When, as now, new criminal investigations of public interest and implications for the national political, economic and financial system become public, the same bewilderment grows and spreads among the thinkers and commentators preaching in the Portuguese media.

I can say that this bewilderment also manifests itself precisely when and if the news about the initiation of criminal cases in cases of the same nature, no matter how they are made public, is late or not.

Here I want to talk not about this small, but nonetheless significant discrepancy.

The bewilderment that has arisen this time, not devoid of some obvious contradictions, is rather related to the difficulty of the criminal investigation in distinguishing from the outset what is simply an attack on policy ethics and good democratic governance from what it qualifies as criminal law. like a crime.

In an effort to accompany such perplexities and reflections, which were recently emphasized in this connection, I again recalled the accent quoted now: “to politicians what is of politics and justice is what is fair.”

In this regard, it is even necessary to wait reflexively and try to understand whether and to what extent it is possible to establish such a division of responsibilities.

How to carefully consider these two assessment plans for potentially objectionable activities.

First, it must be remembered that the legal consolidation of this fact as a crime is justified only when its ethical denial is recognized in society as serious enough and, therefore, deserves more than just moral, political or social censure.

Consequently, even before such factual information is to be the subject of a criminal court – with the ensuing consequences – a situation that is understood to be reprehensible and contrary to a decent way of life in society has already become the fatal target of negative public judgment.

It is the importance of such social censorship that determines whether an action should be criminalized, and not vice versa.

Therefore, in terms of logical and temporal priority, we must value the possibility of political censorship and, only later, possible criminal censorship.

Therefore, we will say that if censorship and political sanctions – as generally accepted practices – are implemented in a timely manner, with rigor and efficiency, criminal judicial intervention is inevitable and, fortunately, will find less room and opportunity to manifest itself.

Moreover, in modern life, and more specifically with regard to economic and financial crime, it is not always easy to establish reliable boundaries between what is and what should be simply politically and socially reprehensible, and what, moreover, is already reprehensible. from a criminal point of view.

Laws lag behind life, administrative procedures and the most innovative financial business practices, and they cannot always identify and prevent them in time with the required accuracy.

The problem of distinguishing between a purely ethical plan of disapproval and a criminal plan becomes even more complex when, as is the case in the modern world, the political, social and economic regime allows – and even encourages – the participation of designated entities in the substantial, realization of their own profits in the projects of organizations. institutionally and constitutionally, responsible for the implementation of only the common good.

I am talking, of course, about the role of the private sector, naturally oriented towards its own benefit, in the implementation of political projects, in fact, designed to ensure supra-individual interests.

In such cases, from the very beginning, we are faced with various social deontologies, the compatibility of which turns out to be extremely difficult – both on the moral and, above all, on the legal level.

And here, whether we like it or not, we have already entered into a political and ideological discussion.

Discussion of the virtuality of the law as an instrument, which, presumably, in today’s societies should ensure, first of all, a balance between mismatched ethical principles and allow the simultaneous assertion of different, contradictory, if not antagonistic values.

Consequently, more and more criminal law tends to cover, but not in too much detail, the limiting facts.

This is why the exemplary effects that society expects from its application are often deceived.

And for the same reason, many criminal investigations tend to move forward, groping a little, sweeping everything, and then trying to separate the little wheat from the many chaffs until they find the most restrictive behavior that the law actually wants to punish.

However, this is the price to be paid for the substantial confusion that the system that as a whole controls all of us and that has been perfected through neoliberal politics has brought about in our societies.

In fact, it is not easy to reconcile on an ethical and moral level the choice of a private benefit with the realization of the common good.

It is even more difficult to consistently censor behavior that is fundamentally guided by prevailing economic logic, but at the same time contradicts the political and social discourse that is still prevalent as the most morally correct.

Consequently, the political assessment of ethically and socially reprehensible practices that develop in the sphere of economic and financial movements and, moreover, in the sphere of public-private partnership, almost always fades and leads, not without some opportunism, to the previous one. a judicial assessment of what is or is not a crime, and only after – and not before, as it should – makes a moral verdict.

Thus, the judicial investigation and criminal censorship that may ultimately result from it run the risk of becoming, above all, an irreplaceable ruse and necessary social justification for the initial attitude towards ethical indifference and the subsequent inaction of politics with respect to moral actions. … reprehensible, which we are also used to placing in a living space where the so-called economic and financial crime prevails.

The risk that arises from this strategy of mutual delegitimization and reversal of political and judicial decisions – out of this impasse – is to discredit the political instruments of democratic control as well as the rule of law.

However, friction and the ensuing erosion of the social effectiveness of these two plans of social responsibility and censorship can prove fatal to democracy.