THE RELATIONSHIP BETWEEN THE NEED TO DECIDE, JUDICIAL ORGANIZATION AND A CENTRAL POSITION IN LAW BRAZILIAN COURT SYSTEM A RELAÇÃO ENTRE A NECESSIDADE DE DECIDIR, ORGANIZAÇÃO JUDICIAL E A POSIÇÃO CENTRAL DOS TRIBUNAIS BRASILEIROS NO SISTEMA DO DIREITO

THE RELATIONSHIP BETWEEN THE NEED TO DECIDE, JUDICIAL ORGANIZATION AND A CENTRAL POSITION IN LAW BRAZILIAN COURT SYSTEM A RELAÇÃO ENTRE A NECESSIDADE DE DECIDIR, ORGANIZAÇÃO JUDICIAL E A POSIÇÃO CENTRAL DOS TRIBUNAIS BRASILEIROS NO SISTEMA DO DIREITO

Vinícius Almada Mozetic1

RESUMO A relação entre a necessidade de decidir, organização judicial e a posição central dos tribunais no sistema do direito, permite fazer uma ideia nova da clausura operativa do sistema do direito, precisamente desde a perspectiva temporal e objetiva. As decisões podem ser concebidas, abstratamente, como uma forma mediante a qual a relação entre passado e futuro se interrompe e se restabelece. Os tribunais reconstroem o passado no formato do caso que se faz presente. Somente se toma em consideração o que é necessário para a decisão do caso – e nada mais. O presente artigo trata do Direito da sociedade (Das recht der gesellschaft) de Niklas Luhmann de modo propiciar um estudo sistemático de alguns conceitos chave para o autor e, ainda, a revisão de temas abordados no capítulo, tais como as diferenças entre competência legislativa e judicial, o papel da decisão na construção do direito para a teoria sistêmica e, principalmente, apontando a distinção teórica entre centro e periferia no sistema do Direito. Palavras-chave: Autopoiése. Teoria dos Sistemas. Organização. Criatividade judicial.

ABSTRACT The relationship between the necessity to decide, judicial organization and the central role of the courts in the legal system, allows a new idea about the confinement of the Law’s operational system, precisely since the temporal and objective perspective.

1

Doctor Student in Law by Universidade do Vale do Rio dos Sinos - UNISINOS; Master of Law by Universidade de Santa Cruz do Sul - UNISC- Social Rights and Public Policy; Professor and Researcher at the Graduate Program in Law, Universidade do Oeste de Santa Catarina- UNOESC; coordinator of the Universidade do Oeste de Santa Catarina – UNOESC’s Law course and lawyer.

The decisions can be designed, abstractly, as a way in which the relationship between past and future stops and starts again. The courts rebuild the past in the shape of the cases that they are analyzing. It only brings in discussion what is important for the case's decision- nothing else. This article is about the Society's law (Das recht der gesellschaft) by Niklas Luhmann, in a way that can provide a systematic study about some key concepts to the author and also a review of some topics covered in the chapter, such as the differences between legislative and judicial power, the role of the decision to build the Law to the systemic theory and, mostly, pointing the theoretical distinction between center and periphery in the Law's system. Keywords: Autopoieses – Systems theory – Organization –Judicial criativity.

INTRODUCTION Although wide systems theory, the role of the courts deserves attention when studying the social system of law. By the way, Niklas Luhmann devotes an entire chapter of his work “Das recht der gesellschaft” to address the issue and it is about this particular that this text focuses: The place of the courts in the legal system. It is worth noting at the outset that the approach of this text intended to be somewhat formally free, even lacking some specific quotes, but containing the general ideas of the work of Luhmann. As for the issues, he sought a didactic split between the main themes in the text - clearly all converging and that could be exposed in a unitary way - luck to ensure fluidity. Among the topics can be list the internal and external differentiation problems about systems theory, the difference (and differentiation!) Between Legislative and Judicial / judiciary, power / make decision on the law system and also the distinction between center and periphery in the system studied.

1. TIME, LAW AND SOCIETY Ost understands that time and the law are related to the society, and the time does not exist outside history. Thus, "from the dogmatic point of view the law is a control mechanism of our past, assurance of our past; a critical point of view, it can be a promise, it may be something that points to the future. " The right time for Ost has three

characteristics: 1) the time as social construction; 2) the law as responsible for the institutionalization of social and 3) the need to establish a dialectic between time as a social institution and law as social institutionalization2. The Law time to Ost, is divided into four stages: 1) memory, relating the law to the idea of tradition, maintaining the memory of the society; 2) forgiveness, seen as a selection of something to be forgotten, makes it necessary to forget certain things to come in time; 3) the promise, being an attempt to establish links with the future, the construction of the future; 4) the questioning, and the ability to turn time and the law with other social times (memory, forgiveness and promise). Thus, the law must have the ability to de-institutionalized and again reinstitutionalized by a continuous movement of construction / deconstruction / time reconstruction and of itself, i.e., a time built in the complexity and chaos.3 2. TIME BUILT IN THE COMPLEX AND CHAOS The pragmatic-systemic matrix operates under the notion of "time built into the complexity and chaos." Thus, the decision-making process necessarily matter in the production of future, then when it decides, is produced time. As the systematic theory the decision is also the production of a difference, time linking the reduction / building complex. Autopoietic systems, to Clam, promote a continuous succession of impulses, referring always given operation to other social operations, occurring so from moment to moment, construction of social reality. (p. 203-204)4. The law presents itself as a social system, keeping an interdependence with society and being autonomous due to be power self-generation. The legal autopoiesis as systemic autonomous playback mode is by Teubner through self-reference, which stands as "visceral feature" of postmodern right. Self-reference to the legal system points to four possible interpretations:5 1) indeterminacy: the law is an autonomous functional system, it doesn't have its functionality made by other systems or external factors, the legal validity thus is determined by previous decisions. In other words, the Law itself establishes the validity of the Law. 2

ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 200-201. 3 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 202. 4 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 197-217 5 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 205-206.

2) The unpredictability points to the fact that the operations of the law are not subject to prior knowledge, if incompatibilizando with the dogma of legal certainty. 3) The circularity refers to the fact that the rules chain is linked cyclically, that is, to get to the top level of the legal hierarchy there is no way out of this network, which entails the shipment to its lowest level. 4) Finally, the so-called self-reference paradoxes import in a construction aimed at proving that the legal reality is linked to the circular form and selfreferential. Such paradoxes relate to the trend of implementation of the distinction "Law/ Non-Law" to own code unit, ie the possibility of type statements "is not Law to say what is Law/ non-Law", a fact that would cause lock in the decision-making process.6

The Law operates, then cloistered normatively and, paradoxically, the closing is a condition of possibility for their cognitive opening. Any observation system can never be carried out externally, any observation of Law will be held only by Law, behold, the observer does not observe other systems, but only the system in which it is inserted, under penalty of their own autopoiesis7. Unlike the legal doctrine, which seeks to set aside and hide the paradoxes, the autopoietic theory is based primarily paradoxically (yes / no), seeking to use such paradoxes creatively. Autopoiesis therefore requires the possibility of an airtight circularity, regardless of your surroundings, ie certain closing of constituent communication about the system itself, which constitute boundaries of sense, establishing the functional system performance limits through a coding and own programming.8 En la teoría de sistemas lo que se enfatiza es la verdadera emergencia de la comunicación. No existe propiamente transmisión de alguna cosa; lo que hay es más bien una redundancia creada en el sentido de que la comunicación inventa su propia memoria que puede ser evocada por distintas personas, de diferentes maneras. Cuando A comunica algo a B, la comunicación siguiente puede dirigirse no mismo a A que a B. Se puede imaginar, entonces, el sistema como un pulsar constante: con cada creación de redundancia y con cada selección el sistema se expande y recontrae permanentemente.9

For this reason: […] los tres componentes sintéticos que dan por resultado la comunicación- información, acto comunicar y acto de entender – no deben ser interpretados en calidad de actos o funciones u horizontes de aspiraciones de 6

ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 208-209. 7 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 210. 8 ROCHA, Leonel Severo. Observações sobre autopoiese, normativismo e pluralismo jurídico. In: STRECK, Lenio Luiz; MORAIS, José Luis Bolzan de. Constituição, sistemas sociais e hermenêutica. n. 4. São Leopoldo: Unisinos, 2008. p. 169. 9 LUHMANN, Niklas. Introducción a la teoría de sistemas. México: Universidad Iberoamericana, 2002. p. 308.

validez (aunque todo esto pueda ser utilizado en la comunicación). Coexisten piezas concretas de comunicación que tuvieran una existencia independiente y que sólo fuera necesario que alguien las ensamblara. En lugar de eso, la comunicación deberá entenderse como una cuestión de distintas seleccione cuya selectividad está constituida por la comunicación misma. Fuera del marco de referencia de la comunicación no existe información, ni acto de comunicar, ni acto de entender.10

Therefore, the paradox don't be impediment to the decision making process by constructions as the operating lock and cognitive opening transmuting is spectacular problem for analysis objects. This understanding, however, should be seen as an evolution of legal theory, highlighting the difference with Kelsen's theory where the traditional notion of time matter in the fact that the legal validity is only given for compliance with a legal hierarchy in a staggering whose higher standard validates the bottom.11 3. LAW, VALIDITY AND INTERPRETATION The laws have its validity determined by the decisions that apply interpretatively, which demonstrates that the Constitution is responsible for the coupling between Law and Policy. Judicial decisions operate normatively / necessarily in the form of a distinction, which can be demonstrated in the paradox of compulsory adjudication: occurs to rules linking to a cognitive opening to the surroundings, establishing the opening by means of closing.12 Thus, it is the legal practice that establishes the possibility of self-observation of the paradoxes and its concealment, enabling the systemic operation. Therefore, "the coupling between partial systems is one of the main forms of “deparadoxification” of tautologies created by pure self-reference." In this respect, the Constitution should be seen as a form of engagement aimed at facilitating legal practice.13 This analysis of the decision has important consequences - even being possible sounds unacceptable for legal experts. The relevance is this: the decision is not determined by the past (issued laws, committed crimes); the decision operates within its

10

LUHMANN, Niklas. Introducción a la teoría de sistemas. México: Universidad Iberoamericana, 2002. p. 308-309 11 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 210-212. 12 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 213. 13 ROCHA, Leonel Severo. Tempo e constituição. In: COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. p. 213-214.

own building which is only possible in present. On the other hand, the decision has consequences for presents in the future. The decision opens or closes possibilities that without the decision would not exist. The decision presuppose the past as invariable and the future as variable and, precisely for this reason, do not leave be determined by the past, but attempts to determine the future, although this determination effect not be conquered because in the future it is expected more decisions. For more problematic than it is presented, one can understand why the courts take care of the consequences of their decisions and try to legitimize them through the evaluation of the consequences. Although strictly speaking, cannot know the consequences of their decisions, since they would have to intervene more decisions and training would be left incomplete. Perhaps this - more than anything else - is what gives rise to the illusion that the decision, in the right system, can remain determined by the past, understood as procedure. The decision is a paradox that cannot thematize, but only mystify. The authority, the scenarios, the restrictions on access to secrets, the texts which absolutely can refer to the entry or exit from the scene, all this prevents that the paradox of the decision appears and reveals that the reason that decides on what is as (or discrepant) Law is a paradox, and that the system drive can only observe how paradox.14 It is possible that in this lies the reason why the unity of the legal system can only put into operation in front of distinctions. And that distinctions such as Law/ non-Law, rules/ facts, validity (of decision) / reasons (of the argument) cannot be reduced to a principle, an origin, a reason. In regard to the consequences it also means that the system only with this mysterious way of decision may have the symbol of validity. Although it may dispense with many decisions, should have prepared the possibility to force himself to decide, in case you cannot find another way to resolve the paradox "conforming the Law / non conforming the Law."15 3.1 OBLIGATION TO DECIDE AND PROHIBITION OF DENEGATION OF JUSTICE

14

As Leonel Severo Rocha, a decision with respect to time, may be forward-looking when it produces and time difference, and facing the past, when it denies time and emphasis repetition (ROCHA, Leonel Severo. Epistemologia jurídica e democracia. São Leopoldo: Ed. Unisinos, 1998, p. 196). 15 All systems are guided by certain languages. For the theory of Luhmann systems, the code is this language. More than that, it is always characterized by a reductive binary reduction as in the case of Law, the scheme "conforming the Law / non conforming the Law."

Contracts should not necessarily be concluded, the laws do not necessarily must be issued, but the courts should decide any case that presents itself. The standard that corresponds to this decision is that it is forbidden to denegation of justice - the double negative in the formula is, by the point of visa of logic, something very revealing. While in Roman Law and still the law of the Middle Ages legal protection was only offered to the demands set accurately (actio, writ) in the transition from modernity became natural that any demand should respond with a decision, although not stipulated in the law . Only with this standard to allow to jurisdiction the own responsibility, the judge left emancipated from the old control policy. Only then it seemed wise to gradually extend this jurisdiction to public legal affairs. From a purely factual point of view, it has proven to fill that uses a lesser extent to the courts to get the decision in dispute, the frequency with which arise legal problems in everyday life, but this is not an objection against structural significance of the possibility of recourse to the courts. Because the possibility of appeal to the courts brings up the waiver of appeal to them and reach an out of court settlement as an early solution of the problem - regardless of how each one judges his voluntary decision. The prohibition of denegation of justice doesn’t come from the fact that the linkage to the Law does not let another option. Because as soon as they appear unsolvable problems in search of laws and their interpretation, would be the discretion of the judge "finds the gaps in the law"16 and would repulse to make a decision. Therefore, it requires an institutional prediction if we want to set the right system as universally competent and at the same time, able to decide. This combination of universality and ability to decide is expressed in the prohibition of denying justice, that is, is expressed in the appropriate manner to the Law: the norm - which means you can use thought otherwise validity claims in cases of emergency. 16

As Luhmann himself: "There are therefore" gaps in the law ", but - at best - decision problems not regulated by law [...]. We can not deny the fact that the legal system programs can not completely determine the decisions of the courts. Put another way: the system can not operate with only a purely deductive logic. [...] There is no mechanical jurisprudence. The Courts must, like it or not and regardless of whether or not Existence of motivation in terms of legal policy, interpret, construct, and, if necessary, to distinguish the cases (as they say in Common Law), so you can formulate new decision rules and test them for consistency against the current law. Thus arises through sentenciadora activity of Courts legal rights (Richterrecht) which, in the course of their constant reuse is partly condensed, i.e., formulated with a view to recognition (Wiedererkennung), and confirmed portion, i.e. , seen as usable in other cases (Gestaltungsabsichten). It seems to be universally recognized today that this kind of law of development can not be anticipated or produced or prevented by the legislature. (...) It results from the prohibition on denial of justice " (LUHMANN. Niklas. A posição dos tribunais no sistema jurídico. Op. Cit., p. 161-163).

It remains understood that a rule like that so only puts itself in practice if the decisions are more or less formal and do not address details of the dispute, as could be the burden of proof rules, the lack of observation of deadlines, incompetence, provisions of the procedures, etc. According to Luhmann, surprising the issue from another point of view, it is more important to analyze the relationship between training that requires a judge to comply with the prohibition of non liquet. It states that it is possible to consider the modern discourse on the principles as a side product of this prohibition of denegation of justice. For him, the hard cases are cases where existing legal rules (and unquestionably actual), implemented through correct deductive methods do not end at clear decisions. Therefore, it is about cases that the Law knowledge is not enough. However, the courts have to decide on this chaos: to define and argument of decision should develop decision rules whose validity may be doubtful and continue to be doubtful. The courts cannot rely on unquestioning existing Law but to create, postulate and assume that right without arriving to ensure that in addition to the legal force of the decision of the case, is also true of the decision program.17 The discrepancy between the need to decide and the ability to reach convincing decisions is expressed, among others, in the right strength of the institution. This force manifests itself at a precise moment. For more questionable that has been and continues being the decision, the strength of the right to exonerate a continuous questioning. This makes the inclusion of consequences in the search and decision rationale is harmless and, in turn, risky - harmless because at the time of valid decision the consequences are in an unknown future; risky, precisely so. The consequences are carried out (or not) against expectations and cannot change the decision.

17

The code values are not assigned automatically to the states of things dealt with in the legal system operations. The meeting between fact and code or the application of the code to a fact is not enough to make the disjunction of a value or other fact of the value in question. The allocation of values is regulated by programs that define, adding, what can be considered throughout correction as Law or non-Law on those conditions. The codes snared the "unity" of the legal system, ie the two sides of the distinction that the sling. So "coding and programming are two pillars of the unity of an autopoietic system", as is the case of the Law. However, an essential difference persists as programs and can be modified or replaced, while the code remains identical and identifies the system itself. A code change is nothing less than a change of system. Therefore, the programs represent the "views of correction" in the assignment of coded values. Codes and programs are complementary, as the code setting makes it possible to change programs. Alongside programs of contingencies to the legal system, criteria and conditions for allocating values of Law and nonLaw, it cannot be maintained at a high level. Moreover, the positivity of law cannot integrate immediately, just as the expiry, the foundation of invariance and, above all, the abstraction of your code. In this sense, the Law code cannot be going out of the legal system: it cannot be associated with other values or enter into other functional assemblages outside the legal system. Then their values are perfectly symmetricized and technicized: the code overwhelms all "secret preference to the Law and (all aversion) against nonLaw". Programs can not, in any way, be determined by a "predilection for legality." (CLAM, Jean. A autopoiese no direito. In: ROCHA, Leonel Severo; SCHWARTZ, Germano; CLAM, Jean. Introdução à teoria do sistema autopoiético do direito. Porto Alegre: Livraria do Advogado, 2005. p. 131-132).

Can this later become apparent as erroneous speculation, but it is valid and, unlike what happens with the laws, it can no longer modify it in the perspective of a mixture of consequences.

4. CENTER AND PERIPHERY IN LAW SYSTEM According to Luhmann18, neither the laws nor the contracts are at the need to decide. The validity of the law can change (or want to change) with the selection of these forms. Only the courts live in an exceptional situation. It may be that the laws and contracts for political or economic reasons are obliged to make a decision. However, these are constraints of another kind, at which the right of the system is free to decide whether they are legally relevant. Rather, the courts - for legal reasons - must decide any demand that they present. Only to them it is the management system of the paradox. Only they should, where necessary, turn the indeterminacy into determination. Only they are bound to the decision and therefore only they enjoy the privilege of being able to transform necessity into freedom. No other justice administration body has a similar position.19 The appropriateness of representation that the courts corresponds to the task of overcoming the paradox of the right system, it dissolves the possibility to describe the differentiation of the legal system as a chain of information: the courts do not give any order to the legislature, but yes, it prefaces the conditions with which they can understand, accept and practice - this is not another thing to assert its own existence. Hence the replacement of hierarchical model for the differentiation between center and periphery. Therefore, the organization's jurisdiction would be that partial system (subsystem) in which the right system has its center. Only here you can use the feature of organizational systems.20 All other fields of work (non-judicial) the right of the system 18

LUHMANN, Niklas. A posição dos tribunais no sistema jurídico. Ajuris: Revista da Associação dos Juizes do Rio Grande do Sul., Porto Alegre, v. 49, 1990 19 According to Luhmann, "we can understand this fundamental rule of activity of the Courts (Gerichtsbarkeit) as the paradox of transformation of coercion in freedom. Who is curtailed to the decision and, in addition, the reasoning of decisions should claim for this purpose an essential freedom of the construction law. Just so there are no 'gaps in the law'. Only so the interpretive function can not be separated from judicial function. And just so the legal system can claim universal jurisdiction for all problems formulated in the scheme "Law or non-Law" (LUHMANN, Niklas. A posição dos tribunais no sistema jurídico. Ajuris: Revista da Associação dos Juizes do Rio Grande do Sul., Porto Alegre, v. 49, 1990. p. 163). 20 Organization is a type of social system that is the basis of recognition rules that identify and allow you to specify their structure. In communication organization becomes decision and this, in turn, is guided in

belong to the periphery. To the periphery there is no need to decide. The peripheries may arise interests of any kind and enforce them with all available means, without regard to the distinction of legal / illegal interests. Precisely for this reason the periphery serves as a contact zone with other social functions of systems: economy, domestic family life and politics. So the courts compared with legislators and with contractors, work in a much more dramatic cognitive isolation. Just think of the formalities of evidentiary procedures21. Besides access to the courts should be discreet and organized as possible selectively. Only a tiny percentage of legal issues is presented to the courts to decide. But if this happens, if those involved do not depart, the courts have to decide whether easy or difficult the decision, the conservative or creative outcome.22 The form of differentiation is the only one that would ensure the development of paradox- no more. But it depends on what the legal system, to take upon itself a universal competence, to be able to close operatively to fulfill a specific function of the society's system.23 certain programs (which limit the possibilities of communication, imposing objectives and conditions): “En la sociedad diferenciada funcionalmente, las organizaciones asumen una importancia que no se había registrado precedentemente” (CORSI, Giancarlo. Glosario sobre la teoría social de Niklas Luhmann, Op. Cit., p. 123). 21 As Jean Clam, "the locus of the Courts, under the systemic logic is heterarquizado, as there is a shift of decision-making center in which the law becomes the interface of this center, in other words, it is in the center that reproduce the filtered operations - no filter - the practice of the codes and legal programs " (CLAM, Jean. A autopoiese no direito. In: Introdução à teoria do sistema autopoiético. Op. Cit., p. 133134). 22 According to Luhmann, "the periphery difference and the center does not imply any difference in hierarchical order or importance to the continuation of the autopoiesis of the system. On the contrary, the difference is a form two sides, which demarcates the separation of the two sides and that can structure the system itself only as a unit difference. No periphery there is no center, no center there would be no periphery [...] In a specific sense, it is in the center otherwise than worth the periphery. The prohibition of the denial of justice exactly fulfills this condition. "(LUHMANN, Niklas. A posição dos tribunais no sistema jurídico, Op. Cit., p. 163) 23 Regarding luhmannian view of the position of the courts, Jean Clam outlines the following considerations: Tuesday would then the trend, starting from the traditional concept of putting the legislation as a source and creation of law - which is more autonomous and sovereign in positive law - the center of the system. In systemic logic, the legislation is, in fact, a peripheral organ of the legal system, on the border with the political system. Its function is to "accommodation" (in Piaget's sense) or filtering the constant irritation from the political system and radiating through the legal system. The question that arises, then, refers to the new center: the law is an interface, which is the authentic legal center of the legal system, the place is not border and is not adjacent but the subsystems of the legal system itself? The center, whose operations only reproduce filtered operations - not filter - puts into practice the code and legal programs, making use of the current reserved symbol of legal validity, it is in late luhmannian theory, the courts. This theory lies also in the "center, the system of paradox, as well as its management to the central subsystem which is the judiciary. What justifies this choice, which contradicts the current set of dogmatic models? The judge is not limited to know, understand and follow the instructions of the legislator? The regulation of collisions between legislator and judge is not sufficiently unambiguous, making prevail the decision of the first? Luhmann develops two arguments: one - the schimitano type - that for touchstone of these priority conflicts, serves up the question: who decides whether there is collision? The other recalls that the legal system does not submit all "judicial act of decision" to the judicial system. This goes against the withdrawal to impose the

4.1 DIFFERENTIATION FORMS IN THE CENTER AND PERIPHERY Finally, for planning purposes the form of differentiation center / periphery is significant only within the center to allow other forms of differentiation: segmentation, but also superiority and inferiority. Only the courts constitute a hierarchy, they only horizontally differ according to the different spatial or professional skills. This, moreover, contributes to the asymmetry of the shape of differentiation. The periphery cannot differentiate more, however great the amount of issues that arise. The delegation of the legislation does not create autopoietic subsystems (independent). Instead, a municipal court can function without a regional court; the higher courts judge from their own right, either because they have special skills or because as lower court judge ordered a matter that comes from below. Regardless of how one interprets the internal differentiation of the center, this does not contradict the unity of core competence - to the contrary, it legislature an obligation to legislate or any, to private contractors, an obligation to hire any. Only the courts are forced to produce the legal operations in recursive continuity flawless. The ban on denial of justice, from which Luhmann develops all its interpretation of the judicial system is a key criterion in the location of the courts in the center of the system. The autopoiesis is the operative dimension and its recursive continuity the very basis of production and systemic reproduction. Being situated as a subsystem of an autopoietic system under operative production obligation is undoubtedly an absolutely legitimate index of its centrality. All that is not governed by such an obligation, in any event, peripheral. The courts are the heart of the operating end of the legal system. The prohibition of denial of justice expresses the autopoietic vector lock, since it puts the system in a self-subjection to respond to any stimulation "the moment she takes the legal form". He does not integrate an operation that highlights your code and their programs and, immediately, not perfect your unit. It should, thus, claim universal jurisdiction for its function. It performs well, by operating closing its unit, becoming the place of today of all legality. No legal operation can take place outside of themselves and, in return, any other operation -except legal can take place itself. This vector contains the same legality in Asia. However, like all central element of autopoiesis, the judicial system is built on a paradox: the "transformation of the judicial act in freedom." In fact, by imposing an obligation to decide and to justify their decisions, the legal system provides its judicial center the task of constantly changing the validity of the status "of the law. Freedom of construction, which is the unfolding of the central paradox system is supported by change that offers them its periphery. The legislative system call for filtering environmental irritations. Luhmann sees a parallel between autopoietic organization of economic and legal systems. This parallelism enables clear, very interestingly, the figure of a paradoxical center, located in the highest baseline operating levels, and connected to a periphery that transforms, taking on the development of its programs. In fact, banks occupy in the economic subsystem a central place comparable to the courts in the legal subsystem. They generate, as the courts, a paradox at the heart of the economic system. Alone (banks) have the paradoxical task of inciting its periphery, that is, its economic and internal environment at the same time should save and borrow, put the money aside and spend money. This figure away, above all, the unity and representation of the systems and their strategic locations linked to the affirmation of its eminent values. She reveals that logic should without interruption oppose the characteristic terms of traditional access: communication to action, reticular relation to the linearity, heterarchy the hierarchy, duplication of production required to function and legitimacy. The general structure of the media is a processive or current circularity. It is a structure in continuous effectuation, which heterarquicamente builds on itself in a move without absolute beginning and endless necessary (CLAM, Jean. A autopoiese no direito. p. 133-136).

presupposes and reinforces. 24 Moreover, a considerable part of legislation (eg the right of cartels) refers to this creation of the right field. The legal penetration in everyday life can no longer be understood without the law and would be completely outdated want to imagine it as a framework in which two particular people meet and sign an individual contract, according to the prototype of bourgeois right.

FINAL CONSIDERATIONS Formally the courts behave so that their decisions (which will undoubtedly take place within the Law) to determine only by existing Law. It is intended that the action is considered or as knowledge or as applying the law. The right contains sufficient rules (for example, proof load) to ensure that this is possible in all cases. Therefore it cannot be put in doubt that this is possible, moreover which can be demonstrated in elaborate texts. However, it has not contested the most transcendent question: how is this possible? With that replace the social determinations of the legal decision: for example, considerations about the social status of those involved or the social network of their relations? Do not replace. On the other hand, as before these determinations are effective today? But this answer is too hasty or, in any case, made no historical comparison. Must ascertain what are the necessary social determinations (or satisfying the requirements) to socially ensure the independence and the prohibition of the denegation of justice? Anticipating the answer, the requirements are the organization and professionalization of legal competence. In the usual concept addresses targeted the latent influences of society on the right system: especially those that have conditioned the stratification. How could think of other sources of determination? If it builds on an expanded concept system, in the sense of building "autopiése", sets sights on distant sources for

24

The dominance of the distinction between periphery and center clearly shows that the total system can be structured hierarchically. It is too complex for that, and the time point of view, overly dynamic. Only the center itself, only the jurisdiction (Gerichtsbarkeit) can be formed hierarchically. She knows several instances that connect the High Courts and the ordinary courts. So coercion for the decision is deployed and the problem area tends to be shifted up. Differentiation of periphery and center thus enables a hierarchy in the center under the condition of not being extended to the entire system; it allows a differentiation medium for differentiation (LUHMANN, Niklas. A posição dos tribunais no sistema jurídico. Op. Cit., p. 165).

determining the free space of the decision: precisely the organization and the profession. The organization primarily reflected in the fact that the judges, by virtue of being members of the organization are required to work. It is expected (of the control service, to the colleagues themselves) to fulfill its tasks. In this way remains bound a temporal structure: one after another. If the courts give no reason, one cannot always be defending the same opinion discrepant - only to compel the parties to that appeal case by case. You can send a probe globe over, as long as there is compliance in the case bursting. Finally, organization means that there are different positions, different salaries, ie: careers. Second is the place and the way in which it decides on the career (which is always the result of a mutual effectuation between auto selection and hetero selection) come into consideration opinions and work motivations that go beyond what can be expected from a member of the organization. On the other hand, the organization is important because it filters the impact it has on the entrance and the judge's position of the decisions you have taken. The judge can survive the press campaigns without losing your position and try without economic damage. And, above all, in the light of the importance they have in modern practice the calculations of the consequences, it is crucial that the judge did not take responsibility for the consequences of its decisions. The organization runs the risk that we run here. In a very intricate way, the irresponsibility that ensures the organization makes it easier to take decisions. Often, and in different ways, has described the relevance of the meaning of professions and professionalization of legal work as forms of regulation of social life. So we can save the repetitions. If reality and investigations are considered from the point of view of the possibility of judicial task (so much that it makes independence as it takes the effect on the imperative of deciding), then call attention two characteristics: the prestige of the expert allowing you to lawyers operate in the highly selective framework of legally relevant - rejecting all the wishes of customers or the parties to the dispute, which considers that exceed it; and the ability to establish formal and peaceful relations among colleagues, even when among customers it has lost control of the dispute. Certainly, the role that the courts has two faces - and the second time it wants more important: one, the lawyers (lawyers and judges them) prepare the formal decision of the dispute; another, in the framework of the precautionary practice, engage in formulating legal instruments in such a way that not reached to the dispute. It is mostly offices (between lawyers from

private organizations or public service) that prevails this prophylactic activity (preservation). Finally, judicial procedures operate in the same direction: begin accepting with careful care insecurity of the decision. In this way seduce that collaborate, specify roles, determine the contributions delimit the conflictive points, until the decision appears as a logical outcome of the legal procedure. With the proviso that participants cooperate to the assurances can adsorb with the result that once it has been decided is possible only challenging to the extent that allow it to the same legal means. And out of this, only the way the policy is that it can suggest the right system a change in the existing law. The role of court in the right system, by Luhmann, appears crucial for the understanding of systems theory. They emerge - the courts - as the system vertex. Its position is central in relation to other legal productions areas in that decides and accomplish the right goal post by the legislature. In this sense, the decision gets odd relief, but not determined by the past and relevant consequences in the future. It is she who, in addition to the legal production, opens or closes possibilities without it would not exist. Another hand, while the courts are the center of the right system, the other actors emerge as a necessary periphery and allows the irritation of the right system, the other systems, establishing contact points between politics, economy etc. However, between center and periphery there is no need to talk about hierarchy - as intended the theory of law for a long time - but in circularity. Thus, the simple recognition of the "judicial Law" remains, therefore, on the surface of the problem. Just as the dissolution of the classical hierarchy when you want to see it as a circular relationship of reciprocal influences. Apparently, it is the question of how the right system dampens their own overfluxing and precisely how and where. This refers back to the logical-structural meaning of the prohibition of denial of justice. What happens to this prohibition that moves so many things? It is simply a norm among many others, a provision of procedural law? These questions are not enough, because it is an autologous provision, namely, that includes itself in the field of your application and we will be at the appropriate time comes.

REFERENCES

BENTHAM, De Jérémie; DUMONT, Par. De l´organisation judiciaire, et de la codification. Paris, Librairie de Hector Bossange, 1828. CORSI, Giancarlo. Glosario sobre la Teoría Social de Niklas Luhmann. Universidad Ibero Americana. Iteso – México: Editorial Antrophos. COUTINHO, Jacinto Nelson; MORAIS, José Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de Janeiro: Renovar, 2007. LUHMANN, Niklas. A posição dos tribunais no sistema jurídico. Ajuris: Revista da Associação dos Juizes do Rio Grande do Sul., Porto Alegre, v. 49, 1990, p.149-168. LUHMANN, Niklas. Introdução à teoria dos sistemas. Petrópolis, RJ: Vozes, 2009. LUHMANN, Niklas. Sistemas sociales. Lineamentos para uma teoria general. México: Universidad Ibroamericana; Santafé de Bogotá: CEJA, Pontificia Universidade Javeriana, 1998. LUHMANN, Niklas. The differentiation of society. New York: Columbia University Press, 1982. LUHMANN, Niklas; GEORGI, Rafaelle de. Teoria de la sociedad. Tradução: Javier Torres Nafarrate. México: Universidade de Guadalajara, 1993. MARQUES, Mario Reis. Codificação e paradigmas da modernidade. Coimbra: Coimbra, 2003. ROCHA, Leonel Severo. Epistemologia jurídica e democracia. São Leopoldo: Ed. Unisinos, 1998. ROCHA, Leonel Severo; SCHWARTZ, Germano; CLAM, Jean. Introdução à teoria do sistema autopoiético do direito. Porto Alegre: Livraria do Advogado, 2005.

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