scholarly journals Por quem cantam as sereias de Homero e o paradoxo sistêmico da decisão

2018 ◽  
Vol 42 (1) ◽  
pp. 129-144
Author(s):  
Leonel Severo Rocha ◽  
Fernando Tonet Silva
Keyword(s):  
Property Rights ◽  
Systems Theory ◽  
Legal System ◽  
Court Decision ◽  
Complex Cases ◽  
Hard Cases

Resumo: Toda decisão judicial sobre casos difíceis, passa por uma elevada construção interpretativa. Sob um olhar sistêmico, a operatividade do sistema jurídico só pode ser observada se mantida sua integridade, ou seja, por seus próprios códigos. Quando Ulisses busca uma solução para salvar sua vida e de seus grumetes, mantém a estrutura, porém, faz uma decisão através de uma dupla observação: decidir salvar a vida de todos, porém, buscando fundamentos distintos, enquanto uns perdem, momentaneamente, o sentido da audição; Ulisses decide escutar as sereias. A decisão corresponde aos complexos casos, onde mesmo sem o canto das sereias (norma), o caso deve ser resolvido. Nesse sentido, é analisado o acórdão da 7ª Câmara Cível do TJRS, na Apelação nº 70005798004/2003, onde foi discutida a partilha de bens e direitos sucessórios de um genro infiel. O paradoxo apresentado representa o grande santuário da teoria sistêmica e a necessidade de decisão dos Tribunais.   Abstract: Every court decision on hard cases goes through a high interpretive construction. From a systemic perspective, the operability of the legal system can only be observed if maintained their integrity, i.e. their own codes. When Ulysses seeks a solution to save your life and his cabin-cleaning boys, he maintains the structure, however, decides by a double observation: deciding to save everyone’s lives, however, looking for different reasoning basis, while some lose, briefly, their hearing; Ulysses decides to listen to the mermaids. The decision corresponds to the complex cases where even without the mermaid’s singing (norm), the case should be solved. Therefore, the 7th Civil Chamber’s decision in Appeal No. 70005798004/2003, where there has been discussed the sharing of inheritance and property rights of an unfaithful son-in-law, is analyzed. The presented paradox represents the great sanctuary of systems theory and the need for decisions from courts.

scholarly journals DOWÓD Z OPINII RODZINNEGO OŚRODKA DIAGNOSTYCZNO-KONSULTACYJNEGO W SPRAWACH O ROZWÓD I JEGO WPŁYW NA TREŚĆ WYROKU W ŚWIETLE WYNIKÓW BADAŃ AKTOWYCH

2017 ◽  
Vol 2 (1) ◽  
pp. 7 ◽  
Author(s):  
Wanda Stojanowska
Keyword(s):  
Detailed Analysis ◽  
Present Article ◽  
Legal System ◽  
Parental Authority ◽  
Court Decision ◽  
Guardianship Law ◽  
The Family ◽  
Ignorance Of Law

THE OPINION OF THE FAMILY DIAGNOSTIC-ADVISORY CENTRE AS THE EVIDENCE IN DIVORCE CASES AND ITS INFLUENCE ON JUDGEMENTS (IN THE LIGHT OF C OURT RECORDS)Summary The present article contains results of studies conducted in the Institute of Justice in Warsaw. Basis for the research was 100 judgments in divorce cases by Polish provincial courts from 1997 to 1998. Each of the examined judgments was done after hearing by court of the Family Diagnostic - Advisory Centre (FDAC) opinion in cases including decision as to the guilt for breaking up of marriage and subsequent granting of the paternal authority to the innocent party. The study is going to establish relation between opinions by the FDAC and judgments.The study contains complex and detailed analysis of court decision and its grounds. It shows that opinion given by FDAC is very influential for courts granting judgments which followed it in 80% of analyzed cases. However not all of the suggestions given by experts were relevant. In the majority of the examined cases a mistake made by the expert consisted of the ignorance of law and consequendy of the ambiguous wording of the opinion. Such an opinion was then followed by the judge who usually chose the simplest solution granting the full parental authority to both of the divorced spouses thus avoiding the time consuming and laborious procedure based on the article 58 of the Code of Family and Guardianship Law determining possibility of limitation of the parental authority.Such approach could be declared as an opportunistic one, and provokes postulate de lege ferenda for abolishment of the institution of granting the full parental authority to both of the divorced spouses. Proposed change should simplify courts procedure as well as enable the FDEC to develop its activity as family advisory centers which until now does not exist in Polish legal system.

scholarly journals LOS REQUISITOS PARA A CARACTERIZAÇÃO DO TRABALHADOR RURAL COMO SEGURADO ESPECIAL À LUZ DOS JUÍZES JÚPITER, HÉRCULES E HERMES DE FRANÇOIS OST.

2020 ◽  
Vol 5 (2) ◽  
pp. 264-286
Author(s):  
Dariel Santana ◽  
Marcelo Borsio ◽  
Jefferson Carús Guedes
Keyword(s):  
Social Security ◽  
Qualitative Analysis ◽  
Cultural Differences ◽  
Rural Area ◽  
Legal System ◽  
Open Type ◽  
Rural Workers ◽  
The Social ◽  
Complex Cases

The purpose of this study is to critically analyze the requirements regarding the framing of rural workers as a special insured, confronting them with the reality of the Brazilian rural area. Therefore, as a methodology, the jurisprudence of the higher courts was researched, exploratory bibliographic research and qualitative analysis were used. In addition, empirical research was carried out, listening to the various actors in the social security processes. Here it will be demonstrated that judges Jupiter, Hercules and Hermes can live harmoniously within the scope of Social Security Law, with space for each one of them, depending on the complexity of the specific case set out. In less complex cases, where the legal text is able to offer the appropriate response to the conflict, it is time for the Jupiterian exegesis to be applied by the interpreter. In hard cases, however, the toga of the first must give way to the toga of the last two, since the literality of the text does not deliver the most appropriate solution to the social security dispute. In this sense, the open type for the characterization of the special insured has the considerable advantage of flexibility, allowing the operator of the law a topic-problematic interpretation, to find the best answer for the specific case, taking into account, therefore, the heterogeneities of this continental country, whose social, geographical, climatic, economic and cultural differences are colossal. The legal system has gradually moved away from Kelsen’s pyramidal metaphor and towards a more horizontal and intertwined normative system - much closer to the sphinx of the Memphis alabaster than to the Cheops pyramid - with interdisciplinarity as a vector of stabilization of the system and this will be demonstrated in this study.

scholarly journals Juridical Review Of Nominee Agreement In Land Of Tenure Property Rights Under The Book Of Civil Law And Agraria

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 441
Author(s):  
Indah Esti Cahyani ◽  
Aryani Witasari
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Freedom Of Contract ◽  
Related Statement ◽  
The Subject ◽  
The Law ◽  
Legal Consequences

Nominee agreement is an agreement made between someone who by law can not be the subject of rights to certain lands (property rights), in this case that foreigners (WNA) and Indonesian Citizen (citizen), with the intention that the foreigners can master land de facto property rights, but legal-formal (de jure) land property rights are assigned to his Indonesian citizen. The purpose of this paper isto assess the position of the nominee agreement in Indonesia's legal system and the legal consequences arising in terms of the draft Civil Code and the Law on Agrarian. Agreement is an agreement unnamed nominee made based on the principle of freedom of contract and good faith of the parties. However, it should be noted that the law prohibits foreigners make agreements / related statement stock wealth / property (land) for and on behalf of others, sehingga the legal consequences of the agreement is the nominee of the agreement is not legally enforceable because the agreement was made on a false causa.Keywords: Nominee Agreement; Property Rights; Foreigners.

Moral communication and legal uncertainty in small and medium enterprises

Kybernetes ◽  
2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Jan Winczorek
Keyword(s):  
Systems Theory ◽  
Legal System ◽  
Social Systems ◽  
Functional Differentiation ◽  
Theoretical Issue ◽  
Sociology Of Law ◽  
Content Type ◽  
Moral Communication ◽  
Study Results ◽  
Legal Uncertainty

PurposeThe links between moral communication and legal communication have long been studied in sociology of law. Little has yet been said about moral communication invoking when communication in the legal system is impossible, ineffective or uncertain. The paper fills this gap to demonstrate that systems theory-based sociology of law can effectively recognise the role of moral communication in such situations.Design/methodology/approachThe paper presents an empirical study of moral communication in small and medium-sized enterprises (SMEs). It focused on situations when SMEs' interactions with function systems, particularly the legal system, result in irremovable legal uncertainty. The data depict strategies of managing such uncertainty and were obtained in a paths-to-justice survey of 7,292 owners and managers of SMEs and 101 in-depth interviews. The findings are interpreted using the author's concept of “uncertainty translation”, rooted in Luhmann's systems theory. It suggests that business organisations such as SMEs deal with the ubiquitous uncertainty in their operations by translating it into a convenient type.FindingsThe study distinguishes between formative and absorbing moral communication and finds that both types play a role in steering the uncertainty translation mechanism in SMEs. Six scenarios of invoking moral communication are identified in SMEs dealing with legal uncertainty. In such scenarios, moral communication facilitates the translation of business uncertainty “away from law”. Under some circumstances, this, in turn, leads to latent systematic results, reflexively affecting the legal system, the economic system and the SMEs.Research limitations/implicationsIn its core argument, the study is based on qualitative material. While it identifies empirical scenarios of invoking moral communication, it does not report the prevalence of these scenarios due to methodological limitations.Originality/valueThe study results pose questions related to the staple theoretical issue in post-Luhmannian social systems theory: functional differentiation. If moral communication–a type of communication not linked to any social system–can produce far-reaching, systematic results that affect function systems, then the functional differentiation thesis should be less pronounced than Luhmann typically stressed. This said, the paper argues that the contradiction between the findings and Luhmannian theory of morality is only apparent and may be reconciled.

‘Take Down Mezuzahs, Remove Name-Plates’: The Emigration of Objects from Germany to Palestine

Jewishness ◽  
2008 ◽  
pp. 133-150
Author(s):  
Joachim Schlör
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Private Property ◽  
German Society ◽  
Good Time ◽  
Jeremy Bentham ◽  
National Socialist ◽  
Individual Memory ◽  
The Individual ◽  
The Relationship

This chapter evaluates the meaning of objects inventoried and packed as emigrants prepared to leave Germany for Palestine after Adolf Hitler came to power. Private property has, for both the individual memory and the collective memory, a deep emotional significance. The exclusion of the Jews from German society started with the National Socialist policy of ‘Aryanization’, the expropriation of property. Many y émigrés had to abandon, to leave behind, their private dwellings. In the process, they lost more than the object itself. Around 1800, the British philosopher and legal theoretician Jeremy Bentham drew attention to the importance of the relationship between an object and its owner: ownership forms the basis of a hope. Thus, the threat of losing property is symbolic of the loss of all hope of a continued life in Germany and as a German. Ultimately, Aryanization and confiscation were a symbolic theft of identity. And in these cases, even the legal system was no longer capable of protecting property rights. Those who emigrated in good time were able to take at least some of their property with them.

Final Comment

2021 ◽  
pp. 164-168
Author(s):  
Marcelo Neves
Keyword(s):  
Systems Theory ◽  
Legal System ◽  
Concrete Case ◽  
Final Comment ◽  
Legal Rationality ◽  
Special Case

The final chapter deals with the metaphor expressed in the book’s subtitle, in order to consider what type of judge is best prepared to face and overcome the paradox of the relation between principles and rules in each concrete case: Judge Hercules or Judge Hydra? The answer will ultimately be the following: neither of them, but instead Judge Iolaus. Based on this metaphor, the paradox of constitutional principles and constitutional rules is presented as a special case of the paradox of justice in terms of systems theory: the paradoxical relationship between closure and consistency of legal system and its openness and adequacy to society. Rules relate primarily to the closure and consistency of law and principles concern primarily its openness and adequacy to society. While the former are associated predominately to the formal argumentation, the latter are linked first and foremost to the substantive argumentation. In this way, the ideas of ‘a single right answer’ and of optimizing balancing are rejected head on, and the precariousness of legal rationality is affirmed.

Property in Digital Coins

2019 ◽  
Vol 8 (1) ◽  
pp. 64-101 ◽  
Author(s):  
J.G. Allen
Keyword(s):  
Comparative Analysis ◽  
Property Rights ◽  
Legal System ◽  
Property Law ◽  
Conceptual Basis ◽  
Electronic Book ◽  
Plausible Account ◽  
Satisfactory Account ◽  
Initial Coin Offerings

Abstract Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory account of their treatment in property law is therefore a necessary first step to incorporating digital coins into private law theory. I argue that this task is best approached on the basis of a plausible ontology of incorporeal objects, including those embodied in paper (i.e. banknotes and conventional securities) and those that exist natively in ‘cyberspace’ (i.e. electronic ‘book-money’, modern securities, and now digital coins). We therefore urgently need to develop a plausible account of a how packets of data can be treated as an object of property rights. Using a comparative analysis of English law and Civilian law (particularly German) concepts of property as an entry point into this complex of problems, I explore the ontology of incorporeal objects and the role of documentation in their creation and maintenance as part of the ‘ontic furniture’ of our economic world. I explore the conceptual basis of property in digital coins in terms of a new category of property. Such a category is long overdue and will be increasingly important in the future.

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