Some lessons from the laws
By: Luis Beltrán Guerra G. - 24/09/2024
Share:
This is the title of a seminar in Washington DC with 12 law professors from Caracas and led by Professor Timothy Edinburg, magna cum laude from American, French, German, Italian and Spanish universities, but also a lecturer in South and Central America. The topic is What is the law? but with the commitment that the analysis will be carried out with less entanglements in relation to those who, to date, a few, have dedicated themselves to scrutinizing it. The evidence, some: “but if the law says so, respect the law, the law favors me, do not violate the law.” And a long and complicated list. The Venezuelan teachers have demanded from the lecturer that the presentation be based on the book “Borges and the Law” by the University of Buenos Aires professor, Leonardo Pitlevnik, recently published (2024).
The academic begins by emphasizing that it must be taken into account that devotees in the study, interpretation and application of laws corroborate the depth of the subject and from ancient times. Evidence of which, among other manifestations, is that the denomination would be attributed to the “secular Roman jurist” with respect to reasoned opinions that he issued, in response to queries about problems that were formulated to him, both by authorities and by individuals, who, depending on the prestige of those consulted, were considered sources of the then “Ius Civile”. This is how Pitlevnik wisely limits it. Therefore, you must take into account that the making of legal texts is not at all simple, but that the task of interpreting them seems, even more convoluted. Likewise, “complying with what is ordered” is quite “convoluted”. Tons of essays, books, encyclopedias and the like compete with each other in such a commendable task. Centuries of work have generated a diversity of names that even the Royal Spanish Academy invites us to take into account more than one of the definitions, among them: 1. “Rule, norm, provision, precept, order, principle, edict” and 2. “Precept dictated by the competent authority, in which something is ordered or prohibited in accordance with justice and for the good of the governed.” We note that the prestigious Academy includes a few more names in a list, which is, moreover, abundant and satisfactory. I must therefore praise the assessments made in this regard by Professor Leonardo Pitlevnik. Would you agree? Of course! is the answer assumed by the speaker himself.
The problem concerning laws, Edinburg continues, is related to the “ratio” of what they prescribe, but with the warning that with respect to this last word, more than one meaning is also noted. The most didactic appreciation obliges, in our opinion, to take into account that: 1. The ratio or cause is the soul of the law and 2. The ratio legis is equivalent to that by which it must be understood that the law has been given”. It should be noted, however, that not all laws conform to reason, logic, good sense, judgment, coherence or sanity. That is, to “rationality”, which depends on the nature of the source from which they derive (parliament, congress, assembly). But, also, understand well, their own “recipients”. The first assumption, derived from the democratic or dictatorial nature of power, the most common, but not the only one. And the second is when the legal text is contrary to higher precepts, such as those of the constitutions or that substantially alter the fundamental principles under which the nation has been structured. Also including those of an international nature.
The Argentine professor turns to the world of Jorge Luis Borges, who, by the way, the prestigious Swedish Academy must regret not having awarded him “The Nobel Prize in Literature”, created to reward the “author who had produced” the most outstanding work. If anyone met the requirements, it was, precisely, Borges. But even in the most advanced segments, one is not exempt from the aphorism “In all houses beans are cooked”. This is how Cervantes evoked him in that ancient era in Don Quixote. But, also, adding “in mine, in cauldrons”.
In the introduction to his sui generis book, the academic Pitlevnik writes: “It is not my intention to be an official translator of Borges’ ideas in the field of law. But I do intend to try to understand how we conceive the idea of justice contained in Ficciones and El Aleph, particularly praised editions. The proposal of the Argentine professor of criminal sciences, Edinburg adds, is to insert us, as he does, into Borges’ questions regarding some of the basic conceptions of the systems to regulate the circumstances under which we live. The purpose of the “lawyer” from the University of Buenos Aires is, as easily perceptible, to inquire: What do we understand by law, by guilt or by punishment? These are elusive concepts, however, we handle them daily and it is up to us to apply them almost daily. In “The Lottery of Babylon,” as it is up to you to assimilate, he explores the idea of “how much of what we get, as a reward or punishment, is by merit or pure fruit of chance.” And finally, in the context of “Deutsches Requiem,” Borges brings us face to face with the limits of law and language in order to account for the most atrocious crimes. Leonardo Pitlevnik is clear, intelligent and prepared, says the US law professor with admiration.
I cannot help but affirm that I agree with “the learned” professor, even when he states that “fiction is the mechanism to better understand law, adding that literary genres have not ceased to be based “on stories related to crime, guilt and punishment.” I read, as a reaffirmation and without changes, what is stated on page 20 of “Borges and the Law”: 1. Oedipus Rex is a complete representation of a judicial process, 2. The Oresteia of Aeschylus, source of the criminal prosecution system and 3. The trial of Kafka, a way of bureaucratizing knowledge for the exercise of power. And the criminal lawyer points out, additionally but firmly, that Robert Cover, professor of law at Yale wrote that “institutions and rules exist thanks to the narratives that give them meaning.” I cannot leave aside my correspondence with the academic Pitlevnik “that behind every constitution there is an epic, which not only gives it meaning, but also builds a way of thinking aimed at ordering the world.” In your gestures, respected listeners, I do not perceive any expressions of surprise, not entirely understandable. I encourage you, we are colleagues. Investigate more than usual and you will be respected much more as you are now. The 12 Venezuelans are perceived as somewhere between resignation and patience.
In the countries, admired colleagues, still known as the “Third World,” we must admit that unfortunately no course has been defined or known. And in those that have proposed it, the interruptions, both civil and military, induce them to start over. I am referring, Edinburg warns, to “a course of political seriousness and a sincere democratization, which would have to combine the exercise of public power and a social balance for the sake of progress not only for a few, but for all. That is the challenge and as far as Caracas is concerned, where they come from, very few voices are those that support what is happening. I hope that you understand that the goal is “harmony and stability in a society, which is achieved through a fair distribution of resources and opportunities and the observance of human rights and individual freedoms.” That is how it is written and I trust that you will assimilate it. So, move away from the bad and approach the best. Timothy Edinburg looks upset and his cheeks are red. Nevertheless, he takes a couple of sips of water and says that in humanity we are called on all occasions and in this one, particularly, to learn from Borges, whose wise ideas are offered by the book that serves as our guide.
Let us continue, says Edinburg, with the story “The Lottery of Babylon”, reading from Pitlevnik “Blessed are those who do not hunger for justice, because they know that our fate, adverse or merciful, is the work of chance, that it is unstable”, an appreciation taken from “Fragments of an Apocryphal Gospel” by the genius of the Pampas. Let us meditate, out of courtesy, that in us “the ball of the wheel of luck” plays a determining role and that the imagery urges us to think “about what each one of us gets throughout life”, deriving in the question Why does what happens to us happen to us? Borges’ prose leads Pitlevnik to stop in the pages of (“The Lottery”) in the consequent derivative of a normative regime, generated by precepts to regulate chips, roulette wheels, balls and prizes and, consequently, to surprise, the typification of even criminal conduct related to the theft of prizes, as well as applicable penalties. I would describe it, as Italian administrative experts do, as “a particular legal system.” The Argentine criminal lawyer’s assessment leads us to ask: Is there an element of chance in what can lead someone to receive a conviction? Let us reflect on this out of courtesy, Venezuelan friends, and let us understand.
Let me copy another paragraph from the book “Borges and the Law” without reservations: “The division of powers that we have known since Montesquieu is, on the one hand, a genetic trait of republican systems, it enables judges to bear, apparently, a representation of the people, establishes the rules in light of a constitutional matrix. But the application is subject to the judges determining, in each case, if what happened agrees with what the legislator had typified. It is, therefore, decisive to observe the guidelines that guide “the interpretation of the normative precepts”. The professor of the prestigious University of Buenos Aires points out that the ratio of the law is usually sought among “the textual interpretation” that ends up being called “Textualism or exclusionary positivism”. But, also, in the context of how the precepts should be applied for the sake of a provision as correct as possible with respect to the case that the judge must decide. An alleged discrepancy is, in principle, likely to be found, for friend Pitlevnik, with respect to what one of the protagonists says to Alice (already taken to the theater) that “words mean what each one wants them to mean”, discordant with the appreciation that “words do not mean what one wants them to mean”. Here is a message for the jurists who life keeps in underdeveloped countries. Of course, in the judgment of the genius of Pitlevnik: The interpretivists accuse their opponents of becoming servile to “totalitarian states” as blind faithful of oppressive laws! A pertinent appreciation, dear friends of Caracas, expresses Professor Edinburg, in a few countries on your continent, mounted on a kind of “seesaw”. Like in the circus.
Forgive me, but it is time to finish, which I do with your consent, copying from “Borges and the Law”: “We build a structure that travels in time and that is transformed from what it is.” In this sense, the book is a way to weigh up this structure, to use this fiction in order to mirror some of our practices, discover how similar or distant they are from it and to understand more adequately what we are referring to when we talk about law, punishment or justice. This appreciation of the professor from Buenos Aires is decisive.
I say goodbye to you, asking you out of courtesy to please answer the “tentative survey” that was given to you at the beginning of the seminar. We are interested in knowing your opinion and the measures taken regarding your next destinations. The questions? 1. What happened to the “agreed democracy” established in 1958? 2. Why did the armed forces resort to a “coup d’état” to displace a democratic government? 3. Is the interference of Russia, China, Iran and other countries in Latin America true? 4. There is currently a scenario similar to that which led Simon Bolivar to declare himself dictator, like Lucius Cornelius Sulla in Rome? And 5. In light of the presidential electoral process in July 2024 that will take place in Venezuela. Please do not forget that you are also authorized to send any considerations that you consider pertinent to the university where I am a professor.
The academic, already on the plane to return to Europe, reviews the aforementioned pages, confirming that the attendees, without exception, have written that they have decided to request the services of immigration lawyers, 5 of them to remain in the USA, 4 are unsure whether to stay in Spain, Australia or Canada and 3, to the surprise of the speaker, decide to reside, one in Russia, another in Cuba and the last in Iran.
It is like repeating with Don Quixote: “In the houses they cook abas. In mine, in cauldrons.”
Comments welcome.
«The opinions published herein are the sole responsibility of its author».