José Martí was the most illustrious of the great men in the struggles for independence of the Homeland and citizen decorum. He was a tireless anti-colonialist fighter, he fought for a united America, from the Rio Bravo to Patagonia; suffering deportation and exile.
Studies and research on the Cuban Apostle have been abundant, however, as a man of law, little has been studied; As far as we know, very few papers have been written on the subject.
We wanted to pay this simple tribute to the jurist Martí; the most universal of all Cubans, "with everyone and for the good of all." Expressed in article 1 of the Socialist Constitution of Cuba.
In the year of the 156th anniversary of his birth; and on the 114th of his fall in combat, in Dos Ríos we have made a meticulous and loving search throughout his production, separating the ideas, interpreting them, ordering them, selecting them, calcifying them; trying, within the limits of the possibilities, to give unity to the great legal work of Marti.
If the proposed purpose is fulfilled, it will contribute to facilitate the knowledge and study of this facet of Marti's work, and we will feel fully satisfied, with the pleasant feeling of an illusion realized of a duty fulfilled.
Martí was a versatile man. The center of his concern was the man, for whom he dreamed of improvement and well-being. He was interested in science, arts, letters, philosophy and law.
The law had necessarily to attract him, because it was revolutionary in the highest and purest sense of the word: it began by carrying out revolutions of ideas, to end in a revolutionary of action, until it sacrificed its own precious life for the sake of its ideals of redemption and freedom.
He had to be interested in the Law even out of spiritual necessity, desperately seeking the weapons for the struggle and the logical compensation: before the arbitrariness, before the crimes, before the oppression of the defenseless homeland, before his own sufferings, he opposed his rebellion, which He would not allow him to hate, because for everyone he cultivated his "white rose", and his investigations in the field of Law, as necessary, as an indispensable explanation.
So I had to study and love the law, to better serve Cuba. There was no reason to assume, in the future, the responsibility of creating the Cuban State, and of organizing the Republic on legal bases.
In this way he could exercise, as only he accepted, to the satisfaction of conscience, the sacred rights of the Homeland.
In his speeches, in his epistolary, in his journalistic articles, in multiple writings, he favored the legal aspect, studying subjects that range from different branches of Law to the Philosophy of Law.
In truth, it amazes, and moves to the most intimate, the magnitude of his production, the serenity of his judgments, the firmness of his opinions and his purposes, the clear vision of the future, that he lost him anticipating the thought of his contemporaries and bequeathing the wonder of his brilliant work, which could be considered as the Martian Bible.
His works are the work of a thinker and a scholar, and thus can be described, despite having carried out in an environment of precipitation and uncertainty and demonstrate a deep knowledge of the essence of Law. Reflecting on Martí jurist, demands to place ourselves in the conception and limits that we have of Law, Law and its deontological approach, its essence and foundations, to establish the epistemological question, its real character.
It is commendable to place ourselves, for example, before the critical, literary or poet Martí, because it is not only the office of resorting to rigorous substantive or procedural norms, it is before principles to be followed by the science of Law.
For sure, the active life of Martí in the exercise of his profession as a jurist is very brief, it barely covers the time that elapses from September 1878 to September 1879, one year, and it would be in San Cristóbal de La Habana.
He requests authorization to practice as a lawyer but is denied for not possessing the necessary documentation and works as an intern at the Law Office of Don Nicolás Azcarate, later with Mr. Miguel F. Viondi, also as an intern. By not legalizing her title due to economic problems, she does not have to swear allegiance to Spain; During his brief stay in Havana, he added to his job as an intern that of being elected Vice President of the Central Revolutionary Club of Havana on January 18, 1879.
His eloquence and sagacity, together with his excellence as a speaker, make him give lectures, leaving the governor himself perplexed in one of them. He is offered an interim mayor's office and is nominated as a liberal deputy to the Cortes.
His son Ismaelillo is born, all this happens in the period after the Pact of Zanjón and the Protest of Baraguá. In September 1879 he was arrested for conspiring with Juán Gualberto Gómez and other patriots in favor of the freedom of Cuba.
On July 7, 1893, Martí delivered a lecture at the Costa Rican Law School at the invitation of the Student Association. They are still wet, the signatures of the Zanjón Pact, when in 1878 it states that rights are taken, they are not requested, it refers to the citizen rights that the Constitution must protect since, in his opinion, they are taken away and not begged.
In his work we find guiding ideas, such as those that advocated the fullness of the Law, that a ruler when he accepts with the Constitution and additional laws that the position represents, warns that there can be no constitutional considerations for what they nest in the bosom of the Constitution with the intention of hurting and devouring it. He will be the one who will leave us saying: "I want the first law of our Republic to be the cult of the Cubans to the full divinity of man."
In Spain, he is shaken in the depths of his soul by the vile execution of the eight medical students, on November 27, 1871, and his voice is raised in his condemnation. At that time there appears in that country "The Political Presidio in Cuba" and, "the Spanish Republic before the Cuban revolution" where it expresses "and if Cuba proclaims its independence by the same right it proclaims the republic; it shows that glory and triumph are nothing more than an encouragement to the fulfillment of duty. In the practical life of ideas, power is no longer any manifestation of justice, the firm will before all the advice of cruelty or pride…. On free suffrage, on conscious suffrage. "
Your law studies
Arrived in Madrid, he soon related to society. His presence, his sympathy, his easy word, his talent, his youth, and his pain, created friendships and sincere affections.
The "Political Prison in Cuba" and the "Spanish Republic in the face of the Cuban Revolution" were fixed as a blow of the chisel, in the conscience and in the history of the Homeland.
He reads with passion, avidity, with the anxiety and anguish that he thinks he has little time, and a lack of his own books, he frequents public libraries, obtaining in these, and in museums, his wide and amazing culture.
The intellectual circles receive and listen to him with great interest. He was beginning to be respected, for his brochures, writings, speeches, as a politician, lawyer and speaker. Feel strengthening his faith, which becomes unshakable and austere in the future destinies of Cuba.
He defends the national ideals whenever he is presented with. When he began as a speaker, and he does it so brilliant, that he already glimpses in him what was later. His new life hadn't made him forget his past life. The oppressed homeland continued to live in him, and his vehement, loyal, passionate heart, with the news he received from Cuba, accelerated even more in his chest, as if wanting to jump out, to join the anguished, aching rhythm of the hearts of his compatriots.
His life is modest, and his financial powers very limited; but the sympathy and appreciation that he had aroused among his compatriots, resolved his difficult situation, providing classes to individuals. He already has for his little needs and for his great luxuries: books, art museums and theater.
At that time, a study plan that favored Martí was in force in Spain: This plan allowed him to enroll in, and examine, university subjects, without having finished the second year studies that he left in the third year, when the school of Mendive. He was able, therefore, and thanks to this anomaly, to enroll in the Law School of the Central University, on May 31, 1871.
He intended to study hard, to finish his career; but various factors hindered his plans. Patriotic activities, on the one hand economic difficulties, which forced him to work without rest and on the other; his state of health, delicate and modest, were his great obstacles. In prison; the chains had caused a severe and painful injury to his groin; faithful reflection of your past suffering; and the two operations they had performed had not been satisfactory. He only managed to pass two subjects: Roman Law, first year, and Political and Administrative Law; instead it had been a failure in Roman Law, second year, and in Political Economy.
Martí decided to move away from Madrid. The Spanish capital was not the right environment, suitable for completing his studies, as two years had passed since he enrolled at the Central University, and he had only managed to pass the two subjects mentioned.
Transfer to Zaragoza. Your graduation
He moved to the Institute of Zaragoza. Examines between the years 1873 and 1874, the rest of the subjects in Law and Philosophy and Letters. At the same time that he was studying these university studies, he was also doing his Baccalaureate subjects. He carried out the exercises on the 30th of the month of the Bachelor of Art degree on June 25 and 27, 1874, and the Bachelor of Law.
As he prepares for his law graduation, on that morning of June 30, 1874, held incommunicado for three hours, he pondered his thesis. It develops orally, the subject drawn at random "Initial paragraph of the book first title second of the Institute of Justinian. Of the natural law of peoples and civil. " The examining court approves it, and in this way he obtains the degree of Bachelor of Civil and Canon Law. On October 24, for his brilliant presentation before the examining board, he obtained an outstanding qualification, and reached the degree of Bachelor of Philosophy and Letters.
Constitutional law
If it is known that the Cuban socialist Constitution of 1976, endorses in its article one that: “Cuba is a socialist state of workers, independent and sovereign, organized with all and for the good of all, as a unitary and democratic republic, for the enjoyment of political freedom, social justice, individual and collective well-being and human solidarity ”, it can be remembered that Martí wanted to create an ideal, stable and dignified Republic. He thought of founding it on the strongest foundations, and the greatest firmness and full security that he believed he found was in the necessary contribution of a man of "virtue and dishonor for the rulers and the ruled."
His ideal of a Republic was something extraordinary; His vision was great and he felt and sensed, like no other, Cuban needs, and both national and continental events that would significantly influence the future of Cuba; and conceived the ways and means to save us from threatening dangers.
His work is great and remarkable for having been completed in so few years. Work of constant dedication, determined, passionate. She wrote and spoke a lot. She wrote in newspapers and magazines in different countries, and published brochures and displayed her ideals in numerous letters. And she gave multiple speeches, eloquent, of magnificent, suggestive style, appropriate to lift the fallen spirits of emigration and to unite all Cubans in the ideal of freedom.
He used three means to, through his revolutionary work, create a republic: the pen, the word and the organization.
The task is not easy, and he says it clearly: “Not by light hand, but as a conscience of centuries, the new life of the redeemed Antilles has to be composed. With august fear one must enter into that great human responsibility. It will be reached very high, for the nobility of the end; or it will fall very low, for not having understood it. It is a world that we are balancing: there are not two islands that we are going to liberate. "
For him it is not enough to want freedom and the Republic; sacrifice and virtue are required together. Many things must be renounced for the good of the Republic. It is essential to "be men of virtue and honor", not feel "envy", or be "interested" and leave "vanity."
And it conceives, distributed, as sown in its various productions, the following constitutional bases:
- The Constitution, "the first Law of the Republic, will be the cult of Cubans to the full dignity of man." That is the best, the most efficient way to elevate and equalize men. The Republic is organized, based on "with everyone and for the good of all." It will emerge "to the love of freedom and ease of work, endorsed in article 45 of the Constitution of the Republic is expressed:" Work in socialist society is a right, a duty and a reason of honor for each citizen.. Abolition of the death penalty. Justice will be the basis of the Republic, a firm foundation, because "only what is fair is saved and lasts." We will have to "put justice as high as palms." Virtue will be the guide of rulers, who will govern according to the laws. "Obedience is the government." Honesty will characterize the public agent,which will not take, neither for itself nor for its own, what is national patrimony, and that it only receives as deposit and custody. Action will be taken, political and social problems will be solved, bravely facing it, because "postponing is not solving." Maintenance of civil power. A “just Republic” will be established, in which legitimate interests and the will of the citizen will be respected. Freedom of religious worship, this is endorsed in article 55 which states “The State, which recognizes, respects and guarantees freedom of conscience and religion, recognizes, respects and guarantees at the same time the freedom of each citizen to change religious beliefs or not having any, and to profess, within the respect of the law, the religious cult of their preference ”. Preparation, improvement and improvement of man through education.Education is free, compulsory and free, this is endorsed in article 51 that it expresses. "Everyone has the right to education." In article 45 of our Socialist Constitution, it confirms that “Work in socialist society is a right, a duty and a reason of honor for every citizen. The work is remunerated according to its quality and quantity; By providing it, the demands of the economy and society, the choice of the worker and his aptitude and qualification are met; It is guaranteed by the socialist economic system, which promotes economic and social development. " Inalienable right of the individual.a duty and a reason of honor for each citizen. The work is remunerated according to its quality and quantity; By providing it, the demands of the economy and society, the choice of the worker and his aptitude and qualification are met; It is guaranteed by the socialist economic system, which promotes economic and social development. " Inalienable right of the individual.a duty and a reason of honor for each citizen. The work is remunerated according to its quality and quantity; By providing it, the demands of the economy and society, the choice of the worker and his aptitude and qualification are met; It is guaranteed by the socialist economic system, which promotes economic and social development. " Inalienable right of the individual.
Labor law
The teachings on labor law began in Cuba from 1933, since by then the Martian doctrine began to be translated into legal norms.
Martí is passionate about work, and recognizes its advantages and merits, and praises them. "Human conscience grows: work is not to make merit, but to obey: the arrogance of the voice that calls man to work indicates that he is sure that he has to abhor it."
Man grows with the work that comes out of his hands. And that is why he feels satisfied with the work done. The influence of work on freedom is undeniable. It affirms it. "Safe freedom goes through the work of the hands, pure and creative, through the real works of the mind, not through rent and ornament.". You can only be one of two things: "workers or lackeys."
Work is intimately related to the nation, and influences it. It is the great influence of the social and the political. It speaks of compulsory, free and free education, and properly paid work.
He is concerned about the tremendous problem of ignorance of the classes that have justice on their side, and the moral inability of some men to see and recognize the rights of other men.
He does not conceive of hatred or the struggle between rich and poor. Nor does the class struggle enter into her ideology, which is why she says that “Sisters in our trade. There are only two classes among men: the good and the bad. It is annoying to hear about classes. Work is nothing more than the art of minting ideas in gold and silver. Not working is giving up rights. (…) Ease of work is the main enemy of the revolutionaries ”. Hence the work becomes an effective instrument.
Martí observes the environment and, having suffered a lot, understands the suffering of others. He considers himself the lawyer of the poor, of the humble, of the unfortunate, of the mistreated.
Proposes as a legislative measure, the following:
- Reforms of the industrial organization. Purification of the company regime Limitation of working hours (8 hours) Constitution of arbitration tribunals. Equitable distribution of the products of the industries.
Justice with the workers ensures public peace. On the basis of equity, justice, simplicity, it establishes “its social political regime”.
Criminal law
In Criminal Law, Martí did not produce much. They are not actually his actual criminal studies. His works were rather, journalistic work: chronicles; but in itself, admirable chronicles, as such.
Martí acts as what he is: a journalist lawyer, who demonstrates in his writings his legal knowledge as a first-rate journalistic technique.
In these works, brilliant ideas emerge, short and correct definitions, notes of genius. At times he defines a crime: bribery, murder, adultery.
Another is shown as abolitionist and fights the death penalty, not so much out of weakness as out of firm conviction "it must be law in the courts - it preaches - the saving of human life.". He rebukes men.
And he says with irony: "They call justice to that which kills" and then, in one of his brilliant outbursts, he writes with an imperishable phrase, which indicates a basic principle of modern criminal science: "Justice could be called the one that avoids!"
For Martí, fear and threatening dangers will never dominate man or prevent him from committing a crime.
And he draws attention to something that says: "the prison sentence, which is less hateful, is more effective, more fearsome for the criminal than the death penalty."
Classify crimes in legal and moral. He firmly believes in the reforms of men. Study the penitentiary regime and find in crimes the fundamental element, the intention.
Civil law
Martí studies different institutions of Civil Law in this matter, he did not write a work, not even a complete monograph. His works are most of the time newspaper articles, written at a glance and obeying the urgent need to write to eat. But despite this, they are remarkable works, and their accurate, accurate, successful judgments have endured.
An example of how much we have been expressing is in his judgment on the new Civil Code of Guatemala.
In Guatemala he wrote "the New Codes" a critical, brief and accurate judgment, and a "Reflection destined to precede the reports brought by the political leaders to the May 1878 conferences." They are serene, serious, calm productions that highlight "his conditions as a man of laws, politician, and ruler."
In the New Codes, he wrote “this love of clarity and simplicity, which distinguishes exalted souls, determined in Guatemala the formation of a new Civil Code, which could not invent a right, because above all there is the natural one, nor apply this pure, because there were already relationships created "
In the New Codes, he wrote “this love of clarity and simplicity, which distinguishes exalted souls, determined in Guatemala the formation of a new Civil Code, which could not invent a right, because above all there is the natural one, nor apply this pure, because there were already relationships created ”
Martí admits the existence of a natural right and its dichotomy with positive law. “It is therefore the Code; its authors cared less for their own glories as advanced legislators than for the usefulness of their country.
The in spirits, the Code is modern; in clear definition; in the reforms, sober; in style, energetic and airy.
It clearly expresses that the codification of the Law is not for the glory of the legislator, but for the benefit and utility; and it has to serve as a weapon against abuses by exploiters.
Family right
Martí considers the family as the fundamental basis of modern society. He is in favor of marriage, because as he expresses well "life is in the capacity and in sacrifice" and in marriage, he expresses that it is smoother enjoyment in the commerce of souls. Sweet commerce that idealizes and elevates a loved one to inaccessible heights. It is poetry, but it is also the force of life.
For Martí, women are the main force that sustains the home. And without a woman I could not have fixed a home; without it there is no order or beauty in the home. When thinking about women, she also thinks about the way that for her is the content, and the continent of the family. From these general ideas he deduces his conclusions and develops his ideas in family law. He is in favor of divorce, he does not want a divorce, but he considers it indispensable in certain things.
It admits the investigation of illegitimate paternity, but prohibits it when it affects the rights that these children have with respect to the mother or their relatives.
Examining marriage and divorce also think of adultery. The only way to avoid this is the woman's chastity. For Martí, adultery is a terrible stain on marriage and it is like stealing peace from two souls.
By way of conclusions
Marti's thought is full of legal ideas, which are often basic principles. It does not matter that he has not produced a fundamental and complete work. His thinking is multiple. It is like light when it does not have an obstacle that prevents it from shining. Radiate clarity in all directions.
Many times, anticipating the passing of time, the dominant ideas of his time, he expressed criteria, doctrines, his own, novel, not common in his days.
Martí was in the beautiful field of Law, "a true forerunner" at times an innovator, at other times a reformer. Create the Cuban state on legal bases, legally organize the Homeland.
Martí was an eclectic, in his noble and honorable desire to obtain improvement and social improvement, accepting the best of various doctrines. He thought that he had to apply himself to the achievement of the good.
He understood that man had to be guided towards greater justice, purer, clearer, to obtain what is called a better world. It was necessary to combat social ills but with an exemplary purpose. He only accepted life as a consecration to the betterment of all humanity.
When studying his economic ideas, because the sense of the legal is inseparable from them, we were surprised by their ease of expression, their consummate technicality and their accurate approach.
He was a convinced democrat. Determined supporter of equality between men.
We are used to thinking of Martí as the apostle of our freedom, as the poet, the educator, the journalist, the speaker. We do not remember him as the man of Law, who bequeathed multiple legal principles to our republic, to serve as the basis and inspiration for our socialist Constitution and laws.
Martí suffered; but he struggled more than he suffered. In his entire struggle, he employed the instrument of the written word, spoken. His thought was a free seedbed that fell on fertile ground.
He wrote for other men and about other countries; but with the mind set on Cuba, and on the Cubans, fixedly, without deviation, always moving towards the north crowned with light.
Freedom would be waiting there, holy among saints. It was the independence of the Homeland, but it was also peace. Peace for men of good will; peace for his tormented spirits in a long agony of his entire life.
More for him, it would not be the peace of his life. He was chosen by the gods and had to die young, according to popular saying.
But the grave in him was not the end, but the way. He continues to live for Cuba as his immortal thought announced. Death is not true when the work of life has been accomplished; get rid of the thinking skull; but they live perpetually and the thoughts that were elaborated in it bear fruit.
His ideas fit occasionally, in Constitutional Law, in Criminal Law, in Civil Law, in Family Law, in Succession Law, in Contract Law. It has also been stated that in Guatemala itself she began to write a work on law, we know nothing about it, and unfortunately it is considered lost. Perhaps one day she will appear, for the greater glory and fame of herself and Cuba.
As proof also of its legal production, we have its interpretations of the Mexican Constitution.
In his various writings, one can find valuable teachings on Constitutional Law, Labor Law, Financial Law, Agrarian Law, Criminal Law, Civil Law, etc.
He was the most extraordinary of lawyers, extraordinary for his ethical conditions, his honesty, his profound knowledge, his originality of ideas, his kindness, his love without limits for freedom, his sacrifice. And he was also the happiest of lawyers because he had as his main client, fully exercising all his rights, the most ideal, but also the poorest, the most unfortunate, the most abused, the saddest: the Homeland.
Bibliography
Barriers Antonio and Martínez Malo: "José Martí and the Law", lecture given at the Association of Officials of the Judicial Power, Judicial repertoire. Year 1953.
Socialist Constitution of 1976
Garrigó Roque E. "America, José Martí", Havana 1911.
Márquez Sterling Carlos: Martí, Teacher and Apostle, Havana, 1942.
Martí and the Law. Legal Library of Cuban and Foreign Authors. Volume CLXII. Year of the Centennial of José Martí. Jesús Montero, Editor, Obispo, 521. Havana 1953.
Cuban Journal of Law Number 4 of 1991. Edited by the Union of Jurists of Cuba.
