Analecto

17 de maio de 2018

Three ways to eliminate a law.

These days, I had no computer, so I could not write much here. Using my nephew’s computer is a nightmare, because it’s a notebook without a keyboard. I had to click on the letters that I wanted to type, using a virtual keyboard, which soon turned out to be a physical and mental torture. So I took a vacation from the Internet and decided to write things in a notebook and also draw. One of the things I wrote was a little reflection on how to get rid of a law that bothers you.

I found three ways: democratic, implosive, radical. The democratic path requires converting as many people as possible into your line of thought, so that a given idea gains political strength and political representation. This is easy to do, but it is a long process that can take decades. However, in the long run, it is one of the most guaranteed method if you are good at rhetoric. The fact is that if you keep pushing and your group keeps growing, it will eventually work out. After all, feminists are not even the majority of women and look what they have done.

The implosive route consists in the alienation between law and code. Take 217- A of the Brazilian Penal Code as an example. That text says that no one can have carnal conjunction or practice a libidinous act before the age of fourteen. Some jurists argue that by condemning as rape all libidinous acts committed before the age of fourteen (because violence is presumed), even in the presence of evidence that no violence took place, it interferes with the subject’s presumption of innocence (also known as due process). If I am convicted before the trial even starts, the law is unconstitutional. That’s what the argument says. There have been some attempts to make the government realize that 217-A is unconstitutional, but none have worked so far. This is the implosive route: if the law were declared unconstitutional, that is, conflicting with a larger code, it would lose its effect. It is the most difficult route, but it has an instant consequence.

The radical way is to normalize illegal behavior by systematic disobedience . The government itself may end up doing this. For example, the new definition of molestation in the state of Arizona says that any contact made by an adult to a child’s genitals counts as molestation. This effectively criminalizes bathing and diaper changes. Who can obey this? Certainly not mothers. In the case of 217-A, the major offenders of this law are the minors themselves , developing juvenile or child-to-child relationships, as well as games that may be considered libidinous, typical of naughty children who are left unsupervised.

So I can not tell you to break the laws, although there’s a lot of kids who can not read this text and who just do not care. Anyway, it’s never enough to be bold when I say be a good citizen and obey the law. But the implosive route sounds tempting. If there are lawyers arguing that this law is unconstitutional and if there are judges who refuse to apply it literally, I have decided to verify things on my own. So, I downloaded the Brazilian Constitution and the Child and Adolescent Statute. In the next few days, I will read them calmly and seek arguments against 217-A. I also did a very short online course (only five hours) of legal argumentation and learned about the relativization of law and how the judge can hear other sources outside the text of the law, such as science and philosophy . Even though I may not be able to find these arguments, since I gradutated in philosophy and I know little of rights, it’s still a good idea for me to read these codes. After all, it is the law of my country. I have to keep up to date with it.

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