A RELAO ENTRE A NECESSIDADE DE DECIDIR, ORGANIZAO

JUDICIAL E A POSIO 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
Narciso Leandro Xavier Baez1
Vincius Almada Mozetic2

RESUMO A relao entre a necessidade de decidir, organizao judicial e a posio

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 decises podem ser concebidas, abstratamente, como uma forma mediante a qual a
relao 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 considerao o
que necessrio para a deciso 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 sistemtico de alguns conceitos chave para o autor e, ainda, a reviso de temas
abordados no captulo, tais como as diferenas entre competncia legislativa e judicial,
o papel da deciso na construo do direito para a teoria sistmica e, principalmente,
apontando a distino terica entre centro e periferia no sistema do Direito.
Palavras-chave: Autopoise. Teoria dos Sistemas. Organizao. 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 Laws operational system, precisely since the temporal and objective
1Academic and Scientific Coordinator of the Master's Program in Law and the Center
of Excellence in Law, Universidade do Oeste de Santa Catarina (UNOESC).
Postdoctoral fellowship in Effectiveness Mechanisms of Fundamental Rights (UFSC);
Doctor of Fundamental Rights and New Rights (UNESA). Internship with PDEE
CAPES, in Center for Civil and Human Rights in the University of Notre Dame,
Indiana, United States (February to July / 2011). Master in Public Law, Specialist in
Civil Procedure, Federal Judge of the Federal Court of Santa Catarina since 1996.
2 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 UNOESCs Law course and lawyer.

perspective. 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 institutionalization 3. 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 re-institutionalized by a continuous movement of construction / deconstruction /
time reconstruction and of itself, i.e., a time built in the complexity and chaos.4
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) 5. 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:6

3 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;

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

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) The unpredictability points to the fact that the operations of the law are not
subject to prior knowledge, if (incompatible) 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.7

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 autopoiesis8. 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.9

6 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;

MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 205-206.
7 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;
MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 208-209.
8 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;
MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 210.
9 ROCHA, Leonel Severo. Observaes sobre autopoiese, normativismo e pluralismo
jurdico. In: STRECK, Lenio Luiz; MORAIS, Jos Luis Bolzan de. Constituio,
sistemas sociais e hermenutica. n. 4. So Leopoldo: Unisinos, 2008. p. 169.

En la teora de sistemas lo que se enfatiza es la verdadera

emergencia de la comunicacin. No existe propiamente transmisin de
alguna cosa; lo que hay es ms bien una redundancia creada en el sentido de
que la comunicacin inventa su propia memoria que puede ser evocada por
distintas personas, de diferentes maneras. Cuando A comunica algo a B, la
comunicacin siguiente puede dirigirse no mismo a A que a B. Se puede
imaginar, entonces, el sistema como un pulsar constante: con cada creacin
de redundancia y con cada seleccin el sistema se expande y recontrae
permanentemente.10

For this reason:

[] los tres componentes sintticos que dan por resultado la
comunicacin- informacin, acto comunicar y acto de entender no deben
ser interpretados en calidad de actos o funciones u horizontes de aspiraciones
de validez (aunque todo esto pueda ser utilizado en la comunicacin).
Coexisten piezas concretas de comunicacin que tuvieran una existencia
independiente y que slo fuera necesario que alguien las ensamblara. En
lugar de eso, la comunicacin deber entenderse como una cuestin de
distintas seleccione cuya selectividad est constituida por la comunicacin
misma. Fuera del marco de referencia de la comunicacin no existe
informacin, ni acto de comunicar, ni acto de entender.11

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.12
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:
10 LUHMANN, Niklas. Introduccin a la teora de sistemas. Mxico: Universidad
Iberoamericana, 2002. p. 308.
11 LUHMANN, Niklas. Introduccin a la teora de sistemas. Mxico: Universidad
Iberoamericana, 2002. p. 308-309
12 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;
MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 210-212.

occurs to rules linking to a cognitive opening to the surroundings, establishing the

opening by means of closing.13
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.14
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 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

13 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;

MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 213.
14 ROCHA, Leonel Severo. Tempo e constituio. In: COUTINHO, Jacinto Nelson;
MORAIS, Jos Luis Bolzan de; STRECK, Lenio Luiz. Estudos constitucionais. Rio de
Janeiro: Renovar, 2007. p. 213-214.

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.15
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/ nonLaw, 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."16
3.1 OBLIGATION TO DECIDE AND PROHIBITION OF DENEGATION OF
JUSTICE
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
15As 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 jurdica e democracia.
So Leopoldo: Ed. Unisinos, 1998, p. 196).
16 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."

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 doesnt 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"17 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.
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
17 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 posio dos
tribunais no sistema jurdico. Op. Cit., p. 161-163).

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. 18 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. 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.

18 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 non-Law, 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 non-Law". 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. Introduo
teoria do sistema autopoitico do direito. Porto Alegre: Livraria do Advogado,
2005. p. 131-132).

4. CENTER AND PERIPHERY IN LAW SYSTEM

According to Luhmann19, 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.20 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.21 All other fields of work (non-judicial) the right of the
system 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.
19 LUHMANN, Niklas. A posio dos tribunais no sistema jurdico. Ajuris: Revista da
Associao dos Juizes do Rio Grande do Sul., Porto Alegre, v. 49, 1990
20According 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 posio dos tribunais no
sistema jurdico. Ajuris: Revista da Associao dos Juizes do Rio Grande do Sul., Porto Alegre, v. 49,
1990. p. 163).

So the courts compared with legislators and with contractors, work in a much
more dramatic cognitive isolation. Just think of the formalities of evidentiary
procedures22. 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. 23 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.24
4.1 DIFFERENTIATION FORMS IN THE CENTER AND PERIPHERY

21 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 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
haba registrado precedentemente (CORSI, Giancarlo. Glosario sobre la teora social
de Niklas Luhmann, Op. Cit., p. 123).
22 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: Introduo teoria do sistema autopoitico. Op. Cit., p.
133-134).

23 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 posio dos tribunais no
sistema jurdico, Op. Cit., p. 163)

24Regarding 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.

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
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
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).

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 presupposes and reinforces.

25

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.

25 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 posio dos tribunais no sistema jurdico. Op. Cit., p. 165).

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 "autopise", sets sights on distant sources for
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.

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