02/3 - Teoria do ordenamento jurídico de Norberto Bobbio - matéria de IED direito — Transcript

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1. 0:01Hey everyone, we're giving a very
2. 0:03simple, direct, and didactic
3. 0:05explanation of Norberto Bobbio's theory
4. 0:08of legal order, the book that appears
5. 0:10most frequently on the OAB exam in the
6. 0:13introduction and study of law section
7. 0:15—that part, you know, the
8. 0:17propaedeutics of legal education, which
9. 0:20is our area, our specialty. We
10. 0:22specialize in this, right? That's what
11. 0:24we do, okay? That's what we study our
12. 0:26whole lives. Guys, let me do a reading
13. 0:29for you. Look how interesting this is.
14. 0:32The requirement for new research. Why
15. 0:34new research? Why is this book new
16. 0:36research for Norberto Bobbio? Because
17. 0:38before this book he published the
18. 0:40theory of the legal norm, okay? So if
19. 0:43you haven't seen the video where we
20. 0:44talked about the legal norm before, go
21. 0:46back here, everyone, watch the previous
22. 0:48video so that what I'm going to tell
23. 0:49you now makes more sense, okay? So, the
24. 0:53requirement for new research arises
25. 0:55from the fact that, in reality, legal
26. 0:57norms never exist in isolation, but
27. 1:00always in a context of norms with
28. 1:02particular relationships between them.
29. 1:05And these relationships will be, to a
30. 1:07large extent, the subject of our
31. 1:08analysis in this book. This context of
32. 1:12norms is usually called a legal system.
33. 1:16Legal system, okay? So, look at what
34. 1:19Bob's deal is now, folks. He previously
35. 1:21wrote a theory of legal norms that
36. 1:23wasn't sufficient. He wasn't satisfied.
37. 1:26He says: "Oh, I don't understand what
38. 1:28law is in all its richness and
39. 1:29complexity based solely on the theory
40. 1:32of legal norms. I need a new theory to
41. 1:34complement—look, not to replace, not
42. 1:37to refute—but to complement, to
43. 1:40supplement the theory of norms and to
44. 1:43show this part of the dynamics of a
45. 1:46legal system, this structure, this form
46. 1:49of organization of all the norms that
47. 1:52are in force in a given country. And
48. 1:55this new theory, folks, is what he will
49. 1:58call the theory of the legal system.
50. 2:00Okay? What does this theory say, folks?
51. 2:03First, it considers that it is more
52. 2:06important for us to understand law as a
53. 2:10set of interrelated norms than as
54. 2:13isolated norms, okay? That is, law is
55. 2:16not a bunch of laws scattered around
56. 2:18the world, right, published, foreseen,
57. 2:20right, in international treaties, in
58. 2:23conventions, in domestic law, but
59. 2:25isolated, each one in its own square,
60. 2:27right? Each law has a number, each
61. 2:29article has a number. No, no, folks.
62. 2:32Law is this cohesive, organized,
63. 2:36coherent set of all this." A set of
64. 2:39legal norms that encompasses a past, a
65. 2:42past of culture and traditions, and
66. 2:45also a future of values, of what we
67. 2:48want for the future, right? So, folks,
68. 2:51in this work he will begin to analyze
69. 2:54the different sources of law, and he
70. 2:56works with a distinction between
71. 2:58original sources and derived sources,
72. 3:01okay? For him, the original sources are
73. 3:05power, okay? It's the legally original
74. 3:09power, right? So today we believe in
75. 3:12our current order, okay? that this
76. 3:15original power of law is the
77. 3:17constituent assembly, that is, it is
78. 3:19that moment when the Chamber of
79. 3:21Deputies, representatives of the entire
80. 3:24people of a nation, unite to make a new
81. 3:27constitution, okay? So this original
82. 3:29constituent power, folks, is, let's say
83. 3:32, the great material source, right, of
84. 3:35a law, okay, in this conception of an
85. 3:38original source, okay? The original
86. 3:41source is that which is at the origin,
87. 3:43it is that which is the basis, right,
88. 3:45of the foundation of a legal order,
89. 3:47right? And these powers, this original
90. 3:50source of law, folks, have limits,
91. 3:52right? It has There are both internal
92. 3:55and external limits, right? The
93. 3:58internal limits, recalling a concept
94. 4:00from hobbies, which is what brings this
95. 4:02up, right? It's the very notion of
96. 4:06civil disobedience, right? So, the
97. 4:08Leviathan, the sovereign power, the
98. 4:10king, the emperor, and today, right,
99. 4:12the presidents, the prime ministers,
100. 4:14right, they don't have unlimited power,
101. 4:17right? In a democratic state governed
102. 4:19by the rule of law, folks, we have this
103. 4:21division of power, right, into three
104. 4:23major spheres: executive, legislative,
105. 4:25and judicial. And within this division,
106. 4:28this autonomy, right, in the use of
107. 4:31powers, right, we have a kind of checks
108. 4:34and balances, right, of these powers,
109. 4:36right? So this ends up being a certain
110. 4:39internal limit, right, to this very
111. 4:42sovereign power of original creation of
112. 4:45law, right? But in addition to that,
113. 4:47there are also external limits today,
114. 4:49right? There is today the limit of
115. 4:52international law. The Nuremberg trials
116. 4:54in Germany were one of the first to
117. 4:56raise this issue, right? Note that in
118. 4:59Germany there were trials of some
119. 5:01Soldiers, right? Some Nazi soldiers and
120. 5:03such. And the basis they used, right?
121. 5:07Even though at that time they were
122. 5:09following orders, they were following
123. 5:12the legislation in force at the time,
124. 5:14etc. They, the Nuremberg judges, right,
125. 5:17decided that at that time, despite this
126. 5:20internal law, right, this tyrannical,
127. 5:22despotic, violent, etc., brutal law,
128. 5:25there was also an international order
129. 5:27for the preservation of human rights.
130. 5:30There was an international law to which
131. 5:32all these countries belonged. So,
132. 5:34notice that there are external limits
133. 5:36today as well, right? When we study
134. 5:38transitional justice, it's a super
135. 5:40important concept for us to understand
136. 5:42that a state no longer has total
137. 5:44freedom, like, "Oh, here within my
138. 5:46country I create whatever law I want,"
139. 5:48right? It's not quite like that anymore
140. 5:50, right? You can create many laws,
141. 5:52right? You can create a lot of things,
142. 5:55but human rights today are a type of
143. 5:57transitional law, it's a supranational
144. 6:00law, it's a law that also needs to be
145. 6:02cultivated, respected, and cared for,
146. 6:05right? Including by this original
147. 6:07source of law, right. That's the kind
148. 6:10of sovereign power, right, or original
149. 6:13constituent assembly, okay? Now, the
150. 6:16derived sources, folks, are those
151. 6:19sources that Norberto Bobbin considers
152. 6:22to be those of limits, a kind of
153. 6:25heterolimitation, right, which is more
154. 6:28linked to material sources. So he
155. 6:31places, right, as these external
156. 6:33sources, the idea of natural law, of
157. 6:36reason, the idea of law linked to the
158. 6:38will of God, right? Historical and
159. 6:41cultural experiences, social struggles,
160. 6:44right? In other words, it's something
161. 6:46that comes from society and interferes
162. 6:48with the law, right? It's something
163. 6:50that comes, let's say, from a cultural
164. 6:53construction of society that will
165. 6:55reflect, right, in the law, unlike the
166. 6:57original sources, which are defined by
167. 7:00the law itself. And another criterion
168. 7:03for derived sources are those sources
169. 7:06that work with the recognition of
170. 7:09rights, right? And other sources that
171. 7:12work with the delegation of rights.
172. 7:14Right? An example of these sources of
173. 7:17recognition are those norms. Legal
174. 7:19sources that incorporate customs or
175. 7:21those norms that say, "Ah, in this case
176. 7:23, you can use the customs and
177. 7:25traditions of the place," okay? We have
178. 7:27another video about customs in the
179. 7:29theory of legal regulation. You can
180. 7:31watch it to delve deeper into this
181. 7:33issue, okay? And the sources of
182. 7:36delegation of law, folks, are those
183. 7:38that grant other people the power to
184. 7:41create law, right? So, notice that the
185. 7:44state itself, right, it can delegate in
186. 7:47a derivative way, therefore, okay, so
187. 7:49that judges and ordinary people can
188. 7:52also create law. When the judge makes
189. 7:54the sentence, right, the legislator
190. 7:56says: "Look, if you make the sentence
191. 7:58with reasoning, ta-da, that sentence
192. 8:00will form res judicata, that is, it
193. 8:02will be the law between the parties, it
194. 8:04will become the law between the parties
195. 8:06, okay?" And similarly, contracts:
196. 8:09ordinary people, if they enter into a
197. 8:11contract with a specific object, a
198. 8:13capable agent, the form prescribed by
199. 8:15law, and there are no grounds for
200. 8:17annulment of the transaction, the
201. 8:19legislator himself says: "Hey, your
202. 8:21contract here, folks, will be the law
203. 8:23between the parties." So this is a
204. 8:26phenomenon, right, in Norberto Bobbio's
205. 8:28classification, okay? Of derived
206. 8:30sources, right? Very good. But why
207. 8:33derived, right, and original? Look, if
208. 8:35you didn't quite understand this
209. 8:37distinction, and it really is a bit
210. 8:40confusing at first, it's because the
211. 8:42expression "original source" refers to
212. 8:44the origin of the very power to declare
213. 8:46the law, okay? That's how Bobbio puts
214. 8:49the issue. And Bobbio is concerned with
215. 8:51the foundation of law, you understand?
216. 8:52He's concerned with understanding where
217. 8:55law comes from or where law can come
218. 8:57from, right? Because Kelsin is a great
219. 9:00reader of Kelsin, right? And Kelsin
220. 9:03also works a lot on this issue, which
221. 9:05is why he distinguishes between
222. 9:06original and derived sources. The
223. 9:08original question is where does the
224. 9:10State's right to create law come from?
225. 9:13These are the original sources. That's
226. 9:15why he's going to talk about the social
227. 9:17contract, right? He's going to talk
228. 9:19about Olivian, about Robes, he's going
229. 9:21to talk about the Constituent Assembly,
230. 9:23right, which is the most contemporary
231. 9:25conception, okay? And the derived
232. 9:27sources are those that derive from
233. 9:29existing law, right? Which are the
234. 9:32cultures, right, the traditions, that
235. 9:35vision we have of law that is already
236. 9:38part of, let's say, a culture based on
237. 9:41a previous legal order that precedes us
238. 9:44, right, and from which we deduce,
239. 9:46therefore, these sources of law. Okay,
240. 9:49everyone? Great. So, everyone, the
241. 9:52video is already long, so let's stop
242. 9:56here and we'll continue in the third
243. 9:59video. Let's go.