Legal language - or the siren song of law

In Rhapsody XII of OdysseyUlysses is warned by Circe, the sorceress, about the dangers that await him on his return journey to Ithaca. 

Among the numerous threats, the hero and his companions would have to face the island of the Sirens, creatures half woman, half bird, whose hypnotic songs bewitched all who passed by. They inhabited a beautiful flowery meadow, surrounded by the bones of decaying bodies and withered skins. 

According to Circe, if Odysseus wanted to hear the melody and still survive, he should take some precautions. First of all, he should plug his companions' ears with softened wax so that they would not, under any circumstances, hear the hypnotic song. In this way, they would not stop rowing and would soon pass the danger zone.

Ulysses himself should tie himself tightly to the mast of his ship. As soon as he heard the magic song, he would surely be enchanted and order his companions to release him so he could go and meet the Sirens. Precisely for this reason, he should determine in advance that under no circumstances should he be released. On the contrary, the more he commanded his release, the more firmly he should be tied.

As they sailed past the island, the hero heard the hypnotic music: “Come here, celebrated Odysseus, illustrious glory of the Achaeans; halt your ship, so that you may hear our voice. Never has anyone who has passed this way in a dark ship failed to hear the pleasant sounds that come from our lips; then he departs marveling and knowing many things, for we know all that the Argives and Trojans suffered in the vast Troad at the will of the gods, as well as what happens in the nourishing land.”[1].

The Sirens were treacherous. They promised to impart to Odysseus precious knowledge about the will of the gods and about the things that happen on Earth. If, however, he approached, he would surely suffer the same fate as all the others: his bones would rot after being devoured by the terrible creatures.   

Circe's instructions worked. According to Odysseus, the magnificent voices of those creatures filled his heart with the desire to hear them, and he quickly ordered their release. However, he was bound with more numerous and tighter ropes, remaining absolutely tied to the mast of his ship. The hero was only released after the ship had sailed away and the hypnotic song was no longer heard. Safe and sound, they continued their journey.

Looking at this episode from Ulysses' adventures, it's possible to draw an interesting parallel between the song of the Sirens and legal language. For, in both cases, there are "voices that enchant all men who approach them."[2]. 

Indeed, would anyone dare deny the charm of Article 5? caputWhat does the following statement from the 1988 Constitution evoke in our hearts? “All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, under the following terms.”

What, then, can be said of its clause LV? "Litigants in judicial or administrative proceedings, and defendants in general, are guaranteed the right to adversarial proceedings and full defense, with the means and resources inherent to it." Clause LVII, in turn, is especially welcoming: "No one shall be considered guilty until a final and unappealable criminal conviction is issued."

By stating that all “are” equal before the law, the Constitution uses a statement that refers to reality and the present. According to the constitutional text, hic and nuncThat is to say, here and now, we are all equal and guaranteed life, liberty, equality, security, and property.

Note that legal language attributes to itself the power to create a reality. If we fully trust its words, we can sleep peacefully, knowing in advance that we will remain alive, equal, free, safe, and property owners. 

When the Constitution states that no one "shall" be considered guilty until a final and unappealable conviction is reached, it uses a statement that refers to the future, anticipating a situation. It does not say that there is a possibility of being considered guilty or not before the final judgment, depending on the specific situation. On the contrary, it guarantees that we will not be. 

Like Circe, the Constitution aims to function as a kind of sorceress. It anticipates the future for us, and, in doing so, places us in a position of security, as we can protect ourselves from the dangers that surround us. We feel cared for.

The problem lies in the fact that Ulysses was not saved by Circe, but by himself and his companions. It is clear that without the sorceress's help, the hero would easily have fallen into the clutches of the Sirens. But note that, between the advice given by Circe and the precaution taken by Ulysses, there was a clear and conscious act of will; a decision to do what had been said.

Ulysses could have simply ignored the instructions, perhaps considering them mere superstition. His companions could have disobeyed his orders, which wouldn't be surprising, as it wouldn't be the first time. In that case, they would all be dead. 

Well, legal language, insofar as it proclaims a factual situation and anticipates a future situation, proclaims itself endowed with a kind of "spell": the possibility of adapting existing reality to its pronouncements. Implicit in it is a kind of "transubstantiation," that is, the power to promote the automatic passage from a state of language to a concrete action.

Without a doubt, the law does not tell us that a situation should or should not be according to the factual and particular circumstances of the moment. On the contrary, it states that such and such a situation should be in the way that the law determines it should be, without discussion.

Legal language, by its very nature, that is, by the way it is constituted, is attributed with a capacity for decision-making, for choice, which it does not itself possess. For, just as with Circe and Ulysses, it is necessary that someone decide to follow the command; that one or more individuals make the clear and conscious choice to obey the guidance. 

One could argue that, in the case of law, individuals are obliged to adopt the decision previously contained in the law under penalty of suffering a sanction, that is, a punishment. 

This argument, however, merely shifts the problem, since it will equally fall to an individual or a group of individuals to make the clear and conscious choice of whether or not to apply the sanction to the person who has not observed the legal order.

Moreover, Hans Kelsen, the most influential jurist of the 20th century, states this clearly: “Since we cannot admit a regressum ad infinitumThe final sanction in this series can only be authorized, not prescribed.[3].  

What does this tell us? That the language of law is very close to the song of the Sirens. In fact, both the hypnotic hymn of evil creatures and the particular diction of law reveal what they are not, and, in doing so, conceal what they are.

The song of the Sirens is a harmonious, seductive melody that carries the message that knowledge is available to anyone who approaches. Simply go to meet these beings, half woman, half bird, and the secrets of the gods and the earth will be revealed. This song, however, hides a trap. For, upon encountering the creatures, the adventurer is soon devoured, and their bones will remain exposed to decay.

The language of law also carries with it a harmonious and seductive message. According to it, everyone is equal, free, and a property owner. If we faithfully follow its prescriptions—that is, if we all obey its commands—then we will live peacefully in a just and conflict-free society. 

But legal jargon hides its pitfalls. It does not reveal, but rather conceals, the type of society upon which it is built. A society constituted by visceral economic inequality, which pits a small group of possessors against a multitude of dispossessed; formed by structural racism and misogyny, which have shaped it from the very beginning.

Of course, something in it (in legal language) needs to refer to reality. Even mermaids are half woman. If they were entirely birds, it's likely that men wouldn't be enchanted by their melody. When we buy any merchandise, legal language assures us that the sales contract is valid and will be fulfilled. By doing so, we feel free, equal to other consumers, and, above all, owners of something.

However, this is not the fundamental social relationship in a society. The way in which goods and services are distributed among social segments, which is determined by how we access effective wealth—that is, wages, pensions, profits, dividends, etc.—is what functions as a constitutive structural element of the community. 

In a market society, however, this distribution is inherently unequal, as it is predetermined by property ties that depend on our position in the social structure, something defined before our birth. The child of workers will tend to follow in their parents' footsteps, unless something exceptional happens. The child of a businessman will tend to inherit the family business and the fortune of his ancestors, and so on.

This underlying inequality is masked by the surface language of law, which loudly proclaims that we are all equal, free, and proper owners. 

Not only that, but it also hides what is crucial: by stating that it applies to everyone, the legal wording conceals the fact that it serves a minority, specifically those who, in concrete reality, embody the assumptions that it enunciates. 

In other words, legal language only applies to men and women who are, in fact, free, equal, and property owners, not because of the legal statement, but because of the economic and social reality that not only precedes the law but shapes its constitution. 

This means that the law adapts very well to high salaries and hefty profits; generous pensions and dividends exempt from income tax; but it has serious difficulties in adapting to those who have nothing or very little.

Just consider the daily police violence that occurs openly in the outskirts of our cities, with strangulations and asphyxiations, even when the police act "moderately." On the other hand, observe the subservient behavior of these "authorities" when they are in a luxury condominium, enduring threats and insults. 

So, what can we do in this situation? Obviously, we can't ask people to use wax in their ears. This means that the language of law, like the song of the Sirens, will continue to bewitch all who hear it. 

It's also pointless to loudly proclaim the spell hidden within codes, laws, decrees, resolutions, ordinances, etc. One language cannot be replaced by another. Only modifying the reality from which the spell emerges can undo it.

In this sense, perhaps we should follow the example of Ulysses. 

Why did the hero, knowing the danger of hearing the sirens' song, still decide to try it? One possible hypothesis is that he sought knowledge. Instead of safe ignorance, he preferred the risk of knowing. However, having been warned, he tied himself to the mast and asked his companions not to release him. In this way, he learned the hypnotic song and was able to tell future generations the secret it concealed.

The great problem with progressive thinkers in the field of law is that they do not imitate Ulysses' strategy. In other words, they do not tie themselves to the mast of their ships, and therefore fall under the Siren's song. 

When confronted with legal language, they firmly believe that there is a kind of hidden power inherent in legal words. This power has convinced them that it is capable of generating, in reality and by itself, the positions of freedom, equality, and property that are enshrined at the phraseological level. 

They forget, however, that, just as in the case of Circe's guidance and Ulysses' strategy, there exists, between the text of the law and concrete reality, a fundamental element of mediation consisting of the will of one or more individuals. Without a clear and conscious decision to ensure that the law is obeyed, legal language is nothing more than a statement like any other, just like literature, poetry, philosophy, etc.

Moreover, the synchronous production of decisions that sometimes opt for compliance with the law and sometimes for its non-compliance is a constitutive element of the legal order. This is not a "defect" of the system, but its realistic mode of operation. The legal system is formed by decisions that alternate between applying the legal text and negating it.

Based on what criteria is this decision made? The scholar who hasn't tied himself to the mast of his ship will say that the criterion is given by the legal norm itself, which determines its application. By this point, he has already succumbed to the Siren's song and been devoured.

The criterion for adopting this or that decision, that is, for observing or not observing the legally inscribed command, cannot be based on the law, because the law is, first and foremost, a simple piece of paper. 

It is the friend/enemy relationship, whose origin dates back to the reality of the facts, that determines the decision to be made. As we have seen, this reality consists of a society marked by economic inequality, structural racism and misogyny, in which a few have much, and therefore, have excessive power. 

Thus, left to its own devices, legal language will always tend to be what it truly is: the concealment of relations of domination and power through words that enshrine positions of equality and freedom. 

One might say that, unfortunately, progressive thought in the field of law lacks any "oracle" to warn us about the sirens' song. Nothing could be further from the truth. We have always had our "deities," that is, thinkers who constantly warn us that we cannot trust legal language. 

Just remember Theodor Adorno: “The fact that there needs to be freedom is the injury The most extreme form of the autonomous subject who founded law. The content of his own freedom – of the identity that annexed everything that is no longer identical – is equivalent to necessity, to law, to absolute dominion.[4]. 

For some reason, legal progressivism decided to abandon the critical perspective and walk hand in hand with the traditional paradigm. 

Criticism distrusts the language of law, resorts to economics, politics, and philosophy, and returns to the legal field now with powerful weapons in its hands. The traditional point of view is entirely formed and shaped by legal jargon. Therefore, there is no escaping its circular logic. Progressivism that remains within traditionalism is easy prey to the siren's song. That is why we are constantly caught off guard and suffer crushing defeats.

We progressives must tie ourselves tightly to the mast of our ships. As we listen to the language of law, we must ask our comrades to tie us with redoubled strength. Only in this way can we hear its songs and charms without being devoured; only in this way can we bequeath its hidden secrets to future generations so that undisguised coups d'état never again end democratic experiments.

[1] HOMER. Odyssey. Translated by Antônio Pinto de Carvalho. São Paulo: Abril Cultural, 1979, pp. 112-119.

[2] Same, same, P. 113.

[3] KELSEN, Hans. Pure theory of law. Translated by João Baptista Machado. São Paulo: Malheiros, 1995, p. 27.

[4] ADORNO, Theodor W. negative dialecticTranslated by Marco Antonio Casanova. Rio de Janeiro: Jorge Zahar, 2009, p. 210.