Alexandre F. Mendes (Prof. UERJ)
* Palestra realizada no Human Rights, Society and Arts Research Group (Brunel University, Londres), no dia 27 de novembro de 2025.
First of all, I would like to thank Professor Marcos Vinícius (Brunel University) for his kind invitation. It is a great pleasure to be here, for the first time, at Brunel University in London. I would also like to greet my fellow panel members and everyone in the audience. In the spirit of developing future academic exchanges, especially with the Human Rights, Society and Arts Research Group, the aim of this talk is to explore the relationship between law, democracy and literature, drawing on the philosophical notion of the arts of existing.
I have structured this presentation in three parts: (a) first, I address the crisis of public debate that led me to turn to literary sources in legal education; (b) second, I offer a critical reflection on the humanist tradition in Law and Literature, grounded in an analysis of a short story by Franz Kafka; (c) and third, I draw some provisional conclusions.
I
To begin the first part, it is important to say that, in 2017, I started using literary sources in legal education not as a planned choice, but as a necessity. At that moment, in Brazil and around the world, it was already possible to feel the profound crisis of public debate that is still with us today. After a period of intense political contestation — in events such as the Arab Spring, Occupy Wall Street, and the June 2013 demonstrations in Brazil — the democratic drive began to move backwards, soon leading to culture wars, political polarization and a loss of reflexive autonomy.
The turn to literature was therefore proposed as a response to the collapse of public debate, with texts that present difficult situations, divergent meanings and attention to what shapes our sensibility. It is not the first time we have faced such a demand. If we take the event of 1968 as an analogy, considering that the 1980s ended this moment in central countries, we can also see an effort to renew philosophical thought. Two different examples can be mentioned:
In 1983, in an interview with Paul Rabinow, Foucault mentions the ‘parasitic effects’ of polemics and their impact on democratic debate. Polemics always treat one’s interlocutor as guilty, a suspect, or an enemy, before an authority grounded in dogma. According to Foucault, the result is that a free and risky search for truth is replaced by a structure in which ‘wars, battles, annihilations or unconditional surrenders are mimicked, staging as fully as possible a kind of murderous instinct’.
In the same year, in his lectures and conferences, turning to the Greco-Roman period, the philosopher makes a similar point when he links bad parrhesia (the improper use of frank speech) to the crisis of Greek democracy. The democratic crisis that precedes autocracy is produced when the practice of telling the truth loses its value, when it becomes incapable of introducing any real difference into public debate. This occurs, according to Foucault, either through a widespread climate of enmity — the assembly divided into antagonistic factions — or through the prevalence of flattery and a rhetoric devoid of truth.
In his inventory of ancient styles of existence, including Plato’s practical life as a philosopher, Foucault also interrogates the contemporary moment: how can practices of truth be reclaimed within an environment dominated by polemics and demagogy? How can we create new ways of existing, even if beginning from a risky and unpredictable situation?
As a second example, we may turn to the Italian philosopher Antonio Negri who, in 1987, between prison and exile, published a truly singular book on the Italian poet Giacomo Leopardi, entitled La Lenta Ginestra: Essay on the Ontology of Giacomo Leopardi. Negri compares his own situation to that of Leopardi, who lived under the imposition of the Restoration after the period of the modern revolutions. Unable to draw on the (classical) past as a source of creation, and with the present blocked by a reactionary shock – what Negri calls a ‘collapse of memory’ – Leopardi makes tragedy, sarcasm, irony and refusal into his very force of invention.
For Negri, this displacement does not signify impotence but rather the affirmation of an ethical and philosophical radicality. Sarcasm and irony, in Leopardi, become instruments of a fierce critique that does not reconcile, does not open the way to pacification, but instead exposes the irrecoverable distance, felt at that moment, between ethics and politics. Tragedy, in the same way, is neither pure resignation nor a celebration of suffering: it is the recognition, as in Shakespeare’s King Lear, that every political construction rests upon nothingness, and that only by confronting this nothingness is it possible to conceive new forms of existence.
Negri is compelled to write from an immense void produced by the dissolution of the movements of 1968, seeking a shift from politics to poetry. Poetic beauty moves through negativity and defeat, yet can turn them into active creation, gathering all faculties, senses and affects in a positive gesture. In the final chapter of the book, Leopardi emerges as a ‘lyrical Machiavelli’, a thinker who, like the Florentine secretary, confronts politics as a domain of harsh, disenchanted truth, but shifts that truth into the poetic sphere. Poetry is not an ornament of reality nor merely an aesthetic contemplation; it is a practical experiment in new forms of life. It seeks to produce ‘truer illusions’, such as those of love and shared fraternity, while rejecting the absolute illusions of politics and its vocation for division and war.
II
Turning, then, to a possible synthesis of the effort that links the philosophical experiences of Foucault and Negri during those ‘winter years’ of the 1980s, three themes emerge: an ethics of existence, a poetics of imagination, and fraternity as a better illusion than war. It is an attempt to bring politics and ethics back into dialogue in times of crisis and dogmatism. Could we think the relationship between law and literature through a similar experience, given our present moment?
For this purpose, I would like to dialogue with James Boyd White, author of the classic The Legal Imagination (1973), the founding landmark of the humanist strand of Law and Literature. White argues that legal language is not merely a vehicle for principles and rules, or an instrument to facilitate economic exchanges (Law and Economics), but a means of integrating patterns of sensibility and cultural expectations. Legal practice, according to White, is an enterprise of imagination, a work that must always avoid reducing the other to caricatures and social labels. Conceiving law as a branch of rhetoric and as a form of social literature, White maintains that mastery of language should foster minority narratives and representations.
Today, in certain typologies of the Law and Literature field, the humanist movement of the 1970s is often described as naïve or outdated. But I take the opposite view: James Boyd White is not naïve, and he is fully aware of the risks faced by our contemporary democracies. Rather than merely denouncing injustice and violations of rights, he insists that we must cultivate an art of imagination by practicing a plural and inclusive language.
Turning to the crises of globalization, in Living Speech: Resisting the Empire of Force (2006), White argues that ideological propaganda and the rhetoric of war produce a ‘collapse of living speech’. He observes that advertising manoeuvres, organised disinformation and hate speech prevent public utterances from having any genuine criteria of truth. A distorted rhetoric – one that relies on sentimentality, slogans and commands – destroys the conditions for democratic imagination and for human dignity. To reclaim ‘living speech’ in the face of this collapse means recalling that lawyers, judges, teachers and citizens must practice the art of language in a dignified, creative and responsible manner.
With this, we see that the humanist strand of Law and Literature is fully capable of addressing two fundamental issues of our time: how to conceive a language that is inclusive, and how to prevent the collapse of public debate into war. While I acknowledge the importance of this tradition, I believe that legal humanism cannot deal with certain aspects of juridical-literary experience. As Foucault had already anticipated, living speech (parrhesia) cannot be reduced to rhetoric or pedagogy. It is not a mastery of discourse or a technique of persuasion, but a space of risk that puts modes of existences into question. For this reason, it is also anti-pedagogical: it does not seek to teach something relevant, but to open a new ethical relation, a new space permeated by doubt and uncertainty.
In my view, living speech does not need to place language at its center, nor regard the autonomy of the human person as its sole value. It may open itself to more diverse sensible experiences and to situations in which existences are confronted with risk. The ethical question is not to be worthy of the human, but to be worthy of the events (1968, 2013 etc.) and their demands for other modes of life.
In our literary readings, Franz Kafka, for instance, appears as a writer who has produced an inventory of failures and successes in the relation between events and forms of existence. One such success is found in the short story A Report to an Academy, published in October 1917 in the journal Der Jude. The journal was created to address issues related to the First World War, as well as Jewish cultural and political concerns, nationalist ideas, and so on; yet the major controversies of public debate seem not to interest Kafka.
Instead, the writer focuses on the story of Red Peter, an ape captured on the Gold Coast in Africa during an expedition organised by the firm Hagenbeck — the real name of the founder of the Hamburg Zoo, known for capturing animals and displaying them across the world. Red Peter is captured with two gunshots: one to the face, leaving a scar and giving rise to his nickname, and another near his haunches, while he was drinking water at night.
The first important detail in the story is that Red Peter only learns of his capture through the accounts of others, for his memory begins in the cage of the steamship. The cage is smaller than his body, made of three walls and a wooden crate, forcing him always to keep his knees bent and trembling. Red Peter prefers, at this moment, to remain on the dark side of the cage, avoiding all contact.
This situation corresponds to what Giacomo Leopardi calls the ‘catastrophe of memory: the impossibility of finding an orientation from the past and the feeling of absolute isolation. Kafka describes a forced event that drags the character into a kind of zero degree of existence, in which the only aim becomes to find a way out: ‘for the first time in my life I was without a way out; at least in a straight line there was none; in a straight line before me was the crate; each plank firmly fitted to the next’; ‘I had no way out, but I had to find one”.
In a “clear and beautiful” reasoning forged with his belly — “for apes think with their bellies” – Red Peter decides to cease being an ape. This decision is not, interestingly, presented as an act of freedom. Red Peter explains that, had he been a partisan of freedom, he would, in despair, have thrown himself into the ocean. If full freedom lies outside the ship and the cage – but leading to death – the way out points, paradoxically, inward, towards ‘the clouded gaze of the men around him’. Kafka could not be clearer: to find a way out is to accept risk and commit oneself to a new form of life: ‘No one promised me that if I became like them the bars would be lifted. No such promises are made for apparently impossible achievements.’
Red Peter learns from the humans around him how to acquire a ‘maximum inner calm’, avoiding desperate acts. From this calm, a more measured appreciation of the situation becomes possible and, with it, the first hint of a way out: he must imitate those men. This proves an easy task, for in a certain sense they are predictable; they repeat the same gestures, the same movements, the same routines, and they too are confined to the ship. Red Peter even begins to regard this resemblance with tender, fraternal eyes; the distance that separated him from those humans is not so absolute after all.
What is at stake is not imitating human beings in order to acquire an art of language. The process did not begin with the mastery of a classical cultural heritage, but with exchanges of spittle among all involved, and with a few techniques for handling a pipe. Yet it is through the ritual of drinking schnapps that Red Peter makes a new and decisive advance. After many lessons and with great difficulty, he manages to empty an entire bottle of the drink, freeing himself from it ‘not as one in despair, but as an artist’. The artistic act reached its climax when, completely out of his senses, Red Peter did not scratch his belly like an ape, but instead uttered a human sound: ‘Hallo!’, entering the community of men to the applause and euphoria of the audience.
With this mixture of imitation, learning and brief hallucination – from isolation to an artistic gesture – Red Peter finds a direction and begins to line up his teachers before him, devouring their lessons with remarkable speed. He soon reached “the average education of an European” – which, he notes, means nothing in itself – but in that context it allowed the cage to be opened and made a ‘special way out, a human way out’ finally available. This way out is confirmed when he uses all his energy to refuse the Zoo and choose the variety theatre. After all, the simulation of life in the jungle would be only another cage – an empty imitation devoid of art. The theatre, by contrast, though more unpredictable, is a space of variation and artistic improvisation.
Moreover, far from being a simple process of acculturation, an art of existing is capable of reversing relations of power: the ape nature slips away from Red Peter and reaches his trainer, who must be admitted to a sanatorium; the ape-artist now has a human agent who, in a tamed and obedient manner, responds to the sound of his bell; with his hands in his pockets, Red Peter drinks a good wine and sits in a rocking chair, looking out of the window – which, in Kafka’s language, always signals greater autonomy.
The story ends with Red Peter making it clear that he does not seek any judgement on human beings. He wishes only to present a simple and straightforward report. Kafka, in a way that recalls Nietzsche, offers us a justice without the impulse to judge – a justice understood as art and creation. Red Peter’s ‘living speech’, inseparable from his new existence, does not aim to condemn or absolve humanity; it does not seek to eliminate enemies or factions; nor does it use language to demand respect or dignity – gestures that remain all too human.
Faced with a forced event, with a life initially reduced to nothing, he turns to a more practical ethics: to find a way out, to avoid absolute illusions, and to become an artist of existence. In doing so, he did not obtain the justice of human beings, with its endless promises and rewards, but he obtained for himself the right to exist.
III
In this way, we can summarise the relationship between democracy and living discourse through three distinct emphases:
In James Boyd White, we find the tradition of humanist rhetoric in conflict with imperial and autocratic forms, but still presupposing the human as a value given in advance. In Foucault, parrhesia introduces a displacement that exposes the limits of rhetoric and its pedagogy, indicating that ethics requires an inventive and risky practice of the self. Here, subjectivation, in its relation to truth and power, constitutes the concrete terrain of this experience.
In Kafka, this movement is taken to the extreme. The very possibility of existence demands an art that involves calmness, observation, new gestures, modulations of body and space, and a permanent capture of forces that are presumed to belong to the enemy. While culture wars push us toward absolute enmity, with war and the end of democracy as their horizon, Kafka teaches us an ethics of the good struggle: twisting available forces and materials until they become capable of producing the right to other modes of existence.
