The Rhetoric of the Human Condition and the Paradox of the Criminal Sentence

By Martorelli Dantas

A reflection on the limits of the construction of judicial decisions from the Edenic Myth

Having as its central element the rhetorical analysis of the Edenic myth (Gen. 2 and 3), this dissertation addresses the strength that such narrative has had to forge, both in the West and in the East, a behavior of submission and passivity in the face of authorities that place themselves in the power. It sees, however, also present in the text, an invitation to abstain from the practice of judgments of moral behavior (ignoring good and evil), which is presented as a task of God and not of men. These, according to the author, when they set out to pronounce sentences in relation to their peers, end up expressing prejudices, which are established in society through mechanisms of symbolic violence. At the end, the author, faced with the practical and immediate impossibility of a way of social coexistence without the structures of power and control, among which the judiciary stands out, inviting us to adopt a  humbler and fraternal posture when the moment of the decision, with the aim of mitigating the effects of the potential and actual brutality that the sentences tend to carry out.

• Language: English
• Publisher: BadPress
• Release date: Jul 1, 2022
• ISBN: 9781667436500

Book preview

THE RHETORIC OF THE HUMAN CONDITION AND THE PARADOX OF THE CRIMINAL SENTENCE:

A reflection on the limits of the construction of judicial decisions from the Edenic Myth

Martorelli Dantas da Silva

Recife

2022

Silva, Martorelli Dantas da

The rhetoric of the human condition and the paradox of the criminal sentence:

A reflection on the limits of the construction of judicial decisions from the Edenic Myth

/ Martorelli Dantas da Silva. – Recife: The Author, 2022.

122 sheets.

––––––––

Includes bibliography.

1. Philosophy of law. 2. Edenic myth (Genesis 2 and 3) - Rhetorical analysis - Submission - Passivity - Authorities. 3. Moral behaviors - Judgments - Abstaining from practice. 4. Judiciary - Power and control. 5. Knowledge of moral absolutes - Inexorability of the legal decision - Parallel. I. Title.

––––––––

ISBN 978-65-00-39205-0

Summary

Introduction: The rhetorical place of the Edenic myth

First Chapter – Rhetorical Analysis of the Myth of Eden

1. Defining the points of interest of the rhetorical analysis of the Edenic myth

2. The mosaic ethos and its legal implications

2.1 The place of the book of Genesis in the Pentateuch

2.2 The figure of Moses in the biblical legal tradition

2.3 Moses, an authority who perseveres in influencing the law

3. The pathos of the myth and its socially structuring function

3.1 Guilt as a factor of subordination of the gender relationship

3.2 The responsibility of work and confrontation with adversity as punishment

3.3 Exile as a justification of the Hebrew sentiment.

4. The logos of narrative and epistemological structuring

4.1 Creation as an expression of God's goodness and justice.

4.2 The impossibility of knowing good and evil: the prohibition of the exercise of moral judgments

4.3 The logic of cause and effect as an epistemic fetter

Second Chapter – A legal resumption of the Edenic myth

1. Demarcation of the main points of discussion of the Edenic myth

2. Tradition as a primeval legal system

2.1 The essential elements of a legal system

2.2 Thou shalt not eat and Thou shalt surely die as a limit and sanction

2.3 The path from customary to legislation in the Jewish experience

3. Language as a way of (re)creation of things

3.1 The limited discretion in naming things and beings

3.2 The rhetoric of the construction of convention in myth

3.3 The name-object relationship as the basis of tradition

4. The forbidden fruit: the danger and limits of knowledge

4.1 The representation of knowing good and evil

4.2 The distorted exercise of moral judgment practiced in the myth

4.3 Righteous judgment as a divine prerogative

Third Chapter – The limits of knowledge within the reach of the decision maker

1. The impossibility of the decision maker to have objective knowledge

2. The impossibility of knowing the defendant

2.1 Eve as an autonomous being and separate from Adam

2.2 Undressing and embarrassment: the need to cover up

2.3 The transfer of moral responsibility for error

3. The impossibility of knowing the facts

3.1 The jurisdictional entity as an absent being

3.2 The need for discursive reconstruction of the facts

3.3 The reconstruction of facts as a locus of passionate refraction

4. The impossibility of knowing the agents' intention at the time of the fact

4.1 The commitment of the parties' declarations of intent in the narrative of the facts

4.2 The exercise of moral judgment at the very moment of understanding the agents' intentions and the constraint

Fourth Chapter - The inexorability of the judicial decision as confinement

1. The Hebrew Law as a way of perpetuating tradition and a way of devotion

2. Regarding the impossibility of non liquet

2.1 The question of the natural judge

2.2 The need to resolve lawsuits

2.3 The mystification of legal knowledge

3. The pseudo-objectivity constructed by decisional logic

3.1 Enthymemes, rhetorical syllogisms

3.2 When the logos is just a projection of the ethos

Fifth Chapter: The judicial decision as an externalization of preconceptions and the exercise of symbolic violence

1. Human inadequacy in the face of the need to judge

2. The nature and content of legal decisions

3. Symbolic violence as a mechanism for fixing judicial decisions and social pacification

Conclusion: An invitation to humility and fraternity in the judiciary

References

Do not judge to not be judged. For with              what judgment you judge, you will be               judged; and with the measure you use, it               will be measured to you. (Mt. 7:1-2)

Jesus of Nazareth

Akcknowledge

I thank God, in whom I believe despite religions;

To my mother, Maria Lúcia, who is my shelter and safe haven in this world;

To my wife Karina Martorelli, my children Thiago, Thainá and Giovanna for being sources of encouragement, inspiration and faith in a better and fairer world;

To my friends Norberta de Melo Silva and Ana Cláudia Cruz for reviewing the material shared here.

To Prof. Dr. Torquato da Silva Castro Júnior for the patient and friendly guidance he offered me during the period in which I took my Masters in Law at the Recife Faculty of Law (UFPE), between 2006 and 2008, when I wrote these reflections.

Introduction: The rhetorical place of the Edenic myth

In the beginning God created the heaven and the earth. But the earth was formless and void; darkness was over the face of the deep, and the Spirit of God was hovering over the waters (Gen. 1:1-2). With these words begins one of the most important books that humanity has known at all times, I am referring not to the Bible in its entirety, but to the book of Genesis in a specific way. Although all the books that make up the Judeo-Christian sacred scriptures have their own importance and interest, none of them is as decisive in the sense of outlining the contours that the contemporary world has gained as the one that heads the Canon.

There, not only widely assimilated cosmogonies were launched, but, with them, the anthropological, sociological, political, moral and, mainly, religious foundations of two thirds of humanity today, taking into account that both Jews, Muslims and Christians deal with the text as divinely inspired and treat it as a revelation from the Creator.

The books (in Greek, bibliá) as we know them today, presented in a single piece, gathered, bound and ordered, although they are very popular, are relatively recent, dating from after the invention of printing (15th century AD). For millennia they built their history, circulating around the world in the form of scrolls, whether papyri or parchment. They were the subject of religious, philosophical and political disputes. They were burned, rewritten, outlawed and worshipped, but they came down to us, and with such force , which we refer to them with care in this dissertation, since the slightest slip could make us ignite presumably dormant disputes. Although, for some, it does not seem convenient to carry out scientific research on texts of faith, our interest being rhetorical , we will not treat them here in a creedal perspective.

Our gaze is investigative, we want to scrutinize the mechanisms of conviction and persuasion used in the text of Eden, which gave it so much vitality and historical effectiveness. We do not devote much interest in the differentiation between conviction and persuasion, but to situate this distinction, we would say, with Perelman, that for those who are concerned, above all, with the result, persuasion is more than convincing: persuasion would add to the conviction the necessary force that is the one that will drive the action. For those who are primarily concerned with the means, convincing would be superior, since it touches on logically structured reason.[1]

In this study, it is not relevant to know whether or not the passages under analysis were the result of the action of some supernatural being, nor is it necessary for us to believe in the existence of such a being. It is enough for us not to allow ourselves to be dragged into obtuseness by the itch of exacerbated skepticism. All that is required is that we manage to see the relevance of studying the texts of faith and faith itself, for the knowledge of our continuous historical development.

The word myth used in the title of an academic study of law can shock skeptics and believers alike. The former would ask the relevance of a reflection that takes as its starting point a pre-scientific and often superstitious narrative. The others would ask how to mix the object of faith with a universe of objectifications, which serves neither to validate nor to refute what is believed. There is, therefore, a tendency to keep as far away as possible reports that underlie religious structures from scientific studies. The prejudice against mythical language is manifested in several thinkers, but in a striking way it is revealed in these words of Nietzsche

Just as man even today draws conclusions in dreams, so too did humanity in the waking state for millennia: the first cause that occurred to the mind to explain anything that required an explanation was sufficient for it and was held to be true (according to travellers' reports, savages still do so today). :[2]

The impression we have is that myths are just fabulous stories that are constructed for the entertainment or alienation of the people. We must be aware that they play an ordering rhetorical role in societies such as ancient Jewish. Furthermore, this same modesty is not so easily verified when we talk about Greek, Roman, Nordic or even native Brazilian tribes' myths. These are seen as reminiscences of ancient cultures, as a repository of ancient traditions and a source of psychological and social understandings. We do not deny that this is so, however, justifiably, it is necessary to recognize that the same can be said about biblical myths.

And even more legitimately, it is important that we focus on the canonical texts, since several of the forms of civilization that we have known in these last two