy. The French Jury, however, adopted different criteria, both in regard to the number of judges as to the way of trial. It was on the Grand jury method that the institution in effect today was inspired in Brazil.Currently, however, it no longer exists in France.

Brazil is one of the few countries that still insist on keeping the Grand Jury, erected, including to the condition of law and fundamental guarantee by the Constitution of 88, repeating the old tradition that dates back to that of 1946.

3.Weakness and imperfection of human justice naturally arise from its very nature.They depend on the degree of moral evolution of a people and reflect that which the people were or are, in a given moment in its history. Hence the reason why the so called prior notions of law and justice, although innate to man, are often beset with typical concepts, connotations and prejudices of popular culture, that are not always consistent with morality.

As the spiritist doctrine, justice is "everyone to respect the rights of others"

Thus, the inhabitants of colonial Brazil, similarly to what occurred in Portugal and Spain, did not rebel, unless exceptionally and sporadically, against the real misfortunes of the  FIFTH BOOK of the Ordinances OF THE KINGDOM OF PORTUGAL (Phillipine Ordenations), which prevailed between us, with regard to the criminal law, until 1830, when the Criminal Code of the Empire was edited.

Religious fanaticism and ignorance, as well as existing cultural backwardness, influenced and defined the prevailing feelings of right and justice at the time, despite the absurdity contained in them and perceived by our own eyes. When the spiritual authors of the Codification defined justice according to the respect due to others' rights, and informed about the origins of those rights (questions 875 and 875a of THE SPIRITS’ BOOK); they established two main sources: human law and natural law. The first follows the habits and customs, and the rights arising from it are changeable for the better, as the advancement of moral progress takes place.The spirits Benefactors words are: "Your laws, at this day, though still far from perfect, no longer consecrate what were considered as rights in the Middle Age. Those rights, which appear to you monstrous, appeared just and natural at that epoch. The rights established by men are not, therefore, always comfortable with justice.

4. However, even in sight of all his mistakes and shortcomings, no man fails to bring in his inmost soul, the germ of justice, whose essence is the natural law: " God printed the rule of the true justice in the heart of man, making each one wanting to see their rights respected "(SB, question 876).

It is up to man, therefore, to develop it and perfect it, so as to give rise to the right  prepared by man to be as fair and honest as possible, and that it may becomes an effective instrument of true justice, as recommended by Gustav Radbruch (PHILOSOPHY OF RIGHT, Stvdvivm Collection, Arménio Amado , Coimbra, Portugal, 1961, page 34), who sees it as "a reality that has meaning in finding itself at the service of justice."  However, as already seen, justice is "in everyone respecting the rights of others", which is why this matter can only be due when the right in question is according to ethics.

According to Moses, Jehovah would have directly delivered the Ten Commandments to him

Distinction between ethics and morality is not cogitated upon here, as some people intend. This distinction does not exist, since when the word was first used by Aristotle in his Nicomachean Ethics, and had its meaning endorsed by Cicero when he said, "quod ethos illi vocant in decet nominare moralem" (what they call ethical, we call moral). Outside this, the old Roman maxim will prevail: "nom omne quod licet, honesturn est" (not everything that is lawful is honest).

5. This contradiction or opposition between law, justice and moral/ethics stimulated in man the search for a superior fundament for the first, in order to enable its appropriateness with the fair/just and a better attunement with the true meaning of justice, which lies asleep in the recesses of man’s conscience.

In this quest, man followed the path of return to God as the main source of law, although it was very difficult for him to live with the anthropomorphic God, made in the image and likeness of man and bearer, in a superlative degree, of man’s ancient errors and defects.  The laws, often unfair and arbitrary, reflected this situation, because, following a tradition that goes back to primitive social groups, divinity was imputed to the dominant legislator. Thus, the oldest known law, the Code of Hammurabi, dating from the 18^th century BC, would have been directly transmitted to the Babylonian king by Marduk, their sun-god. Zoroaster affirmed that he received his laws, on top of a mountain, directly from Ahura Mazda, and Moses bequeathed to the Jews the Ten Commandments as a result of direct delivery to him by Jehovah, on top of Sinai. The divine character of right did not impede, however, that man invariably reflect the exclusive interest of the legislator or the interest of privileged minorities. This fact eventually led to the bankruptcy of the divine legislator.  God was, inescapably, at service of the strong and powerful and the weaker and socially disadvantaged should, bowing to his capricious will, remain patiently in their situations of suffering.  Their only duty was to continue serving the unique goals of their masters, amongst which the members of the priestly class pontificated at all times and in all religions.

In Judeo-Christian culture the Decalogue remains the "Divine Constitution"

Gods of every kind and category, as well as their pseudo-representatives on Earth, did nothing more than intimidate, exploit and deceive man. Christianity, paradoxical and contradictorily, was the religion that most took pains in this task.  .. 

It disowned, with strange and systematic trend, the just, good and loving Father, that Jesus spoke so much of, and it cultivate a God who was jealous and vindictive, who punishes "the iniquity of the fathers upon the children, in the third and fourth generation of those who upset me”, placing God always at the service of unacknowledged and dishonest interests of those who called themselves their leaders on Earth ...

6.This situation created an obstacle whose transposition or removal only began to be glimpsed from the emergence of a new mentality, formed and cemented around the notions of freedom, solidarity and brotherhood developed by the Enlightenment, and that led, in due course to the outbreak of the voices from beyond, urging man to his true destiny and retaking the idea of the Father-Creator God preached by Jesus.Concurrently, within the Philosophy, the Theory of Natural Law, which arose before the Christian era in Athens, supported the existence of absolute and meta-positive principles, corresponding to the basic requirements of human nature. Principles that were deduced or established by reason, prior and superior to the ruler and to the positive law, whose respect for the legislator constitutes a fundamental assumption of the fair State.

This theory received an almost unanimous acceptance of thinkers from antiquity to our present days.   It was consecrated by Cicero in his prayer Pro Milone, in which he called it a natural right derived from the need - non scripta sed nata lex - admitted by St. Thomas of Aquinas, who, however, distorted it by submitting it to the unique interpretation of the Church and today it finds the support of distinguished names of the philosophy of Law, such as the aforementioned Giorgio Del Vecchio.

7.For us, the heirs of the Judeo-Christian culture, the Decalogue constitutes the "Divine Constitution," because it contains synthetically, all the ideal legal planning. Jesus, its great hermeneutist, reduced it to two fundamental principles: love God and love your neighbour.

The primary source of all kinds of injustices that is still rampant on Earth

However, given the fact that man was not and is not yet prepared to conduct himself on Earth only by the law of love, the incomparable Sermon on the Mount explained, commented and clarified the meaning of the two principles mentioned above, setting standards of conduct, of clear and imperative content, able to teach mankind how to apply that law. Later on, Allan Kardec, advised and instructed by the Superior Spirits, stated, in accessible language to the understanding and assimilation of all the philosophical, sociological and legal fundamentals, which over the centuries, have guided the thinking of those who sought to conceptualize the natural Law. And as others had already done, he identified them with the Divine Law itself. iniciados. Only this time, the arguments and reasoning presented are characterized by logic, rationality and simplicity, ignoring the call to the legal and philosophical ruminations, of limited understanding to a small group of initiated.

The third part of The Spirits’ Book contains in itself everything that man needs to reduce progressively the immense gap that still exists between Law and Justice, Law and Morals.  The task that originally competed with Christianity to execute; from 1857 moved to the narrower field of its quantitatively more modest segment, that is, Spiritism. The divisions that marked the Christian story, allied to the excesses committed by Rome and the intolerance and radicalism that Rome sowed and adopted, unfortunately became extended to the bosom of the Reformed Churches, preventing man from learning how to love God instead of fearing him, to love others, instead of having them as adversaries, competitors or enemies. This situation has encouraged even more selfishness and such exacerbated selfishness gave rise to the drafting of laws that were inhumane, cruel, ambitious, beset with class interests, immoral or amoral; ultimately in a word, unjust. To contend that Spiritism does away with this state of affairs overnight means undisputed utopia. However, its followers can and should contribute, within their possibilities and the scope of their activities, so that a new consciousness is formed in order to ensure that tomorrow’s humanity will not come to live with the injustices of all kinds that are still rooted on Earth, whose primary source is still from the social point of view, this ill-fated and eternal conflict between the Law, Justice and Ethics.