Between Scandal and Invisibility: Inequality, Human Rights and Effectiveness of Law in Brazil (And Its Sociology)

Abstract

The paper analyses the theoretical peculiarities and parallelisms of two themes in Luhmannian theory: (i) inclusion/exclusion and (ii) scandalous indignation by violation of human rights. It does so by (a) a loose approach of a "metaphorology"; more specifically the use of light and visual metaphors, alongside the limitations of such use; (b) and by elements of a legal sociology of scandal that checks some of the Luhmannian's affirmations on the theme. There is an overwhelming and peculiar presence of a quasi-literary rhetoric of visibility/invisibility, impressionistic revelation (evidence: "vedere", to see) of direct accessible "truths" and "light/shadow imagetics" in Luhmanns' texts on both of these themes. This is transferred to the secondary literature working with systems theory. The paper presents one possible internal exegetic explanation for such aporetic formulations as stemming from a dual conception of the basal problem "integration/differentiation". It results in the aporetic formulation of "two dark sides" of functional differentiation and consequently in two corresponding types of Luhmannian inspired legal sociology. Being firstly conceptualized for another context of discussion and presentation, the paper also addresses the same "light metaphoric" for the "Brazilian case" and the aporetic formulations of its sociology and its use by Luhmann himself. It further relates the theme with the "scandalous example" of Brazil and its (problematic and partial!) use for constructing comparisons in legal sociology, being a "Sonderweg" and "contrasting comparison case" (e.g. "Brazilianization of the West"). The paper presents, incidentally, some arguments for a further development of a legal sociology of the form "scandal".