A lei dos homens, do direito escrito, e o dever moral, do direito natural: Siria e Bolivia

O argumento pretende se ater ao caso da Síria (embora se deva ainda provar que foi efetivamente o governo do país o responsável pelo uso de armas químicas contra a sua própria população), mas creio que o mesmo se aplica ao caso do diplomata brasileiro envolvido na "fuga" do senador boliviano, que parece já ter sido "condenado" politicamente, aguardando-se, agora, a punição institucional.
Paulo Roberto de Almeida  

Op-Ed Contributor

Antigone in Damascus

By RONALD SOKOL

The International Herald Tribune, September 2, 2013

 

As America seeks a legal justification for intervening in Syria it might do well to explore a different road to Damascus.

In Dostoevsky’s “Crime and Punishment” a father and son walk along a road and see a man brutally beating an old horse. The horrified boy tries to help the nag, but his father pulls him away, saying “It’s not our business!” The boy’s moral instincts, Dostoevsky shows us, are still intact whereas the father’s have atrophied. But does the father or the other witnesses have a legal or moral obligation to stop the cruelty?

Law students studying liability read the case of a man walking along a beach who sees a person drowning just off shore. Does he have a duty to save the drowning person? English Common Law says no; the French Civil Code says yes, as long as he can do so at no risk to himself.

Whether or not there is a legal duty to save a drowning person, there is surely a moral duty to do so.

That was the point Albert Camus made in his short novel, “The Fall.” If an atrocity is committed before our eyes, whether it is the methodical killing of Jews, genocide in Rwanda, slaughter of civilians by chemical weapons, or a person in need of immediate assistance in a highway accident, and we have the power to stop the atrocity or help the person in need at little or no danger to ourselves, surely we have a moral duty to do so.

So enmeshed have we become in the web of law that we have lost sight of the fact that laws are built on a moral foundation. We don’t need a law to tell us that it is wrong to kill or that there are times when there is a duty to help.

The question becomes more complex if the law actually forbids us to do what we feel is the morally right thing to do. The classic example was given by Sophocles in his tale of Antigone. King Creon’s edict forbade the burial of Polyneices, who had fought against Thebes; he was to rot outside the walls of the city.

When Sophocles wrote in the 5th century B.C., burial rites were a sacred duty. At dawn, Polyneices’ sister Antigone is spotted outside the wall performing the rites. Captured and brought before Creon, she admits the crime but utters words that might profitably be studied by legal advisers to nations that embrace the rule of law: “I never thought your laws had such force that they nullified the laws of heaven, which unwritten, not proclaimed, can boast a currency everlastingly valid; an origin beyond the birth of man.”

This ancient belief in a natural law that stands above written law was ridiculed in the 18th century by the English philosopher Jeremy Bentham, who called it “nonsense upon stilts.” Bentham’s view has mostly prevailed, and it is his view of law that troubles the legal advisers to President Obama as they seek to place military intervention on a sound legal basis. While the attempt is praiseworthy, it may be misplaced.

Almost no one today defends what came to be called the Natural Law tradition, yet it alone supports the “self-evident truths” proclaimed in the American Declaration of Independence, or the affirmation in the French Declaration of the Rights of Man that men are born free, or the rights proclaimed in the 1948 Universal Declaration of Human Rights and those in the European Convention on Human Rights. In short, it is a tradition to which no one adheres but which stands as a live witness to the eternal human desire for an absolute moral order.

If such an order does exist, there is no consensus as to what it consists of. Yet there are instances in which nations have reached unanimous agreement on a specific moral duty. The prohibition against the use of chemical weapons is one such example. The Chemical Weapons Convention has been signed and ratified by all but a handful of the 193 nations that are members of the United Nations. Only Syria, North Korea, Egypt, Angola and South Sudan have not signed, but even Syria does not claim that the use of chemical weapons is legal.

Syria denies their use, but if it is found that Syria committed the atrocity, then a legal justification to stop it is superfluous. Once an atrocity is acknowledged, a moral duty arises to stop it — provided that one has the power to stop it and can do so at no serious risk to oneself. Of course to argue that no legal justification is needed is a slippery slope because it is rare to find unanimous consent on the existence of a moral duty.

In the case of Syria there exists moral agreement that the use of chemical weapons was an atrocity, and perhaps even that Syria committed it, but no consensus will be reached about who should be the 21st century Antigone who must go to Damascus, or what rites need be performed once she gets there.

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Ronald Sokol is a member of the bar in France and the United States and practices law in Aix-en-Provence. His books include “Justice After Darwin” and “Federal Habeas Corpus.” 

A version of this op-ed appears in print on September 3, 2013, in The International Herald Tribune.

http://www.nytimes.com/2013/09/03/opinion/global/antigone-in-damascus.html?ref=global&_r=0