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The relationship between the necessity to decide, judicial organization and the central role of the courts in the legal system, allows a new idea about the confinement of the Law’s operational system, precisely since the temporal and objective perspective. The decisions can be designed, abstractly, as a way in which the relationship between past and future stops and starts again. The courts rebuild the past in the shape of the cases that they are analyzing. It only brings in discussion what is important for the case's decision- nothing else. This article is about the Society's law (Das recht der gesellschaft) by Niklas Luhmann, in a way that can provide a systematic study about some key concepts to the author and also a review of some topics covered in the chapter, such as the differences between legislative and judicial power, the role of the decision to build the Law to the systemic theory and, mostly, pointing the theoretical distinction between center and periphery in the Law's system.
2023
O controle de Convencionalidade é uma exigência da Corte Interamericana de Direitos Humanos (Corte IDH) para os Estados Partes da Convenção Americana Sobre Direitos Humanos (CADH). Quanto ao Brasil, indaga-se: o Supremo Tribunal Federal (STF) e o Superior Tribunal de Justiça (STJ) estão em harmonia com a Corte IDH na matéria? Pretende-se verificar como o STF e o STJ exercitam o controle de convencionalidade. O resultado foi obtido a partir do emprego de análises qualitativas e quantitativas, mediante critérios previamente estabelecidos, sobre os acórdãos do STF e do STJ encontrados nos sites dos respectivos tribunais. Espera-se contribuir com o desenvolvimento da matéria no direito brasileiro.
Brazil is the country that has the largest number of law schools-around 1.3 thousand-and a large amount of law graduates-around 830 thousand licensed lawyers and another 1.5 million unlicensed law graduates, according to the official statistics. Not only that, but also the number of law schools in Brazil is greater than the sum of all the other law schools around the globe (just as an idea, the United States has 205 law schools and Australia has as few as 36). Our numbers are impressive and give us an enormous research potential-at least in terms of " human resources ". However, there is consensus that legal education and legal research in Brazil is still poor and obsolete. The majority of law schools uses only the system of lectures as a standard for teaching. And most of the research is just a matter of analysis of the legal text without any support from empirical data. Certainly, there are other inputs that influence this negative scenario, for instance, the increasingly massification of the Brazilian universities into profitable business models-e.g. we have the largest educational holdings in the world. All these-and others-inputs will be more deeply analyzed throughout this paper. In this sense, in legal education, the result is that only a small part of the Brazilian students achieve to be lawyers, as per around 80-90% of graduates fail the National Bar Examination. Even among those who pass, the legal knowledge is not exemplary. From the legal research standpoint, the results have also been disappointing. The optimistic side is that whilst most of " mass schools " still suffer from anachronistic and
Verfassung in Recht und Übersee, 2011
This paper investigates the historical, political, social and philosophical basis that inform class actions in Brazil. This branch of law is presented as a result of overcoming the modern individualistic paradigm, classifying it as public law litigation. This article discusses the principles and objectives of class actions, and demonstrates how they restructure the concept of adjudication. It is affirmed that class actions judicialize political issues, making the Courts stage of discussions in direct democracy. Due to this restructuring, this study supports the prevalence of class actions over individual actions, when both forms of protection are possible.
The paper focuses on the contemporary debate about legal research, with attention to the Brazilian situation. This discussion has intensified over the last decade and it is already possible to draw some prospective considerations and critical assessments about the difficulties in differentiating the various types of work produced by graduate programs and researchers. The first section reviews the discussion held so far, highlighting the emergence – both in speeches and in everyday Brazilian institutional scenario – of a different kind of legal scientific work: empirical research. The second part undertakes a critical examination of the debate and demonstrates that there are some outstanding issues related to legal research, in particular the difficulty in distinguishing between the professional studies and scientific research or philosophical elaboration. Those two kinds of legal research are identified and distinguished in order to show the possibilities of dialogue among them. Also, it indicates that it is crucial to the institutionalization of legal research a more demarcated border between the technical products and scientific products (pure or basic research), with a specific space to be granted to empirical studies. The third section concludes the paper based on the assertion that empirical legal research is an international phenomenon. Such assertion is, in this sense, comforting, since it allows viewing that the Brazilian scenario is in tune with what is being done over the world in terms of legal research. Also, it indicates that the path of consolidation of empirical research has proved to be relentless. Such research is needed due to the constant demand for diagnostic and assessments for the innovative propositions in terms of public policies. Finally, a critical argument is performed to postulate the future need of expansion in the volume of basic or pure empirical legal research to undergo the scientific objectives of refiningthe methodological tools and theoretical approaches. As such type of research can only be carried out by academic groups linked to graduate programs and students amidst their production of theses and dissertations, a special attention should be given to these institutional development and empowerment.
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