Law and Religion: The norm as a limiting element of intolerance and prejudice 

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ORIGINAL ARTICLE

DRESCH, Paulo Cesar [1]

DRESCH, Paulo Cesar. Law and Religion: The norm as a limiting element of intolerance and prejudice. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 02, Vol. 08, pp. 97-107. February 2021. ISSN: 2448-0959, Access link:  https://www.nucleodoconhecimento.com.br/law/law-and-religion 

ABSTRACT

Religion plays a fundamental role in society, mainly because it influences behaviors that inadvertently foster prejudiced and intolerant attitudes towards the way of life that diverges from its supernatural perspective of seeing the world. In this way, establishing positive norms with the objective of regulating harmful behavior in the social fabric, both in the context of relations between institutions, between individuals, as well as to delimit institutionalized powers, must also be consubstantiated in the field of representations and manifestations of religiosity. , in order to mitigate intolerance and prejudice, having the constitutional principles and foundations of religious freedom and diversity in the Democratic Rule of Law as a foundation. Therefore, this work, in addition to briefly talking about the socio-historical-political aspects that religion exercises in public-private spaces, will also discuss from the point of view of the legal norm as a harmonizing and limiting element of intolerant, racist and prejudiced behaviors, using the production of consecrated authors within the scope of the doctrine of law, science of religion, philosophy, laws, notably from the contextual aspect, in order to present the necessary paths for peaceful coexistence between the different proportions of religious beliefs, to allow tolerance, pluralism and interreligious dialogue.

Keywords: Norm, tolerance, pluralism, interreligious dialogue.

1. INTRODUCTION

The emergence of the cognitive function in modern human beings approximately 30 thousand years ago, enabling the exordium of new ways of thinking and communicating from there, even precipitated the beginning of social stratification, commerce and religion. Human beings, from that point on, viewed the world from the perspective of beliefs in the supernatural. In these ancient societies, religion and laws were part of an amalgamation that united them intrinsically through family and hereditary ties, constituting, initially, the government of the gens[2] and, later, reproducing the core of the institutions in their socio-juridical-economic relations -politics, in an umbilical union between State and religion, where laws were constituted and admitted as sacred formulas and the attributions of kings and magistrates, also subsumed as priestly (COULANGES, 2006).

For a long time, the religion that was part of social, political and economic life in ancient societies, was not the object of a single and exclusive absolute truth to the detriment of other beliefs from different cultures. Each society worshiped its gods without ignoring or ignoring the existence of foreign gods. Perhaps due to the fact that religion originated from domestic worship, within the scope restricted to the family as part of the laws and customs of the ancient peoples within the scope of the incipient private law, being later the genesis of the institutions and the civil laws of the State in these societies. old, there was no space, nor the recognition of aversion or intolerance as in contemporary times.

Otherwise, the evolution and / or reinvention of new forms of religiosity and of contemplating and worshiping the divine, the transcendent, especially from the Jewish-Christian-Islamic monotheistic revolution, which admitted the exclusive existence of a single sovereign god and creator of the universe and of all life, may have contributed to the unleashing of a feeling of hatred, intolerance, prejudice, discrimination and hostility, which were also responsible for countless wars, massacres, fundamentalisms and genocides of peoples and cultures throughout human history (ARENDT, 2012). This social upheaval caused by the irrationality of attitudes towards the irrational interpretation of religiosity, such as fundamentalisms, intolerances and prejudices due to the religious manifestation that distinguishes from the hegemonic Western Judeo-Christian culture, apprehended and transmitted since childhood as the only and inalienable absolute truth, it transformed and promoted anarchic scenarios, as well as contributed to contaminate society at different moments in our civilizing history.

[…] Those terrifying spectacles in which fanaticism permanently raised fires, where human bodies fueled the flames, in which the ferocious mob delighted in listening to the groans of the bastards, in which the citizens ran, as if in amusement, to contemplate death of his brothers, amid swirls of black smoke, where public places were filled with throbbing remains and human ashes. (BECCARIA, 2000, p. 93)

Consequently, Law as a science that is concerned with the applicability and enforcement of legal norms in a Democratic State of Law, in the sense of systematizing and determining social regulation, has as its scope the function of providing a broad and good interpersonal relationship between groups and individuals of the society. In this way, it becomes an important part to resolve ideological conflicts that pervade the sphere of legality and freedom of religious manifestations, which transit as power constructs of arbitrary authority in the field of symbolic representations of the relations between dominant and dominated (BOURDIEU, 2007) , filling the religious imaginary with myths and superstitions.

2. HISTORICAL CONTEXT OF RELIGIOUS FREEDOM IN THE BRAZILIAN LEGAL ORDER AND THE INTRINSIC ASPECTS RELATED TO INTOLERANCE AND FUNDAMENTALISM

The formation of a Brazilian national identity since its colonial genesis, in addition to the ethnic-racial aspect, was also forged by the strong presence of the colonizer religion. Although African slavery, from the 16th century onwards, contributed to the emergence of a syncretism between the Catholic Christian religion and those of African origin, the strong dominant influence of the colonizer was sufficient to maintain the main characteristics of his hegemonic religion, such as part of a power project aligned with the dynamics of the mercantilist practices system of a bourgeoisie eager for the accumulation of wealth, including being part of the legal system and of social, political and economic life, establishing an approximation between religion and the State.

The integration of State and Church, typical of absolutism and which had its expression in Portugal in the Patronage, made the King the Grand Master of the Order of Christ, with the appointment of all the secular clergy: chaplains, vicar and bishops. The unity of conscience and political action, which was sought, had repercussions in Brazil as soon as the metropolis began the process of consolidating its dominion, that is, from the General Government. (WEHLING and WEHLING, 2005, p. 82)

Throughout the colonial and imperial period of Brazil, there was a strong and intimate connection between the State and religion, where the latter operated as an instrument of political, social and cultural domination, regulating and controlling people’s lives through parishes, convents, sacraments, confession and religious festivals, in order to remind them of moral norms and penalties for those who did not obey them. From the discovery until the first Constitution of 1824, the legal institutes known as Portuguese Ordinances in Brazil prevailed, namely the Afonsinas Ordinances, Manueline Ordinations and Philippine Ordinations. In these institutes, in addition to other regulatory devices for life in the colony, there was a rigid link between the state and religion, which permeated the entire social fabric, reflecting, in Iberian countries and their colonies, feelings of intolerance and prejudice against everything that opposed the orthodoxy imposed by the Council of Trent, since Protestants, Gypsies and Jews, widely harassed (WEHLING and WEHLING, 2005).

Even with the Independence of Brazil in 1822, the relations between State and Church / religion remained unchanged, reinforcing, from the 1824 Constitution granted by Emperor D. Pedro I, even more the political interference in the conduct of the daily life of the citizens as a way of reaffirmation of power and social unity, safeguarding the mechanisms of control and political submission within the scope of religious imposition, as can be seen from the following provision:

Art. 5. The Roman Catholic (sic) Apostolic (sic) Religion will continue to be the Religion of the Empire (sic). All other religions will be allowed with their domestic worship (sic), or private in houses for this purpose, without any form (sic) outside the Temple. (BRAZIL, Imperial Constitution of 1824)

It seems clear that the legal imposition of the Catholic religion as an official state religion, in a demonstration of superiority and exclusivity, may have influenced, albeit implicitly, the appearance of a feeling of intolerance towards other beliefs. Even though the law allowed to profess different religions, they could only take place in private and / or domestic spaces and have no external form of a temple. Notwithstanding the guarantees of civil and political rights, the 1824 Constitution, in its art. 179, item V, established an express prohibition of persecution for religious reasons, provided that the state religion is respected and public morals are not offended. However, respecting the religion of the State meant living under the rules issued by the Catholic Church. Therefore, not to be against it, nor to meddle against the established order, under penalty of social, political and economic ostracism. In this sense, according to article 95, item III, of the Imperial Constitution, there could be a loss of political rights if the citizen did not profess the Catholic faith: “Art. 95. All those who can be Voters, able to be appointed Deputies. Exceptions are made (sic) […]; III. Those who do not profess the Religion of the State ” (BRAZIL, Imperial Constitution of 1824).

With the advent of the Republic in 1889, the country went from being a constitutional monarchy to establishing itself as a presidential republic. However, in the field of socioeconomic transformations there was little or no change, considering that the new political-administrative regime kept intact the old social orders that prevailed in the previous political regime, which is an oligarchic-landowning-patrimonialist elite and an economy, in largely dependent on foreign capital with a predominantly agrarian-mercantile structure. Regarding socio-educational indicators, the majority of the population, about 65.3%[3] from the age of 15, was illiterate, as well as there was enormous social inequality. These socioeconomic, political and cultural indicators are essential to understand the representation, although symbolic, but fundamentally influential that religion exercises in the illusion of a population deprived of critical and reflective thinking, in profound inequality and social insecurity.

The Political Charter of 1891 brought the separation between State and religion, abolished the death penalty, “reserved for the provisions of military legislation in times of war” (BRAZIL, Constitution of 1891, art. 72, § 21), among other provisions, in a clear demonstration of the ideals of liberal-bourgeois-enlightened thought. As can be seen from the in verbis provision below, the relationship that once existed between the Catholic religion and the Brazilian State would no longer establish a connection, although in practice the intrinsic aspects still remained rooted, given that the predominance of Christian ideology was substantially constituent part of the public-private sphere.

No cult or church will enjoy (sic) official subsidy (sic), nor will it have dependency (sic) or alliance (sic) relationships with the Government of the Union, or that of the States. The diplomatic representation (sic) of Brazil to the (sic) Holy See does not imply a violation of this principle (sic). (Art. 72, § 7, Constitution of the Federative Republic of the United States of Brazil, 1891)

Thus, since the Constitution of 1891, as well as the other subsequent political letters and the current “Citizen” Constitution promulgated in 1988, they also highlighted devices that established freedom of belief, as well as the free expression of their respective liturgies. However, the democratic advance of religious freedom also brought the aspects inherent in intolerance and disrespect to the different religious manifestations, especially those of African origin, considering that now the practitioners of these religions, could manifest it without the prohibition of the State.

According to Fausto (1995), immigration, initially of Europeans from the second half of the 19th century and, later, Asian from the beginning of the 20th century, promoted by the Brazilian State to solve the lack of labor in the agricultural sector, but also, in line with the eugenicist theses that permeated the daily lives of some Brazilian intellectuals of the first half of the 20th century and who intended to print the whitening of the Brazilian population, the Protestant aspect of Christianity originated from these European settlers expanded on Brazilian soil.

Although the Brazilian religious scene has acquired some specific social particularities with the traditional or historical Protestantism remaining from the Protestant Reformation of the 16th century, but not so significant to the point of more complex changes from the perspective of the manifestations of religiosity, the most expressive change, especially in the which addresses the aspects of accentuated itinerancy and numerical variations between religious groups, occurred from the Pentecostal follow-up in the early twentieth century, originally from the North American movement disseminated among immigrants, the poor and the disinherited (CAMPOS, 2005). The social, cultural and economic context is important for us to understand its relationship with the proliferation of the Pentecostal Protestant religion on the periphery of large urban centers and, therefore, in public spaces, as well as its distinct forms assumed among those deprived of cultural capital and operated in the urban-industrial conjuncture in a country with profound socioeconomic inequalities, since its growth and dynamism are interconnected by unreasonable aspects of religious mystique and by an oral tradition, unlike the written and more schooled tradition and, consequently, a little more rational from the purely Protestant side, which are Anglicans, Lutherans and Calvinists.

Indeed, the democratic advance in legislation in relation to the freedom of religious expression, with a view to allowing and expanding religious pluralism, on the one hand, presented characteristics of openness to the possibility of an inter-religious dialogue that has repercussions on a reinterpretation based on others. perspectives in opposition to the claim of unique validity or truth, and on the other hand, a fundamentalism characterized by aversion to modernity, theological liberalism, antiecumenism, the interpretation of the Bible from the historical-critical point of view, pluralism and evolutionism itself, This phenomenon was amplified from the religious revival at the turn of the 19th to the 20th century in the United States and spread throughout Latin America.

3. LEGAL ORDERING AS INFERENCE AGAINST INTOLERANCE AND RELIGIOUS PREJUDICE

The current Brazilian Magna Carta, in its Article 5, Item VI, ensures the inviolability of freedom of belief and conscience, also guaranteeing the free exercise of religious cults, as well as safeguarding places of worship and their ceremonies. The Constituent legislator, in this respect, following the orientation of Western democracies, established the free manifestation of religiosity intrinsic to human beings, embodying the above device as petria clause, a principle whose command cannot be modified or withdrawn without a new Constitution being manifested . According to Item VIII of the same Article 5 of the Political Charter, “no one will be deprived of rights due to religious belief or philosophical or political conviction, […]” It follows that the manifestation of religiosity is a guarantee and a fundamental right inherent to all Brazilians and foreigners residing in their homeland, with the assumption of subjectivity in the choice that each one can and has the right to profess.

In this sense, according to Alexy (2008), freedom of belief arrogates for itself a broad and consolidated positive right as a norm of fundamental right, disposed as a statement inserted in the Constitution itself and thus generating a normative statement based in a strict and structured sense. list of individual rights of freedom. Immediately, any condition that violates this subjective freedom, would directly confront the fundamental principles that also make up those related to the dignity of the human person. In the same vein, the Universal Declaration of Human Rights, adopted by the United Nations, establishes that:

Every human being has the capacity to enjoy the rights and freedoms set forth in this Declaration, without distinction of any kind, whether of race, color, sex, language, religion, political or other opinion, national or social origin, wealth, birth, or any other condition. (UDHR / UN, art. 2, I, 1948, emphasis added)

Therefore, the rights and freedoms defined in this Declaration, should be widely enjoyed regardless of the religious option. Religious freedom, therefore, is an inalienable right of choice shielded by the Constitution of Brazil, as well as by the international treaties to which the Brazilian State subscribed, providing that no discrimination or distinction of a religious nature is permitted, both in the public and private spheres. However, Article 18 of the same Declaration further states that:

Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change religion or belief and the freedom to manifest that religion or belief, through teaching, practice, worship and observance, in public or in private.

However, the freedom to profess and manifest a certain religious belief does not validate intolerance and prejudice against others who profess different beliefs and / or dogmas. This freedom is constituted as a right embedded in the country’s maximum law, in the sense of a norm of relevant subjectivity inherent to all citizens, bearing in mind that “a norm of a relatively high degree of generality is the norm that guarantees freedom of belief.” (ALEXY, 2008, p. 87). In this regard, the rule is necessary since contemporary society, especially under the aegis of the Democratic Rule of Law, is based on different ideological manifestations, as well as different cultures, by which the law must impose limits and duties of each citizen. so that it does not exceed them.

According to Law 7.716 / 1989, in its art. 1º, it argues that: “Under the terms of this Law, crimes resulting from discrimination or prejudice based on race, color, ethnicity, religion or national origin will be punished.” (emphasis added). Art. 20, of the same law, also establishes the initial provision of serving sentences in a closed regime in the case of “Practicing, inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion or national origin”.

Therefore, the various legal institutes in the Brazilian legal system, embodied in the Political Charter, as well as in the infra-constitutional laws, constitute mechanisms to appease and / or repress the forms of prejudice and intolerance that make up the scenario of a society with different forms of religiosity.

FINAL CONSIDERATIONS

The freedom to think and believe in metaphysical and supernatural beings, as well as to render worship to them, are intimate to each human being and safeguarded by the Constitution of Brazil, as well as by international treaties and laws to which Brazil also subscribed them . The diversity of ideologies, thoughts, beliefs, as long as they do not interfere with the individual freedom and dignity of each human being, in order to allow prejudice, intolerance, fundamentalism, to succumb to the peace and tranquility of citizens, must be freely manifested and protected by legislation. The principles of freedom of conscience, as well as freedom of belief, based on art. 5, item VI, of the Political Charter of Brazil, constitutes a broad concept, from the freedom to profess any religious belief, to the freedom to manifest philosophical convictions devoid of a religious character.

In this aspect, coexistence in a plural society such as the Brazilian one, in the sense of the different forms of religiosity or even those who do not profess any religion, urges that the Law, as a system of norms of principles and conduct that regulates social relations, based on by means of specific norms, it may be the stronghold in the conduction of a peaceful coexistence, including the imposition of interventionist measures against those who, perhaps, will promote acts of religious intolerance.

REFERENCES

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ARENDT, Hannah. Origens do totalitarismo. Tradução: Roberto Raposo. 1ª reimpressão. São Paulo: Companhia das Letras, 2012.

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BECCARIA, Cesare. Dos delitos e das penas. Tradução Torrieri Guimarães. São Paulo: Editora Martin Claret Ltda, 2000.

BERGER, Peter L. O Dossel Sagrado: elementos para uma teoria sociológica da religião. Trad. José Carlos Barcelos. São Paulo: Editoria Paulinas, 1985.

BOBBIO, Norberto. A Era dos Direitos. Tradução Carlos Nelson Coutinho. Rio de Janeiro: Editora Campus/Elsevier, 2004.

BOURDIEU, P. A economia das trocas simbólicas. 6 ed. São Paulo: Editora Perspectiva S.A, 2007.

BOUDIEU, P. O poder simbólico. Tradução de Fernando Tomaz. Rio de Janeiro: Editora Bertrand Brasil S.A, 1989.

BRASIL, Censo 2010. https://censo2010.ibge.gov.br/. Acesso em: 07 jan. 2020.

BRASIL, Constituição de 1824. Constituição política do império do Brasil. Disponível em: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm. Acesso em: 07 jan. 2020.

BRASIL, Constituição de 1891. Constituição da república dos estados unidos do Brasil. Disponível em: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao91.htm. Acesso em: 07 jan. 2020.

BRASIL, Constituição de 1988. Constituição da república federativa do Brasil. Disponível em: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Acesso em: 07 jan. 2020.

BRASIL, Lei 7.716, de 05 de janeiro de 1989. Disponível em: http://www.planalto.gov.br/ccivil_03/leis/l7716.htm. Acesso em: 07 jan. 2020.

BRASIL, Lei Nº 9.459, de 13 de Maio de 1997. Altera os arts. 1º e 20 da Lei nº 7.716, de 5 de janeiro de 1989, que define os crimes resultantes de preconceito de raça ou de cor, e acrescenta parágrafo ao art. 140 do Decreto-lei nº 2.848, de 7 de dezembro de 1940. Disponível em: http://www.planalto.gov.br/ccivil_03/LEIS/L9459.htm. Acesso em: 07 jan. 2020.

CAMPOS, Leonildo Silveira. As origens norte-americanas do pentecostalismo brasileiro: observações sobre uma relação ainda pouco avaliada. REVISTA USP, São Paulo, n.67, p. 100-115, setembro/novembro 2005.

CONVENÇÃO AMERICANA DE DIREITOS HUMANOS (1969) – Pacto de São José da Costa Rica.

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FAUSTO, Boris. História do Brasil. 2 ed. São Paulo: Editora Universidade de São Paulo, 1995.

HABERMAS, Jurgen. Entre Naturalismo e religião: estudos filosóficos. Trad. Flávio Beno Siebeneicheler. Rio de Janeiro: Tempo Brasileiro, 2007.

RAWLS, John. Uma Teoria da Justiça. Trad. Almiro Pisetta e Lenita M. R. Esteves. São Paulo: Martins Fontes, 2000.

VOLTAIRE (François-Marie Arouet). Tratado sobre a tolerância. Tradução: Paulo Neves, 2 ed. São Paulo: Martins Fontes, 2000.

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APPENDIX – FOOTNOTE REFERENCES

2. Term used in Ancient Rome and that represented the family identity of a certain set of families, widely inscribed in the Roman aristocracy.

3. BRAZIL, Ministry of Education. INEP – National Institute of Studies and Research. Map of Illiteracy in Brazil.

[1] Lato Sensu Postgraduate in Religious Sciences from Cândido Mendes University (UCAM). Postgraduate Lato Sensu in Social History from the Federal University of Espírito Santo (UFES). Degree in History from the University Estácio de Sá (UNESA). Graduated in Music by the Faculty of Music of Espírito Santo (FAMES). Graduating in Philosophy from the Federal University of Espírito Santo (UFES). Law student at the Faculty of Espírito Santo (FACES).

Submitted: July, 2020.

Approved: February, 2021.

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