Article  |  Volume 10

Constitution, Human Rights and Republic: A Necessary Dialogue Between Gadamer's Philosophical Hermeneutics and Boaventura de Sousa Santos's Diatopic Heremeneutics

by Jose Luis Bolzan de Morais and Jania Maria Lopes Saldanha
When we think about the concept of human rights—including all the possible ways of its realization, and considering the complementarities and also the unity of different dimensions of the concept—we confront several difficult questions. In particular, in an age when constitutions and constitutional doctrine have already incorporated a substantive body of human rights law, we must address how some of the constitutional promises regarding individual rights have not been fulfilled. Additionally, we must consider how rights that foster solidarity in the economic, social, and cultural spheres have not been recognized. This article operates on two levels. On one level, we intend to point out the need, particularly in Brazil, to face the challenge of making the republican constitutional text a reality in the lives of the people. This challenge requires us to acknowledge and address failures to guarantee basic and fundamental rights identified with a so-called democratic state of law established by the 1st article of the 1988 Brazilian Federal Constitution, which supposes that all “promises of the modern era” should be implemented specially in periods of profound crises. On the other level, we also intend to demonstrate that we can “learn from” and “teach to” other cultures, starting from our own pre-comprehensions. We draw from Hans-Georg Gadamer’s philosophical hermeneutics and Boaventura de Sousa Santos’ diatopic hermeneutics to demonstrate that the problem surrounding the effectiveness of human rights in a country with delayed modernity, such as Brazil, can be understood based on the proximity between the two hermeneutical “sides” of the debates. Inspired by Gadamer, the task is to promote an opening without systematic coercion and without drama. Santos’ diatopic hermeneutics provides additional details regarding this opening.
10 Nev. L. J. 667 (2010)