Dos problemas da falta de vigência social: uma análise a partir da teoria dos sistemas

Abstract

What are the problems of formally existing legal norms that lack social validity? This question guides this study in an attempt to establish a theoretical framework in the light of the Niklas Luhmann’s systems theory in order to enable a better understanding of the legal system in contemporary society. The specific aim is to identify the cases in which formally valid norms, i. e., institutionalized through legal procedure, lack social validity, namely stabilized normative expectations of behavior. Thus, it becomes not only conceivable legal norms with sufficient normative force to maintain itself valid in face of a full inefficiency as well as to point cases in which social inefficiency derives precisely from the lack of normative force. To justify the choice of the theoretical framework, this work shows the difficulties of some conceptions of law, taking specifically Kelsen and Ehrlich as a paradigm, to relate validity and efficiency, requiring a social theory based on the category of complexity. Then this thesis explains systems theory itself, covering up some concepts necessary to understand the subject, as system/environment, society, autopoiesis, in a way to clarify the function of law and, therefore, to define the term social validity and its ramifications. To illustrate the analysis of formally existing legal norms that lack social validity, two incursions are made: the cases of symbolic legal norms and symbolic constitutionalization, marked by the hypertrophy of the symbolic function to the detriment of the legal-instrumental function; and legal nonsenses, that is to say, normative texts characterized by the inability to produce meaning before a cultural obsolescence.