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”.