História Essencial da Filosofia – Volume 1 (Portuguese Edition)

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Although already in an introduction to law, under the title The Truth as Rule Actions, had decisively attacked the already prevailing positivism, only since the 40s, and perhaps especially up in the aftermath of World War II, overcoming positivism at the philosophical level, will be consummated in Brazil. The permanence of Thomistic thought in Brazil appears to us differently evaluated by the authors. However, this author finishes significantly its glimpse of Brazilian legal philosophy of the last hundred years with a reference to this current, noting that "it deserves to be remembered significant inspiration of Thomistic studies' that highlights Tristan Athayde pseudonym of Alceu Amoroso Lima , Edgar Godoi Leonardo da Mata Machado and Van Acker.

Nowadays, in addition, of course, we see the traditional flow and attractiveness of new analytical and neopositivists the kelsenianism has a certain role too , plus the new wave of "alternative law", postmodern law, legal culturalism, neoconstitutionalism, pluralism, etc.. And even more specifically the legal tridimensionalism, current or confluence of currents that most associate with the image Brazil Jurisprudence. But to what extent this last identification is not due to the enormous international prestige Miguel Reale? We have to make a reflective pause: how can we say that the specific feature of a Lusophone Jurisprudence is either something politically and culturally common, or parallel pathways after the independence of Brazil?

How to identify the Lusophone Jurisprudence? Only with a more European version, or a tropical readapted-Aristotelianism Thomism on law matters?

História Da Filosofia - Olavo De Carvalho

These items seem really scarce and poorly differentiated while national or cultural legal philosophy. That traditional way is not the way In our various previous studies on these questions, we followed the trail of a possible specific Portuguese thinking in multiple authors, particularly between the eighteenth and nineteenth centuries. This is not the place to present the findings on each of them.

In general, these authors were worrying about what we would call Justice, equity and the like. But the question, in view of the actual data, is quite strong, and distressing. The most important doubt is this one: is it fair, and scientifically suitable, acceptable, that someone certainly acting with the best intentions, we may admit may make a choice among the different manifestations of juridical philosophy in one country or group of countries, and using his or her own perspective a subjective one , show subsequently the world a face of that country or culture in what concerns Jurisprudence that may not be shared by many people Is it fair to make that choice?

Again, the Portuguese evolution may be an illustrative and eloquent example. It seemed that it was a movement, a school, with a certain programmatic and even ideological aim. However, after the studies of this thinker, a contemporary one, it seems that Portuguese philosophy changed: now, it is generally concieved as all the speculative thought exposed in Portuguese, in priciple made by Portuguese citizens Because it cannot be Portuguese philosophy some philosophical works in Portuguese language but by other nationals from other countries And there are many African countries with Portuguese as official language, apart from the case of Brasil, East Timor and other parts of the world where it is not official language but it is spoken, like Macao, in China at least partially or Galicia, in Spain, acording to some observers But even this new vision, more wide, more open, seems to bring us some problems.

First, authors like Silvestre Pinheiro Ferreira, Portuguese by language and nationality, but also very close to Brazil where he lived and ruled as a Portuguese minister of king John the Vlth, from to , wrote sometimes in French, and published books in France. Why should the French works of Portuguese or Brazilian or others This specific text itself, should it be put away from it, because it is in English?

Or may we suspect that the obstination in the language hides a certain vagueness of the substance? Terrible tempatation, this last thought. Secondly, Portuguese language is shared by many countries, as we know. If language is the most important, how can we distinguish a Portuguese philosophy from a Brazilean, an Angolan or a Timorease one? It seems that language is not enough.

This leads us to a more complex question: would we prefer a multilinguistic paradigm, for example the bilinguistic one of Hisponamerican Jurisprudence? The main question, here, seems to be: either to build a step on a Lusohone Jurisprudence with a peculiar being, and then integrate it in a higher and wider Hispanoamerican Jurisprudence, or to connect directly all the different national philosophies or even atomistic philosophers or philosophic movements in a large net.

Not a national one, even nor a linguistic first step. We may discuss the pertinence of this in philosophical, cultural, sociological and even geopolitical terms. Thirdly, it is quite easy to put into Portuguese or in Castillian A Portuguese mental translation of a foreign philosophy and eventually very strange to the ways of Lusophone people: for example, a cold, purely rationalistic one, if we admit that our peoples are more sentimental, etc. The question is: would it still be Portuguese, Brazilian, Angolan, etc Lusophone philosophy?

Our personal answer is negative. But we must go further. We think that it is not profitable to think on a national or civilizational philosophy if it has nothing more than the linguistic common topic. It has to have some peculiar common soul, spirit, idea. Of course they have to adapt to certain more or less peculiar aspects of the language they must use. But the container doesn't completely change the contained.

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And let's allways remember that Spinoza, even Spinoza itself seemed to have thought in a language different from the languages he used to write. This is very important. One think is to think directly in one language, another one is to translate our own thoughts to another language. And even when the thinker thinks immedialty in another language, the background of his or her motherlanguage may be is still there. An hypothesis to the neurolinguists, at least. We may use another language, but if we are faithfull to our cultural roots, they still create their own civilizational centred philosophies.

Finally, if it is true that there are many similarities between some Portuguese and Brazilean philosophical authors, the constitution of a Luso-Brasilean jurisprudence still awaits for its theorists. And even more complicated seems to be a general Hispanoamericam Jurisprudence. Although this empire where the sun shines forever was maybe a version of the Vth Empire in the profetic philosophy of Agostinho da Silva. This general common jurisprudence risks to be very vague. But we are of course open to the possibility Maybe it would be more cautious if we build first our national philosophies the return to sovereignity seems to regain adepts in a world of impious globalisation , discovering its main features.

After that, the next step would be to look for the family ties - first the Lusophone and then the Hispanoamerican. But never forgetting that some national philosophies may have other connetions. For example, the Portuguese one with the Mediterranic thinking, the South European thinking. In this case, it is not a question of language only. Of course there is Latinity. But Latinity is only a part of the legacy of the old mare nostrum of the Roman Empire Even other bounds are possible. Let's never forget that an agent of the French Convention said Portuguese would be, at the time, French, if they could not be Portuguese.

Or let's remember that the best Portuguese elite of all times was from English-Portuguese birth: the sons of the Portuguese John the first and the British D. Filipa, from the house of Lancaster. And that "High Generation" was the seed of Discoveries Many possibilities are possible, in what concerns social and cultural and sentimental affinities.

But what we must have in mind in this context are the philosophical affinities. Even without the American scene, Portuguese and Spanish thinkers should increase their dialogue, and go further not only in the archeology of freedoms, but also in the analysis of the thoughts. We are nowadays, in all our countries, too fascinated with what comes from the main poles of the jurisprudence production, Germany and the Anglo-Saxon world. They are excellent, in their ways. But there is more, Horatio Portuguese and Spanish and other languages thinkers have also thinkers. They may be original, and not only comments on those other ones, with more media reverence and bestsellers.

I am not purposing to make a new Tordesillas treaty, by which we Portuguese speakers and Castillan speakers would share the world. But I am certainly suggesting that we may think how to preserve our intellectual and even educational and editing traditions, in a world more and more formated one way. And the intellectual globalisation is not at all ours, nor even flexible to our way of being and of thinking. The fact we were supposed to be in Brazil speaking English among us is a very concrete illustration of what is happening to our civilization.

A danger already prophecised some decades ago by the Brazilean sociologist Gilberto Freyre. Albuquerque, M. Almeida Santos, A. Baptista Machado, J.


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Savater, F. There are, for example, a mythological and fanciful version on the Lusitanity of Aristotle he would be born in Lusitania, and then went to Greece: how convenient to Portuguese pride! This is indicative of the attachment of the Portuguese to the Stagirit. But also it means that this is, at least in some periods and for certain minds, such an important question that it may be falsified, in myth. In fact, we have not only the ius soli or ius sanguinis criteria to establish the nationality of a culture.

It has been discussed, for example, about the cradle of the first juridical philosophical thinker uncontroversial Portuguese, D. By these examples, Portugal seems fertile in philosophers of law not born in its territory. But they are just two cases. Breaking the placid traditional line, however, the Renaissance period gave way to another kind of preferences or anxieties, at least in their formulation and explicit style. And after that scientists and technocrats took the fortress of Law. But the decline of the essential concern of legal philosophy and even of its university studies does not mean death.


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  • In the shadow and silence, and even resistance, there has always been researchers and thinkers faithful to the tradition of reflexive law. Legal philosophy, cultivated among us in a non-academic way 'implicit' in the terminology of Miguel Reale very early at least since the fourteenth century , was officially introduced in Portugal in its rationalist formula by Pombal's reform of the University , then assuming the name "Natural Law which, as is well known, in Spain still remained for a couple of centuries.

    Filosofía del derecho lusitana en el contexto de la filosofía del derecho iberoamericana

    Even in the late nineteenth century, the philosophy of law had between us host among pure philosophers, and was taught at the High Schools, in the discipline of Philosophy. Cunha Seixas, pioneering Portuguese philosophy, who served until his death as a lawyer, did not disdain to write legal philosophical pages for the purpose of teaching in high schools and normal schools. The second half of the nineteenth century assists in Portugal to a major outbreak: it is the time of positivism and scientism.

    In the early twentieth century, however, positivists had succeeded in imposing on curriculum reform, in It produced a change of name and content in the chair of the first year of law school: it became Sociology General and Philosophy of Law. And integrated into a whole plan that was to precede the study of the positive law of sociological Prolegomena. Not a bad idea, if it was not largely ideological in the sense of propaganda The positivist reform plan for law studies, which followed the establishment of the First Portuguese Republic in very inspired on the previous Brazilean one , abolished the Philosophy of Law, and soon after created the second Lisbon Law Faculty, a leading school whose name printed on the philosophical conception of its creators: Faculty of Social Studies and Law.


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    • Obviously the new institution appeared devoid of legal philosophy. The rallying cry of turning back to the roots emerge from the student of the Faculty of Law of Coimbra later to become one of the most solid and reputable historians of law , Paul Merea, still in , through a conference, and later two articles the latter returning to the initial conference, and published in But it would take more than twenty years that seed bear fruit. Restored in , with Cabral Moneada, companion of studies of Merea, although primarily only experimentally, the discipline has counted worthy successors to the legacy of these masters, although it has been subject to further vicissitudes, never finished because of the antiphilosophical prejudice, nowadays enhanced by prevailing climate of technological cretinism as the French sociologue Jean Duvignaud puts it.

      But more interesting than the official Jurisprudence is the reflection on Law by people who are not professional jurists.

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      It should be noted that one of the appealing and attractive characteristics of Portuguese Philosophy is its "orality" and even a certain amount of memorialism. There is a patent alive dialogue with the reader, which is made of direct questioning, storytelling that assumes the art of saying what you mean, so often very beautifully and that Leonardo Coimbra was a master on this: even a master of oral suspence No fatuous blisters and particularly uncomplicated and purposeful verbal intellectualism.

      The ideas of these authors about law, justice, etc. There are a certain esoteric aura in some writings, even more philosophical-political ones such as in Dalila Pereira da Costa and Sampaio Bruno. New authors of this school, like Braz Teixeira, seem to make a bridge between the non academic and the academic fields. The last idea is the contruction of a theory of juridical rationality, opposed to a simple methodology of law The evolution of the Brazilian legal philosophy has had some parallels with the Portuguese one, at some point to be considered 'one of the virtualities of Portuguese philosophy who found a suitable opportunity and ran its course.

      Eventually this is an ethnocentric statement. And other theoretical solutions could be found Let's just recall that, at the level of the aforementioned legal philosophy, the fact that the Jesuits have strongly influenced the colonization period. And they generally marked an essentially Thomistic philosophy, which had repercussions on the traditional Brazilian Philosophy of Law.

      However, now we have in Brazil as many schools of thought as it would be imaginable, or even more. The creativity is a rule, there, and the intellectual prejudice is almost absent Rui Barbosa, intellectual and tribune which is still a myth, proposed replacing the chair of the Natural Law by Sociology.

      And the Brazilian Republic November 15, , which adopted the Comtean slogan "order and progress", embracing the globe, while quenching chairs of Ecclesiastical Law, replaced coherently Natural Law by History and Philosophy of Law. This chair, however, does not usually constitute more than a precursor little known, though of the identification of legal philosophy and legal theory or methodology in formulations similar to those we now know well. Although already in an introduction to law, under the title The Truth as Rule Actions, had decisively attacked the already prevailing positivism, only since the 40s, and perhaps especially up in the aftermath of World War II, overcoming positivism at the philosophical level, will be consummated in Brazil.

      The permanence of Thomistic thought in Brazil appears to us differently evaluated by the authors. However, this author finishes significantly its glimpse of Brazilian legal philosophy of the last hundred years with a reference to this current, noting that "it deserves to be remembered significant inspiration of Thomistic studies' that highlights Tristan Athayde pseudonym of Alceu Amoroso Lima , Edgar Godoi Leonardo da Mata Machado and Van Acker. Nowadays, in addition, of course, we see the traditional flow and attractiveness of new analytical and neopositivists the kelsenianism has a certain role too , plus the new wave of "alternative law", postmodern law, legal culturalism, neoconstitutionalism, pluralism, etc..

      And even more specifically the legal tridimensionalism, current or confluence of currents that most associate with the image Brazil Jurisprudence. But to what extent this last identification is not due to the enormous international prestige Miguel Reale? We have to make a reflective pause: how can we say that the specific feature of a Lusophone Jurisprudence is either something politically and culturally common, or parallel pathways after the independence of Brazil? How to identify the Lusophone Jurisprudence? Only with a more European version, or a tropical readapted-Aristotelianism Thomism on law matters?

      These items seem really scarce and poorly differentiated while national or cultural legal philosophy. That traditional way is not the way In our various previous studies on these questions, we followed the trail of a possible specific Portuguese thinking in multiple authors, particularly between the eighteenth and nineteenth centuries. This is not the place to present the findings on each of them. In general, these authors were worrying about what we would call Justice, equity and the like. But the question, in view of the actual data, is quite strong, and distressing. The most important doubt is this one: is it fair, and scientifically suitable, acceptable, that someone certainly acting with the best intentions, we may admit may make a choice among the different manifestations of juridical philosophy in one country or group of countries, and using his or her own perspective a subjective one , show subsequently the world a face of that country or culture in what concerns Jurisprudence that may not be shared by many people Is it fair to make that choice?

      Again, the Portuguese evolution may be an illustrative and eloquent example. It seemed that it was a movement, a school, with a certain programmatic and even ideological aim. However, after the studies of this thinker, a contemporary one, it seems that Portuguese philosophy changed: now, it is generally concieved as all the speculative thought exposed in Portuguese, in priciple made by Portuguese citizens Because it cannot be Portuguese philosophy some philosophical works in Portuguese language but by other nationals from other countries And there are many African countries with Portuguese as official language, apart from the case of Brasil, East Timor and other parts of the world where it is not official language but it is spoken, like Macao, in China at least partially or Galicia, in Spain, acording to some observers But even this new vision, more wide, more open, seems to bring us some problems.

      First, authors like Silvestre Pinheiro Ferreira, Portuguese by language and nationality, but also very close to Brazil where he lived and ruled as a Portuguese minister of king John the Vlth, from to , wrote sometimes in French, and published books in France. Why should the French works of Portuguese or Brazilian or others This specific text itself, should it be put away from it, because it is in English? Or may we suspect that the obstination in the language hides a certain vagueness of the substance? Terrible tempatation, this last thought. Secondly, Portuguese language is shared by many countries, as we know.

      If language is the most important, how can we distinguish a Portuguese philosophy from a Brazilean, an Angolan or a Timorease one? It seems that language is not enough. This leads us to a more complex question: would we prefer a multilinguistic paradigm, for example the bilinguistic one of Hisponamerican Jurisprudence? The main question, here, seems to be: either to build a step on a Lusohone Jurisprudence with a peculiar being, and then integrate it in a higher and wider Hispanoamerican Jurisprudence, or to connect directly all the different national philosophies or even atomistic philosophers or philosophic movements in a large net.

      Not a national one, even nor a linguistic first step. We may discuss the pertinence of this in philosophical, cultural, sociological and even geopolitical terms.

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      Thirdly, it is quite easy to put into Portuguese or in Castillian A Portuguese mental translation of a foreign philosophy and eventually very strange to the ways of Lusophone people: for example, a cold, purely rationalistic one, if we admit that our peoples are more sentimental, etc. The question is: would it still be Portuguese, Brazilian, Angolan, etc Lusophone philosophy?

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      Our personal answer is negative. But we must go further. We think that it is not profitable to think on a national or civilizational philosophy if it has nothing more than the linguistic common topic. It has to have some peculiar common soul, spirit, idea. Of course they have to adapt to certain more or less peculiar aspects of the language they must use.

      But the container doesn't completely change the contained. And let's allways remember that Spinoza, even Spinoza itself seemed to have thought in a language different from the languages he used to write. This is very important. One think is to think directly in one language, another one is to translate our own thoughts to another language. And even when the thinker thinks immedialty in another language, the background of his or her motherlanguage may be is still there. An hypothesis to the neurolinguists, at least.

      We may use another language, but if we are faithfull to our cultural roots, they still create their own civilizational centred philosophies. Finally, if it is true that there are many similarities between some Portuguese and Brazilean philosophical authors, the constitution of a Luso-Brasilean jurisprudence still awaits for its theorists. And even more complicated seems to be a general Hispanoamericam Jurisprudence.

      Although this empire where the sun shines forever was maybe a version of the Vth Empire in the profetic philosophy of Agostinho da Silva. This general common jurisprudence risks to be very vague. But we are of course open to the possibility Maybe it would be more cautious if we build first our national philosophies the return to sovereignity seems to regain adepts in a world of impious globalisation , discovering its main features.

      After that, the next step would be to look for the family ties - first the Lusophone and then the Hispanoamerican. But never forgetting that some national philosophies may have other connetions. For example, the Portuguese one with the Mediterranic thinking, the South European thinking. In this case, it is not a question of language only. Of course there is Latinity. But Latinity is only a part of the legacy of the old mare nostrum of the Roman Empire Even other bounds are possible.

      Let's never forget that an agent of the French Convention said Portuguese would be, at the time, French, if they could not be Portuguese. Or let's remember that the best Portuguese elite of all times was from English-Portuguese birth: the sons of the Portuguese John the first and the British D. Filipa, from the house of Lancaster. And that "High Generation" was the seed of Discoveries Many possibilities are possible, in what concerns social and cultural and sentimental affinities. But what we must have in mind in this context are the philosophical affinities.

      Even without the American scene, Portuguese and Spanish thinkers should increase their dialogue, and go further not only in the archeology of freedoms, but also in the analysis of the thoughts. We are nowadays, in all our countries, too fascinated with what comes from the main poles of the jurisprudence production, Germany and the Anglo-Saxon world. They are excellent, in their ways.

      But there is more, Horatio Portuguese and Spanish and other languages thinkers have also thinkers. They may be original, and not only comments on those other ones, with more media reverence and bestsellers.



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