Mestrado em Direito

The world changed. The society is an era full of interconnected commu- nications in a hypercomplex level - social phenomena can be presented in many different ways to many different legal systems. In Latin America, the process was not different. With the rise of the “New Constitutionalism Latin American”, founded on democratic, integrative and participatory principles, new forms of government have emerged - the old Republican State, Colonial, with a people, territory, and government, withered. Multiculturalism, plurinational and various legal dialogical games won voice before the extirpation of monocentralism gag. The example of Bolivia and Ecuador, indigenous peoples, which were not even constitutionally recognized as people of these states, now have autono my and are able to manage and solve their own conflicts. In this path, it is necessary to analyze the Brazilian panorama, given that many indigenous people have no voice to self-determination - the “white man” still seeking to intervene that is within your reach. Therefore, it is imperative to rethink the national situation using the Transconstitucionalism theory in order to maintain a constitutional conversation to resolve conflicts between indigenous law and state law.

The purpose of this article is to identify ways of solving constitutional problems common to various legal systems. To achieve this goal, the research problem presented is: how to provide a multi-level dialogue on legal issues involving fundamental and human rights and present themselves to various legal systems? The hypothesis of research presented is a transconstitutional thesis by Marcelo Neves as a form of dialogue between the various legal discourses that present themselves to a common constitutional problem, mediating an adequate solution that observes and ensures the differences. The research method used was hypothetico-deductive, and the techniques used were bibliographic and documentary research, records, categories and operational concepts. The main conclusions that can be observed is that the closed constitutional models are not able to face the global problems alone, in addition to that the Transconstitutionalism is a method to promote the dialogue between the legal systems in search of solving problems that present themselves to various legal orders.

The present work aims to disseminate a version of social systems using Niklas Luhmann's theory of social systems. In order to comply with the proposal, the article contained in this article is as follows: The research problem is a fundamental issue of functional differentiation of the legal system in Brazil. The hypothesis of a tested research is one that exists and is occasioned in the advantages of interference by political and economic states. The research method used was the hypothetical deductive, and how the research techniques were included in the bibliographic research, diagrams, categories and operational concepts. The existences indicate that the research is truly presented, there is no functional differentiated function of the Law system.

With globalization, the emergence of actors at multiple levels increased significantly, causing the State to lose its leading role. Among these, Corporations have gained prominence in the global scenario, mainly due to the cross-border nature of capital, in addition to representations in several parts of the world, which shows a true social fragmentation and a hybridization between the public and private spheres. This made its subordination to a state legal order drastically reduced, thus hindering forms of punishment in accordance with the legislation in force in a particular State. The best example of this sanctioning difficulty is visualized when damage to the environment occurs. Because the State's Constitution (and the infraconstitutional legislation) does not manage to cover all possible legal situations, it is proposed a self-constitution of the autonomous regimes, in order to solve the existing controversies. The present research has as its theme the difficulty of punishing transnational corporations in cases of environmental damage by the States. The aim of this paper is to demonstrate the insufficiency of national state legislation in effectively punishing transnational corporations that cause environmental damage. In order to reach the proposed objective, the problem that guides the present research is: how to overcome the lack of subordination of autonomous regimes to the legislation and Constitution of the national State? In response to the problem raised, the hypothesis of research is Gunther Teubner's proposition of self-constitutions, to the detriment of the submission of the autonomous regimes to the legislation and Constitution of the State. The method used in this research was the inductive, using techniques of bibliographic research, documentary, categories and operational concepts. The partial conclusions observed is that the state becomes incapable of dealing alone with the problems involving transnational actors, leading to a social fragmentation that demands specific forms of constitutions for each autonomous regime.

There is great concern with the issue of social inequalities that develop in a scenario of democracy. In Amartya Sen, it is indissociable to work on issues pertaining to Democracy and social inequalities without passing criteria of justice. A society can only be fair if it is democratic, in the same way, it will only be democratic if its citizens participate actively and present.

The present work aims to identify if the conception of Commom Good is viable from the perspective of Systems Theory. The research problem raised here is: is it possible to concretize the concept of Common Good? In order to answer the problematic, it is based on the hypothesis that Sustainability is a Value in Modern Society. The theoretical framework used was Niklas Luhmann’s Theory of Autopoietic Systems. The research method used was the deductive, with the aid of the techniques of categories and perational concepts and bibliographic research. The partial conclusions that can be observed is that it is only possible to construct the concept of Common Good from the moment Sustainability is considered a Social Value, but there is no possibility of realizing this concept of Common Good.

The theme of the present work is the polycontextural normative production. The general objective is to verify if the Native Peasant Indigenous Jurisdiction is a decentralized normative production center. The research method used was the inductive, using the techniques of research of bibliographical consultation, for theoretical foundation; and book reports. The conclusions obtained in this work is that there is a possibility of normative production beyond the (state) Law, and that can be verified in the case of the Indigenous Native Peasant Jurisdiction.

This text aims to contribute to the use of new theories for the observation of post-modern society. It is important to emphasize, this is not the only theory which we have available, but, clearly, in our point of view, the only one that allows a wider and deeper observation of society’s complexity. Starting from this observation, is is assumed society is highly complex as it has multiple ways of showing itself. Because of the supercomplexity of nowadays societies and of the large possibilities, it is brought a way to handle complexity, the systems. These systems sort this complexity from a certain kind of perspective on the kind of functional differentiation. This way, because of the wide range of situations that can be observed, imagined, and that can happen, we seek aid in theories of Policontexturality, from Gunther Teubner and Transconstitucionalism from Marcelo Neves, in order to understand the supercomplex postmodern panorama, taking us to a somehow clearer understanding of the society we live on.

The theme of this work is the Guidelines for the construction and consolidation of an International Constitutional Court. The objective is to verify the ways, functions and the way to consolidate an International Constitutional Court, through the dialogue and the vectors of Common Good. The research method used was inductive. From this study, it was concluded that Sovereignty, Legitimacy and Transconstitutionalism are, in fact, key categories for undertaking new strategies capable of uniting peoples, even through their differences, as well as bringing limits to the emergence of a transnational economic power that does not always translate the dimensions of protection to human dignity, nor to the improvement of a healthy and qualitative life.

The present chapter has as main objective a presentation of the fundamental rights observed from the discourse theory of Habermas and a look at freedom as autonomy in the autopoietic systems of Niklas Luhmann. The first part aims at an analysis of fundamental rights within the theory of discourse, from the emergence to its legitimacy within the legal system, with emphasis on the importance of private and public autonomy as a crucial point in the establishment of a democratic process that encompasses the complexities of a postmodern society. The second part focuses on the fundamental right to freedom, opposed to the media law of expression observed from the theory of autopoietic systems, working the conflicts of fundamental rights existing in a systemic plane, passing through the process of evolution and the embargoes existing during the variation , selection and re-stabilization of the system. The optics of approach was chosen because postmodern societies present hypercomplexity, which, in our view, results in the insufficiency of certain theories to offer answers to our reality, and it is necessary to seek support in the theories of discourse of Jürgen Habermas and the autopoietic systems of NIklas Luhmann, so that we can observe broadly the current social phenomena.

The Native Peasant Indigenous Jurisdiction in Bolivia was a real innovation in the constitutional text, mainly consecrating its autonomy and application of its culture and customs to the native indigenous peoples. This jurisdiction proved to be an embodiment of the human right of Autonomy of Peoples. However, at the same time that it served to concretize, it also served as a barrier, constituting a paradox, because of the imposition of veto-European standards on the places constituted of great cultural heterogeneity. Thus, the paradox of the Autonomy of Peoples must be observed through a constitutional fabric materialized through an intercultural dialogue.

This work reflects academic encouragement given by Prof. Dr. Sergio Ricardo Fernandes de Aquino, in the discipline of Theories of Sustainability, which premise the understanding of the main theoretical foundations on sustainability in its threefold meaning - natural / environmental, economic and social - and its impacts on the development of the 21st century.

The theme of the present work is the interactions between Law, State and Democracy in times of globalization. The general objective is to verify how the classic bases of the State present themselves in the face of globalization. The method of research used was the deductive, using the techniques of research of bibliographical consultation, for theoretical foundation; and book reports. The final considerations obtained through this research are in the sense of the existence of a participatory democracy that aims at transparency as a global legal claim, allowing the various games of dialogue between the different legal systems.

There is great concern with the issue of social inequalities that develop in a scenario of democracy. In Amartya Sen, it is indissociable to work on issues pertaining to Democracy and social inequalities without passing criteria of justice. A society can only be fair if it is democratic, in the same way, it will only be democratic if its citizens participate actively and present.

The present text has as main objective a presentation of the fundamental rights observed from the discourse theory of Habermas and a look at freedom as autonomy in the autopoietic systems of Niklas Luhmann. The first part aims at an analysis of fundamental rights within the theory of discourse, from the emergence to its legitimacy within the legal system, with emphasis on the importance of private and public autonomy as a crucial point in the establishment of a democratic process that encompasses the complexities of a postmodern society. The second part focuses on the fundamental right to freedom, opposed to the media law of expression observed from the theory of autopoietic systems, working the conflicts of fundamental rights existing in a systemic plane, passing through the process of evolution and the embargoes existing during the variation , selection and re-stabilization of the system. The optics of approach was chosen because postmodern societies present hypercomplexity, which, in our view, results in the insufficiency of certain theories to offer answers to our reality, and it is necessary to seek support in the theories of discourse of Jürgen Habermas and the autopoietic systems of NIklas Luhmann, so that we can observe broadly the current social phenomena.

The present text aims to contribute to the use of new theories for the observation of postmodern society. It is important to stress that this is not the only theory of which we have availability, but it is, in our view, clearly that which allows a more comprehensive and in-depth observation of complexity. Due to the complexity of today's societies and diverse possibilities, a process arises to deal with complexity, systems.

The theme of the present work is the polycontextural normative production. The general objective is to verify if the Native Peasant Indigenous Jurisdiction is a decentralized normative production center. The research method used was the inductive, using the techniques of research of bibliographical consultation, for theoretical foundation; and book reports. The conclusions obtained in this work is that there is a possibility of normative production beyond the (state) Law, and that can be verified in the case of the Indigenous Native Peasant Jurisdiction.