The new sources of Law are welcome
Article in Correio Braziliense, on 17/07/2018, on the multiplication of the sources of Law in contemporary society.
Translated from the original.
Fábio Medina Osório
We live in times of rapid ruptures, global and paradoxically increasingly fragmented environments. Some authors call our space the Global Village (MacLuhan), the Information Society (Fritz Machlup), the Age of Complexity (Morin), the New Middle Ages (Alain Minc) or Postmodernity (an expression that originates with multiple authors from different strands).
What is certain is that there are paradigm shifts in the twenty-first century, not only in the arts, aesthetics, knowledge and customs but, above all, with the advent of a post-industrial and technological society and the emergence of a digital world. It is a disruptive society par excellence, one that causes changes in established market patterns at an ever-increasing speed.
Law has been adapting to these brutal changes, reflecting a search for legal certainty and for adequate solutions to conflicts, as well as prevention of problems. There is a growing interrelation between Law and other fields of knowledge, given the need to face sophisticated challenges of this complex, fast and unpredictable universe. It is an illusion to imagine that the old solutions will subsist for the new problems.
If we look at the History of Law, we will see that its sources were many. In primitive societies, there was no difference between Law and religion, or morality. Before the appearance of writing, the very possibility of the emergence of Law itself is even questioned.
The evolution of societies has always been guided by an intimate link among Law, morality, customs, and social, cultural, economic and religious practices. It is not ignored that the embryo of Law, as an instrument for coercing human behavior, lies in beliefs, customs and cults tied to groups with kinship bonds, and later in the formation of religions, as the classic Foustel de Coulanges well chronicled.
This has not changed, in essence. In comparative legal systems, there is law formulated by legislators or by rulers (elected or not by the people) and there is law given by judges (elected or not by the people). And there is also law produced by agreements (mediations, conciliations, arbitrations, conduct adjustment agreements, commitment agreements and so many other formulas that each system may provide for).
In this new environment in which we live, does the law given by legislators, by judges or by other actors predominate? The New Code of Civil Procedure, following a worldwide trend, adopts the theory of precedents and signals that we should privilege case law as a source of law. If this logic holds for the system governed by civil procedural rules, it is evident that it should extend to the criminal procedural system and to the administrative system as a whole.
It cannot be accepted that, at the mercy of arbitrary whims or subjectivism of interpreters, and without any technique, the abstract texts of legislators be applied to concrete cases in totally different ways for analogous cases. Case law, based on the techniques inherent in the theory of precedents, must be observed by criminal judges as well as by civil or administrative ones.
Another trend is the path of consensual solutions. The Judiciary is a congested and unpredictable channel for resolving conflicts. One may opt for settlement, conciliation, mediation or arbitration. Even in the criminal sphere, it is very risky to bet on litigation. In white-collar crimes, the important thing is to recover the diverted resources. For that reason, the Public Prosecution Service has been pursuing the strategy of cooperation and plea agreements, as well as leniency agreements and conduct adjustment agreements.
Regulatory agencies and independent administrative authorities follow this same path through leniency agreements and instruments for ceasing infringing practices entered into with individuals or legal entities, seeking swift and dynamic solutions to complex problems that affect diffuse interests. And international cooperation facilitates the paths.
This same perspective should apply in the administrative field, including tax. There is no reason for the Union to remain the largest litigant in Brazil (the INSS, for example). Agreements, in the interest of the public good, should be entered into. This is what should also occur in the context of administrative improbity actions. These are the new sources of Law at work.
Fábio Medina Osório , Lawyer, former minister of the Office of the Attorney General of the Union.
Fábio Medina Osório, to Correio Braziliense: “The new sources of Law are welcome”
17 July 2018
Fábio Medina Osório
Fábio Medina Osório
We live in times of rapid ruptures, global and paradoxically increasingly fragmented environments. Some authors call our space the Global Village (MacLuhan), the Information Society (Fritz Machlup), the Age of Complexity (Morin), the New Middle Ages (Alain Minc) or Postmodernity (an expression that originates with multiple authors from different strands).
What is certain is that there are paradigm shifts in the twenty-first century, not only in the arts, aesthetics, knowledge and customs but, above all, with the advent of a post-industrial and technological society and the emergence of a digital world. It is a disruptive society par excellence, one that causes changes in established market patterns at an ever-increasing speed.
Law has been adapting to these brutal changes, reflecting a search for legal certainty and for adequate solutions to conflicts, as well as prevention of problems. There is a growing interrelation between Law and other fields of knowledge, given the need to face sophisticated challenges of this complex, fast and unpredictable universe. It is an illusion to imagine that the old solutions will subsist for the new problems.
If we look at the History of Law, we will see that its sources were many. In primitive societies, there was no difference between Law and religion, or morality. Before the appearance of writing, the very possibility of the emergence of Law itself is even questioned.
The evolution of societies has always been guided by an intimate link among Law, morality, customs, and social, cultural, economic and religious practices. It is not ignored that the embryo of Law, as an instrument for coercing human behavior, lies in beliefs, customs and cults tied to groups with kinship bonds, and later in the formation of religions, as the classic Foustel de Coulanges well chronicled.
This has not changed, in essence. In comparative legal systems, there is law formulated by legislators or by rulers (elected or not by the people) and there is law given by judges (elected or not by the people). And there is also law produced by agreements (mediations, conciliations, arbitrations, conduct adjustment agreements, commitment agreements and so many other formulas that each system may provide for).
In this new environment in which we live, does the law given by legislators, by judges or by other actors predominate? The New Code of Civil Procedure, following a worldwide trend, adopts the theory of precedents and signals that we should privilege case law as a source of law. If this logic holds for the system governed by civil procedural rules, it is evident that it should extend to the criminal procedural system and to the administrative system as a whole.
It cannot be accepted that, at the mercy of arbitrary whims or subjectivism of interpreters, and without any technique, the abstract texts of legislators be applied to concrete cases in totally different ways for analogous cases. Case law, based on the techniques inherent in the theory of precedents, must be observed by criminal judges as well as by civil or administrative ones.
Another trend is the path of consensual solutions. The Judiciary is a congested and unpredictable channel for resolving conflicts. One may opt for settlement, conciliation, mediation or arbitration. Even in the criminal sphere, it is very risky to bet on litigation. In white-collar crimes, the important thing is to recover the diverted resources. For that reason, the Public Prosecution Service has been pursuing the strategy of cooperation and plea agreements, as well as leniency agreements and conduct adjustment agreements.
Regulatory agencies and independent administrative authorities follow this same path through leniency agreements and instruments for ceasing infringing practices entered into with individuals or legal entities, seeking swift and dynamic solutions to complex problems that affect diffuse interests. And international cooperation facilitates the paths.
This same perspective should apply in the administrative field, including tax. There is no reason for the Union to remain the largest litigant in Brazil (the INSS, for example). Agreements, in the interest of the public good, should be entered into. This is what should also occur in the context of administrative improbity actions. These are the new sources of Law at work.
Fábio Medina Osório , Lawyer, former minister of the Office of the Attorney General of the Union.