Today, we are here to reflect together in a time wherein we find ourselves in a blockage. A time that involves all of humanity in a pandemic, from North to South. Wherein globalization, generated by the logic of profit laws of the market and finance, seems to be devastated by it.

Vulnerable humanity and the new frontiers of law

First, I would like to express my gratitude to you for this invitation. It is a gift for me to share an initiative that allows me to get to know many and rediscover those I already know.
Today, we are here to reflect together in a time wherein we find ourselves in a blockage. A time that involves all of humanity in a pandemic, from North to South. Wherein globalization, generated by the logic of profit laws of the market and finance, seems to be devastated by it. Faces of people, personal and family stories, tell of the suffering that affects and unites us all. A time that makes us realize that some goods cannot be sold or bought: not time, nor the gratuity of those who spend their lives for others. Vulnerability and fragility give us back our humanity, regardless of age or social conditions, young and old, humble and powerful, citizens and rulers.
The events we live in make us more aware of civil rights that are measured on equal dignity, proper to the humanity of each, without attributes or preferences, without discards and exclusions. In the pandemic, which involves us all, benevolence brings us back to face the essence of life: our inviolable human rights and its source of origin. That right in which the drama of suffering also lays bare the innumerable injustices.
We observe reality as it currently offers itself to us. The preparation of assistance and health care intervention for many; hospitals become places of welcome, showing commitment and dedication—but unfortunately, not for everyone. These unfortunates are the “least”. And among them, those “left behind”, are the homeless. They are lying out there in the open air, allotting their space, for avoiding contagion, by drawing on the asphalt themselves because they, too, must respect social distancing for the reason of protection as imposed by the “rule”. And without doubt, no one intends to cancel the duty of the rule. However, the same measures can be discriminatory for the poorest, for disadvantaged families, children, the elderly forced into solitude that is difficult to deal with, workers without protection, etc. Therefore, rules in themselves are not enough to make the law a claim of justice. Here is the yearning that the cry of the poor awaits. Here is the appeal that those who have suffered an offence request. Here is the demand for quality of rules that govern coexistence, research in the practices of conflict resolution and protection of rights.
While faced with the many afflictions of our times, science, politics, and economics are looking for ways to help. But contradictions, inability to deal with a viral infection, and the many “protection gaps” are not lacking. The narration of the ability of progress to make us more free and equal, the increase of technology in the horizon as a protagonist in history, a closed global market meant to satisfy only the interests of a few, are aspects that cannot alleviate humanity. Humankind rediscovers itself fragile and vulnerable. Be them rich or poor, powerful or marginalized, or even least of the Earth.
The pandemic has also transformed our rhythms and interpersonal relationships in everyday life. It demonstrates that no social or natural phenomenon is as indifferent to law, nor can law remain indifferent where the weakest await protection. But not to safeguard the needs dictated by consumption, but by the existing rights of a person in his natural human dignity.
If so, then the end of life cannot be just a number that increases the sum of national and world statistics. And yet, often it is an event that tells about abandonment and loneliness, making the question legitimate: can a pandemic, and to what extent, limit fundamental rights? Rights of freedom in its most varied expressions such as free mobility, work and the performance of economic activities? Of course, life and health precede as fundamental rights, to the point of reminding us that health is also the right of the other, and therefore it acquires public dimension.
In the narrative of the killing of Abel, to the question addressed to Cain, “where is your brother?” and to his answer “Am I my brother’s keeper?” the affirmation of Jürgen Habermas about justice seem to echo in our time. “Understood in a universalistic sense, it claims that each is responsible for the other.” Therefore, one must always seek the foundation in the person. Accordingly, one can explain the same legality in the reading of the jurist Piero Calamandrei, with the command: “do not do to others what you do not want others to do to ourselves”, until “to feel our fate in the fate of others”.
The dramatic and unpredictable dilemma posed by the pandemic in the alternative between the health of all and the fundamental rights of each, challenges us, first of all, as we set out on new and unprecedented paths of concrete solidarity. However, it also challenges the law in its right to grant protection. Recently, the constitutionalist Gustavo Zagrebelsky has defined the law as “a web of social relations”; a definition that in turn suggests a question: can technology, however indispensable it may be, weave alone that “network” that the community must generate?
Today, we feel called to “take care” of each other, yet to do so it is necessary to return to that original reciprocity, rights and duties, so that the other does not become an “object” of care, but a “subject” to completely compose with me the multiple relationships of coexistence. Even the norms, necessary for it, should, beyond the constraints, have the function of fostering links between citizens, and between citizens and social realities.
Recently, I happened to read a beautiful expression, which reflects the research aimed at overcoming the fracture between the law and the world: the first, reduced to a mere normative technique, and the second, complex but still the custodian of values. My gaze turns to a right that needs rethinking, to no longer be closed in its self-sufficiency, but in “listening to the needs, priorities, problems.”
I am thinking of the “right to listen” to the silent cry of many: in a way that wounded humanity would be able to reassemble its network of relationships from the grassroots and to reconnect today new knots that are intertwined by pain. It catches us unexpectedly, though it makes us drop conditionings and prejudices, appearances and stereotypes. It puts us in contact with each other and re-establish relationships that we have in some ways, lost.
So, the question: «Can he be my neighbour; could he also be my brother whom I did not choose, nor admit […]; the one who does not live in my zone […], who does not have the same thoughts like mine?” These questions do not find us unprepared, or in a sort of resignation, or withdrawal on oneself, because though unconsciously, a concealed fraternity moves our actions. Freedom, which we tend to defend as a fundamental right to protect our individuality, without owing anything to the other, shows itself capable of giving up that portion to ensure health, which is the right of all. Equality, often measured on the prerogatives claimed for oneself and forgetting about the other, can find a living principle in fraternity: it becomes modalities of acting in those who, even just for one elderly, are company and assistance, forgetfulness of themselves.
A recently published booklet by the philosopher Edgar Morin, entitled “The Fraternity, Why?”, in a profound reflection of our times, draws the line of a fraternity not imposed by norms, but which finds its source in that requirement for us--for you. Today, it is precisely the social distancing that underlines this fact, in the absence of those who cannot be close to us, in the loss of contact, or of a presence. Fraternity, as we know, can be “closed” - even in nationalism - or “open”, where it recognizes the humanity in a foreigner and recognizes him as a member of the entire human community. Here is the fraternity that comes to life in a rediscovered relational fabric: in the “bond”, to be recognized or generated in that situation of abandonment where a relationship is lacking; in the “bridge”, a symbolic or real image, but always necessary to unite or travel the distance between distant subjects, to transform it into an encounter.
So, where do we start our journey of discovering fraternity today? In this time when the context of right is so rooted in individualism? Where a “culture of waste” is so widespread, and in some ways, “complicit”?
Fraternity is there, alive in the poor, who are even without the essential—water, a basic for minimal hygiene. In the aged excluded from the priorities of health care. In the “invisible”, and the marginalized members of society, or also those who do not have access to work.
Relationships are at the heart of the law and the object of the norms. They constitute the very essence of fraternity. Which, by its very nature, requires a relationship that becomes its guiding principle: where the rules place bonds, fraternity generates “bonds” between people, transforming the anonymous “world population” into a human family.
What then is the future? Where should we look? I choose to conclude with the words of Marcel Proust: The voyage of discovery consists not in seeking new lands, but in having new eyes.

Adriana Cosseddu

[1] Cfr. le riflessioni emerse nel dialogo dal titolo La pandemia aggredisce anche il diritto?: professori e magistrati rispondono all’intervista di F. De Stefano - https://www.giustiziainsieme.it/it/easy-articles/composer/961/1477#_edn2

[2] J. Habermas, Die Einbeziehung des Anderen. Studien zur politischen Theorie, Frankfurt am Main, 1996, trad. it. L’inclusione dell’altro. Studi di teoria politica, a cura di L. Ceppa, Milano, 2008, p. 42 s.

[3] P. Calamandrei, Fede nel diritto, a cura di S. Calamandrei, Roma-Bari, 2008, pp. 85 e 103 ss.

[4] Id., Diritto allo specchio, Torino, 2018, p. 386.

[5] M. Zanichelli, Introduzione. Per un diritto in ascolto, in Il diritto visto da fuori. Scienziati, intellettuali, artisti si interrogano sul senso della giuridicità oggi, Milano, 2020, p. 13.

[6] L. Alici, Il terzo escluso, Milano, 2004, p. 138.

[7] E. Morin, La fraternità, perché? Resistere alla crudeltà del mondo, Roma, 2020, in particolare, pp.15 ss. e 43 ss.

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