Legal Process: Discourse, Institution and Power

Em homenagem aos vários leitores que, segundo as estatísticas fornecidas pelo Blogger, acessam esta página a partir de países de língua inglesa e pretendendo estender a influência do blog também para o mundo anglófono (hehehe, quem dera! estou só brincando), peço vênia aos leitores para postar um textinho de minha autoria em inglês. Trata sobre a questão de classificar ou não o processo judicial como um tipo de discurso. Espero que gostem:

Should we consider a legal process as a discourse?

Well, some features of it appear to count for an affirmative answer. After all a legal process is a kind of interaction between at least three subjects (plaintiff, defendant and judge), making use of language and sustaining some statements about facts and norms grounded in evidence and arguments, so that the final decision is supposed to be justified in the best evidence and best argument brought to the table. That sounds like a classic description of a discursive piece of action.

On the other hand, however, a legal process has some particularities which can only be hardly reconciled with the very concept of a discourse. First, the arguments and the final decision are from the outset limited to the current positive norms of a particular legal system, which, except for rare cases, cannot be put themselves in discussion by the parties or even the judge and can compromise seriously the rightness of the result. Second, a legal process is constrained by limits of time, space, form, representation, expenses, expertise etc., which certainly narrow the width of the arguments and the thoroughness of inquiry. Third, the parties are not as committed to the search for the best answer as they are to the prevalence of their own side of the contention, perhaps even despite of the best answer itself. Fourth, one of the subjects, the judge, is not in the same level as the parties and is the only one in charge of the final decision, instead of the parties themselves, so that the final decree can be presented as an authoritative decision over the parties, rather than as a consensual agreement between them. These features suggest a legal process to be actually an institutional procedure of dispute resolution which borrows some characteristics from discourse, without being itself “discursive” in the strictest sense.

Is this the final word?

It does not look so. A proponent of the affirmative answer to our initial question would probably state the case a little further. She might say that, unlike a moral discourse, a legal discourse is not about the best answer in general, but about the best answer according to a particular legal system. In other words, even if a legal process is limited by current positive norms, it would still be a discourse about the best enforcement of those norms to a particular case. She might say that the spatial-temporal and formal limitations of a legal process would only be absent in a completely counterfactual version of discourse, for they are unavoidable features of any discourse in real life. She might also say that, even if in the parties’ view a legal process is actually a contention for victory, not a search for truth, in the judge’s view it is supposed to be taken as if it were a discourse. After all the judge cannot evaluate the evidences and arguments they brought to the table in any other way than as contributions for the best answer. The suspicion which a scrupulous judge should have about mistakes, fallacies or manipulations in the parties’ contributions is not different from the regular suspicion which any rational thinker would have about uninterested statements of the subjects of any argumentation at all. She would finally say that the presence of a higher-leveled participant, namely the judge, and her authoritative decision do not need to be seen as compromising the discursive character of the legal process. For a legal process is a second argumentation, which takes place only where a first argumentation, involving the parties alone, has already been failed. This second argumentation requires power because reason alone has not been enough in the clash of contrasting claims and interests. But authority does not intervene here arbitrarily. It is supposed to use the weight of the sword blade to unbalance the plates in favor of that one whose evidences and arguments were truly heavier from the outset. In other words, the judge represents the role of the rational reasoner, sensitive to the best evidence and arguments in the same way the parties would be if they were not too involved in the case. He is, somehow, an external incarnation of the rational self of the very parties and his decision is supposed to represent the agreement they would have reached if sufficiently animated by that self.

As good as they can sound, these counterarguments involve a lot of if’s and as if’s, that is, a lot of conditionals and fictions. The complicated compounds between discourse and institution on one hand and discourse and power on the other hand require much caution and deserve further investigations. Whereas the direct acceptance of the necessary and not compromising intervention of formality and authority looks like a naïve position, the raw realist assumption that whatever institution and power touches it turns into discretion and violence looks like a piece of stubborn prejudgment and political pessimism. Some cautious but not stubborn middle position appears to be not only possible, but advisable. But that position cannot pay in the currency of theoretical rigor the advantages of its privileged location.