Society and Law

It has been said that we live in a law-saturated society, that is, in a world governed by an excess of legal rules. In some way, there would be an omnipresence of Law in almost every sphere of our social universe, making the legal dimension invasive, dictated by public and private actors.

This regulation of social life by Law takes place in pursuit of what is called legal certainty, an ideal necessary for the development of civilized nations. It so happens that, given the speed of social, technological, political and economic transformations, the sources of Law have multiplied and diversified in an intense and disturbing way.

The phenomenon of the convergence of legal families and of comparative law has become evident, reducing cultural distances, because of business and the pragmatic needs arising from globalization. On the other hand, local experiences, the fragmentation of sources, and the recognition of the autonomies and peculiarities of cultures have produced the paradoxical expansion of a kind of legal multiculturalism, a circumstance also perceptible and the object of study in comparative law, always in search of more consistent solutions adjusted to legal certainty.

In this context, the Judiciary ceases to hold primacy in settling disputes. This is a general trend. In it, room is ceded to other parallel actors, such as specialized regulatory agencies, arbitrators, bodies endowed with administrative jurisdiction not subject to judicial review. The fields of private autonomy for establishing methods of resolving one’s own conflicts also increase. The notion grows that there is a series of disposable rights, in favor of a public interest superior to private interest, which would be Justice itself.

It is no coincidence that, in civilized countries and in international treaties, agreements are accepted to resolve criminal disputes in cases involving transnational crimes, such as corruption, money laundering, bribery, illegal currency evasion, and others. Methods of negotiation with offenders serve to obtain plea cooperation and to stimulate instability within criminal organizations. Along the same line of reasoning, businesspeople seek to delimit their risks outside the Judiciary, stipulating rules for the self-composition of conflicts. There is no flight from the Law; on the contrary, what is sought is detailed regulation, but from a market perspective and with confidence in an efficient and technical solution.

Normative systems based solely on state law tend to become obsolete. Old problems require new solutions, disruptive technologies. The very reading and understanding of normative models require technological systems, given the legislative tangle and the multiple integrations of national, subnational, regional, and international rules, in addition to administrative and judicial case law. Manual research becomes fallible.

The world of robotics inevitably invades the Law and resizes the role of judges, lawyers and other actors. From this follows the differentiated protagonism of human beings in the legal field. The pillars of information, knowledge, relationships, strategy, emotional intelligence and credibility become fundamental assets for new professionals. Diverse skills are required in a network. People are in need of transparency, professional honesty and legal certainty. They do not want only results, because there are results that bring problems or liabilities even greater than the recipients of the Justice system imagined.

Correct diagnoses and realistic prognoses are necessary in order to obtain the right remedies. Absurd solutions often come cloaked in an apparent legal erudition, which is unacceptable. Solutions based on corruption bring as a consequence liabilities that can explode long afterward. In present times, the system rarely admits a single answer, so much so that disagreements among lawyers, judges and prosecutors are frequent. Reasonableness is a vector inherent to Law, since its beginnings, and allows the evidence and the rules applicable to the case to be assessed from different perspectives.

When a judge underestimates people’s intelligence, he is usually unable to sustain his position before society. Behind the rules lies a table of values, which must be set out in the reasoning. It is acceptable to seek customized solutions for each concrete case.

Notwithstanding the spaces open to interpretation, the democratic principle must be respected, without disregard for the separation of Powers, which means deference to the legislator’s choices, or to the merits of administrative acts. It is essential to demand coherence from institutions. Members of the Legislature and the Executive are elected by the people, whereas judges do not have this same democratic legitimacy. For that reason, there is a growing expansion of statutory law also in common law countries, with an increase in the leading role of legislators. The legislator adds greater legal certainty when he defines a given subject clearly.

In any event, and paradoxically, there is growth of case-law-based law in countries influenced by Roman-Germanic law, as is the case of Brazil, which now adopts the theory of judicial precedents. Case law is also a source of Law, when it becomes precedent. It is imperative to look more deeply at administrative case law, and to demand integrity from these authorities with respect to their judgments. The time of arbitrariness can no longer be tolerated.

Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union