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The relationship of political
obligation and civil disobedience in
correlation with the new
democracies of 21st century
socialism
La relación de la obligación política y la desobedencia
civil en correlación con las nuevas democracias del
socialismo del siglo XXI
Carlos Alcívar Trejo
Master, Facultad de Filosofía, Letras y Ciencias de la Educación de la Universidad de Guayaquil,
Phd. (C) University of Cordoba, Spain, in Social and Legal Sciences, Phd. (C) in Juridical
Sciences from the Pontificia Universidad Católica de Argentina, Guayaquil, Ecuador,
carlos.alcivart@ug.edu.ec, https://orcid.org/0000-0002-2937-1417
José J. Albert Márquez
D., Faculty of Law, School of Law and Business Administration, University of Cordoba,
Guayaquil, Ecuador, , . EE. y Empresariales Area of Philosophy of Law, Universidad de Córdoba,
Guayaquil, Ecuador, ji1almaj@uco.es, https://orcid.org/0000-0001-9901-4194
Ambar Murillo Mena
Master, Universidad ECOTEC, Phd. (C) UNIVERSITY OF CORDOBA SPAIN, Guayaquil,
Ecuador, amurillo@ecotec.edu.ec
https://orcid.org/0000-0001-9967-0635
Juan Calderón Cisneros
Phd, Faculty of Philosophy, Letters and Educational Sciences of the University of Guayaquil,
Universidad Estatal de Milagro. UNEMI, Guayaquil, Ecuador, juan.calderonci@ug.edu.ec
https://orcid.org/0000-0002-8167-8694
Abstract
The purpose of this paper is to make a brief comparative analysis of
the contributions of the Political Relation of Law, in its relationship
with society and its application with justice, as opposed to the
positivized legal norm in the theory of the State, in the new South
American democracies with the ideal of socialism of the XXI century,
for that reason. Justice is the first virtue of social institutions, as truth
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is of systems of thought. A theory, however attractive, eloquent and
concise it may be, must be rejected or revised if it is not true; similarly,
it does not matter that laws and institutions are orderly and efficient:
if they are unjust they must be reformed or abolished. Each person
possesses an inviolability founded on justice that not even the welfare
of society as a whole can trample upon.
Resumen
El presente trabajo tiene por objeto hacer un breve análisis
comparativo de los aportes que tiene la Relación Política del
Derecho,en su relación con sociedad y su aplicación con la justicia,
frente a la norma jurídica positivisada en la teoría del Estado, en las
nuevas democracias sudamericanas con el ideal del socialismo del
siglo XXI, por tal motivo. La justicia es la primera virtud de las
instituciones sociales, como la verdad lo es de los sistemas de
pensamiento. Una teoría, por muy atractiva, elocuente y concisa que
sea, tiene que ser rechazada o revisada si no es verdadera; de igual
modo, no importa que las leyes e instituciones estén ordenadas y sean
eficientes: si son injustas han de ser reformadas o abolidas. Cada
persona posee una inviolabilidad fundada en la justicia que ni siquiera
el bienestar de la sociedad en conjunto puede atropellar.
Palabras clave/ Keywords
Law, Theory, Science, Justice, Law, Ius-Naturalism- Ius-Positivism.
Civil Disobedience
Derecho, Teoría, Ciencia, Justicia, Ley, Ius-Naturalismo- Ius-
Positivismo. Desobediencia Civil
Introduction
The Philosophy of Law is that part of legal science devoted to the
examination and study of the supreme principles of Law; the scientific
introduction of its speculative exposition, which dispenses with the
law or positive law, but not with reality, persons and things, in their
legal relations and situations, whose systematic generalization is
intended. (Cabanellas, 2008) . It studies the philosophical
foundations of Law as a normative and institutional order of human
behavior with respect to its interaction in society.
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As a concept, it was introduced between the end of the 18th century
and the beginning of the 19th century, since previously, the studies and
deepening in this matter had been focused on Natural Law, and its
rationalization with respect to faith and reason. It arose at a time when
societies were beginning to question the absolute submission that
ruled before the Lex Divina, which was exercised directly by kings, and
which consituia
Natural Law is that which, based on the permanent principles of what
is just and what is unjust, it is admitted that nature discourses or
inspires all men, as if unanimity among them were possible; for many
it is equated in several senses with the Philosophy of Law. (Cabanellas,
2008) . It constituted a valid order by itself, who was in charge of
regulating the whole community. It is not considered to be created by
human beings, nor a product of history.
Subsequently, currents developed that affirmed that legal systems
were, in contrast to the above, human creations that evolved and
adjusted as society did. (Ballesteros, 1984) . In this way, the concept of
natural law begins to lose some relevance and begins to give
importance to other issues.
The term Theory of Law appears in the works of Emmanuel Kant, in
1797; Philosophy of Positive Law, in 1789 by Gustav Hugo;
Philosophical Theory of Law in 1803 by Jakob Friedrich Fries; among
many others.
Finally, after 1800 it appears simply as Philosophy of Law by a variety
of authors such as W. T. Krug, Chr. Weiss or Karl Christian Friedrich
Krause, but it had a real impact when in 1821, Georg W Hegel
published the work Principles of the Philosophy of Law. (Atienza,
1895) .
The specific objects of study of the Philosophy of Law are to approach
it as a phenomenon and as a science in turn; as a critical theory and as
a philosophy of the legal experience, the law debates, and takes into
account the social purposes that it effectively fulfills and the moral
principles that inspire it.
It also deals with history, iusnaturalism and theories of justice;
historical currents of legal-political philosophical thought that seek to
reflect on various legal elements such as the state, law, government,
justice, property, rights and the enforcement of a legal code by
authority; what they are, why or even if they are necessary, what makes
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a government legitimate, what rights and liberties it should protect
and why, what form it should take and why, what obligations citizens
have to a legitimate government (if any), and when they can
legitimately overthrow it (if ever). In short, the study of human
thinking about legal and political concepts, the philosophical
foundation of human rights, and the relationship of law to psychology,
sociology, anthropology, etc. (Hegel, 1988)
Its main issues are: legal ontology, axiology, existential legal
philosophy and epistemology. Legal ontology refers to establishing
who is the object to be philosophized about, what structure it should
have and how it should be presented to society.
Legal epistemology reflects on the knowledge of law, whether it is
possible, what form or structure it should have, how it should be
presented in society, etc. Legal axiology tries to solve the problem that
arises when it is not known on what basis the law should be based,
highlighting and studying the fundamental values of law, in order to
know which ones should prevail. The fundamental value is justice, so
many authors define this case as the theory of justice.
Finally, existential legal philosophy is considered part of
anthropology, and seeks to highlight the relationship between the legal
reality and the being, determining that the law needs the latter for its
realization since it encompasses the whole sense of law from its
creation to its application. Another fundamental issue is the principle
of causality, which establishes that everything has, as its name
indicates, a reason for being or a cause. It may be a logical principle as
a proposition, or simply a principle of such a proposition from which
truths are derived from which various effects arise.
Materials and Methods
The main objective of the article is to recognize the Ius-Philosophical
importance of the Theory of political obligation and its social impact
in relation to justice and the positive norm, on the theory in the current
law with the new democracies of the socialism of the XXI century. This
objective was concretized in the following specific objectives: To know
the importance of the Theory of Law and Legal Philosophy, towards a
new society, from the point of view of law according to several authors.
It is usually under discussion what is just and what is unjust. Men
disagree about which principles should define the basic terms of their
association. However, we can say that despite the disagreement each
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has a conception of justice. That is, they understand the need to have
a characteristic set of principles assigning basic rights and duties and
determining what they consider to be the correct distribution of the
burdens and benefits of social cooperation, and they are willing to
affirm such principles. It seems natural then to think that the concept
of justice is distinct from the different conceptions of justice and that
it is specified by the role that these different sets of principles and
conceptions have in common.
State theory studies the origin, evolution, structure, justification,
functioning and purpose of the state. (UNAM, 2014) . It investigates
the conditions presented by the state in terms of the organization of
power or its form of political organization, and how this influences the
life of society. Among those that study the nature of the state we find
the sociological, the dualist, the institution, the formalist, the anti-
formalist, among many others.
This theory comes from the development of public law in Germany in
the early nineteenth century, being its major representative Herman
Heller, who postulates using a criterion of truth that allows to describe
and interpret in a valid way the political phenomena, establishing,
thus, the universal principles that give it the character of science. In
turn, this is divided into other theories, according to the nature of the
state, the process of its configuration in the present time, etc. The
purpose of the criterion is to lead to certainty, to a state of mind of
evident conviction that we are in possession of the truth. The criterion
of certainty is not unique, but has varied in the course of history. The
criterion can be classified into two main groups: dogmatic and critical.
Results
The liberal state emerged as a result of a critique of the absolutist
monarchical state of the seventeenth and eighteenth centuries. This
was the form of state that existed before the French Revolution of 1789.
Liberalism arose from a forceful criticism of the monarchical-feudal
system, which had its most complete expression in the phrase of King
Louis XIV: "The State is Me". This original liberalism had not only a
political dimension, but also an economic and philosophical one.
Among the thinkers or ideologues were Jean-Jacques Rousseau,
Montesquieu, Diderot, Voltaire, Adam Smith, David Ricardo, Malthus,
John Locke, etc. All these philosophers and thinkers made a critique
of the absolutist-monarchical society, which culminated in a
revolutionary process of political-social character as was the French
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Revolution, and at the same time coincided with a phenomenon of
scientific-technological character: the first Industrial Revolution. Both
gave rise to a new type of society: the capitalist society; and to a new
type of State: the Liberal-Bourgeois State.
This convergence also gave rise to a new type of worker: the industrial
or proletarian worker, and to a super-exploitation of this same nascent
proletariat. (RODAS)
Within Political Law specifically, it is the study of the organization of
society in which power resides, and therefore the state, which exercises
it.
The Theory of the Modern State:
It is based on two concepts: first, that the modern state is
constitutional and is structured in such a way that it reflects a specific
will and performs the relevant functions to achieve the fulfillment of
the same; second, that the modern state is a state of law (which means
that it has a properly established system of rules) that submits to a
legal discipline in relation to the activity of the inhabitants of the
society in which it has influence, with its territory, in their interest and
in order to protect them against arbitrariness and injustice.
Political science is a part of social science that studies the practice and
concepts of politics and systems of political behavior today. The
general purpose is to form, based on the facts it takes from reality in
this area, reasons as close to the truth regarding the functioning and
political events, relating it to other subjects such as economics or
sociology. (Vallés, 2000)
Historically it comes from political philosophy, which dates back to the
6th century BC, with Confucius in ancient China, who developed it as
a response to the non-existence of a direct relationship between society
and politics in the country. The philosopher appealed to a hierarchical
meritocratic state, based on values such as loyalty, empathy and
relationships between people. (Hampton, 1997) .
Then the eastern development of this subject took place in Greece,
where the form of organization was the city-states. The greatest
exponent of this time with respect to this science was Plato, who
divided the forms of political organization into four: oligarchy,
thymocracy, tyranny and democracy. (Plato, 380 B.C.) .
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Already in modern times, two meanings are proposed, one in the strict
sense and the other in the broad sense. In the broad sense, political
science is supposed to include all the studies concerning politics that
have been made in history up to the present day, whatever their
nature: theoretical, philosophical, etc.; all analysis in this respect.
Strictly speaking, as a first stage, it is understood that politics is born
of the behaviorist current, which refers to the experimental and
natural study of behavior, which tries to distinguish the behaviors of
the individual from the behaviors of others. (Watson, 1961) This in
turn refers to what is known as positive political science, in order to
distinguish it from political theory and political philosophy. In the
second stage, it is established that its object of study is the power
exercised over a human collective. (Bobbio, Politics and Culture, 1955)
Power, as a capacity, is present in all human interactions when there
are at least two interacting actors and refers to the power to do
something (RAE). For a being, as part of society, power influences
others and is present in all interactions. Its use is evident in
manifestations such as negotiation, war, obedience, authority,
revolution, and especially political participation in this case, which
refers to voting, demonstrations, or the search for public office, which
includes as agents the participants, their motives and the institutions
or government.
One of the most widely accepted definitions is the one that
understands it as "the possibility of imposing my will on the other in
spite of resistance". (Weber, 1917) . This concept is currently
understood as intrinsic to politics, and as Weber points out, in turn,
with violence, since some win and those who lose are subjected to the
former. This is where the main conflict between ethics and politics lies:
"Cosmic ethics commands us not to resist evil with force, but for the
politician what is valid is the opposite command: you must resist evil
with force, otherwise you become responsible for its triumph". (Weber,
1917) .
Today's society in general is concerned that there is a loss of values,
although this has been a concern that has been present in all times.
The existing globalization increases this debate, since cultural changes
and exchanges between one and the other are generalized, many times
with opposing customs. It is not possible to understand an
interdependent world where each of the parties does not share values
and codes of conduct.
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Politics is the social and practical science whose object is the search for
the common good of the members of a community. It is the obligation
of all public and private institutions and political subjects to promote
the general good, keeping the ethical principles and values that
morality demands.
Politics, as a concept, comes from Polis, a Greek word used to refer to
a political community that was self-regulating and independent from
other regions that included the State and Civil Society; "The State-City
was a necessary and natural fact, its organization and behavior, that is,
Politics, should be subject to this set of rules regulating its conduct.
That is, it had to be sustained by Ethics and subordinated to it. Therein
lies the original relationship in Greek philosophy between Ethics and
Politics." (Salazar, 1997) . For the Greeks, ethics is the basis and
essence of politics, which they defined as the art of the common good,
and every citizen had the obligation to be concerned with the affairs of
the polis. Politics from that time was considered public, since it was
not limited only to the nobility as it happened in ancient civilizations,
but it was part of the life of the entire population. By politics we will
understand the direction or the influence on the direction of a political
association, that is, in our time, of a State. It means the aspiration to
participate in power or to influence the distribution of power among
the different states or, within the same state, among the different
groups of men who compose it.
The politician's ambition is power; power as a means to achieve other
ends (ideal or selfish) or power "for power's sake", for the enjoyment
of the feeling of prestige provided by power.
Absolute power corrupts absolutely. Someone who lacks exceptional
moral sensitivity, and who is just an ordinary, ordinary person, can
succumb to the extraordinary temptation that arises from the
immense possibilities of power, unless it is limited and controlled.
Corruption, as something we are unfortunately accustomed to in the
political arena, could be considered to be caused by a lack of political
ethics on the part of those in power, public officials, but most of all,
society in general. Political corruption is the "phenomenon whereby a
public official is driven to act differently from the normative standards
of the system in order to favor particular interests in exchange for a
reward. Corrupt is, therefore, the illegal behavior of one who occupies
a function in the state structure." (Paquino, 1995) . According to the
same author, three types of corruption can be distinguished: bribery,
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which is receiving a reward to change the judgment of a public official
in his favor; nepotism, when relatives are favored in matters of
employment or public contracting and not on merit; and
embezzlement, i.e., the allocation of public funds for private use. This
same author points out that corruption is seen in terms of legality and
illegality and not morality and immorality, although they are very
similar concepts, if not the same.
The common good is not only the task of political power but also the
raison d'être of political authority. Therefore, the common good is the
principle and ethical end of politics. Everything that benefits, tends to
benefit, tends to increase or promote the common good will be good.
It will be bad everything that tends to harm, dissuade, diminish, etc.;
in any form, be it impudent or underhanded. It is the obligation of all
public or private entities and political subjects to promote the general
good, keeping the ethical principles and values that morality demands
of us.
Therefore, the common good is the principle and ethical end of
politics, and what should be sought in a system is that the legal norms
that are established in it, go in line with the way people think, their
beliefs and values, although this is complex, given the globalization
and multiculturalism of many regions.
The contemporary debate has put in crisis the aspects on which legal
positivism was based, determining the opening of the Philosophy of
Law, on the one hand, to the world of ethical-political values and, on
the other hand, to the world of facts. Law is situated on the level of
facts, but not of simple facts only, but on the level of institutional facts.
The latter constitute a special category of facts, which have their own
dimension and ontological dignity, parallel, so to speak, to the
dimension of the raw facts, insofar as they draw their origin from the
constitutive rule. What distinguishes the legal rules in the vast field of
institutional facts is that they are the functional legal norm for
purposes particularly relevant to society, such as the protection of the
life and security of the associates and the distribution of goods,
inevitably insufficient to fully satisfy the demands of all the associates.
The constitutions that return to the constitutional state model differ
from the usual rule of law model because they contain principles in
which value decisions are expressed that are imposed on the legislator,
insofar as principles and values are considered equal in this case, but
always considering that the subordination of law to morality is out of
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place because it is not entirely free of iusnaturalistic connotations.
(Habermas, 1975) .
The Ecuadorian experience is a unique reference that merits reflection
and analysis. On the one hand, the country had to face the banking
crisis that precipitated the adoption of dollarization in 2000, and on
the other hand, it has experienced the insurgency of the indigenous
movement which, in addition to achieving social visibility, also gained
political visibility, using a set of protest strategies whose main
mechanism is the well-known indigenous uprisings.
One of the characteristics of Ecuador since its conformation as a
nation, denominated by (Guerrero) as population administration,
consists of "the management by private citizens, under republican
regimes, of demographic groups (especially in the 19th century) that
are not considered suitable for a daily treatment inherent to citizen
equality. Generally, reference is made to populations that are classified
as uncivilized" (2000: 9). The author refers to the regime of political
domination exercised over the indigenous and Afro-Ecuadorian
populations by the white-mestizo population within the citizen system,
whose historical origin lies in the relations established in the colonial
period, and which implies both a relative legal equalization among all
inhabitants and a delegation of the government of these populations
to a periphery located in the particular sphere of power. In this process
of struggle, three types of actors are distinguished: the protagonists,
constituted by the representative instances of the State and the
indigenous organizations; the allies, personified by social sectors that
participate in, sympathize with or identify with the indigenous
demands; and finally the mediators, who are actors with social
legitimacy, considered neutral by the protagonists. As for the State,
since the return to democracy in 1979, it has not been able to articulate,
formulate and execute a public policy directed towards indigenous
peoples. Since the abandonment of indigenist policies in the early
1960s, represented by the "community development" programs
implemented by the Andean Mission, it has included indigenous
peoples as part of the agrarian policies aimed at the country's peasants
as a whole (Bretón 2001, p. 62): 62), especially the policies referred to
resolve the struggle over land conflicts aimed at benefiting large and
medium landowners, as well as peasants "viable" to be incorporated
into agricultural modernization, clearly represented in the orientation
of the integral rural development projects of the '70s and '80s. The
emergence of the indigenous movement in 1990 highlighted the
discriminatory nature of the Ecuadorian state towards indigenous
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peoples. In addition to ignoring their political and constitutional
existence, it shows a clear ignorance of their reality and organizational
forms. The different "uprisings" have been treated as sporadic fires to
be put out, as temporary public protests that, if not resolved through
negotiation, have been solved with the use of armed repression.
The so-called "mandate" of the indigenous peoples, formulated after
the first national uprising, has been transformed over time, changing
according to the vicissitudes of the country's political and economic
life. It is worth mentioning that Ecuador, like the rest of the countries
in the region, has had to implement a series of economic adjustment
measures since 1982, most of them at a high political and social cost.
The movement's insistence on actions and results of a political nature
to the detriment of others of an ethnic and cultural nature is also
notorious. The lack of a technical proposal to strengthen intercultural
bilingual education and the lack of secondary legislation that would
allow the application of constitutionally recognized collective rights
are illustrative examples.
With this neoliberal approach, whatever increases profits is moral,
even if it contradicts the basic conditions of any civilized life in society;
any policy that increases profits is also acceptable, regardless of
whether institutions are destroyed and the national community is
disintegrated. As long as morality and politics remain subject to
economics, nothing can be done. Therefore, the first battle is the one
that must be fought so that morality imposes limits on politics, and
both on the economy Alfredo Eric Calcagno and Eric Calcagno: "To
understand politics. Entre la ilusión de lo óptimo y la realidad de lo
pésimo" p.234
Conclusions
Within what constitutes the regulatory framework of the State, the
right to resistance, which is considered part of "Natural Law", seeks to
regulate "borderline situations", so that the just right - Natural Law -
represented by popular resistance, civil disobedience or other
manifestations of the people, are not silenced or harmed by a Positive
Law exercised in a despotic or arbitrary manner.
The Right to Resistance is not a new Right, although it is true that it
has been incorporated in the current Ecuadorian constitution, as in
other countries it was already incorporated in previous times,
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however, there are norms in favor of Human Rights, which guarantee
the rights, so it is of immediate application.
The legal norms are necessary within the execution of the law, since by
means of the same regulations, norms, as well as statutes and other
international treaties that are of great help for the country, as for the
execution and realization of the norms that govern the citizens of each
one of the states, determinantly of the fact that has committed a
human being, this will have to have a sanction that will be written by
the legislator and judged by the judge, who will have in his hands the
execution and fulfillment of the punishment for the erroneous conduct
of an individual.
On the other hand, it is evident that the legal rules originated from the
time of Roman law, since without them the precepts and laws that had
been established in those years would not be executed, which means
that the rule is born with the law and the same must be respected and
contemplated, since a law is written, etc.. Thus highlighting the
advantages and disadvantages of the same in accordance with human
conduct.
As a complex process, globalization has become an obligatory subject
of analysis for the Social Sciences, which are in charge of reviewing its
impact on the different areas of study. Some make a review based on
economic theories and the discourse that supports the market, others,
whose object is the description of a new dynamic that by its potential
transforms societies, actors and in general the content of the human
and its cultural transcendence, without leaving aside a position that
shows the dark side of a process that opens the gap between "some"
and "others", suggesting loudly the construction of a globalization
from the bottom up. suggesting loudly the construction of a bottom-
up globalization, through a participatory, democratic and transparent
transnational civil society, that is to say, a new global
cosmopolitanism. In this order of ideas, Law cannot be alien to this
study, since globalization generates a new panorama, which arises
from the transformation suffered by the State itself, which ceases to be
the legitimate producer of law, suggesting the passage from legal
monism to legal pluralism. This in no way implies the disappearance
of the State; on the contrary, it invites the recognition of new
competences and spheres of action in the development and future.
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Received June 30, 2021 / Approved October, 22 2021 Pages: 115-129
eISSN: 2600-5743
Centro Sur Vol. 6 No. 1 - January - March
