Alessandra Sofía Salazar Alva
The procedure, a dialectical phenomenon: Hegel and Procedural Law
“The procedure (…) is a dialectical procedure. It attempts to reach the truth through the exposition of the thesis, the antithesis and the synthesis; of the action, the exception and the judgment”, affirmed Eduardo Couture, the internationally recognized Uruguayan academic. This leads us to the following questions: Is it possible to establish a relationship between the dialectical philosophy of Hegel and the Procedural Law? In which aspects do they link? The following article will seek to give answers to those questions.
- Placing us in history: Scientific procedimentalism
Hegel is one of those few philosophers who does not require much introduction. Under his views, he established a logical method to analyze or discover reality: the dialectical triad. He was never indifferent from law studies, as he contributed with diverse academic work that pondered over the ethics, morality and logic that – he stated – Law as a field should have. Hegel’s philosophy regarding the procedure is historically placed during the stage of the scientific procedimentalism.
The scientific procedimentalism develops between the end of the XVIII century and the start of the XIX century, with special emphasis on Germany, which is not so surprisingly Hegel’s homestead. The debate between the academics Bernhard Windscheid and Theodor Muther was vital to consolidate the notion of the right to action and its distinction regarding the material right and the notion of pretention (Priori, 2019, p. 30). It is this treatment of the procedure as a science which leads us to understand the dialectical spirit of the procedure, and not just the procedure as a mere technic (Brodermann, 2007, p. 351). Although we have overcame the scientific procedimentalism and now have a Constitutional approach, it is still relevant to go back to this stage of Procedural Law that was strongly important to build the actual one and also has aspects that still assure a real res judicata, guiding us, in that way, the most realistically closer to the truth.
- First episode: The procedural action as the thesis
The primary phase of the dialectical triad is the thesis, which is the affirmation in favor of knowledge development. It refers to the subjective spirit that wants to know and act over that knowledge. In Procedural Law, the action links to the thesis because it is that power that exists in every individual to know and have access to the diverse organs with jurisdiction. Therefore, the action is the legitimate right of every human, just due to being human, to have the worldwide advantages of the jurisdiction. It is logical to notice the affirmative character of the procedural action: it is the positive affirmation to each and every one of seeing their material rights protected through the system of jurisdiction.
It is important to differentiate the action from the material right and the pretention. Starting by the material right, we have to state that the action acts on it. A clear example that illustrates this relationship is the following: in a litigation between A, the actual posesor, and B, an invader, the right to a certain property would be the material right of A that wants to be compensated. Meanwhile, the right to the jurisdictional procedure is the action that A can take, as A and B are part of a State of Law in which the principle of legality reigns. Furthermore, the pretention is the specific will to make effective a material right through a judicial demand. It is not, of course, an autonomous right, rather than a mere fact. This is due to the fact that if the pretention is declared baseless, it is probably because there was no legitimate right to recompensate. Hence, the action as an access to the jurisdiction exists in the individual, even if the pretention is baseless. The action is present from the demand until the final judgment. The action belongs to the sincere litigant and to the insincere one, with the difference that the last one is using the action in an illegitimate way (Couture, 2018, p. 78).
As the thesis, the action is the constitutional affirmation of every individual to have access to the jurisdictional organs and ask for protection of any right against any possible damage to that right (Priori, 2019, p. 82). This right has an objective sphere and a subjective one. For the purpose of this paper, it is in our interest to explain the objective sphere.
- The objective sphere of the action: The absolute thesis
The objective sphere states that any right has the possibility of being protected in a jurisdictional way. That is to say, in theory there should be no right or interest that can not be carried to the procedure to ask for protection (Priori, 2019, p. 83). In that way, the American Convention of Human Rights indicates in its article 8.1 that every person must be heard with the minimal guarantees for the determination of their civil rights, laboral rights, tax rights, between others. This means that even when there is a debate over whether a material right is juridically prevalent or not, it is the procedure the space where that situation should be discussed, not out of it. The universal premise is that no person can be hindered from accessing to the due procedure. Therefore, we notice that the thesis is the absolute affirmation of the right to jurisdictional guarantee.
- Second episode: The exception as the antithesis
The next phase is the antithesis or the contradiction of the previous thing. It refers to the objective spirit that criticizes the subjective spirit: the thesis. In the procedure, the antithesis adopts the figure of the exception, which is the procedural right to defend oneself. It tends to be distinguished from the material or substantial right that represents the demand. However, in fact, this defense seeks to protect a material right that many times is even more discussed during the procedure; hence, the distinctions between the procedural right and the material right are merely artificial and technical. Truth is the antithesis tries to oppose the pretention of the thesis’ actor. There is a battle of wills: that one from the demander and the demanded. This contradictory aspect of the procedure (auditur altera pars) is the one that, in fact, turns the procedure into a dialectical process (Brodermann, 2007, p. 356).
Nevertheless, the thesis and the antithesis should not be understood as two opposite static dimensions that barely interact. Instead, they represent two distinct and contradicted moments in the movement of the total spirit, according to Hegel. In the procedure, the thesis (the action) and the antithesis (the exception) act in a opposite way under the principle of preclusion, which states that every stage in the procedure takes place in a successive way, being prohibited the return to previous stages or procedural moments already consumed. However, the thesis and the antithesis are actually two moments of the procedure that act under the same logic: the demanded, within the exception, has the same right to the due procedure as the demander, within the action.
- The civic character of the exception: Real freedom
The premise is the following: “No one should be condemned without being heard”. Even though it is a well know phrase, its content is way more complex. For the objective of this paper, we must stand out the fact that the exception constitutes the fundamental part of a due process of law and, therefore, guarantees that no one’s freedom is violated or restricted in an arbitrary way. For Hegel, this freedom is important not only from an individual optical but also from the “union of the subjective will and the objective will, giving place to the community liberty, of the social relationships” (Amengual, 2001, p. 290). That is to say, freedom as a civil right is a collective one, that should be defended during the whole due process of law, through the exception. From Hegel’s perspective, the notion of law (Idee des Rechts) necessarily implied the sphere of the released freedom (Roso, 2019, p.15). How so?
Well, being that said, the exception must include various vital aspects. First, the demanded should be informed about the judge against him or her in a sufficient and timely way. This means that the person must, firstly, have access to the complete information on which he or she is being demanded. Otherwise, his or her defense becomes widely restricted. Secondly, the term “timely” refers to the aspect of being informed in a prudent amount of time enough to prepare a defense. Most systems of law already have set periods of time for the exception.
Moreover, the demanded person has the constitutional right to fully prove. This includes (a) offering proof documents, (b) getting the proof admitted, without restrictions except the ones stablished in the law, such as being information presented in an inadequate form or with irrelevant content inside the procedure, (c) having a judge act the proof, by constantly comparing them to the material offered by the other part, (d) valuing the proof given, the judge should give equal importance to the information provided by both parts and only discriminate parts of information after fully analyzing everything, (e) finally, preserving the proof, by doing what is necessary, with the resources of the jurisdictional organ, to keep it polished and updated enough to stay valuable. Hence, there should be a eternal relationship between the proof and the conviction of the judge, also known as the constant link between rhetoric and logic in the Procedural Law (Giuliani, 2017, p. 140).
- Third episode: The judgment as the synthesis
The third and last stage is the synthesis, obtained through the critics against the antithesis. It consists in the overcoming of the contradiction, being the absolute spirit built in a harmonious way upon the subjective and objective spirit, arriving to a final solution. This description is enough to infer that in Procedural Law, the synthesis takes places through the judgment, within the res judicata. There are diverse ways of achieving a solution to the opposite between the action and the exception, as there are numerous types of judgments, being the main ones: the declarative, the condemnation, and the constitutives. The declaratives judgments recognize the existence of a material right, as a logical conclusion of the procedure. The majority of the doctrine understands that in any state of juridical uncertainty, there must be a judicial resolution that at least declares a right and an action towards the protection of that right (Couture, 2018, p. 259).
In second place, the condemn judgment imposes the accomplishment of a lending or benefit, being either in a positive way (obligatory do something) or in a negative one (being prohibited from). Its particular attribute is that it restores the damaged right and makes it go back to its initial state (Couture, 2018, p. 260). Hence, it is the maximum and most extreme synthesis to occur. Furthermore, it is the expression of the Hegelian ethics. After all, it is not that different from moral codes that are transmitted in a positive way (example: you should honor your father and mother) and in a negative way (you should not kill) (Klenner, 2002, p.4). Finally, the constitutive judgment is the one that without establishing a condemnation, it creates, modifies or extinguishes a legal state. In this category, we can find those diverse situations that could not happen without the collaboration of the jurisdictional organ, such as the divorce, the separation of goods, etc.
- Hegel’s logic in judgments
All types of judgments must have a say in the content of the legal affair. The free conviction of the judge (secundum conscientiam) must not be dissociated from the logic rules (Giuliani, 2017, p.142). Therefore, just as Hegel approaches in its work “Philosophy of Law”, the synthesis occurs at a level of rationality and morality. In one hand, the judge must have had enough morality to overcome the contradiction. He or she must be impartial and predetermined by the law, to avoid subjective interests interfering. Moreover, he or she must follow the rationality of the proof. There are principles that should be followed, such as the coherence of the arguments presented by both parts. Plus, the proof presented acts in community: if A provided information to support its defense but the content ends up benefiting B, the benefit should be allowed and considered by the judge in order to arrive to a final conclusion from every single proof. The importance of the rationality is such that there can always be the resource of the appeal or invocation, from any of the parts, stating that there are not enough arguments to come to that solution. Furthermore, if the morality contained in the due process of law has not been respected, the res judicata can be revised at superior courts. We can notice that unlike the action, the synthesis of the procedure is varied and relative: it can always be questioned by the criteria of logic, morality, and rationality (Brodermann, 2007, p. 359)
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