Culture and Predictability of Law

The essay shows a link between the irrationality and unpredictability of Brazilian Law and the underlying values in the formation of Brazilian culture. Based on Max Weber concepts, it is suggested that the current lack of respect for the Supreme Courts’ precedents is compatible with a culture characterized by personalism and patrimonialism. The aversion to the impersonality and rationality, a feature of an agent seeking to turn the public sphere into private and run away from legislation’s generality, results in a culture that does not adequately care with the predictability of the Law and equality before judicial decisions.

2014

ON PHILOSOPHISING AND THEORISING IN LAW LEGAL PHILOSOPHY, LEGAL THEORY – AND THE FUTURE OF THEORETICAL LEGAL THOUGHT [2006] 11–26: 1. Questioning and Knowing 11 / 2. Law and Philosophy [2.1. Law and Philosophical Wisdom 12 / 2.2. Appearances of Modern Formal Law 14 / 2.3. Differentiation in Complexity 16] 3. Conclusions [3.1. Legal Philosophising Reduced to Discourse-reconstruction 17 / 3.2. The Query for Natural Law Unresolved 19 / 3.3. Positive Law – without Legal Positivism? 23] 4. On What the Stake is 26 // LEGAL ONTOLOGY [1999] 27–30 // LAW AND HISTORY: ON THE HISTORICAL APPROACH TO LAW [1999] 31–35 // LAW AS HISTORY? [1986] 36–47: 1. Understandings of the Term ‘Law’ 36 / 2. Law and History [2.1. Law as Instrument 38 / 2.2. Law as Culture42] 3. Law as History 43 // VALIDITY [1999] 48–61: 1. Notions of Validity 48 / 2. Understandings of Validity 49 / 3. Statism and Dynamism of Law 54 / 4. Validity and the Realm outside the Law 55 / 5. Dissolution of the Notion of Validity? 58 // EX POST FACTO LEGISLATION [1999] 62–65 ON CONCEPTUALISING BY LOGIFYING THE LAW RULE AND/OR NORM: ON THE CONCEPTUALISABILITY AND LOGIFIABILITY OF LAW [2003] 69–78: 1. Rule/Norm 69 / 2. Origins and Contexture 70 / 3. With Varied Denotations 73 / 4. Norms Exclusively in Civil Law Rechtsdogmatik 74 / 5. Ambivalence in Language Use 77 // LEGAL LOGIC AND THE INTERNAL CONTRADICTION OF LAW [2004] 79–86: 1. Legal Logic 79 / 2. The Internal Contradiction of Law 83 // THE QUEST FOR FORMALISM IN LAW: IDEALS OF SYSTEMICITY AND AXIOMATISABILITY BETWEEN UTOPIANISM AND HEURISTIC ASSERTION [1973] 87–123: I. Systemicity [1. Form and Content {1.1. In Arts and Law 88 / 1.2. In German Philosophy 90} 2. Systemicity and Axiomatic Approach {2.1. The Idea of System and the Law-codes 95 / 2.2. Early Modern Times 97 / 2.3. Recent Times 100 / 2.4. Drawbacks in Philosophy104}] II. Axiomatism [3. The Want of Axiomatisability {3.1. From Deductivity to Axiomatisation 105 / 3.2. Futile Approximations at the Most 106 / 3.3. Lack of Deductivity in the Law’s Deep Structure112} 4. The Heuristic Value of an Ideal {4.1. Cases of N/A 113 / 4.2. Cases of Correlation 114} 5. Conclusion: Ideals and the Dialectics of Substantivity 122 // LAW AND ITS DOCTRINAL STUDY (ON LEGAL DOGMATICS) [2006] 124–175: I. The Doctrinal Study of Law [1. Legal Dogmatics in a Science-theoretical Perspective 124 / 2. The Process of Advancing Conceptualisation 128 / 3. Ideality versus Practicality in Legal Systemicity 133 / 4. Conceptualisation, Systematisation, Dogmatisation 135 / 5. Rules and Principles in Law 140 / 6. Correlation between Legal Cultures and Legal Theories 141 / 7. Theoretical and Socio-philosophical Perspectives143] II. Inquiry into the Nature of Doctrinal Studies in Law [a) Legal Dogmatics 147 / b) Non-conceptualised Traditions in Law 149 / c) The Stand of Law and of its Dogmatics 154] III. ‘Law’, ‘Science of Law’, ‘Science’ 157 [1. Critical Positions {a) Ad Mátyás Bódig ‘Doctrinal Study of Law and Jurisprudence’ 158 / b) Ad Tamás Győrfy ‘The Conceptual System of Law and the Dogmatics of Motivations’ 169 / c) Ad Péter Cserne ‘The Doctrinal Study of Law versus Policy’ 172} 2. In an Onto-epistemological Perspective 174] ON FORMS AND SUBSTANCE IN LAW STRUCTURES IN LEGAL SYSTEMS: ARTIFICIALITY, RELATIVITY, AND INTERDEPENDENCY OF STRUCTURING ELEMENTS IN A PRACTICAL (HERMENEUTICAL) CONTEXT [2001] 179–188: 1. Theoretical Background 179 / 2. Foundations of Structuring Challenged 181 / 3. Is there a Structure had? 184 / 4. Structuring as a Meta-construct 186 // GOALS AND MEANS IN LAW [2003] 189–201: 1. The Neutrality of Techniques 189 / 2. John Paul II [2.1. On Personhood, his Goods, and Law 191 / 2.2. On Person, Family, and Nation 196] 3. Artificiality and Antithetical Developments in Law 198 // LAW, ETHICS, ECONOMY: INDEPENDENT PATHS OR SHARED WAYS? [2004] 202–215: 1. “Cynical Acid” in the Foundation of Modern Formal Law 202 / 2. Example: Perspectives for Curing Malpractice in Law 205 / 3. Clash between Europeanism and Americanism 207 / 4. A Search for Reason and Systemicity 211 / 5. Ethics in Economy 213 // TOWARDS AN AUTONOMOUS LEGAL POLICY [1984] 216–221: 1. Relationship between Politics and Law 216 / 2. Legal Policy as a Mediator 218 / 3. Legal Scholarship, Legal Policy, and the Law on Law 219 / 4. Demand for an Autonomous Legal Policy 221 ON PROCESSES OF LAW THE JUDICIAL BLACK-BOX AND THE RULE OF LAW IN THE CONTEXT OF EUROPEAN UNIFICATION AND GLOBALISATION [2008] 225–242: I. Basic Issues in the Understanding of Law [1. Normativism and Legal Reality (Re)Construction 225 / 2. The Insufficiency of the Law Enacted 227 / 3. Duplicity of the Ontological Reconstruction of Judicial Process 227 / 4. The Law as Rule and the Law as Culture 231 / 5. Complementation by the Law’s Self-resolution in Post Modernism 232 / 6. The Metaphoric Nature of the Term ‘Law’ 234 / 7. Added Queries for the European and International Rule of Law 235] II. Questions to be Raised by Legal Arrangements Individually [8. Law as Subsistence and Law as Conventionalisation 236 / 9. Dilemmas of the Law Exhaustively Embodied by Texts, Thoroughly Conceptualised and Logified 237 / 10. Conservatio/novatio, ius strictum / ius aequum, generalisatio/exceptio, and the Moment of Decision 238] III. The Circle of Legal Arrangements to be Involved in the Investigation 240 [11. Cultures and Traditions to be Investigated 241] IV. Purpose and Impact of Investigations [12. The Tasks’ Horizons 241] DOCTRINE AND TECHNIQUE IN LAW [2002] 243–262: 1. Law, Legal Policy and Legal Technique 243 / 2. Formalism and Anti-formalism 245 / 3. Law as Potentiality and Actualisation 246 / 4. Example: Constitutional Adjudication 248 / 5. Legal Imaginability 251 / 6. Linguistic Mediation 254 / 7. Rechtsdogmatik 256 / 8. Clauses and Principles 258 / 9. With Safety Velvets Built in 260 // THEORY AND PRACTICE IN LAW: ON THE MAGICAL ROLE OF LEGAL TECHNIQUE [2006] 263–286: 1. Legal Formalism in a Practical Context 263 / 2. Magic in Law: Culture and Mediation 268 / 3. Legal Conceivability and its Limits 270 / 4. One Langugage, Unlabelled 272 / 5. Formalisation and De-formalisation: Principles as Safety Velves 276 / 6. Within Given Cultural Bounds 278 / 7. Kelsenian Re-interpretation: Law Getting Defined in Society 282 / 8. A Closed/Open Systemic Response 284 // LAW, UNDERSTANDING OF LAW, APPLICATION OF LAW (A SUMMARY OF DEVELOPMENTS IN THIRTY-SIX PARAGRAPHS) [2007] 287–303: I. Classical Heritage [1. Continental Law 287 / 2. Anglo-Saxon Law 291] II. Reality in our Approach to Law [1. As Professional Deontology 293 / 2. In its Theoretical Explanation 294] III. The Complexity of our Legal World Concept [1. The Complexity of Civil Law Mentality 301 / 2. The Complexity of Common Law Mentality 301] IV. With Humans in the Legal Machinery 302 APPENDIX: LEGAL THEORISING: AN UNRECOGNISED NEED FOR PRACTICING THE EUROPEAN LAW [2009] 307–354: 1. Introduction: Queries in European and Global Perspectives 307 / 2. Basic Issues [2.1. Human Refinement 310 / 2.2. The Westphalian Heritage of State Law and International Law 313 / 2.3. The Place of European Law 315] 3. Analogies [3.1. Solar System with Planets 319 / 3.2. Pre-modernity, Modernity, Post-modernity 320] 4. The Structural Pattern of the European Law [4.1. Legal Culture of the European Union 322 / 4.2. Implementing a Grand-System Functioning 328 / 4.3. With Legal Pluralism? 330] 5. Theoretical Model of the Operation of European Law [5.1. Multipolarity with Centripetality and Centrifugality 333 / 5.2. Order, Out of Chaos 336 / 5.3. Practical Continuum in a Standing Flux 342 / 5.4. Activated by Nations 347] 6. Conclusions for Practicing the European Law [6.1. The Ethos of the Tasks 349 / 6.2. For Reaching an Own Future, Thanks to Own Efforts 351] Index of Subjects 355 / Index of Normative Materials 362 / Index 364

Legal Issues Journal 5, 2, p. 181-185, 2017

In this paper I'm primarily concerned with framing the role of precedents in terms of reasons that they can give to judges in various legal systems. The main purpose of the paper is to identify the ways in which precedents can be authoritative in judicial reasoning. First, I'll explain the distinction between two kinds of precedents - precedents of solution and precedents of interpretation. Second, I'll identify the ways in which both precedents of solution and precedents of interpretation affect the reasoning of future courts, and focus on the cases in which this affection can be considered practically and epistemically authoritative. Finally, I'll consider the conditions under which it can be epistemically justified to treat precedents as authoritative, with a focus on the possibility of justifying the epistemic authority of interpretative precedents.

Law and Philosophy, 1986

This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the 'time-free' conceptual staples of modern jurisprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of 'tradition', the traditionality of law is inescapable. Legal philosophers disagree about many things, few more than the nature of law. Notwithstanding these differences, there are significant family resemblances among contemporary approaches to this question. I am struck by three. First, it is common for law to be conceived as a species of some other more pervasive social phenomenon: commands, norms, rules, rules-and-principles, rules, principles and policies, and so on. Though this runs * This article is part of a project on law and tradition, research for which has been aided by a grant from the Australian Research Grants Committee. It was written while I was a visitor at the Centre for the Study of Law and Society, University of California, Berkeley, and revised while I visited the Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh. I am grateful to the members of both centres for generously providing me with extremely congenial and stimulating conditions for work. Versions of the paper were presented to seminars at these centres, to the 12th World Congress on Philosophy of Law and Social Philosophy, held in Athens in August, 1985, and to seminars at the universities of Warsaw, Lodz and Glasgow. I am grateful to participants in these seminars, especially Neil MacCormick, Philip Selznick, Wojciech Lamentowicz, Daniel Sinclair and Jerzy Szacki, and' to Edward Shils for useful discussion and criticism.

How opposite legal systems from divergent starting points come to a certain point of coincidence.

1. Lack of rationality and predictability in Brazilian law; 2. The impact of the Counter-Reformation values in the Iberian countries and in the colonization of America; 3. The patrimonialism in the formation of the Brazilian culture: from Weber to Buarque de Holanda; 4. The culture of personalism, lack of social cohesion and weakness of the institutions; 5. To whom does irrationality matter?; 6. Patrimonialism versus the generality of the Law and the system of precedents; 7. The authority of the precedents, respect for the Law and personal responsibility.

Osteuropa-Recht, 2021

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types-the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a "triangle" of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law.

Századvég Edition

Through its function, law provides normative prescriptions for human behaviour, i.e. it prohibits certain types of behaviour and permits others in a given situation. The fundamental task of jurisprudence is therefore to clarify the meaning of the interrelationships between normative prescriptions and thus to ensure that there are no contradictions in meaning between the many thousands and tens of thousands of legal norms. Only in this way is it possible that the legal rules to be followed in everyday life fulfil their function and that legal certainty is not endangered. Substantive jurisprudence analyses and develops the totality of legal concepts that ensure the internal conceptual coherence of a field of law and constantly monitors the coherence of the legal norms required for specific life situations. From now on, depending on the different legal concepts to varying degrees, the consistency of the specific legal norms and legal concepts with the general principles of justice is also included in the consideration. This approach thus moves in the dimension of normative conceptual coherence. On a broader level, the philosopher of law does the same when, apart from analysing substantive law, he deals with the content of the principles of justice and their relationship to each other, and from this establishes requirements for the conditions of a just legal order. However, law, although it fulfils its function in a normative dimension, is a social phenomenon like other fields of activity that fulfil a social function, e.g. the economy, art, science, politics, etc., and any legal phenomenon can be studied from the point of view of facticity, just like other social phenomena. This is the essence of the sociological approach to law, which can be formulated in contrast to the approach of theoretical jurisprudence or legal philosophy as a field of analysis of social facticity and causality or effects. For example, while the substantive law of civil law examines a legal regulation on a pledge or surety from the point of view of how these contractual securities fit into the framework of existing contract law as a whole, the sociological approach to law asks how often pledges or sureties are used as contractual securities in everyday contractual practice, from the point of view of the absence of contradictions of meaning. Or which social interests and which social disadvantages have favoured the emergence of this form of pledge and surety in everyday contractual practice, and which social interests would be served by alternative regulations in this area? In the sociology of law, one therefore moves from the normative dimension to the factual dimension, to the dimension of conflicts of interest, social causes and effects, when analysing legal norms and legal phenomena. Looking at sociological studies and the various lines of research in the sociology of law in this approach, one can distinguish between a narrower and a broader understanding of the sociology of law. The sociology of law in the narrower sense still focuses on legal norms like the thematic legal sciences, and it is no coincidence that the sociology of law developed historically in the last decades of the 19th century. The sociology of law in the narrower sense, like the theoretical legal sciences, is concerned with legal norms and legal provisions, but with their actual consistency rather than with normative-conceptual coherence and possible logical contradictions. Or does it ask which social interests and political forces have shaped the legal norms under study and which political forces serve the dominance of which political forces in social struggles and which social groups are subordinated and disadvantaged in power by the legal norms under study?

The American Journal of Comparative Law, 1976