A careful rereading of Miguel Reale's Juridical Culturalism:

how to reconcile the relativism of the cultural-historical process with the “axiological invariants” of the Human Person?

Abstract

One of Miguel Reale's greatest concerns, when expounding his three-dimensional theory of law, was to underline its historical-cultural aspect. He showed that the legal phenomenon can only be understood if inserted in a historical context of a certain culture. The work of the jurist Miguel Reale can be better understood within this premise: legal norms change in time and space, as values change, facts change and the three poles are mutually involved in a dialectic of implication and polarity, in a historical-historical process. cultural. Now, this means that values are relative. It is the first position of the German jurist Gustav Radbruch (1878-1949), who denied the existence of absolute values. During Radbruch's lifetime, the Nazi movement that produced the Holocaust was unleashed, in the name of an alleged racial superiority of Aryans against Jews, Slavs and Gypsies. In 1948, as a reaction against the scandal that was the opening of the extermination camps by the victorious allies and after the cynicism shown by war criminals at the Nuremberg tribunal, declaring that they complied with the laws in force in their country and therefore were all innocent, took shape the idea of drafting a “Universal Declaration of Human Rights”, stating that Human Rights exist because human beings are endowed with a common nature, despite cultural diversities. The American anthropologist David Bidney showed the impossibility of maintaining cultural relativism and at the same time promoting Universal Human Rights. His work had wide repercussions. How to reconcile, then, a relativist historical-cultural methodology, as seems to be Reale's, with the idea of Universal Human Rights? Reale makes use of a distinction: there are the so-called “axiological invariants”, the permanent values that defend the dignity of the Human Person, in the classification of what is good and what is bad, what is moral and what is immoral, what is what is fair and what is unfair, as stable categories, above cultural differences in space and time. Could this be seen as affirming something permanent in a theory that presupposes mutability? Would there be in such axiological invariants something like an implicit jusnaturalism in the mind of the jusphilosopher from São Paulo? In order to clarify everything, we believe that it is necessary to broaden the scenario, seeking a vision of differentiation between the permanent and the transitory, in terms of values. That is why we try to show in this article that we will read that the axiological invariants coexist with variable values and norms, in different historical moments of the same culture. We then arrive at the cyclical conception of history by Gianbattista Vico (1668-1744). Precise Reale: “It can be said that it is in Vico's Philosophy that the concept of Humanity (Humanitas) reaches its full concretion, as a single force and director of History, as a force that only Providence transcends. Thus, the progress of law is inserted in the ideal history of humankind.” (Horizons of Law and History, p. 124). We know that for the Neapolitan philosopher, nations follow a course, passing from a “mythical” phase, in which everything is explained by immediate divine action on the human world, to a “heroic” phase, in which the great figures of humanity appear, founding empires and codifying legal systems by their own intelligence and will, to finally reach a properly “human” phase, in which everyone participates, as human beings, in the elaboration of laws. These are the mythical or theocratic phases, heroic or aristocratic and finally the simply human or democratic phase. If such democracy degenerates into anarchy, governments into demagoguery, Providence, to save that nation, will make it return to the mythical primitive phase, what Vico called “ritrovata barbarism”. (= barbarism rediscovered). It is the vision of the “Corsi and Ricorsi' of history, contained in the famous book Scienza Nuova, from 1725. The cyclical, non-linear conception of History, such as that of Vico, has the merit of recognizing cultural diversity, without running the risk of breaking the unity of the human race, a break that would represent a dreadful setback, after the Universal Declaration of Human Rights, of 1948. We then see the possible conciliation of immutable values, with the relativism of values, in different phases of the history of a culture, very much in the way of Vico. To illustrate, we added a text by the famous German naturalist Carlos Frederico Von Martius (1794-1868), who visited us during the First Reign, and who, in addition to having studied our fauna and our rich flora, lived with the indigenous people - who are still here there were, in very large numbers, writing about their right. (VON MARTIUS, 1982).