I. Montesquieu’s Transplants: Sheep, Pyramids, and the Movement of Laws Between Hot and Cold

In his history of the reception of Alan Watson’s voluminous employment of it, John W. Cairns maps some antecedent and contemporaneous uses of legal transplants.Footnote ³⁶ Pierre Legrand has recently offered a cursory collection of usages of the “hortical/surgical metaphor” long antedating Watson’s book.Footnote ³⁷ For understanding the processing and historical allocation of representations concerning the metaphor’s origin and originality, Otto Kahn–Freund’s work is pivotal. Carefully considered, Kahn-Freund’s 1973 Chorley Lecture at the London School of Economics and Political Science, later published as On Uses and Misuses of Comparative Law in The Modern Law Review, unwarily posits travel literature at the kernel of the legal transplantation metaphor.

In his lecture, Kahn-Freund traces the concept of legal transplantation to Montesquieu. As Kahn-Freund introduces Montesquieu, he does so in an attempt to answer the question whether there would be “any principles which may assist us in measuring the degree to which a foreign institution can be ‘naturalised’[.]”Footnote ³⁸ In addressing this issue, Kahn-Freund found it useful to remind his audience “of the very distinct and explicit views on [this] problem [ … ] expressed by the first of all comparative lawyers.Footnote ³⁹ In Montesquieu’s opinion it was only in the most exceptional cases that the institutions of one country could serve those of another at all.”Footnote ⁴⁰ After such grandiose introduction, as he connects the “problem” in the way he frames it, namely, as a matter of transplantation, to the alleged founder of the discipline, Kahn-Freund directly quotes the following remark from Montesquieu: “The political and civil laws of any nation [ … ] should be so appropriate to the people for whom they are made that it is un grand hasard if those of one nation can be suitable for another.”Footnote ⁴¹ The French “hasard” evokes sheer contingency, say, accident or chance.

Kahn-Freund develops his remarks on legal transplants out of Montesquieu’s “grand hasard” by bringing into view the French thinker’s considerations on the factors informing what constitutes the “propriety” of the self’s laws, whereby they become unsuitable to any other environment than the one in which they came into being. Any transposition thus pivots on “un grand hasard.” As I have indicated, the French “hasard” stands for fortuity, but it also connotes risk or danger (in French, “les hasards de la guerre” suggests the perils of war). Observe that a simple mispronunciation—or indeed misspelling—of the French “hasard” as the English “hazard”—think “environmental hazard”—would be sufficient to bring into play Montesquieu’s celebrated caveat regarding the way in which the theory of climates must qualify the movement of laws. In a sense, Kahn-Freund proceeds along these lines: “What, then, were the forces which linked the law so closely to its environment that it could hardly ever change its habitat?” Montesquieu’s environmental criteria which determine “l’esprit des lois,” and permeate the whole work are to some extent geographical, such as above all the climate, but also the fertility of the soil, the size and the geographical position of a country.”Footnote ⁴² In developing the conceptualization of legal transplants, Kahn-Freund effectively stages Montesquieu’s emblematic statement: “The empire of climate is the first of all empires.”Footnote ⁴³ Yet, neither Kahn-Freund nor Ralf Michaels—who has also reflected of late over the weight of Montesquieu’s aphorism by reference to the movement of laws— comes even close to contemplating how the sources that Montesquieu had available on the others’ laws prompted him to formulate his theory of climates. In short, such commentators have remained silent regarding the juridical techniques that inform Montesquieu’s juristic method.

For instance, in order to process the difference between hot and cold regarding “the laws in their relation to the nature of the climate,”Footnote ⁴⁴ Montesquieu relied on almost mantic observations of a sheep’s tongue: “Through a microscope, I have seen the tiny hairs, or a kind of down, on these papillae; between these papillae were pyramids, forming something like little brushes at the ends. It is very likely that these pyramids are the principal organ of taste.”Footnote ⁴⁵ As Montesquieu froze half of the tongue, examining it both with the naked eye and through a microscope, he noted that the “pyramids” had disappeared: “This observation confirms what I have said, that in cold countries, the tufts of nerves are less open; they slip inside their sheaths, where they are protected from the action of external objects. Therefore, sensations are less vivid.”Footnote ⁴⁶ Next to such bizarre, even occult experiments with sheep, pyramids, and nerves, Montesquieu mentions in the same breath a tourist experiment that he also conducted as the great lover of opera that he was: “I have seen operas in England and Italy; they are the same plays with the same actors; but the same music produces such different effects in the people of the two nations that it seems inconceivable, the one so calm and the other so transported.”Footnote ⁴⁷ While observing how the Italians were “so lively” and “enraptured” by the music, he described the English as “cold and phlegmatic.”Footnote ⁴⁸ Montesquieu assigned this emotional difference to a physical cause: the “large bodies and coarse fibers of the people of the north are less capable of laceration” and thus less physically and emotionally sensible to stimuli—including both pain and pleasure—than the “delicate fibers of the inhabitants of warm countries.”Footnote ⁴⁹

The sheep’s tongue and the opera both stand as media and “index fossils” in Montesquieu’s argument.Footnote ⁵⁰ Through these passages, time comes in to break the layers of expectations that otherwise accommodate Montesquieu as, in Kahn-Freund’s words, “the first of all comparative lawyers.” Moreover, both experiments count as juridical techniques thereby endowing Montesquieu’s juristic method with a degree of reality and attendant credibility. Through both experiments, the difference between hot and cold supplies evidence for making sense of the dromology of laws between self and other. Most significantly, however, the two experiments oscillate between the idiotic and the wonderful, two important registers pertaining to the traveler’s tale. To a certain extent, one can sense a later echo, if diminished yet consequential, of these registers in the conventions governing the appearance of foreign law in Brazilian legal doctrine. In handbooks, any foreign scholar is ascribed an epithet along the lines of “the master of the University of the distant elsewhere.” In terms of conference and table talk, idiotic anecdotes conveying the complicity and secrecy between self and other—for example, “the very same master, by the way, who drinks his coffee black”—not unlike, then, the pyramids on the sheep’s tongue, are mandatory.

Indeed, while neither Kahn-Freund nor Michaels underlines this fact, Montesquieu, in his discussions of “Oriental despotism,” not only relied extensively on travel literature, but also drew on Huguenot jeweler Jean Chardin’s—1643–1713—travel tales, specifically on his famous climate theory.Footnote ⁵¹ Praised by Rousseau as someone “who traveled like Plato” and had left “nothing to be said about Persia,”Footnote ⁵² Chardin wrote in his Voyages de Monsieur le Chevalier Chardin en Perse et autres lieux de l’Orient that “[t]he climate of each people is always, I believe, the chief cause of men’s customs and inclinations, which differ no more from one another than the nature of the air differs from one place to another.”Footnote ⁵³

In short, irrespective of whether Montesquieu should have pride of place as the “founding figure” of comparative law,Footnote ⁵⁴ we find the traveler’s tale underlying his statements. Travel literature thus offers the very sources that ground Montesquieu’s approach to the multiplicity governing self and other as pivoting on the difference between hot and cold. Arguably, this imperial difference is central to the establishment of the background against which the framing of the movement of laws as a matter of transplantation appears sound. In Alan Watson’s words, “reception is possible and still easy when the receiving society is much less advanced materially and culturally, though changes leading to simplification, even barbarisation, will be great.”Footnote ⁵⁵ Additionally, the rhetoric informing Montesquieu’s presentation of his evidence on the empire of climate evokes, in multiple respects, the traveler’s tale.

Scholarship on cultural techniques has underscored that operational chains are always older than the concepts they generate. Furthermore, these operations and the devices employed therein engender and condition what follows. Counting is older than numbers, and writing stands before the alphabet or the very concept thereof.Footnote ⁵⁶ Arguably, in this vein, before comparative law stands the traveler’s tale. Regarding the latter, however, Montesquieu, the “first of all comparative lawyers,” often used a fellow traveler as a “chronometer,” a “map,” and, occasionally, even as an “explosive device,” namely, Herodotus. In Suzanne Marchand’s words, “[b]y the eighteenth century’s end, [ … ] [Herodotus] had become [ … ] a toolbox, useful as a means to wedge open sacred histories, or to stabilize them, or as a blueprint for fair-minded comparative studies of ‘others’.”Footnote ⁵⁷ With a view to further untwining the amalgam of processing and historical allocations that underpins the metaphors dear to the method of orthodox comparative law, let us now turn to Herodotus.

II. The Rhetoric of Otherness Across Herodotus’s Tales and the Method of Orthodox Comparative Law

A traveler’s tale is essentially a tale about the other. This sensibility informs François Hartog’s leading monograph on the famous Istor, who became the blueprint for comparative studies in Montesquieu’s time. Hartog’s effort in capturing the matrix of Herodotus’s rhetorical ensemble is insightful. According to Hartog, “[t]o speak of the ‘other’ is to postulate it as different, to postulate there are two terms, a and b, and that a is not b. For example, there are Greeks, and there are non-Greeks.”Footnote ⁵⁸ Yet, the historian adds, “the difference only becomes interesting when a and b become part of a single system.”Footnote ⁵⁹

Whether a bulwark, as the same and the other are connected in a single system, or a crossing, as the same becomes the other—rather than talk about the self, Hartog refers to the “same,” in French “le même”—this linkage is a matter of rhetoric—and, therefore, a cultural technique.Footnote ⁶⁰ Let us consider the first possibility. In this regard, Hartog highlights the centrality of the figure of inversion, “whereby otherness is transcribed as anti–sameness.” Truly, “it is not hard to see why travelers’ tales and utopias frequently resort to this method, since it constructs an otherness that is transparent for the listener or reader; it is no longer a matter of a and b, simply of a and the converse of a.”Footnote ⁶¹ Importantly, whatever features do not fit inversion hold their verisimilitude “in their apparent meaninglessness. The particular verisimilitude (of these features unaffected by inversion) perhaps lies in their being presented in the narrative as ‘idiotic’: they offer no hold, and this absence of purchase operates as a guarantee of their authenticity (you could not possibly invent such things).”Footnote ⁶²

Next to inversion, Hartog addresses the prominence of the similitudo per collationem, a form of comparison that “operates by setting one term alongside the other and by transfer[,]” whereby the matter of concern is placed before one’s eyes. Interestingly, Hartog illustrates the usage of this rhetoric trope by indicating how Herodutus compares the “cannibal banquet” of the Issedones with the Greeks’ celebration of the anniversary of the dead. Reputedly operating beyond difference, the reader is made to realize that both feasts “from a functional point of view [ … ] fulfill the same role: the one is to the society of the Issedones what the other is to Greek society.”Footnote ⁶³ Hartog’s discussion of the similitudo per collationem indeed reveals the extent to which inversion sets the tone of the traveler’s tale: as it speaks about the other, the discourse is nonetheless a speech that purports “invariably to speak of ‘sameness’.”Footnote ⁶⁴

It is worth considering whether such collection as Hartog’s can ultimately generate only a “single system” that thereby determines what is interesting—such as Hartog maintains and orthodox comparative law pledges. Through a different arrangement, could the collection of examples not provoke a collision instead, whereby not functional sameness but differing equivocation would come to the fore? I do not challenge Hartog’s overall account of Herodotus’s “rhetoric of otherness,” if only because I lack the skills that would allow me even to consider the possibility of such defiance. I have doubts, however, regarding Hartog’s reticence to consider as an absolute metaphor the immanent rationality that constitutes an ingredient of the “cannibal banquet,” that is, anthropophagy.

Turning to the standard handbook on comparative law, namely Konrad Zweigert and Hein Kötz’s Introduction to Comparative Law, one can readily identify the figure of inversion and the similitudo per collationem as procedures underpinning the work. Two examples must suffice to evince the technique of the traveler’s tale as it subtends not only the method of comparative law, but the self-righteousness of the “European legal mentality.” First, faced with the task of rendering English common law to a German readership, Zweigert and Kötz quickly deploy the figure of inversion: “If we may generalize, the European is given to making plans, to regulating things in advance, and therefore, in terms of law, to drawing up rules and systematizing them. He approaches life with fixed ideas, and operates deductively.” Here is a. How to frame the b of English law? As non-a is Zweigert and Kötz’s answer:

While the co-authors place idiotic features around b, such as the proverb on crossing bridges and the idea of living by the sea, none is offered, not even in translation, regarding a. In the way I read Zweigert and Kötz, they are seeking to increase the verisimilitude of their account of b as the converse of a.

Even as Zweigert and Kötz address an element that would be common to “all Western law,”—“that though the goal of law is peace, one must struggle to achieve it”—they quickly posit “the Far East” alongside this principle. In the “Far East,” we are told, “law is a secondary and subordinate means of achieving social order [ … ]. The harmony of society is seen as reflecting the general harmony of the world as evinced in nature and the cosmos.”Footnote ⁶⁶ Consequently, the Far East’s wisdom reputedly determines that law must “not lead to a judicial decision in favour of one party, but to a peaceable settlement or amicable composition.” Despite such differences, in such a rendition, whereby a manifold of law-worlds is reduced to something akin to a fortune cookie, one can find in such fashion the very same wisdom having “some echoes [ … ] in the West. Thus, a bad settlement, we say, is better than a good lawsuit, and a legal adviser may pride himself on never having had to go to court.”Footnote ⁶⁷

After insisting that

Zweigert and Kötz concede that this may not be “a sufficient reason for constructing a ‘Far Eastern legal family’” comprising China, Japan, and other countries of South East Asia, as was done in the previous edition. In particular, such editorial change comes after reckoning that while

Beyond conveying another common and deeply problematic trope in rendering the “Far Eastern other,” as if it were homogenous, timeless, and eternal by contrast to the episodic, plural, and timely upheavals of the “West,” the very definition of law emerging in the end, namely, the mobilization of courts, suggests the extent to which the co-authors had to streamline their concept in order that the “Far East” could continue to be the West’s inversion.

Furthermore, one could quickly glance over Suli Zhu’s Sending Law to the Countryside for a complete rebuttal. Illustratively, in his monograph Suli refers to Fei Hsiao-Tung, who mentions the following story in a book titled Rural China to frame the “conflict between law and local customs”:

Contrasting Zweigert and Kötz’s succinct narrative of the “Far East” and Fei Hsiao-Tung’s rich account of rural China in the 1940s, one may sense how the set of conventions regarding self and other determines that the latter must not register within the former’s system.Footnote ⁷¹ While concerns for the ultimate harmony of social order may inform Fei Hsiao-Tung’s sensibility for the destructive effects of the law and its mechanisms of systemic integration, prone as it is to privilege interests instead of values, the very development of such dynamics within the countryside in the 1940s debunks the cliché of a law-world where “the harmony of society is seen as reflecting the general harmony of the world as evinced in nature and the cosmos.” As I indicated previously, I propose to refer to the apparatus of self-righteousness in order to name the set of conventions distinguishing what comes to the fore as opposed to what remains latent regarding the other in terms of securing confirmation of the self’s law.

To be sure, Zweigert and Kötz’s handbook was never translated into Portuguese. Instead, since 1986, a translation of René David’s Les Grands systèmes de droit contemporains, currently in its fourth Portuguese edition,Footnote ⁷² has been a fixture on Brazilian undergraduate syllabi in courses on comparative law. In effect, this approach accords with the view that has prevailed locally ever since the establishment of Brazil’s first law faculties at the beginning of the nineteenth century to the effect that “the analogous jurisprudence of the cultivated nations” should be taught in tandem with local law.Footnote ⁷³ Indeed, such determination in favor of dual legal sourcing was a matter of imperial legislation, which in its turn went so far as to require the mastery of the French language as a condition of student enrollment.Footnote ⁷⁴ In the wording of the imperial statute instituting the first two Brazilian law faculties, in addition to Latin one must show a command of French because “the best books on natural public law, international law, maritime law, and commercial law that one should refer to are written [in French], whereby these doctrines are part of the legal studies curriculum, and many of the books that should be employed as handbooks for now are also written in French.”Footnote ⁷⁵

In the face of such inaugural and astonishing commitment to French law as the true self of Brazilian law, it is not a surprise that a century later one of Brazil’s leading comparatists, Haroldo Valladão, would solemnly proclaim during the “banquet celebrating the 80th anniversary of the Société de Législation Comparée, in Paris, in 1949” that there was no need to create a chair of French law in Brazil “as in all Brazilian chairs, professors, [ … ] as they explain each subject, teach next to Brazilian law that of France and of the other nations.”Footnote ⁷⁶ This set of conventions purporting to articulate, and indeed determine, the relationship between self and other even led René David himself to conclude that Brazil’s legal system would be nothing more than “a synthesis of European laws,” whose “merit” would consist in “imparting knowledge by popularizing the latest trends of our [that is, of Europe’s] legal world.”Footnote ⁷⁷ Repaying David’s compliment, Brazilian law faculties made his book mandatory reading throughout the country.

Both the impression that René David made on the Brazilian other, thus exemplifying the web of practice that Valladão’s remark illustrates, and Zweigert and Kötz’s Portuguese absence indicate the workings of the apparatus of self-righteousness between the polarity of self and other. As I have mentioned, Zweigert and Kötz were never translated into Portuguese. Yet the commitments expressed in their handbook are strikingly similar to the underlying conventions regarding the polarity between self and other that inform both the facility with which René David shaped his impression of the Brazilian other and Valladão’s observation. This dynamic gives effect to the apparatus of self-righteousness. To borrow once more from François Hartog’s, Zweigert, Kötz, and David assume that the multiplicity of laws should ultimately resolve itself into a single system, thus configuring the other as the converse or even as a mere “simplification” or “barbarization” of the self. The multitude of different law-worlds therefore becomes a straight continuum operating under the shadow of the self’s convictions about how the self and the other relate inter se. Should the other accept, for whatever reason, the location of its true self into a foreign self—consider Valladão’s remark once more—any crossing between legal cultures becomes nonsensical. Indeed, within the confines of a single system, laws can simply be taught consecutively just as Zweigert and Kötz proceed from the seas of English law to the eternal heavens of the Far East’s uncourtly wisdom in the breadth of a single page of text.

As one turns to environmental law, and particularly to Ingo Sarlet and Tiago Fensterseifer’s Curso de Direito Ambiental, Germany takes the place of France as the true self of Brazilian-law-as-other. Yet, the semantic structure remains. For example, Sarlet and Fensterseifer turn to article 225 of the Brazilian Constitution positing that “everyone has the right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life. The Government and the community have a duty to defend and to preserve the environment for present and future generations.”Footnote ⁷⁸ The article’s first paragraph specifically lists a series of governmental responsibilities to ensure this right such as “[to] preserve and restore essential ecological processes and provide for ecological management of species and ecosystems”.Footnote ⁷⁹ Even though Brazil’s constitution dates from 1988, in their discussion of the “principle of ecological integrity” the authors first refer to later international documents such as the Rio Declaration of 1992 or the Earth Charter of 2000. After parsing these two texts, they hold that “in the constitutional domain the concept of ecological integrity can be easily identified in many constitutions.”Footnote ⁸⁰ The Grundgesetz [GG] [German Basic Law] article 20(a), for example, employs, as it expounds about ecological protection as a duty and task of the State, the expression “natural foundations of life” (die natürlichen Lebensgrundlagen), whose normative content determines the safeguard of ecological balance in an ecosystemic perspective. After confidently referring to the German Basic Law, the authors pivot to Brazil’s Constitution so as to mention how article 225 and its first paragraph “also reflect the content of the concept and principle of ecological integrity” (ökologische Integrität).Footnote ⁸¹ Various observations are in order.Footnote ⁸²

First, the wording of Basic Law article 20 does not posit a fundamental right to the environment. This absence stirred a fierce controversy, leading to the famous “Klimabeschluss” of the German Federal Constitutional Court on the scope of article 20a. Even after this ruling, German doctrinal scholarship holds that “[in] express [terms] the Grundgesetz does not contain any general fundamental right to the generation or maintenance of a clean environment.”Footnote ⁸³ Second, this article dates to 1994, six years after Brazil’s 1988 Constitution. Third, Brazil’s Constitution explicitly addresses the preservation and restoration of “essential ecological processes,” which is closer to “ecological integrity” and less open-textured than “the natural foundations of life.”Footnote ⁸⁴ Yet, according to the authors’ interpretation, the German Basic Law and its legal doctrine regarding the principle of ökologische Integrität take precedence as the true self of Brazil’s 1988 Constitution.

Herodotus offers us a statement that beautifully captures the workings of the apparatus of self-righteousness. Ultimately, however, Herodotus also conveys an anecdote that challenges the enunciation’s soundness. The precept runs as follows: “For if anyone should propose to all men to select the best institutions of all that exist, each, after considering them all, would choose their own; so certain is it that each thinks his own institutions by far the best.”Footnote ⁸⁵ In the next section, I discuss the qualifying anecdote, which suggests a thread allowing us to grasp the political import of the conventions shaping how the self and the other approach one another’s laws. The next section shows that the fact of giving serious theoretical consideration to this phenomenon must move us beyond framing it as a mere oddity of Brazilian—legal—culture. But for now, at least two remarks are in order by way of conclusion to this development. First, Herodotus’s claim is anything but a given. As I discuss in the next section, faced with the threat of iterability in law, people must be nurtured to regard their institutions as the best. Second, I am doubtful that Herodotus was oblivious to this situation. Indeed, as Brazilians know well, the very opposite is also possible: citizens can learn to believe, or at least to act, as if the others’ laws are the best.

I. The Nocturnal Council in Plato’s Laws as an Allegory for the Politics of Comparison–at–Law

In the autumn quarter of 1959, Leo Strauss offered a course on Plato’s Laws at the University of Chicago that would metamorphose into his last publication, the posthumous The Argument and the Action of Plato’s Laws (1973). However, and somewhat strikingly, this book omits all of Strauss’s direct remarks regarding traveling except for his comments on Book XII of Plato’s text, the Platonic dialogue’s crucial treatment of “intercourse with foreigners either by citizens going abroad or by admission of foreigners into the city.”Footnote ⁹¹ As Strauss underlines in his discussion, “intercourse with foreigners causes a great danger to well-ordered cities, for it may lead to innovations; the cities which are not well-ordered cities, i.e., most cities, are not exposed to that danger: they cannot get worse than they are.”Footnote ⁹² But all other observations on traveling have disappeared. Yet, traveling is pivotal within the Laws. By way of contrast, Strauss fully engaged in the matter of travel in the course’s transcript—for example, the Odyssey’s opening lines. Interestingly, this overture concerns the multiplicity of laws. In Strauss’s paraphrase, the epic poem describes Odysseus, “the man of many devices,” as someone “who has seen the customs and learned the thoughts of all kinds of nations.”Footnote ⁹³

Famously, Carl Schmitt challenged the philological reasoning that placed noon instead of nomon, thoughts instead of laws, in the third verse.Footnote ⁹⁴ For Schmitt, the enclosing, sitting, and sacred placing that makes a city a divisional and distinguishing order necessarily entails a nómos, but not a noos, insofar as the latter is common to all humankind.Footnote ⁹⁵ Furthermore, Schmitt contended, the third verse concerns “the land,” while the fourth speaks of the sea, and, “decisively,” “nomos is—as distinguished from noos—allocated to land.”Footnote ⁹⁶ Yet, as Strauss tackles Book Four of Plato’s Laws before his students, he draws their attention to the opening discussion regarding the dangers of living close to the sea. Strauss discerns two layers that are important both for interpreting the value of the sea in the dialogue and for making sense of Schmitt’s philological predilections and phobic rejections of waves and the sea.Footnote ⁹⁷ First, “the beginning of democracy, of radical democracy, in Athens is identical with Athens becoming a naval power.” Second, “the whole question of the sea,” insofar as it reminds us of Odysseus, hints at “a theme which goes through Greek thought”:

Let us ponder Strauss’s digression on “underdeveloped countries.” At first sight, this side remark contradicts Strauss’s interpretation of how foreignness only poses a danger to “well-ordered cities.” Yet, it also suggests that Strauss’s seminar resembles a nocturnal council in itself in the midst of the Cold War.Footnote ⁹⁹ According to Plato’s Laws, a nocturnal council consists of a body of men responsible for guarding the identity and, ultimately, the soul of the city.Footnote ¹⁰⁰ In a sense, then, the nocturnal council is an organ of self–righteousness.

In this vein, the distinction between well-ordered cities and not-well-ordered cities speaks to a multitude of pairs deployed across Cold War books, articles, and policy reports or briefs aimed at portraying the US polity as the exemplar of a well-ordered city, while penancing Latin America’s underdeveloped polities to the other side of this disjunction. Just consider the influential divide between well-ordered “institutional regimes” and not-well-ordered “politicized states” that Douglas Chalmers coined in his The Politicized State in Latin America, where the former would be common in North America and Western Europe and the latter in Latin America.Footnote ¹⁰¹ The well-ordered city would therefore enjoy a “fixed and recognized set of legitimate participants, set arenas for action, and rules for decision.”Footnote ¹⁰² By contrast, the remainder undergoes a continuous “redefini[tion] [of] the groups, classes, and interests,” thereby maintaining “the possibility of exerting effective influence outside established procedures” and outlining “the policy-making process” as something that can be “potentially created anew for each decision[.]”Footnote ¹⁰³ The least that can be said about Chalmers’s spurious divide is that the Age of Trump shows it as not aging well. Be that as it may, there is no doubt that Strauss considered “the underdeveloped countries” as not-well-ordered cities. One can make sense of his abrupt reference to them as soon as one acknowledges that he approached his courses as some nocturnal council. Yet, why are “underdeveloped countries” endangered by the disintegrating force of strangers, a problematic initially reserved for well-ordered polities alone?

The nocturnal council tracks change and therefore traces alteration and alterity within the city. Accordingly, it befalls the nocturnal council to decide who shall leave the city to experience the ways of others and to map and surveil the foreigners with whom the allowed leavers come into contact, especially when these foreigners are comparable to the very wanderers that the council dispatches outside the city walls. Strauss summarizes the point for the benefit of his students by drawing a comparison between a contemporary U.S. Supreme Court decision on the unconstitutionality of the refusal to issue passports to Communists and the three interlocutors’ agreement in Plato’s dialogue on the issue.Footnote ¹⁰⁴ Klinias, Melius, and the Athenian stranger concur on “very severe prescriptions, much stricter than those for which Secretary of State Dulles has been accused. You must have very high qualifications to get a passport in Plato’s Laws.”Footnote ¹⁰⁵ It follows that anyone who leaves the city as a herald, ambassador, or in any other sort of public capacity must comply with the ensuing rule: “[w]hen they return home, they will teach the young that the legal customs pertaining to the regime of the others are in second place.”Footnote ¹⁰⁶ Centuries later, well-ordered polities would still be educating their public officials to make their way and return home with a view to telling their fellow citizens, not least their young, that the legal customs of the other not only rank in second place, but that they are mere transplants, imperfect copies of their own.

A completely different framework must govern “certain divine human beings,” who wish “to observe the affairs of the other human beings at greater leisure.”Footnote ¹⁰⁷ Such scrutinization, the Athenian stranger claims, is of great importance “[f]or a city without experience of bad as well as good human beings would never be able, because of its isolation, to be sufficiently tame and perfect; nor, again, would it be able to guard its laws, unless it accepts them by knowledge and not solely by habits.”Footnote ¹⁰⁸ Such divine wanderers thus bear the task of “seek[ing] and track[ing] down, by going out over sea and land, in order to place on a firmer footing those legal customs that are nobly laid down, and correct others, if they are lacking something.”Footnote ¹⁰⁹ The founding and correcting anew of the laws by dint of traveling must observe the following procedure, which deserves to be quoted at length:

The remainder of this Article elaborates upon this fascinating excerpt. For now, I must emphasize two features pertaining to this passage. First, at the very end, the Athenian stranger underscores a kind of shibboleth common to those divine observers. They ask to see something beautiful (καλὸν) and different (διαφέρον). Tellingly, the measure of Herodotus’s Histories is none other than marvels (θαῦμα). As François Hartog expounds, “[a]ny traveler’s tale that claims to be a faithful report must contain a category of thoma (marvels, curiosities).”Footnote ¹¹¹ In analyzing the role of thoma in Herodotus, Hartog claims that marvels, more than acting as a model of digression, prompt and produce narration:

Not surprisingly, the Athenian stranger speaks of how there may be things about the laws of self and other that “appear darker and unclear”—even more so as the divine observer returns from afar. Indeed, the very translation of “the difference between there and here” and therefore the narrative’s impression of reality rest on thoma:

The proximity between beauty and marvel is only one of the many points of contact between Herodotus and Plato. For my purposes, this intertextuality speaks to the intertwinement between the juridical technique of the traveler’s tale and the juristic method of comparative law.

Discussing to what extent Plato would have had Herodotus in mind as his dialogue considered how a well-ordered city must address the witness–traveler falls beyond the scope of this Article and its author’s expertise. Nonetheless, the very fact that the circulation of travelers’ tales carries a foundational import of sorts leads us to the second feature of the extensive passage from Plato’s that I have quoted. This excerpt illustrates how such intertwinement between the juridical technique of the traveler’s tale and the juristic method of comparative law is a matter of normativity whereby the very relationship between the two is subject to detailed, even obsessive, regulation whose violation entails death. Should the city harvest most of the witness-travelers, it must ensure a series of precautionary conventions regarding foreignness.

Keeping this backdrop of conventions in mind, whose observance takes place in secrecy from dawn until sunrise, one acquires a standpoint for making sense of the manifold background metaphors that have been adopted to facilitate the grasp of the concept of the traveling of laws. From travel, migration, and transplants to transfers and translations, mere systematization misses these metaphors’ cultural-technical aspects. Beyond engaging different ethical and epistemological registers, regardless of their differences in terms of violence and even impossibility, each semantic alternative presupposes, at a subsemantic and even mantic level, an attunement to how foreignness fits the self-preservation of the body politic. Illustratively, from this point of view, the belief in the reality of legal transplants is impossible absent the three-month rule,Footnote ¹¹⁴ namely, the convention determining the amount of time proper for a legal comparatist to “observe the affairs of the other human beings.” Furthermore, notwithstanding the transplant’s epistemological impossibility,Footnote ¹¹⁵ the conviction informing what would be the reality of the matter, thus attesting to a web of conventions regarding self and other, exerts a thoroughly possible and often actual impact beyond the academic domain.

Money and political power thus move according to the fantasies inherent in the “transplants” that would articulate the movement of laws, precisely because legal transplants are not realities but a semantic apparatus that renders entire operations pertaining to the traveling of laws latent. In classical terms, legal transplants are a perfect example of a “noble lie.”Footnote ¹¹⁶ Not-well-ordered cities demean their laws, portraying them as a “mere copy” of the laws of well-ordered cities, whereby the latter acquire pride of place in interpreting and applying the former. Conceptually, working across the mass of legal propositions can be outsourced, thereby triggering competitions within the not-well-ordered city, not as regards who best interprets one’s laws, but with respect to who is closer to, and best understands, the other’s laws.Footnote ¹¹⁷ By contrast, the well-ordered cities celebrate and further promote their prestige elsewhere, even inviting and funding foreign observers to study their laws closely, as both self and other agree that the well-ordered city’s laws are indeed the best.

II. The Tupi Experience of Anthropophagy as a Theory on the Incorporation of the Multiplicity of Laws

Hans Blumenberg coined the expression “absolute metaphors” to designate the “basic assets” within discursive formations that operate as more than a “substrate for transformations into the conceptual,” whose image stock cannot be reduced nor broken, and that “reveal themselves as resistant [ … ] to disappearing into conceptuality.” Absolute metaphors, Blumenberg further remarked, have “history in a more radical sense than concepts, as the historical change of a metaphor brings the very metakinetics of historical horizons of meaning and ways of seeing to the fore.” As I interpret Blumenberg, investigating an absolute metaphor demands trying to reach “the substructure of thought, the underground, the nutrient solution of systematic crystallizations[.]” Such effort must strive to “make tangible the ‘audacity’ with which the mind anticipates itself in its images and how it unfolds its history in this audacity to supposition.Footnote ¹¹⁸

To suggest that anthropophagy is an absolute metaphor with respect to legal travel implies that it does not function as a mere item within a collection of examples ordered by similar function. Approaching anthropophagy in these terms has at least three advantages. First, recall how scholarship has discussed whether Herodotus’s accounts are the result of misunderstanding, thus rendering “genuine funerary ritual[s] into one of our earliest descriptions of cannibalism.”Footnote ¹¹⁹ While that may be the case, to paraphrase Blumenberg, mistakes and misunderstandings are productive in their own right—especially when they prove recurrent. Indeed, they recur in the very statement that places genuineness on one side and anthropophagy on the other. Framing this enunciation as an absolute metaphor secures room to evaluate its semantic, subsemantic, and mantic imports irrespective of its “truth,” as we trace the curve around its recurrence—from Herodotus to the Tupinambá to Hans Staden to Oswaldo de Andrade’s manifest, for instance. Second, anthropophagy as absolute metaphor explains the centrality that anthropophagy entertains within travel literature, whether ancient or modern, fictional or real. As Blumenberg observes, the “historical truth” of absolute metaphors is pragmatic in a comprehensive sense: “Their content determines as an indication of orientations a behavior, giving to the world a structure, representing the never experienceable, never assessable whole of reality.”Footnote ¹²⁰ Third, insofar as it consists of an absolute metaphor regarding the traveling of laws, anthropophagy provides a vital cue to examine further legal traveling’s undergirding dromology in terms of self and other because absolute metaphors indicate “the fundamental, underlying certainties, assumptions, and evaluations that regulate the attitudes, expectations, actions and inactions, desires and disappointments, interests and indifference of an epoch.”Footnote ¹²¹

In a sense, as Blumenberg openly admits, absolute metaphors conceived as such border on myth. In fact, their singularity would be only “genetical.” Myth bears the “sanction of age-old, unfathomable provenance, its divine or inspirational confirmation, while metaphor may well appear as fiction and only has to identify itself by making legible a possibility of understanding.”Footnote ¹²² This makes absolute metaphor an even apter tool to tackle anthropophagy, a primordial asset torn between myth and fiction before the abyss of the real.

At the beginning of this section, Herodotus’s story suggests the extent to which anthropophagy operates as an absolute metaphor for forcing, through equivocation, the law of the other into the law of the self. Tellingly, such a pattern underpins the very structure of Herodotus’s anecdote. Beginning with a saying that evokes a common stance among Athenian citizens, namely, holding their laws as the best,Footnote ¹²³ that he quickly elevates to a maxim, Herodotus relies on a story from Persia to prove his point. Now, Persia had just been defeated in the Greco-Persian wars. Nonetheless, Herodotus ultimately praises Darius’s experiment with a verse from one of Pindar’s most famous Olympic hymns. A remark on anthropophagy offers a metaphorical detour that begins with an affirmation of self-righteousness and ends with an equivocation between Persia and Greece, in which the other incorporates the self. Arguably, this passage’s structure differs from the “rhetoric of otherness” common to most of Herodotus’s Histories and Zweigert’s and Kötz’s functionalism. As Llewelyn Price once framed the matter, “the category of ‘cannibal’ itself is a voracious one, consuming and subsuming its boundaries even as it is being utilized to draw them more clearly.”Footnote ¹²⁴ To make sense of this difference of value with a view to capturing what anthropophagy as an absolute metaphor means here but also elsewhere, it may help to turn to those who arranged their entire culture around one of its experiences. Indeed, the fact that we must rely on travelers’ accounts for most of our information on Tupian ethnology certainly aligns with the focus of this inquiry.

“What most human societies seem to only but desire,” Viveiros de Castro has underscored, “the Tupi-Guarani posited in the real – in prophetism and in cannibalism.”Footnote ¹²⁵ Because most human societies consider anthropophagy impossible, they must paint it “in dark colors, confirming humans to their condition: death, reciprocity, finitude and negation.”Footnote ¹²⁶ In the closing pages of his dissertation, Os Deuses Canibais, Viveiros de Castro ventures to draw a parallel between the cannibal complex and endeavors seeking to transcend the realm of culture in the Greek polis. While Orphism and Pythagoreanism sought to transcend human-political conditions from above by observing a “Guarani form,” the Dionysian Mysteries and Cynicism pursued the same enterprise from below, in the form of the Tupi. Speaking a hard truth that can be nurtured only within the nocturnal council, in their commitment to anthropophagy the Tupinambá acknowledged the human condition not only as between animals and gods, but as something precarious, “a moment to be surpassed; the space of culture is not a bulwark to be fortified, but a point of crossing, an equivocal and ambivalent place.”Footnote ¹²⁷

In bringing together the Tupi and the Greeks, Viveiros de Castro is not alone. François Hartog thus compares Herodotus’s Histories to none other than Jean de Léry’s Histoire d’un voyage fait en la terre de Brésil (1578).Footnote ¹²⁸ Léry’s tale exemplifies a turn in representations of “cannibalism” in Renaissance travel literature, a fact that Luciana Villas Boas duly notes.Footnote ¹²⁹ Along André Thevet’s 1558 Singularités de la France Antarctique and Hans Staden’s Warhaftig Historia of the previous year, by dint of their differences in terms of the “rhetorical models” and “semantic fields,” the three works converge in juxtaposing anthropophagy to “European ceremonies [ … ], conceived of as a ritual, symbolic act.”Footnote ¹³⁰ Truly, these three texts figure “among the most important sources for the history and anthropology of cannibalism.”Footnote ¹³¹ Among them, Hans Staden’s Menschenfresserbuch—the “Men-Eater Book”, as his Warhaftig Historia came to be better known—invites particular attention for our purposes.

Staden’s narrative is the outcome of authoritative scrutiny. Before publication, Staden was interrogated by the professor and physicist Johannis Dryander.Footnote ¹³² In fact, Dryander’s interaction with Staden after the latter’s return to Marburg is evocative in more ways than one of the Athenian Stranger’s instructions on how members of the nocturnal council must deal with returning observers. Consider how Dryander questions Staden about the ways—the Handel und Sitten—of the Tupinambá, thereby producing a report that amounts to the second part of Staden’s Menschenfresserbuch. Second, in the words of Luciana Villas Boas, Staden’s narrative is full of episodes that “render tenuous the lines separating a witnessing spectator from a celebrating participant [ … ]Footnote ¹³³ Unlike his French counterparts, Staden is not only an external witness, but, merging in text and image with celebrants, partaking of ‘their customs’ on almost all levels, plays an active role in the course of events.”Footnote ¹³⁴ Most importantly, Staden involved himself directly in the complex ritual of anthropophagy.

Drawing on the reconstruction proposed by Manuela da Cunha and Eduardo Viveiros de Castro, we can assert that Tupinambá anthropophagy pivots on a dialogue between the vanquishing group and its captured enemy, the self and the other.Footnote ¹³⁵ This dialogue preceded the feast on the enemy in which almost everyone participated, even distant allies, except the warrior who had subdued the opponent. Conversation between the victim and the group would take place across the months or even years separating capture and execution. For instance, Staden recounts a warrior who did not miss the opportunity to mock his captor’s ropes and praise his own nation’s craftsmanship.Footnote ¹³⁶ As regards Staden, the German mercenary and prisoner himself,Footnote ¹³⁷ his tearful appeals to God even as he remained blissfully ignorant in matters divine, not to mention his efforts to present to his captors events such as sickness and death as manifestations of God’s providence, failed to generate fear and thus possibly prevent the foreseeable massacre.

These intermedial discussions paved the way for the victim’s final act of boastfulness. Unsurprisingly, the first part of Staden’s book concludes with the reproduction of the prayer he recited throughout his imprisonment. The victim’s statements and interpositions pivoted on his nation’s superiority, his feats as matador, murderer, and man-eater, and how his relatives would later avenge him. Thus, when Staden addresses the reader, disclaiming that he writes “not for the ‘pleasure’ of conveying ‘novelties,’ but exclusively for the purpose of expressing his gratitude for God’s mercy[,]”Footnote ¹³⁸ the affirmation of his Christian identity conveys a dual valence: “The traveler’s assimilation to the native culture, through his performance of the roles of Tupinambá warrior, healer and prophet, is at once delimited by and conflated with his Christian identity.”Footnote ¹³⁹

By dint of equivocation, the prayer is at once a prayer and Staden’s inimical song of defiance in front of his captors, his last musical breath before being devoured. This disjunctive synthesis mirrors a feature present in one of the woodcut depictions of Tupinambá events and customs to be found in the book. Produced after Staden’s descriptions under the guidance of professor and physician Johannis Dryander, they suggest the extent to which Staden embraced the Tupinambá’s performance of the cultural movement embodied in anthropophagy. The woodcut in question portrays the matador just after he has delivered the killing blow to his victim and has him appear as a human being and jaguar hybrid. Here, then, is further confirmation of Villas Boas’s critique of such accounts as they reduce the traveler’s shifting identity to a “display of mimetic, i.e., theatrical, powers.”Footnote ¹⁴⁰ By the end of the multinormativity of anthropophagy, the Tupinambá have playfully incorporated Staden’s beliefs in the Christian God while challenging his self–righteous understanding of reality to the point that one may be entitled to ask whether Staden truly survived.

When asked by the nocturnal council “was für regiment und ordnung sie haben mit der obrigkeit und rechten,” (what for a regime and order had them as regards authority and rights) Staden answered that the Tupinambá “had no special regiment or law.”Footnote ¹⁴¹ Nonetheless, throughout the remainder of his tale, the traveler demonstrates how it is possible to arrange a whole set of conventions vis-à-vis foreignness by dint of the historical truth of anthropophagy in the traveling of laws. Especially as portrayed in Staden’s Warhaftig Historia, Tupinambá anthropophagy confirms the Athenian Stranger’s concerns regarding foreignness and the movement of the laws. It further shows, however, that the set of strict regulations for safeguarding the self that pivot on self-righteousness cannot curtail the becoming-other of law—something at the core of the absolute metaphor of anthropophagy, as suggested by the very structure of Herodotus’s anecdote. At best, such conventions can only render the becoming-other latent, something that may be eventually necessary but that can easily become eventfully catastrophic for both self and other. Consider the noble lie that US Americans have been telling themselves at least since John Rawls that theirs is the paradigm of a “well-ordered constitutional democracy,”Footnote ¹⁴² a lie that acquired its current fashion precisely as the US secret service and military galvanized dictatorships across Latin America.Footnote ¹⁴³

I. The “True Self” of Brazil’s Doctrine on Environmental Law: Mimicking German Legal Dogmatics and the Latency of Brazil’s Environmental Administrative Liability

Consider, before all else, a leading handbook on environmental law in Brazil: Ingo Wolfgang Sarlet and Tiago Fensterseifer’s Curso de Direito Ambiental. Published by the prestigious Editora Forense, the book bears six epigraphs that mesh political discourse, German philosophical reflection on the environmental crisis, and German and Argentine doctrinal statements.Footnote ¹⁵³ Only the two excerpts stemming from political speech are ascribed to Brazilian actors, Chico Mendes and José Lutzenberger, who spoke at the foundation of the “Gaúcha Association for the Protection of the Natural Environment.”Footnote ¹⁵⁴ I must further note that some of the German quotations presented in translation carry the seemingly mandatory placement of words in the original language between parentheses next to the translated terms, although the operational logic ultimately proves to be one of quasi–randomness insofar as even unproblematic renditions are nonetheless accompanied by their German originals—by way of illustration, the phrase “direitos para o meio ambiente ou para os animais” is followed by “Rechten für die Umwelt oder die Tiere” (rights for the environment or the animals)—while pairings spontaneously revealing the impossibility of translation, such as “responsabilidade” and “Haftung” (liability), are absent.Footnote ¹⁵⁵ Could it be that the authors consciously—or perhaps not so consciously—chose to emphasize unproblematic arrangements such as “animais”/“Tiere” so as to perform a continuum between one law and the other while omitting couplings like “responsabilidade”/“Haftung” in order to mask the discontinuity across laws?

With a view to the elaboration of my argument, let us turn to the book’s fourth chapter. There, the authors offer a legal-doctrinal reconstruction of the history of environmental law, which they entitle “The Historical–Evolutionary Development of Environmental Law.” The authors claim that the birth of Brazilian environmental law dates from 1981, when the Lei da Política Nacional de Meio Ambiente (National Policy Law for the Environment) was enacted, irrespective of earlier regulations governing the use of natural resources. To ground this assertion, one finds the following reasoning:

In other words, because such a “congregation of ecological values” occurred in the USA and Germany in 1970 and 1971, it is simply impossible for environmental law to have existed in Brazil before the 1970s. Consequently, in the remainder of their central section, which they entitle Short History of Brazilian Environmental Law: From the Beginning of the 20 ^th Century to Present Days, the authors, beyond addressing the 1981 Lei da Política Nacional de Meio Ambiente (National Policy Law for the Environment) that I mentioned previously, dedicate a couple of paragraphs to the Law of Public Civil Action of 1985 and the Federal Constitutional of 1988. They also append a list of environmental legislation at the end of the chapter where, by way of illustration, the Forest Code of 1965 finds itself mentioned along with a one–line comment undervaluing its importance by reference to what would be its “conservationist” bias. However, the Forest Code of 1965 contained a fundamental provision that informed subsequent developments in environmental policy and Brazil’s global contribution to combating global warming, neither issue being addressed in the handbook.Footnote ¹⁵⁷

While the authors openly present Germany’s Program for the Environment of the Federal Government as a sort of global monument marking the “birth” of environmental law, duly placing its original German name parenthetically immediately thereafter, they do not make a single mention of PPCDAm—that is, Brazil’s Action Plan to Prevent and Combat Deforestation in the Brazilian Amazon, to which I return presently.Footnote ¹⁵⁸ To be sure, in a single-page section on “environmental police power,” the authors note that police power is one of “the main instruments at the disposal of federal entities—Union, States, Federal District, and Municipalities—to exercise their executive competence in environmental matters.”Footnote ¹⁵⁹ Indeed, they even claim that the environmental police power enjoys constitutional status, reading it into article 225 of the Federal Constitution of 1988, which posits the state’s duties regarding environmental protection.Footnote ¹⁶⁰ Later, they dedicate two chapters to the main legal manifestations of the environmental police power, namely, administrative liability and environmental licensing. Yet, they only pay lip service to the single most significant contribution of any individual country to the prevention of climate change,Footnote ¹⁶¹ a striking display of statehood, statesmanship, and of the realization of “the normative force of the Constitution”Footnote ¹⁶² that has its humble bedrock in the environmental police power and in Brazil’s rather singular institution of administrative liability for environmental damage. Indeed, abiding by the standards of relevance pertaining to German environmental law, the authors dedicate twice as many pages to a discussion of civil liability for environmental damage by comparison to the space apportioned to administrative liability and environmental licensing. One is almost astonished that they fail to mention in brackets the word Umwelthaftungsrecht.

Now, the legal provisions and judicial decisions that Sarlet and Fensterseifer discuss regarding administrative liability reveal latent authorial realities and histories. Consider, for instance, article 14 of Brazil’s Lei da Política Nacional de Meio Ambiente (National Policy Law for the Environment) of 1981, which the authors cursorily consider in their chapter 11, “Administrative Liability, Police Power and Environmental Administrative Infractions”:

As far as I am aware, there is nothing closely resembling this provision in Germany’s environmental legislation, which makes comparison between the two legal worlds even more meaningful.Footnote ¹⁶⁴ Indeed, Sarlet and Fensterseifer open their book by quoting a German legal scholar’s fascination with the epochal meaning of article 20a of the German Grundgesetz. Yet, they do not have a single sentence regarding the marvel that is article 14 of the Lei da Política Nacional de Meio Ambiente (National Policy Law for the Environment).

The Brazilian statute also imposes on any undertaking that uses environmental resources the duty to obtain the appropriate environmental license, Article 10. In brief, the issuing authority may condition the environmental permit on a series of measures aimed at reducing, excluding, and compensating for damage resulting from the enterprise. Failure to comply with these measures implies administrative liability in line with Article 14. As Flusser argues, “an evident consequence of being out of phase is the absence of true tradition and, thus, incompetence for working out and changing the models passed on.”Footnote ¹⁶⁵

Let us now consider Germany’s 1990 legislation on Umweltverträglichkeitsprüfung or environmental compatibility assessment. As in Brazil, the assessing authority must establish reducing, excluding, and compensating measures. But, in the absence of planning approval by the competent authority, it is only the pursuit of certain specific undertakings that the German statute explicitly deems “ordungswidrig” or “irregular” (§69). Further, the sanction consists solely of a fine. The repertoire of sanctions proper to Umweltordnungswidrigkeit (environmental infractions) under German administrative law is indeed generally restricted to fines (Bußgeld).Footnote ¹⁶⁶

One could attempt to explain the differences between the Brazilian and German models by claiming that Brazil’s statute is a perfect example of “symbolic legislation.”Footnote ¹⁶⁷ While reputedly both more encompassing and stricter, Brazil’s legislation is however blatantly not enforced. By contrast, “Germany has a comprehensive regulatory framework for environmental protection that is strictly enforced.”Footnote ¹⁶⁸ However, such contrast would be false. Regarding German law, let us examine a single example.

In 2019, Elon Musk’s Tesla announced plans to build a “gigafactory” in Grünheide, Brandenburg, Germany.Footnote ¹⁶⁹ Celebrated by Brandenburg’s government due to the economic and labor growth numbers it promised, Tesla’s initiative was duly approved by the competent authorities in terms of its environmental compatibility whereupon environmental associations challenged the environmental assessment—which authorized Tesla to clear 194 hectares of forest out of which 127 hectares were in a water protection area.Footnote ¹⁷⁰ In light of the struggle’s outcome,Footnote ¹⁷¹ Eckard Rehbinder’s melancholic remark on the difficulties of the “gap problem” pertaining to a standard system of environmental assessment finds itself vindicated:

In fairness, comparable cases abound in Brazil.

In sum, as I read the authors, they engage in an attempt to make German environmental policy history and German environmental legal doctrine—and possibly their own German surnames, too—into a vivid Brazilian experience. In relation to my onomastic observation, I assume the authors will allow me to emphasize the fact that in their book, as they proceed to describe themselves, they do not begin by indicating their current positions in Brazil but rather by drawing attention to their education, a biographical strategy that allows the prioritization of a University of Munich doctorate, on the one hand, and a research sojourn at the Max Planck Institute for Social Law and Social Policy, on the other. To be sure, Brazilian institutional or professional affiliations are ultimately mentioned—with Instagram references to boot, thus bringing to bear a touch of local sociological color!Footnote ¹⁷³

Still, it is the case that Brazil presents an extraordinary instance of law enforcement, whose legal dimensions harken back to the singular development of the country’s environmental law, not to mention Carl von Clausewitz.

II. Enforcing the Right to the Environment: Clausewitz, the Amazon Forest, and the Normative Force of the Constitution

Between 2004 and 2014, deforestation in the Brazilian Amazon fell by 80%.Footnote ¹⁷⁴ No landmark rulings bestowing standing on rivers or forests, nor any economic rationale, underlie this outstanding figure. The reduction happened at the same time as soybean and beef prices skyrocketed during the 2000s commodity boom.Footnote ¹⁷⁵ At the outset, there is no Brazilian court issuing a purportedly pathbreaking judicial decision on the “rights of nature” attracting attention and praise from Global North observers. Much more prosaically, one finds a senior civil servant addressing newcomers to Brazil’s federal environmental law enforcement agency (IBAMA) and inquiring about the distinction between “power of the police” (poder da polícia) and “police power” (poder de polícia), several years after the 1988 Constitution had come into force. As Carolina Stange Moulin explains, relying on interviews conducted with IBAMA’s personnel:

Around the same time, Gilmar Mendes, who would later become one of Brazil’s leading constitutional judges, having earned a doctorate in Münster, Germany, translated and published Konrad Hesse’s Die normative Kraft der Verfassung (1991) in Brazil. The original text was delivered as Hesse’s inaugural lecture at the University of Freiburg in 1959, some years before Hesse ascended to the German Federal Constitutional Court. The translation has achieved significant success in Brazil, making “força normativa da Constituição” a ubiquitous slogan within Brazil’s constitutional discourse. Hesse’s aim connects with the disputes between Rudolf Smend’s and Carl Schmitt’s students over how to approach West Germany’s Grundgesetz, serving as an admonition to constitutional scholars and authorities to embrace the novel constitutional order.Footnote ¹⁷⁷ In Hesse’s formulations, such “will to the Constitution” must be reckoned as a key factor determining the chances of success of a constitutional text.Footnote ¹⁷⁸ In Brazil, inauthentic travel worked to obscure the difficulties facing the democratic transition and the challenges inherent in structuring the novel constitutional order. In this vein, the expression I mention partakes of what Marcelo Neves has described as the “hypertrophic symbolic function of the constitutional text,” whereby both the governing elites and their critics avail themselves of the constitution, whether for their “‘legitimating’ rhetoric,” or in critically engaging “for the realization of the values solemnly proclaimed in the constitutional text.” “Paradoxically,” Neves further remarks, “the less concrete the normative content of the constitutional text, the more intense the political and social rhetoric of ‘human rights’ is.”Footnote ¹⁷⁹

Utterly oblivious to such debates, IBAMA agents managed to articulate in semantic ways appropriate to their surrounding administrative structures the difference between the previous and the novel constitutional order, thereby making room from their headquarters for later developments that moved the agency to the center of the Action Plan to Prevent and Combat Deforestation in the Brazilian Amazon (PPCDAm), whose success is tantamount to the realization of the “solemnly constitutionally proclaimed value” of environmental protection and the right to “an ecologically balanced environment,” as established in article 225 of the 1988 Constitution.

As Stange Moulin explains, “the largest decrease of deforestation in tropical forests ever recorded in modern history” is attributable not to prices but to policies.Footnote ¹⁸⁰ Among the indicators structuring PPCDAm, internal and independent audits, credit monitoring, and control are the best performers.Footnote ¹⁸¹ Monitoring and control largely fell to IBAMA and the exercise of the environmental police power.Footnote ¹⁸² As the organization gradually embraced PPCDAm as its point of collective action, article 24 of the Forest Code of 1965 became pivotal. This provision equated “forest functionaries” with “public security agents,” thereby conferring upon the former the right to use force.Footnote ¹⁸³ In conceiving the ways of employing gun-supported environmental police power, Carl von Clausewitz was central. In the words of a key actor in shaping IBAMA for implementing PPCDAm, whom Stange Moulin had occasion to interview:

In the words of the interviewer, “[w]hat could a Brazilian environmental agent in the 21st century have possibly derived from the reflections of a 19th–century Prussian general and applied to anti-deforestation inspection operations?”Footnote ¹⁸⁵

Stange Moulin’s interpretive answer is well worth stating at length:

One can hardly think of a better illustration of what “incorporation” can mean regarding the traveling of laws. In such disrespectful, eclectic, and playful engagement with Clausewitz, a key knowledge-practice towards the realization of the constitutional text, in other words, the unfolding of its “normative force,” thus came into being. In the agent’s clever appropriation of Clausewitz, one can also sense Flusser’s “unhistorical” at work. Unconstrained by the petty “preciousness” and “artificiality” characteristic of the out-of-phase and historically inauthentic cultural level,Footnote ¹⁸⁷ IBAMA devoured Clausewitz, making him other just as the agency also became other. By contrast to Curso de Direito Ambiental’s commitment to the absent tradition of German dogmatics,Footnote ¹⁸⁸ ultimately unexperienceable to the foreigner, one should consider that through the production of such investigative discovery, one finds a dynamic of incorporation at play.