Jurisdição, complexidade e contigência: o desafio da tutela de direitos na sociedade contemporânea.

• Autor(a) principal: Almeida, André Galvão Vasconcelos de
• Data de Publicação: 2020
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UNICAP
• Texto Completo: http://tede2.unicap.br:8080/handle/tede/1396
• topic: Teses; Direito; Controle da constitucionalidade; Precedentes judiciais; Jurisdição; Theses; Rigth; Control of constitutionality; Legal precedents; Jurisdiction; CIENCIAS SOCIAIS APLICADAS::DIREITO

This study, from a sociological-systemic perspective, describes and analyzes the structural conditions that involve the relationship between law and society, with the hypercomplexity and contingency that characterize contemporary poly-contextual society as a backdrop. It also seeks to reflect on the consequences arising from the positivity of modern law and the increase in the social dynamics inaugurated from this positivity, especially when it comes to the emergence of "new rights" and the role of social movements in the search for recognition and protection of these rights in the judiciary. In this context, the research has as its initial problem understanding how the law of contemporary society may be able to stabilize normative expectations in the present, creating links with an uncertain future and, at the same time, establishing itself as a socially adequate system in the environment in which it operates. In other words, it seeks to observe how the system can make stabilization and structural variation compatible, legal consistency and social adequacy. On this sense, the judicial precedents and the figure of the amicus curiae are presented as important instruments in promoting such compatibility. On the view of presented problems, our aim is to identify, within the context of Niklas Luhmann's Theory of Social Communication Systems, the role of amicus curiae and public hearings in the construction of judicial precedent, within the scope of constitutional jurisdiction . The main concepts of the aforementioned theoretical framework will serve as starting points for verifying whether amicus curiae and public hearings can figure as mechanisms that enable the cognitive opening and social adequacy of the judicial precedent, channeling the pressure exerted by the social environment, avoiding the formation of what we will call merely symbolic precedents or, to put it another way, precedents with socially inadequate normative rigidity.