First Steps to Understanding the Law: Introduction to the study of law guide

ISSN: 2674-788X

Ph.D in Legal Management (Student)

Marco Túlio Elias Alves

First Steps to Understanding the Law: Introduction to the study of law guide

2024

Marco Túlio Elias Alves

First Steps to Understanding the Law: Introduction to the study of law guide

2024

ABSTRACT

This article presents an introductory and reflective overview of the essential concepts of law,
aiming to support the initial stages of legal education. Based on bibliographic research and
pedagogical legal literature, it provides a structured exploration of the nature of law, its branches,
sources, and institutional foundations. Rather than treating law as a mere set of rules, the study
emphasizes its social, ethical, and historical dimensions, inviting readers to understand law as a
living and evolving system shaped by human values and collective experiences. The work also
highlights the interdisciplinary nature of law and its role in promoting justice, resolving conflicts,
and regulating social life. By offering accessible explanations and encouraging critical thinking,
the article seeks to prepare students and future professionals not only for academic development
but for ethical engagement with legal practice. In doing so, it positions legal education as a tool
for building a more just, democratic, and responsible society.

Keywords: Law. Legal Education. Institutions. Justice. Society. Critical Thinking.

CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FIRST STEPS TO UNDERSTANDING LAW . . . . . . . . . . . . . . . . 9

1 CHAPTER I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.1 BASICS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.2 Definition and Origins of Law . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.3 History and Evolution of Law . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.4 Main Branches of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.5 CIVIL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.5.1 PRACTICAL EXAMPLES . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.5.2 INTERESTING FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.6 CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.6.1 PRACTICAL EXAMPLES . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.6.2 INTERESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.7 OTHER BRANCHES OF LAW . . . . . . . . . . . . . . . . . . . . . . . . 18
1.8 Inquisitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.9 LEGAL SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.9.1 COMMON LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.9.2 CIVIL LAW OR ROMAN LAW . . . . . . . . . . . . . . . . . . . . . . . 20
1.9.3 OTHER SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.9.3.1 ISLAMIC LAW (SHARIA) . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.9.3.2 SOCIALIST LEGAL SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . 20
1.10 Functions of Law in Society . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.10.1 Preservation of Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.10.2 Guarantee of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.10.3 Regulation of Social Relations . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.10.4 Protection of Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . 21

2 CHAPTER II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.1 STRUCTURE OF THE LEGAL SYSTEM . . . . . . . . . . . . . . . . . . 23
2.1.1 Powers of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.1.2 Executive power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.1.3 Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.1.4 Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.1.5 Curiosities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.2 Hierarchy of Legal Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2.3 Constitution or Fundamental Norm . . . . . . . . . . . . . . . . . . . . . . 26
2.3.1 Constitutional Amendments and International Treaties . . . . . . . . . . . . 26
2.3.2 Complementary and Ordinary Laws . . . . . . . . . . . . . . . . . . . . . . 26
2.3.3 Vertical Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3.4 Lower Standards and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3.5 Evaluative Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.4 Legal Bodies and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.4.1 Organs of the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.4.2 Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4.3 Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4.3.1 Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4.4 Lifetime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.4.5 Public prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.5 OTHER LEGAL AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.5.1 PUBLIC DEFENDER’S OFFICE . . . . . . . . . . . . . . . . . . . . . . . 32
2.5.2 JUDICIARY SERVANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.5.3 AUXILIARY FUNCTIONS OF JUSTICE . . . . . . . . . . . . . . . . . . 32

3 CHAPTER III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.1 GENERAL THEORY OF PROCEDURE AND FUNDAMENTAL RIGHTS 33
3.2 General Process Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.3 Fundamental rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4 Intersection and Harmony . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.5 Challenges and Innovations . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.6 Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.7 Phases of the Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.8 Procedures and Steps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.8.1 Practical Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.8.2 Intriguing Curiosity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.9 Criminal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.9.1 Practical Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.9.1.1 Curiosity about the Adversarial and the Broad Defense . . . . . . . . . . . . 37
3.10 Contemporary Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.10.1 Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.11 Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4 CHAPTER IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 CIVIL AND CRIMINAL LIABILITY . . . . . . . . . . . . . . . . . . . . 40
4.1.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1.2 Practical Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

4.2 Inquisitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2.1 Damage and Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2.1.1 Example: Moral Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.2.1.2 Fun Fact About Types of Repair . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2.2 Equity and Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2.3 Contractual and Non-Contractual Liability . . . . . . . . . . . . . . . . . . 42
4.2.3.1 Contractual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2.3.2 Fundamental Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2.3.2.1 Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.2.4 Non-contractual (or Aquilian) Liability . . . . . . . . . . . . . . . . . . . . 43
4.2.5 Fundamental Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2.5.1 Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2.6 Criminal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2.7 Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2.7.1 Practical Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Balance Between Punishment and Rehabilitation . . . . . . . . . . . . . . . 44
4.4 Challenges and Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.5 Crimes and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.6 Crimes and the Logic of Prevention . . . . . . . . . . . . . . . . . . . . . . 44
4.7 Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.8 Proportionate and Humanitarian Sanctions . . . . . . . . . . . . . . . . . . 45
4.9 Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.10 Continued relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.11 Theory of Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.12 Purposes of Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.13 Legal Acts and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.13.1 Practical Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.13.2 Interesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

5 CHAPTER V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1 FIRST LESSONS IN LAW . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1.1 Age of Majority and Capacity . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1.1.1 Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1.1.2 Ability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1.1.2.1 Practical Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.1.2 Interdiction and Special Situations . . . . . . . . . . . . . . . . . . . . . . 50
5.1.3 Absolutely incapable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.1.4 Relatively incapable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.1.5 ABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

5.2 Introduction to Brazilian Law . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.2.1 Decree-Law 4.657 of September 4, 1942 . . . . . . . . . . . . . . . . . . . 53
5.2.1.1 Key points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.3 Introduction to International Law . . . . . . . . . . . . . . . . . . . . . . . 54
5.3.1 Divisions of International Law . . . . . . . . . . . . . . . . . . . . . . . . 54
5.3.1.1 Public &Private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.3.1.2 Conventional and Customary . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.3.1.2.1 Examples of Practical Applications . . . . . . . . . . . . . . . . . . . . . . 55
5.3.1.2.2 Examples of Practical Applications . . . . . . . . . . . . . . . . . . . . . . 56
5.4 SOME CONTROVERSIES IN LAW . . . . . . . . . . . . . . . . . . . . . 57
5.5 Autonomous Protective Measures of the Maria da Penha Law . . . . . . . . 59
5.5.1 Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.5.2 Examples of Protective Measures . . . . . . . . . . . . . . . . . . . . . . . 60
5.6 Inappropriate Use of the Law . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.7 Sex Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

6 CHAPTER VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.1 CONTEMPORARY ISSUES IN LAW . . . . . . . . . . . . . . . . . . . . 63
6.2 Digital Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2.1 Application Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3 Inquisitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3.1 Data Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3.2 Objectives of the LGPD . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.3.3 Main features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.3.3.1 Application Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.3.4 Cybercrime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.3.5 Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.3.5.1 Example of Cybercrime . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.3.5.2 Inquisitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.3.6 Alternative Means of Conflict Resolution . . . . . . . . . . . . . . . . . . . 66
6.3.7 Rethinking the Traditional Conception . . . . . . . . . . . . . . . . . . . . 67
6.3.7.1 Diversity of Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.3.7.2 Benefits of Alternative Means . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.3.7.2.1 Expanding the Possibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.3.8 Conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.3.8.1 Advantages of Conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.3.8.2 Application Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.3.8.2.1 Inquisitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.3.9 Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

6.3.9.1 Advantages of Mediation: . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.3.9.1.1 Application Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.3.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.3.10.1 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.3.10.2 Advantages of Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.3.10.2.1 Application Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.3.11 Challenges and Perspectives of Law . . . . . . . . . . . . . . . . . . . . . . 71
6.3.11.1 Intrinsic Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6.3.11.2 Guiding Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6.3.11.2.1 Examples in the Scales of Justice . . . . . . . . . . . . . . . . . . . . . . . 72
6.4 Reflection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6.5 Legal Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.6 Transnational Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.7 Regulation and Conflicts of Jurisdiction . . . . . . . . . . . . . . . . . . . . 73
6.8 Global Consumer Protection . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.9 International Mediation and Arbitration . . . . . . . . . . . . . . . . . . . . 73
6.9.1 Perspectives for International Collaboration . . . . . . . . . . . . . . . . . . 74
6.9.2 Impact of Technology on Law . . . . . . . . . . . . . . . . . . . . . . . . . 74
6.9.3 Automation and Artificial Intelligence . . . . . . . . . . . . . . . . . . . . . 74
6.9.4 Online Platforms and Access to Justice . . . . . . . . . . . . . . . . . . . . 74
6.9.5 Blockchain and Legal Security . . . . . . . . . . . . . . . . . . . . . . . . 74
6.9.6 Virtual Reality and Virtual Hearings . . . . . . . . . . . . . . . . . . . . . 75
6.9.7 Cybersecurity and Data Protection . . . . . . . . . . . . . . . . . . . . . . 75
6.9.8 Ethics and Artificial Intelligence . . . . . . . . . . . . . . . . . . . . . . . 75
6.10 Future Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

7 FINAL THOUGHTS: THE PATH TO MORE PROFOUND
UNDERSTANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.1 Encouraging Continuity in Legal Studies . . . . . . . . . . . . . . . . . . . 76

8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

9 REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

8

INTRODUCTION

Understanding the foundations of law is essential not only for future legal professionals
but for all those who wish to grasp the mechanisms that regulate life in society. Law is not an
abstract construction disconnected from daily reality—it is a living system, shaped by history,
culture, and human needs. Therefore, introducing students to the study of law requires more
than memorizing norms; it demands a broader and more accessible reflection on its concepts,
purposes, and functions.

This article adopts a bibliographic research methodology, based on introductory legal
literature and educational texts aimed at guiding students in their first contact with the study of law.
The chosen approach values clarity and didactic progression, drawing on classical and modern
authors whose works offer accessible yet rigorous explanations of legal principles, including
the notions of normativity, justice, social order, and the role of law in regulating conflicts and
protecting rights.

By starting with basic concepts—such as the definition of law, its sources, branches, and
structure—this study aims to lay the groundwork for more advanced legal reflection, highlighting
the interdisciplinary nature of law and its interaction with politics, economics, and social ethics.
The pedagogical objective is to awaken interest, facilitate comprehension, and prepare students
to engage critically with legal education.

9

FIRST STEPS TO UNDERSTANDING LAW

Introduction to the Study of Law Guide

Welcome to your first step into the world of Law! Before we get into the first chapter, we
need the key that opens the door. It’s crucial to understand what exactly “Introduction to the
Study of Law” means.

This is a starting point for any law student. It is the phase in which we begin to unravel
the elementary concepts, to understand behind the norms, and to question how society is legally
organized. This is the fertile ground where the fundamental concepts that will underpin your
entire legal journey sprout.

But it’s also an opportunity to learn expressions and terms, in a technical way that
eventually moves away from average knowledge based on common sense.

By the end of the reading, if you are correctly using terms such as Law, Majority, Capacity,
or Law, we will have already achieved incredible goals.

Contrary to what some may think, law is not an indecipherable enigma reserved only for
scholars. Over the next few pages, we’ll break down the barrier of the unknown, making legal
terms less intimidating and more understandable. Get ready to discover that law is, above all, a
tool for building just and equitable societies.

You will be introduced to essential concepts such as jurisprudence, legality, and, of course,
the very definition of Law. Arouse your curiosity, as these are the seeds that will germinate soon
and will surely change your perspective of the world.

But don’t be fooled into thinking this is just a cursory dive into legal terms. This book is
not just a collection of definitions; It’s a reflective journey. On each page, you will be invited to
think about how these concepts apply to the world, taking the first steps towards a practical and
profound understanding of law.

10

1 CHAPTER I

1.1 BASICS OF LAW

The basics of law refer to the fundamental concepts and essential principles that form the
basis of a society’s legal system. These notions are crucial for understanding how law works and
how it influences relationships between individuals and institutions.

Here are some of the basics of Law, but don’t worry about understanding each of them
deeply, as we’ll talk more about them later:

• Legality: Refers to the principle that the conduct of people and organizations must be
in accordance with previously established laws. No one is above the law, and all actions
must be carried out within the bounds of legality.

• Equality before the Law: All individuals have the right to be treated fairly and equally
before the law, without discrimination based on race, gender, religion, or other personal
characteristics.

• Civil and Criminal Liability: The idea that people can be responsible for their actions under
the law. This includes civil liabilities, where one person may be required to compensate
another for damages, and criminal liabilities, which may result in punishments.

• Presumption of Innocence: A fundamental principle in criminal law that states that a
person is presumed innocent until proven guilty, in accordance with the law.

• Contracts: Legally binding agreements between two or more parties. They specify the
rights and duties of the parties involved and are fundamental to business and personal
transactions.

• Property: Property law encompasses the right to possess, use, and dispose of material
goods. This notion is central to economic and social stability.

• Principle of Due Process: Ensures that legal proceedings are fair and that all parties
involved have the opportunity to present their version of the facts before an impartial
court.

• Jurisprudence: Refers to previous court decisions that set legal precedents. Case law is
often used to interpret the law in similar cases.

• Hierarchy of Laws: In hierarchically organized legal systems, such as the legal system of
most countries, there is an order of importance among laws. The Constitution is usually
the supreme law, followed by statutes, regulations, and court decisions.

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The examples cited are present in most of the legal systems in the world and, therefore,
we can say that they are part of what is most elementary in Law.

One of the goals of the Introduction to the Study of Law course is to begin to become
familiar with such concepts.

1.2 Definition and Origins of Law

The definition of Law may vary according to the context and the approach adopted, but in
general terms, Law can be understood as a set of norms and rules that regulate the relationships
between people in society, seeking to establish justice, order and peaceful coexistence. Law
encompasses not only written laws but also ethical and moral principles that guide human
behavior.

The word Law has interesting etymological origins. It derives from the Latin term
directum, which means “that which conforms to the rule.” The Latin word, in turn, has its root in
the verb dirigere, which means “to direct,” “to order,” or “to align.” The underlying idea is that
the law serves to align or direct the actions of individuals according to pre-established norms.

Throughout history, other languages have incorporated similar terms to express the idea
of law. For example, in English, the word law has Germanic origins and is related to the term
lagu, which means “that which is determined.” In French, we have droit, and in Spanish, derecho,
both also originating from the Latin directum.

This diversity of terms in different languages highlights the universality of the idea that
there are norms and rules that guide human conduct in society. The etymological evolution
reflects not only linguistic changes, but also transformations in the conceptions and application
of law over the centuries.

Some people link Law to Law, in the sense that if the legal norm establishes a rule, it
entitles you to something, while others relate Law and Justice. There is no consensus on the right
answer, nor is the reader required to choose a strand, but it is important to think about it.

What is Law?

We have rules for everything.

In games, we establish parameters for disputes, such as the ways in which the pieces
can behave in chess, what is the best move in poker, or how to define the winner in a football
championship.

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In social relationships, we have rules of etiquette, good manners, and customs that are
treated seriously, such as greeting people, thanking them for a gesture of care, or reciprocating an
action.

Some rules, if violated, can result in consequences, such as the expulsion of a disloyal
athlete or the banning of a player who cheats. Other rules do not have a formal punishment, but
they can generate complications that are not direct punishments, such as going to the bathroom
and not washing your hands will not land you in jail, but it will certainly generate controversial
remarks about the conduct.

Can we conclude that some rules are more important than others? Not necessarily, but
they can attract different kinds of consequences.

Two soccer players who practice the same unfair play can be treated differently, to the
point that one is sent off and the other is not punished, depending on the context, the referee’s
angle of vision, or even previous behavior.

That said, we can determine that rules and facts can be interpreted differently and produce
contradictory results. And even if the goal in both cases is to achieve justice, it ends up creating
an atmosphere of uncertainty and the belief that there are privileged people who do not submit to
the rules and are above the laws.

The concept of Law is very close to the concept of Justice, and to work, it is necessary to
build a scenario in which the rules are a tool to seek social balance.

In his work Introduction to the Study of Law, Professor Cleyton de Moraes Mello uses
the work of Aristotle to explain the relationship between Law and Justice:

The question about the definition of law runs through several historical moments with different shades and
colors. Aristotle (384-322 B.C.), for example, argues that law is defined by the State, associated with the
criterion of justice, in such a way that law is just when it protects social interests and, individually, when it
treats people in the same situation equally. (MELLO, 2023)

So we started a contradictory journey because we know that there are people who are
treated differently by institutions. Justice Alexandre de Moraes, of the Federal Supreme Court, in
a vote on RE 635659, cited a study by the Brazilian Association of Jurimetrics that analyzed
1.2 million police occurrences and concluded that blacks and browns are more susceptible to
accusations of trafficking than whites.

He pointed out that a white person needs to have 80% more marijuana than a black person
to be considered a dealer. The data, which here is only an example, shows how the Law can move
away from Justice when it treats people who are in the same situation differently.

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What is Justice?

The definition of Justice can vary depending on the philosophical, cultural, and legal
context. However, in general terms, justice refers to the moral and ethical principle that seeks to
ensure that each individual receives what is due or deserved, according to impartial and equitable
standards.

There are different approaches to understanding the idea of Justice, some of which include:

Distributive Justice: Deals with the equitable distribution of resources, benefits, and
opportunities in society. It seeks to ensure that advantages and burdens are distributed fairly,
considering individual needs, merits, or contributions.

• Retributive Justice: Focuses on punishment proportional to the acts committed. The idea
is that those who violate social norms should suffer consequences commensurate with
the severity of their actions.

• Restorative Justice: It differs from the retributive approach by focusing on repairing the
harm caused through dialogue and reconciliation. The goal is to restore relationships and
reintegrate offenders into the community.

• Social Justice: It relates to the pursuit of equal rights, opportunities, and treatment for
all members of society. It involves combating discrimination and inequality to achieve a
fairer and more inclusive society.

• Procedural Fairness: This refers to ensuring that legal processes and court decisions are
conducted in a fair, impartial, and transparent manner, regardless of the outcome.

• Global Justice: Broadens the discussion to issues that transcend national borders, such as
human rights, international trade, and environmental issues. It seeks to address global
challenges from a justice perspective.

But how to understand the concept of Justice?

Plato explores in his work “The Republic” a philosophical dialogue in which Socrates,
arguing with other characters, seeks to define the nature of justice and the role it plays in the
organization of society.

In the book, Socrates challenges Cephalus to explain what justice is, and the first concept
that appears about justice would be to “give back something that does not belong to you.” So
Socrates asks if a friend asks you to keep a gun and then asks you to return it at a time when you

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know he will use it to commit a crime, is it appropriate to return it just because it doesn’t belong
to him?

Then another character, named Polemarchus, says that it is correct to help one’s friends
and harm one’s enemies. Socrates refutes that if it were true, and it were unjust to steal a friend
and just to steal an enemy, no one would be just, while the concept of friendship may be intangible
or liable to error.

Finally, in the same conversation, Thrasymachus, a sophist, argues that justice is the
convenience of the strongest and would come from an imposition. He further maintains that
people, if they were sure of impunity, would be capable of terrible things and uses an allegory to
explain his point: The Myth of the Ring of Gyges.

It tells the story of a man named Gyges who finds a magic ring that makes him invisible.
With the power to act unseen, Gyges realizes that he can do whatever he wants without facing
consequences. This narrative serves as a starting point for a reflection on human nature and the
relationship between justice and punishment.

It argues that if an individual possessed such a ring, he would be tempted to act unjustly
when he thought he could escape the consequences. He suggests that human nature is such that
when people feel unpunished, they can be driven to act in their self-interest, even if it means
harming others.

The conclusion he draws from this reflection is that justice is not just a matter of external
conformity to rules and laws, but rather an intrinsic virtue that individuals must possess in their
souls. He argues that true justice lies in acting justly, even when no one is watching, and that this
is fundamental to harmony and order in society.

Thus, the Myth of the Ring of Gyges highlights Plato’s view that true justice is not a
matter of avoiding external punishments, but rather of cultivating internal virtues that lead to
righteous actions regardless of the circumstances. This philosophical approach has profoundly
influenced ethical and political thought over the centuries and influences law to the present day.

1.3 History and Evolution of Law

We won’t go into depth to discuss the history of law, but to whom it may concern, I have
published an entire book dedicated to the subject. However, to better understand the introduction
to Law, it is necessary to establish a basis, even if superficial, on its origin and development.

Law, as we know it today, is the result of a complex and fascinating evolution throughout

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history. From the beginnings of the most ancient societies to contemporary legal structures, this
journey reveals not only the quest for justice, but also humanity’s ability to organize and establish
norms for living in society.

As we go back to the dawn of civilization, we find traces of rudimentary normative
systems, often based on oral traditions and customary practices. The first communities developed
rules to regulate coexistence, resolve disputes, and punish behaviors considered harmful to the
group.

However, it was with the emergence of great civilizations, such as Mesopotamia, Ancient
Egypt, Greece, and Rome, that Law began to organize itself in a more systematic way. Law codes,
such as the famous Code of Hammurabi, reflected the values and social structure of these ancient
societies, establishing clear norms and punishments to ensure order.

With the decline of these civilizations, the legal legacy was preserved and adapted by
diverse cultures. During the Middle Ages, for example, law was profoundly influenced by the
feudal system and the canonical norms of the Catholic Church. Monarchs and rulers had the
power to make laws, often arbitrarily, while ecclesiastical courts held jurisdiction over moral and
religious matters.

The Renaissance and the Age of Enlightenment marked a period of questioning and
change in social and legal structures. Ideas such as the separation of powers and the defense of
individual rights began to gain ground, culminating in the French Revolution and the drafting of
fundamental documents such as the Declaration of the Rights of Man and of the Citizen.

The contemporary era has witnessed the development of complex legal systems and
the consolidation of fundamental principles. The internationalization of law, driven by global
organizations and international treaties, has reinforced the need for norms that transcend national
borders.

In this historic journey, the Law has not only adapted to social and cultural changes, but
has also played a crucial role in advocating for justice, equity, and the protection of human rights.
As we explore this evolution, we are invited to understand not only the laws, but the very fabric
of society, shaped by the constant search for order, justice, and peaceful coexistence.

1.4 Main Branches of Law

Law is divided into several branches, each with its area of study and specific rules. The
most common categorization divides these branches into two major groups: Public Law and
Private Law. Each of these groups encompasses sets of norms and principles that govern social

Chapter 1. CHAPTER I 16

relations, but with different focuses.

This division between Public and Private Law offers a fundamental framework for
understanding the various legal areas, highlighting the influence and regulation of the State in
social relations and, at the same time, the importance of norms that govern private interests. Each
of these branches plays a crucial role in building and maintaining a just and equitable society.

Public law deals with the relations between the state and individuals, as well as the
relations between state entities themselves. It regulates aspects in which the state exercises its
sovereign power for of the collectivity. Some key areas of Public Law include:

• Constitutional Law: Regulates the structure of the state, defines the fundamental rights of
citizens, and establishes the fundamental principles of legislation.

• Administrative Law: Regulates the performance of public bodies, establishes rules for
public servants and deals with administrative processes.

• Criminal Law: Defines crimes and establishes penalties for conduct considered illegal.

• Procedural Law: Regulates judicial proceedings, both in the civil and criminal spheres,
ensuring due process.

• Public International Law: Regulates relations between states and addresses topics such as
international treaties and human rights.

• Private Law, on the other hand, concerns relations between private individuals, without
the direct presence of the State as a party. It seeks to balance individual interests and
regulate interactions between individuals and companies. The main areas of Private Law
are:

• Civil Law: Regulates relationships between people, dealing with topics such as contracts,
family, succession, property, and civil liability.

• Commercial Law: Regulates commercial and business relations, covering commercial
contracts, business companies and bankruptcies.

• Labor Law: Regulates the relations between employers and employees, establishing rights
and duties for both parties.

• Consumer Law: Protects the rights of consumers in consumer relations, ensuring the
quality of products and services.

• Private International Law: Regulates private relationships that involve elements of
connection with more than one country, such as marriages of people with different
nationalities, for example.

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1.5 CIVIL LAW

Civil Law is the branch of Private Law that establishes the fundamental rules for relations
between individuals and legal entities, regulating aspects ranging from birth to succession after
death. It is one of the pillars of the legal system, covering a wide range of topics that shape
people’s daily lives.

1.5.1 PRACTICAL EXAMPLES

Within the scope of Civil Law, we find rules and principles that govern contracts, civil
liability, property, family, and succession. For example, contractual rules determine how the
parties should act when entering into agreements, such as buying and selling goods or providing
services. In the field of the family, Civil Law defines the requirements and consequences of
marriage, as well as the rules for adoption.

Another practical example is civil liability, which deals with the legal consequences of
damage caused to third parties. If someone causes harm to another person through negligence,
civil law establishes the means for remedying those damages.

1.5.2 INTERESTING FACT

A fascinating curiosity about Civil Law is the concept of “legal personality”. This principle
recognizes that, from birth, a person holds rights and duties, such as the right to life, physical
integrity and liberty. However, legal personality is not just limited to human beings; It is also
attributed to certain entities, such as legal entities, giving them the capacity to perform legal acts,
contract obligations and participate in life in society.

This notion of legal personality highlights the comprehensiveness of Civil Law by
considering not only individuals but also collective entities that play significant roles in society,
such as companies, associations, and foundations. This interaction between the individual and
the community is one of the intriguing and multifaceted aspects that Civil Law embraces in its
mission to regulate personal and property relations.

1.6 CRIMINAL LAW

Criminal law is the branch of public law that deals with establishing crimes and penalties.
The Penal Code itself (Decree-Law No. 2,848/1940) establishes in its article 1 that: There is no
crime without a previous law that defines it. There is no penalty without prior legal sanction.

This branch of law focuses on defining conduct considered criminal and imposing

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proportionate penalties on offenders. It is a branch of law that seeks to maintain social order,
protecting fundamental legal assets and ensuring justice.

1.6.1 PRACTICAL EXAMPLES

In the field of Criminal Law, we find norms that define a wide range of crimes, from
crimes against property, such as theft and robbery, to crimes against life, such as homicide.
Criminal laws also deal with crimes against honor, such as slander and defamation, and crimes
against public order, such as disturbing the peace.

To illustrate, imagine a case of robbery. Criminal Law determines the characteristics that
make this action criminal, establishing the corresponding penalty. Criminal laws aim to deter
the commission of unlawful acts, to protect society and, when necessary, to punish the offender
according to the seriousness of the offense.

1.6.2 INTERESTING

Something fascinating about criminal law is related to the guiding principles of the
punitive legal system. Among them, the principle of legality stands out, which establishes that
there is no crime or punishment without prior legal provision. This means that, in order for a
conduct to be considered criminal and a penalty to be applied, it is necessary that the law has
previously defined the conduct as criminal.

The principle of legality guarantees legal certainty for citizens, preventing the arbitrary
creation of crimes or penalties. In addition, it highlights the importance of predictability and
clarity of criminal laws, avoiding subjective interpretations and ensuring that everyone is treated
equally before the law. Thus, Criminal Law, by adopting this principle, reinforces its function not
only as a punitive measure, but also as a guarantor of citizens’ fundamental rights.

1.7 OTHER BRANCHES OF LAW

The universe of Law is diverse, encompassing a multiplicity of branches that reflect the
complexity of human and social relations. In addition to the well-known Civil and Criminal Law,
other fields stand out, each with its particularities. Here are some examples:

• Business Law: Focuses on legal relationships that involve business activities. It covers
everything from company formation to complex business transactions. For example,
the definition of commercial contracts, mergers and acquisitions, and the regulation of
competitive practices are fundamental aspects of Business Law.

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• Tax Law: Studies the rules that govern the collection of taxes. This area establishes
the rules for the collection of taxes, fees, and contributions. Practical examples include
legislation that determines consumption, income, and property tax rates.

• Social Security Law: Deals with the rules that regulate the rights related to social security.
It covers benefits such as retirements, pensions, and aids. A practical example is the
regulation of the conditions for the granting of retirement by contribution period.

• Labor Law: Deals with the relations between employers and employees, establishing
norms to guarantee labor rights. The definition of working hours, minimum wage, and
occupational safety standards are examples of aspects regulated by this field.

1.8 Inquisitiveness

Law can be interdisciplinary. In numerous instances, legal situations involve the
simultaneous application of different branches of law. For example, a merger case between
companies within the scope of Business Law may have tax, labor and contractual implications,
requiring an interdisciplinary approach for an effective solution.

This interconnectedness highlights the need for legal professionals to understand not
only the specifics of their field, but also the ability to integrate expertise from diverse fields
to offer comprehensive and efficient solutions. Thus, the understanding of the complexity and
interrelationship of these branches enriches legal practice, providing a broad view of legal issues.

1.9 LEGAL SYSTEMS

Legal systems represent the beating heart of societies, shaping the norms and rules that
regulate the relationships between individuals and institutions. Each culture and nation has
developed over time its own legal framework, reflecting not only normative aspects, but also
values, traditions, and specific historical evolution.

In essence, a legal system is an organized structure of norms, principles, and institutions
that guides the conduct of a society’s members. Understanding the diversity of these systems is
key to analyzing and comparing different approaches to justice around the world.

1.9.1 COMMON LAW

Originating in medieval England, the Common Law system is characterized by the
development of law through judicial decisions and precedents. Jurisprudence plays a key role in
the formation and interpretation of laws.

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A Practical Example: The United States is known for its Common Law system, where the
decisions of previous courts have a significant impact on subsequent cases.

1.9.2 CIVIL LAW OR ROMAN LAW

Originating on the European continent, especially in the Roman Empire, the Civil Law
system, also known as Roman Law, is marked by the extensive codification of laws. Norms are
usually written and organized into codes that cover various areas of law.

Roman law is widely adopted in countries such as France, Germany, and Japan, where
comprehensive legal codes form the basis of the legal system. It is the basis of the Brazilian legal
system.

1.9.3 OTHER SYSTEMS

1.9.3.1 ISLAMIC LAW (SHARIA)

Inspired by the principles of the Quran and the tradition of the Prophet Muhammad,
Islamic Law, or Sharia, is a legal system that encompasses not only legal issues but also moral
and religious aspects.

Countries such as Saudi Arabia and Iran base their legal systems on Sharia, with rules
governing everything from business contracts to family matters.

1.9.3.2 SOCIALIST LEGAL SYSTEM

Common in countries with socialist or communist regimes, these systems seek to promote
social equality, often emphasizing collective ownership and state control over resources.

The socialist legal system is historically associated with nations such as China, Cuba, and
the former Soviet Union.

1.10 Functions of Law in Society

Law plays a crucial role in the organization and functioning of societies, going far beyond
a simple set of rules. Its functions range from preserving order to ensuring justice and protecting
individual rights. In this complex context, the Law acts as a powerful tool for the construction
and maintenance of a harmonious coexistence.

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1.10.1 Preservation of Order

One of the primary functions of the law is to ensure stability and order in society. By
regulating behaviors and punishing harmful conduct, the law seeks to prevent or resolve conflicts
and maintain peace. Practical examples include traffic laws that ensure road safety and regulate
the flow of vehicles.

1.10.2 Guarantee of Justice

Law acts as a fundamental mechanism in the pursuit of justice. This encompasses the
protection of individual rights, the resolution of conflicts in an equitable manner, and the
application of penalties proportionate to the offenses committed. Jurisprudence, for example,
represents the evolution of judicial decisions over time, reflecting the constant search for a fairer
and more efficient system.

1.10.3 Regulation of Social Relations

By establishing norms for the relations between individuals and institutions, the Law
contributes to the efficient organization of society. Contracts, for example, are legal instruments
that regulate agreements between parties, providing security and predictability in business and
personal transactions.

1.10.4 Protection of Fundamental Rights

The law plays a central role in protecting fundamental rights such as freedom, equality,
and dignity. Modern constitutions often enshrine these rights as fundamental principles, and
legal systems are designed to ensure their observance and respect.

Did you know?

A fascinating curiosity about the functions of law in society is its ability to adapt
to social changes. Law is not static; It evolves to reflect the emerging values and needs of
society. Emblematic cases, such as judicial decisions that influence future legislation, exemplify
this dynamic, highlighting the ability of law to shape itself according to cultural and social
transformations.

For example, I can mention that there were judicial precedents admitting marriage or civil
union between people of the same sex, long before there were laws on the subject, here in Brazil.

Thus, the functions of Law in society transcend the mere regulation of conduct, embracing
a broader role in the construction of a just, equitable and constantly evolving community. This

Chapter 1. CHAPTER I 22

delicate balance between regulation and justice is what gives law its most important role.

23

2 CHAPTER II

2.1 STRUCTURE OF THE LEGAL SYSTEM

The structure of a legal system refers to the organization and arrangement of the elements
that form the legal system of a society or nation. This framework often involves different normative
and institutional levels that work together to create and enforce laws. Key features of the structure
of a legal system, such as ours, include:

• Constitution: The constitution is the fundamental law that establishes the structure of the
state, the powers of the government, and the fundamental rights of citizens. It serves as
the supreme norm of the legal system.

• Legislation: Laws are created by the legislature and form the basis of the legal system.
They regulate various aspects of society, ranging from civil law to criminal law.

• Jurisprudence: Court decisions, known as jurisprudence, play a crucial role in the
interpretation and application of laws. Precedents set in previous cases influence future
decisions.

• Administration of Justice: The judicial system, consisting of courts and judges, is
responsible for interpreting and enforcing laws. It guarantees access to justice and resolves
disputes in accordance with the principles of the legal system.

• Executive and Administrative Bodies: The executive branch is charged with implementing
and enforcing laws. Administrative bodies also play specific roles in enforcing and
regulating areas such as taxation, the environment, and health.

• Legal Doctrine: Legal doctrine refers to the academic interpretations and analyses of law.
Professors, jurists, and scholars contribute to the understanding and development of the
legal system through their works and research.

Such a structure varies significantly between different countries and legal traditions. Some
systems adopt the common law model, based on judicial precedents, while others follow the
guidelines of Roman law, centered on comprehensive legislative codes. This diversity reflects the
cultural, historical, and philosophical influences that shape a society’s legal organization.

Chapter 2. CHAPTER II 24

2.1.1 Powers of the State

The State has broad powers and responsibilities that, for better performance, can be
divided into three major groups of Power. In many places, as well as in Brazil, the tripartition
proposed by Montesquieu is adopted, into Executive, Legislative and Judicial Powers.

According to him (MONTESQUIEU, 1996), “every man who has power is tempted to
abuse it [. . . ] It is necessary that, by the disposition of things, power should restrain power.”
Therefore, no one could hold all the power of the State, which must be divided into a system
of brakes, in which each of them has responsibilities and attributions, and can be limited and
supervised by the other.

2.1.2 Executive power

The Executive Branch is led by the head of government or head of state, depending on
the country’s political system. He is responsible for implementing and enforcing the laws. The
president, prime minister, or head of state makes administrative decisions, manages public policy,
and oversees the day-to-day activities of the government.

In Brazil, it exerts influence and control over the Legislative Branch. For example, when
a new law is approved by the National Congress, before it comes into force, it needs to be
sanctioned by the President of the Republic.

2.1.3 Legislature

The legislative branch is formed by the parliament or congress, where the representatives
elected by the people debate, propose and pass laws. This power creates the norms that govern
society, discussing important issues and representing the interests of the population.

In Brazil, the Legislative Branch has the function of supervising the Executive Branch
and approving or not its accounts.

2.1.4 Judiciary

The Judiciary is made up of courts and judges who are tasked with interpreting laws and
ensuring that they are applied fairly and impartially. They resolve disputes, adjudicate criminal
and civil cases, and ensure that the country’s constitution is respected.

Chapter 2. CHAPTER II 25

2.1.5 Curiosities

These three Powers act in an interconnected manner, creating a system of checks and
balances to prevent the abuse of power. The separation of duties is vital for democracy and for
protecting citizens’ rights, promoting an equitable society.

On this basis, a person can litigate against the state and win. The State investigates
and penalizes public officials who deviate from their duties and creates mechanisms for their
development.

By understanding the tripartition of powers, the functioning of the State begins to make
sense. It is as if each Power were a guardian, ensuring that the balance of power tilts in the side
of justice and the well-being of all.

In the classical theory of the tripartition of powers proposed by Montesquieu, the Executive,
Legislative and Judicial Powers are distinct and autonomous, each with its specific functions.
However, behind the scenes of legal practice, intriguing phenomena emerge that challenge this
divide.

A notable example is when the head of the Executive, through decrees or executive
orders, exercises a power of a legislative nature. This happens when, in certain circumstances, the
president or prime minister issues rules that have the force of law, without the need for legislative
approval.

This phenomenon, known as “atypical powers” or “implied powers,” represents a subtle
encroachment of one Power into the other. Although the classical tripartition idealizes a strict
separation, the legal reality often demands flexibility. This ability of the Chief Executive to
legislate through decrees or provisional measures is often a response to urgent situations, allowing
for quick and effective action.

In times of crisis, such as natural disasters or health emergencies, the chief executive
can issue decrees to implement immediate measures without waiting for the lengthy legislative
process. However, this practice also raises questions about checks and balances and the need to
ensure proper oversight and accountability.

Thus, while the Powers of the State continue to perform their traditional roles, the atypical
powers add an intriguing dimension to the political dynamic, highlighting the need for balance
and accountability in a system that seeks, above all, to serve the public interest.

Chapter 2. CHAPTER II 26

2.2 Hierarchy of Legal Norms

In the world of law, the hierarchy of legal norms is a fundamental concept that delineates
the normative structure of a society. It is as if we were unveiling a normative ladder, in which each
rung has a specific position and influence on the whole. Understanding this hierarchy is essential
to interpreting, applying, and ultimately living under the laws that govern our daily lives.

The theory of the Hierarchy of Legal Norms was developed by Hans Kelsen, an Austrian
jurist and philosopher, known for his significant contribution to law, especially for his work “Pure
Theory of Law”, first published in 1934.

Kelsen presents a systematic and formalistic approach to understanding the structure of
the legal system. He proposes the idea of a normative pyramid, where legal norms are arranged
hierarchically. At the top of this pyramid is the fundamental norm or basic norm, which confers
validity on the other lower norms.

The “Kelsen Pyramid” is a graphical representation of the hierarchical structure of legal
norms. An image that organizes the norms in the legal system, highlighting the relationship of
subordination between them. Here are some points about Kelsen’s pyramid:

2.3 Constitution or Fundamental Norm

At the top of the pyramid is the “fundamental norm” or “basic norm”. This rule is
considered to be the basis of validity of the entire legal system. Kelsen argues that the validity of
lower norms is derived from the validity of that fundamental norm, which need not be justified
by any other norm.

Here in Brazil, as in most countries, that norm is the Constitution.

2.3.1 Constitutional Amendments and International Treaties

They are just below the Constitution in the Pyramid, but with almost identical weight.

2.3.2 Complementary and Ordinary Laws

From the perspective of Kelsen’s pyramid, complementary and ordinary laws occupy
positions below the Federal Constitution, its amendments and treaties, reflecting the hierarchical
structure of the legal system. Here’s an explanation of these types of laws and their position in
the pyramid:

Chapter 2. CHAPTER II 27

• Complementary Laws: these are more specific norms that have the purpose of regulating
matters provided for in the Constitution that require a special form of treatment. In general,
the Constitution establishes the need for a complementary law to deal with certain matters,
such as the creation of taxes. Like ordinary laws, complementary laws are also subject to
the Federal Constitution. Their hierarchical position is similar, but their use is determined
by the Constitution in specific situations. Therefore, complementary laws also occupy a
lower position than the Constitution in the normative hierarchy.

• Ordinary Laws: these are legislative norms created by the Legislative Branch (National
Congress) and aim to regulate matters of general interest that do not require a special
form of treatment. They are the most common form of legislation and deal with a variety
of areas, from civil law to criminal law. Its creation and validity are conditioned on
compliance with the principles and norms established in the Constitution. Therefore, they
occupy a position below the constitutional norm in the normative hierarchy.

• Decrees, Regulations and Other Norms: at the base of Kelsen’s pyramid, we find several
infra-legal norms, which are normative instruments of lower hierarchy compared to
ordinary and complementary laws. Let’s explore some of these elements that make up the
base of the pyramid:

• Decrees: These are normative acts issued by the Executive Branch (president, governor
or mayor, depending on the sphere of government) to regulate and execute existing laws.
They detail and specify how the laws should be applied in practice. They are subordinate
to ordinary laws, complementary laws and, of course, to the Federal Constitution. Its
function is to operationalize and enable the execution of higher legislative norms.

• Regulations: these are rules issued by administrative bodies with the purpose of detailing
the application of laws and decrees. They are instruments used to give effectiveness to
higher standards, especially in specific areas of administrative action. They also occupy a
subordinate position to the laws and the Constitution and are instruments for the execution
and detailing of higher standards, adapting them to the practical and specific needs of
certain sectors or areas of activity.

• Other Infralegal Norms: in addition to decrees and regulations, there are other infralegal
norms, such as ordinances, normative instructions, resolutions, among others. These rules
are issued by administrative authorities to address internal issues, discipline procedures,
and regulate specific matters within their spheres of competence. Like decrees and
regulations, these infra-legal norms are hierarchically below the ordinary, complementary
laws and the Constitution. They do not create rights, but provide guidance and norms in
narrower and more specific areas for the application of Rights previously created in the
legislation.

Chapter 2. CHAPTER II 28

2.3.3 Vertical Subordination

The norms in the pyramid are arranged vertically, indicating the relationship of
subordination between them. Lower standards must conform to higher standards, and the validity
of a standard is conditional on its conformity with the next higher standard.

2.3.4 Lower Standards and Penalties

As we move down the pyramid, we find more specific and detailed norms. These lower
norms are often created to better explain the purpose of a higher-hierarchical law. Kelsen points
out that, in addition to subordination, lower standards are also subject to sanctions imposed by
higher standards in the event of a violation.

2.3.5 Evaluative Neutrality

A fundamental principle in the “Pure Theory of Law” is the evaluative neutrality advocated
by Kelsen. He argues that the jurist must analyze the law objectively, without including moral or
ethical considerations in the legal analysis. The pyramid reflects this approach by focusing on the
formal structure of norms without entering into considerations of their material content.

2.4 Legal Bodies and Agents

In Law, where norms and institutions converge and diverge, understanding the legal
bodies and agents is essential to understand the functioning and application of the Law. These
elements are like pieces that shape, interpret and apply the standards.

Legal agents, in turn, are individuals who act on behalf of the agencies, representing and
performing their functions. Lawyers, judges, prosecutors, public defenders, and civil servants in
general are examples of legal agents. They are tasked with applying, interpreting and, in some
cases, creating legal norms, playing key roles in the administration of justice and defending the
interests of society.

At the heart of the relationship is balance. Legal bodies and agents must act ethically,
seeking to transform law and justice. Here are some examples.

2.4.1 Organs of the Judiciary

The Federal Constitution defines as organs of the Judiciary the Federal Supreme Court
(STF), the National Council of Justice (CNJ), the Superior Court of Justice (STJ), the Regional
Courts and Federal Judges (TRFs), the Labor Courts and Judges (TRTs and TST), the Electoral

Chapter 2. CHAPTER II 29

Courts and Judges (TREs and TSE), the Military Courts and Judges (Common Justice and STM),
and; the Courts and Judges of the States and the Federal District (Common Justice).

2.4.2 Lawyers

According to the Federal Constitution, lawyers are indispensable to the administration of
justice (Article 133). He assumes the role of being an advocate of justice, guardian of the rights
and interests of his clients.

To qualify as a lawyer, it is necessary, in addition to attending a Law School and passing
an exam, to meet all the requirements of article 8 of Law 8.906/94, also called the Statute of
Advocacy:

Article 8 To register as a lawyer it is necessary:
I – civil capacity;
II – diploma or certificate of graduation in law, obtained in an officially authorized and accredited educational
institution;
III – voter registration card and discharge from military service, if Brazilian;
IV – approval in the Bar Exam;
V – not to engage in activities incompatible with the practice of law;
VI – moral suitability;
VII – to give an undertaking to the council.

Among all the requirements, the most controversial is moral suitability, since the law does
not clearly establish what fulfills such a requirement. There are already precedents, for example,
of bachelor’s degrees accused of crimes not being able to register as lawyers, even though there
is no court decision on the subject. Even if it is not the majority understanding, the fact that there
are precedents that punish people with abstract concepts generates some concern.

But it’s not the subject of the book, I mentioned it just out of curiosity.

The lawyer, as mentioned earlier, is indispensable to the administration of justice, defender
of the rule of law, morality, citizenship, social peace and his work, even if private is equated to
a public function. Among his duties are the preservation of nobility and dignity, acting with
independence and fearlessness, honesty, watching over his reputation, encouraging conciliation,
and not linking his name to dubious enterprises.

The Federal Council of the Brazilian Bar Association maintains an up-to-date register of
its members so that anyone can check if someone is a lawyer and if they are in good standing,
just by accessing the website: cna.oab.org.br.

Chapter 2. CHAPTER II 30

2.4.3 Judges

Judges play a central role in the legal system, acting as key legal agents. Their functions
and competencies encompass various responsibilities crucial to the administration of justice.

Each judge is attached to a court and exercises specific duties and powers as provided for
in the Constitution.

Among its functions, we must highlight:

• Interpretation of the Law: One of the primary functions of judges is to interpret and apply
the law. They analyze cases, consider the evidence presented, and determine how the law
should be applied to a particular situation.

• Impartiality and Fairness: They must act in an impartial manner, ensuring that all parties
involved in a dispute receive fair treatment. Their responsibility is to balance the interests
of the parties while promoting fairness and equity.

• Judicial Decision-Making: Based on the analysis of the facts and the applicable legislation,
the judges decide. Such acts may involve the resolution of civil disputes, prosecution of
crimes, provision of appeals, among others.

• Guarantee of Fundamental Rights: Judges are guardians of the fundamental rights
enshrined in the Constitution. They ensure that laws and government actions conform to
fundamental principles while protecting individual rights.

• Presiding over Hearings and Trials: Often, judges preside over hearings and trials,
conducting legal proceedings, hearing witnesses, and ensuring that the process proceeds
properly.

2.4.3.1 Examples

• Judge: Acts in state courts and tribunals, judging civil, criminal, environmental, family
and other cases.

• Federal Judge: Acts in federal courts, judging cases involving the Union, its organs,
components or matters assigned to them by the Constitution, such as the elaborate crime
of currency counterfeiting, for example.

• Justice of the Federal Supreme Court (STF): The STF is the highest court in Brazil, and
its justices are responsible for interpreting the Federal Constitution and judging issues of
national relevance.

Chapter 2. CHAPTER II 31

2.4.4 Lifetime

In Brazil, judges have life tenure, that is, once appointed, they cannot be dismissed, except
in rare cases. This guarantee aims to ensure the independence of the judiciary and impartiality in
decisions.

In a legal system, judges represent the embodiment of justice and legal authority. Their
work is vital to the maintenance of the rule of law and to ensure that the fundamental principles
of society are preserved in every decision rendered, they cannot be threatened or intimidated, and
the legal preservation of their office is an important element in such a context.

2.4.5 Public prosecutor

The Public Prosecutor’s Office (MP) is an institution that is essential to the judicial
function of the State. He acts as a defender of the legal order, of the unavailable social and
individual interests. It is responsible for ensuring the legal order, the democratic regime and acts
to ensure respect for the Constitution and the laws, preventing abuses and irregularities.

He is also the holder of the criminal prosecution. It works as a kind of prosecuting
attorney, but don’t use that expression in your professional context, as it’s a simplistic analogy,
just illustrative.

The Public Prosecutor’s Office represents society, seeking to defend collective interests,
such as the protection of the environment, consumers and public property. It oversees the law
and defends children and adolescents in vulnerable situations.

In Brazil, the head of the Federal Public Prosecutor’s Office is the Attorney General of
the Republic, appointed by the President of the Republic from a three-way list drawn up by the
members of the MPF themselves. This choice aims to guarantee the autonomy of the institution
in relation to the Executive Branch.

In its structure, it is composed of Prosecutors and Prosecutors of Justice. Their work is
vital to the balance and effectiveness of the legal system in a democratic society.

2.5 OTHER LEGAL AGENTS

While judges, prosecutors, and lawyers often take center stage, there is a network of legal
agents and ancillary functions that play crucial roles behind the scenes of the justice system.
Let’s explore some of these characters who are equally essential to the effectiveness of justice.

Chapter 2. CHAPTER II 32

2.5.1 PUBLIC DEFENDER’S OFFICE

The Public Defender’s Office is an institution that provides free legal assistance to people
who cannot afford lawyers’ services. Public defenders act as guardians of the rights of those
facing economic deprivation, ensuring access to justice for all, reg

2.5.2 JUDICIARY SERVANTS

Justice clerks are responsible for carrying out administrative and operational tasks in
courts and registry offices. They ensure the proper progress of proceedings, control deadlines,
issue documents, and perform, comply with, and enforce court decisions.

2.5.3 AUXILIARY FUNCTIONS OF JUSTICE

• Experts: These are specialists in technical, scientific or artistic fields who collaborate with
the judicial system. They carry out analyses, reports, and technical opinions that assist
judges and lawyers in decision-making, especially in cases involving complex issues.

• Judicial Administrators: In bankruptcy and judicial reorganization proceedings, judicial
administrators are appointed to manage the assets and interests of companies in financial
difficulties. They act impartially, seeking to balance the interests of creditors and the
preservation of business activity.

• Conciliators: These are professionals who seek to facilitate the resolution of conflicts
through dialogue and negotiation. They act in out-of-court conciliation proceedings or
assist judges in conducting conciliation hearings, seeking agreements between the parties
involved.

• Arbitrators: Arbitration is an alternative method of dispute resolution where the parties
choose a private arbitrator to decide on the dispute. Arbitrators have technical knowledge
in the area in question and issue binding decisions, providing an agile and specialized
alternative to the traditional judicial process.

These agents and functions, often less mentioned, contribute significantly to the effective
functioning of the justice system. Whether it’s ensuring access to legal defense, maintaining
procedural order, or offering technical expertise, each plays a vital role behind the scenes,
cementing justice as a collaborative process.

33

3 CHAPTER III

3.1 GENERAL THEORY OF PROCEDURE AND FUNDAMENTAL
RIGHTS

The General Theory of Procedure and Fundamental Rights stand out as fundamental
pillars that sustain the structure of justice and the protection of individuals in society. The
intersection between these areas is essential for understanding not only legal procedures, but also
the search for equity, respect for human rights, and the effectiveness of the judicial system.

3.2 General Process Theory

It is the set of principles and norms that guide the functioning of the judicial system. It
ranges from the formulation of a claim to the enforcement of the court decision. It studies the
institutes, phases and actors involved in judicial processes, aiming to ensure the fair settlement of
conflicts and the effectiveness of decisions.

An example of a procedural rule is the Code of Civil Procedure. Here the legislator
establishes, among other things, the formal requirements of a statement of claim:

Art. 319. The statement of claim shall state:
I – the judgment to which it is addressed;
II – the names, first names, marital status, existence of a stable union, profession, registration number in the
Individual Taxpayer Registry or in the National Registry of Legal Entities, e-mail address, domicile and
residence of the plaintiff and defendant;
III – the fact and legal grounds of the request;
IV – the application with its specifications;
V – the value of the claim;
VI – the evidence with which the plaintiff intends to demonstrate the truth of the alleged facts;
VII – the plaintiff’s choice whether to hold a conciliation or mediation hearing.

Note that it is not possible to file a lawsuit randomly, since the procedural rule itself
requires a standard of information for the petition to be considered regular. Such requirements
aim to make possible the exercise of the adversarial process and the full defense – which are the
rights of all litigants in judicial and administrative proceedings.

In fact, the lack of these requirements may even result in the filing of the application. The
importance of enforcing all the formalities in a procedure is understood.

Chapter 3. CHAPTER III 34

3.3 Fundamental rights

On the other hand, the Rights and within this group, the Fundamental Rights, which are
ethical and legal foundations that provide protection to individuals, recognizing their dignity,
freedoms and equality. These rights, often enshrined in constitutions, directly influence the
development and application of justice.

In Brazil, Fundamental Rights and Guarantees are provided for in the Federal Constitution,
in article 5 below, and we can cite some examples:

• Right to Life: everyone has the fundamental right to life, and the death penalty is prohibited,
except in cases of declared war, under the terms of article 5, item XLVII, paragraph “a”
of the Federal Constitution.

• Right to Liberty: individual liberty is guaranteed, ensuring that no one is subjected to
arbitrary or illegal imprisonment, except in the cases provided for by law, under the terms
of Article 5, LXI of the Constitution;

• Right to Equality: provides for the equality of all before the law, prohibiting any form of
discrimination, whether based on race, gender, religion, or other characteristic, according
to article 5, I, IV and VI of the Constitution;

• Right to Privacy: the right to intimacy and private life is guaranteed, protecting citizens
against undue invasions of their personal lives, as established in article 5, X of the
Constitution;

• Right to Freedom of Expression: ensures freedom of expression, allowing people to
express their opinions and ideas without prior censorship, except in cases of abuse.
Constitution, art. 5, IX;

• Right to Education: everyone has the right to quality education, guaranteeing access to
school and promoting free public education in official establishments, under the terms of
article 6 of the Constitution;

• Right to Health: the State is responsible for ensuring universal and equal access to health
actions and services, as recommended by the Unified Health System (SUS), according to
the rule of article 196 of the Constitution;

• Right to Work: the right to decent work and protection against unemployment is ensured,
with guarantees of fair and safe conditions in the workplace. Constitution, art. 7 et seq.;

• Right to Housing: recognizes the right to decent housing, seeking to promote public
policies that ensure access to adequate housing, as established in article 6 of the
Constitution;

Chapter 3. CHAPTER III 35

• Right to Culture: access to culture is guaranteed, encouraging the production and
dissemination of cultural goods, as well as the preservation of cultural heritage.
Constitution, art. 23, V.

3.4 Intersection and Harmony

The interaction between the General Theory of Procedure and Fundamental Rights is
revealed in the search for a judicial system that not only resolves conflicts, but does so fairly and
respectful of individual rights. The guarantee of access to justice, the presumption of innocence,
the right to a full defense, and procedural speed are just a few examples of how these fields
intertwine to build equitable justice.

3.5 Challenges and Innovations

As society evolves, new challenges and issues emerge. The General Theory of Procedure
and Fundamental Rights adapt, often driven by technological advances and social changes,
ensuring that the judicial system remains relevant, efficient and aligned with ethical and
humanitarian principles.

Some examples of innovations are the possibility of holding hearings through telepresence
tools and signing documents electronically or digitally, allowing people who are far from large
centers to have access to justice.

3.6 Civil Procedure

The rules of Civil Procedure are a roadmap of how claims are proposed and how they
will be resolved. It is a description of a ritual or a cooking recipe, with steps to be followed. It is
the field of law that dictates the rules and outlines the ways in which disputes are resolved in the
courts. A set of rules and procedures that guides the journey from filing a claim to deciding.

It is here, for example, that the requirements for presenting a case are established, how
the defendant must be communicated, what is the deadline for defense, how the hearing will be
held and what must be counted in the sentence for it to be valid.

3.7 Phases of the Process

Civil procedure defines the rules of the game, not just a clash of arguments, but a
systematic search for justice, giving the parties equality in the dispute. It begins with the filing
of the lawsuit, in which the plaintiff presents his claim to the Judiciary, outlining the facts and

Chapter 3. CHAPTER III 36

legal grounds that support his claim. The defendant, in turn, is summoned to defend himself,
establishing the adversarial process, a pillar of procedural equity.

Everyone has the right to demonstrate their reasons and try to prove their reasons. Once
judged, the procedural rite establishes the rules for possible appeals and how to comply with
judicial decisions.

3.8 Procedures and Steps

The Civil Procedure weaves a web of procedures that take the parties through several
stages, from the summons, which calls the defendant to defend himself, and the production of
evidence, including the holding of hearings and oral arguments. Each procedural act is a piece,
contributing to the formation of the judge’s conviction in the search for the truth.

3.8.1 Practical Example

Consider a tort lawsuit, where an individual seeks redress for damages suffered. The
process unfolds with the initial petition describing the facts and pleading for reparation. The
defendant presents his defense, and both parties can produce evidence. Hearings are held,
witnesses testify, and, at the end, the judge pronounces the sentence, deciding on liability and
damages to be repaired.

If any step is not respected, the sentence can be overturned on appeal.

3.8.2 Intriguing Curiosity

In the context of Civil Procedure, there is the institute of “res judicata”, which confers
immutability and definitive authority to judicial decisions. Once a claim is judged definitively, it
cannot be re-examined, providing stability and legal certainty to the system.

3.9 Criminal procedure

In the legal scenario, Criminal Procedure emerges as a complex narrative, in which the
search for truth, the protection of individual rights, and the application of the law intertwine in a
spiral of controversies. This field of law is where criminal proceedings take place, guiding us
through investigation, trial, and the pursuit of justice.

Rights that appear to be in conflict need to find a balance, so that society remains protected,
the victim is honored, and the accused has his or her rights respected.

Chapter 3. CHAPTER III 37

In Criminal Procedure, we have the procedures that regulate criminal charges, from the
investigative phase to the delivery of the decision of the Judiciary. It determines the powers
of investigation and processing, rules when the parties, prosecution and defense, present their
arguments, evidence and legal theses, seeking to understand the facts.

3.9.1 Practical Example

Let’s imagine a criminal trial in which an individual is charged with theft. The Criminal
Procedure begins with the police investigation, goes through the formulation of the complaint
by the Public Prosecutor’s Office, the presentation of the defense, the phases of instruction and
debates, culminating in the sentence of the judge. Each stage is governed by specific rules and
procedures, seeking to ensure fairness and equity.

3.9.1.1 Curiosity about the Adversarial and the Broad Defense

An intrinsic curiosity of Criminal Procedure is the principle of adversarial proceedings
and full defense. This fundamental premise ensures that the parties involved in the proceedings
have the opportunity to present their arguments, contest the opposing allegations, and actively
participate in all phases of the procedure. It is the essence of equitable justice, where no point of
view is ignored and everyone has a chance to be heard.

Balance between Punishment and Protection of Rights

Criminal Procedure is limited to a search for culprits and serves as a barrier against state
abuses, protecting individuals from unfounded accusations and ensuring that law enforcement is
conducted in a fair and impartial manner.

3.10 Contemporary Challenges

The universe of Criminal Procedure is not without its challenges. Issues such as procedural
delays, prison overcrowding, and debates on alternatives to imprisonment are contemporary
challenges that demand reflection and reforms in the judicial system.

Violations of the rights of lawyers and defendants can make the system unfair. I can cite
as an example a case I followed, in which the defendant was convicted without the defense having
access to the main evidence against him, allegedly in the possession of the police.

Even after several requests, the defense did not have access to the seized material and
even so the defendant was convicted. If the evidence exists and is incriminating, why couldn’t the
defense get access to it?

Chapter 3. CHAPTER III 38

3.10.1 Features

Criminal Procedure, as an area of law that regulates legal relations related to the
prosecution and trial of crimes, needs to have solid foundations. Its main characteristics reflect
the fundamental principles that guide the application of Criminal Law and the protection of
individual rights. Here are some of the key features:

Adversarial and Comprehensive Defense Principle: ensures that the parties involved in the
proceedings (prosecution and defense) have the opportunity to present their arguments, contest
the opposing allegations, and actively participate in all phases of the procedure.

• Principle of Legality: criminal prosecution must strictly comply with legal norms. No
one may be prosecuted or convicted for a fact that is not previously established as a crime
by law.

• Principle of Impartiality and Isonomy: The process must be conducted in an impartial
manner, ensuring that the trial is fair and that all parties are treated equally before the law.

• Presumption of Innocence: Every accused person is presumed innocent until proven guilty
through a legal process. The burden of proof falls on the prosecution.

• Due Process of Law: ensures that the criminal process is conducted in accordance with the
established rules and procedures, ensuring the regularity and fairness of the procedure.

• Orality and Publicity: many acts of criminal proceedings are carried out orally, such as
interrogations and debates in hearings. In addition, the principle of publicity ensures that
the proceedings are, as a rule, public, ensuring transparency and societal oversight of the
judicial system.

• In Dubio Pro Reo: in case of doubt about the proof or interpretation of the law, it must
be decided in favor of the defendant. This principle reflects the concern to avoid unjust
convictions.

• Speed and Effectiveness: the aim is to ensure efficiency and quick solution of processes,
avoiding delays and ensuring a fair and swift response to society.

• Appeals and Instances: the procedural system provides for the possibility of appeals for
review of decisions, ensuring the possibility of defense of the parties in different judicial
instances.

• Proportional and Human Penalties: Penalties must be proportional to the seriousness of
the offense, avoiding excesses and cruel, inhuman or degrading treatment.

Chapter 3. CHAPTER III 39

3.11 Concerns

Perhaps it is the branch of law in Brazil that attracts the highest number of concerns. As
an example of this, I can cite the excess of resources, the lack of structure of the judicial system
and bureaucracy, which can contribute to the delay in the resolution of cases.

In some cases, the delay can lead to the statute of limitations for the crime, preventing the
offender from being held legally responsible due to the delay in the trial.

Another concern involves overcrowding and excessive pretrial or pretrial detention. Brazil
faces one of the highest rates of prison overcrowding in the world, leading to inhumane conditions
and hindering the rehabilitation of inmates.

The discrepancy in incarceration rates between different social groups highlights the
selectivity of the penal system, with disproportionate impacts on certain communities, and also
generates debates. Selectivity can be related to factors such as race, social class, and place of
residence, raising questions about fairness in law enforcement.

40

4 CHAPTER IV

4.1 CIVIL AND CRIMINAL LIABILITY

4.1.1 Liability

Civil Liability is a branch of Civil Law, outlining the relationships between individuals
and establishing parameters for dealing with damages caused to third parties. This concept
permeates several branches of Law, such as Civil, Consumer, Administrative, among others.

It is the legal obligation to repair damages caused to others as a result of unlawful conduct.
It presupposes the existence of a legal bond between the parties involved, in which the agent
causing the damage is responsible for compensating the injured party.

4.1.2 Practical Examples

Traffic Accident: If a negligent driver causes an accident, resulting in property damage or
injury to third parties, he may be held civilly liable and required to compensate the victims for
the losses.

Manufacturer’s Liability: If a defective product causes harm to a consumer, the
manufacturer may be held liable. This falls under the so-called supplier’s liability, provided for in
the Consumer Protection Code.

4.2 Inquisitiveness

Civil Liability can be subdivided into objective and subjective. In subjective liability, it is
necessary to prove the fault of the agent in order for compensation to be due. In strict liability, on
the other hand, compensation is due regardless of fault, and it is sufficient to prove the causal link
between the conduct and the damage. This distinction is crucial in determining the burden of
proof in lawsuits.

4.2.1 Damage and Repair

Among the various branches of law, we have civil law, which regulates the relations
between private persons and each other. Within Civil Law, we have the institute of Damage and
Reparation.

We are talking about doing justice in the face of possible damages.

Chapter 4. CHAPTER IV 41

Among several provisions on the subject, we will mention only two, for a better
understanding of the subject, which are in the Civil Code:

Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and
causes damage to another, even if exclusively moral, commits an unlawful act.
Art. 927. Anyone who, by an unlawful act (articles 186 and 187), causes damage to another, is obliged to
make reparation.

Note that the Law establishes what can characterize a reparable unlawful act, and there
are objective and clear criteria for conviction. The origin and evolution of these concepts date
back centuries of legal development, reflecting the constant search for a more just and equitable
society.

In the book First Steps to Understand the History of Law, I bring examples of reparation
by virtue of acts throughout history. I cite here the issue of the carrier (ALVES, 2023):

With writing, the first records of these norms that were already applied appeared. From them, we can
have a very reliable notion that the people of that time, even belonging to an older society, lived through
determinations to which we are also subject today. Want an example? Here’s what one of the principles in
the Laws of Eshnunna, which dates back to 1930 B.C., says: If a boatman is negligent and lets the boat
sink, he will answer for everything he has let sink.

Did something sound familiar to you? Perhaps, because this is nothing more than a
discussion about the responsibility of the individual who transports goods. Of course, this law is
quite specific because, in that context, there were not so many ways to carry out transportation.
However, we have such a provision in our civil code. Article No. 734 of the Civil Code states that
“the carrier is liable for damages caused to the persons transported and their luggage, except for
reasons of force majeure, and any clause excluding liability is null and void.”

The idea of reparation for damages dates back to ancient civilizations, where rudimentary
compensation systems were used to restore social order. However, it was in Roman Law that the
foundations of what we know today as civil liability began to be outlined.

4.2.1.1 Example: Moral Damage

A contemporary example lies in the realm of moral damage, a category that transcends
the material aspect. Imagine a case where a person is publicly vilified, suffering damage to their
reputation and psychological well-being. In this context, reparation for moral damage seeks to
compensate the victim for the suffering experienced, recognizing that certain damages cannot be
measured solely in financial terms.

Chapter 4. CHAPTER IV 42

4.2.1.2 Fun Fact About Types of Repair

Within the spectrum of damage repair, an interesting curiosity arises related to the
different types of compensation. In addition to pecuniary reparation, which seeks to compensate
the injured party financially, there is also reparation in natura. In this case, the goal is to restore
the situation before the damage, such as rebuilding a damaged property.

4.2.2 Equity and Justice

Compensation for damages in civil law is not limited to material compensation. Above all,
it seeks to restore equity and protect individual rights. The courts, by applying these principles,
contribute to the construction of a society in which responsibility and justice coexist.

4.2.3 Contractual and Non-Contractual Liability

Contractual liability is linked to the breach of contractual obligations, while non-
contractual liability is related to unlawful acts that cause damage to third parties, without the
need for a prior contract between the parties. Both forms of liability are important to ensure fair
reparation for damages in society.

4.2.3.1 Contractual

Contractual liability occurs when one of the parties to a contract fails to fulfill the
obligations agreed upon in the contract, causing losses to the other party.

4.2.3.2 Fundamental Elements

• Existing Contract: There must be a valid contract between the parties.

• Default: The party responsible for the breach of contract must have failed to fulfill any
obligation stipulated in the contract.

• Damage or Loss: There must be a damage or injury caused to the other party as a result
of the breach of contract.

4.2.3.2.1 Example

Suppose a company hires a service provider to create a website, setting deadlines and
specifications in the contract. If the service provider does not comply with these terms, it may be
held liable for damages to the contracting company, having to compensate for the sales that the
company failed to make over the internet due to non-compliance with the delivery deadline.

Chapter 4. CHAPTER IV 43

4.2.4 Non-contractual (or Aquilian) Liability

Non-contractual liability, also called Aquilian liability, occurs when someone causes harm
to another person without the existence of a prior contract between them. It is the responsibility
that arises from social relations in general.

4.2.5 Fundamental Elements

Unlawful Conduct: There must be unlawful conduct, such as negligence, recklessness, or
breach of a legal duty.

• Causal Link: The unlawful conduct must be the direct cause of the damage.

• Damage or Injury: There must be a damage or injury caused to the victim.

4.2.5.1 Example

If someone fails to maintain their property and a tree falls on their neighbor’s house,
destroying it, that person can be held responsible for repairing it.

4.2.6 Criminal Liability

Now, in the criminal aspect, we have other types of liability.

Criminal Responsibility emerges as a punishment for misconduct. This concept establishes
rules by which individuals are held accountable for conduct that transgresses the legal norms
established by society. In this scenario, it not only punishes illegal acts, but seeks, above all, to
balance the social order and preserve fundamental values.

It is the obligation of an individual to answer for his or her criminal actions before the
law, being accountable to society for his or her actions. It rests on the premise that, by violating
criminal norms, the subject becomes liable to sanctions imposed by the judicial system. These
sanctions can range from custodial sentences to alternative measures such as community service.

4.2.7 Guiding Principles

• Culpability: Criminal Responsibility is intrinsically linked to the culpability of the agent.
A person can only be criminally liable if he or she acts consciously and voluntarily,
understanding the consequences of his or her actions.

Chapter 4. CHAPTER IV 44

• Legality: No one can be held responsible for conduct that is not previously typified as a
crime in the legislation. The principle of legality ensures that criminal rules are clear and
accessible.

• Proportionality of Penalties: The penalties imposed must be proportionate to the
seriousness of the offense. This principle seeks to ensure that punishment is fair and
appropriate to the nature of the crime committed.

4.2.7.1 Practical Example

Consider an individual who knowingly shoplifts. Criminal Liability here is triggered
when the subject’s conduct falls within the elements of the criminal type of theft. If convicted,
he will face the consequences provided for in the legislation, proportional to the nature of the
offense.

4.3 Balance Between Punishment and Rehabilitation

Criminal Liability is not only punitive; It also seeks to promote the rehabilitation of the
offender. Through measures such as sentence progression and social reintegration programs, the
penal system aims not only to punish, but to offer opportunities for recovery and reintegration
into society.

4.4 Challenges and Reflections

However, Criminal Liability is not a field without challenges. Issues such as the selectivity
of the system, prison conditions, and the search for more effective methods of crime prevention
are at the center of contemporary discussions on criminal justice.

4.5 Crimes and Penalties

“On Crimes and Punishments”, the timeless work of Cesare Beccaria, laid the foundations
for the modern understanding of the penal system, exposing a scathing critique of the punitive
practices of the time. As we enter the pages of this treatise, we are guided by a profound reflection
on crimes, punishments, and the pursuit of justice, a dialogue that resonates in the corridors of
legal thought from the eighteenth century to the present day.

4.6 Crimes and the Logic of Prevention

Beccaria revolutionized the approach to crimes by proposing that punishment should be
proportionate to the offense and, above all, have a preventive function. For him, prevention is the

Chapter 4. CHAPTER IV 45

true essence of punishment, discouraging crime and preserving social order.

4.7 Death Penalty

One of Beccaria’s most striking criticisms falls on the death penalty, which he considers
to be an ineffective and inhumane practice. He argued that the death penalty did not achieve
its preventive purpose more efficiently than other, less severe penalties. This view influenced
movements and debates on the humanization of the penal system.

4.8 Proportionate and Humanitarian Sanctions

Beccaria argued that sanctions should be proportionate to the seriousness of the crime,
avoiding excesses and cruelties that, according to him, do not contribute to justice. The
humanization of penalties and the elimination of inhumane practices have become crucial
guidelines in the evolution of legal systems.

4.9 Torture

In the book, Beccaria condemns the practice of torture, arguing that it is ineffective in
obtaining accurate confessions and, moreover, represents a violation of the principles of justice.
This critique was an important step in promoting human rights and rejecting cruel investigative
methods.

4.10 Continued relevance

The work remains relevant, stimulating debates about the nature of punishment, the
effectiveness of rehabilitation, and the balance between punishment and prevention. His vision
influenced not only legal thought but also penal reforms in several countries over the centuries.

4.11 Theory of Punishment

The Theory of Punishment is an area of Criminal Law that seeks to substantiate and
justify the application of criminal sanctions, considering ethical, legal and philosophical aspects.
It is concerned with answering fundamental questions about why to punish, how to punish, and
what the purpose of punishment is. The instrumentalization of this theory varies among legal
systems, and in Brazil, it is applied considering the constitutional principles:

• Principle of Legality: The penalty must be previously established by law, avoiding
arbitrariness and ensuring that the citizen knows the consequences of his actions.

Chapter 4. CHAPTER IV 46

• Principle of Personality of Punishment: The penalty should be applied taking into account
the characteristics of the offender, considering their culpability and the circumstances of
the crime.

• Principle of Humanity of Punishments: Punishments cannot be cruel or degrading, and
must respect human dignity, according to constitutional precepts.

• Principle of Individualization of Punishment: Each convict must be treated individually,
considering his or her personal characteristics, never going beyond the person of the
offender.

In the Brazilian legal system, the Theory of Punishment is instrumentalized mainly by
the Brazilian Penal Code. The penalties provided for are divided into deprivation of liberty
(imprisonment), restriction of rights (such as community service), fine, and imprisonment (for
crimes of lesser offensive potential).

4.12 Purposes of Punishment

• Retribution or Punishment: The aim is to repay the offender for the harm he has caused to
society, providing a proportional response to the crime committed.

• General Positive Prevention: Aims to prevent the commission of new crimes, showing
society the consequences of transgressing the law.

• General Negative Prevention: It aims to discourage the convict himself and other potential
offenders from committing crimes, demonstrating the negative consequences of criminal
practice.

• Special Prevention: Seeks the rehabilitation of the offender, providing means for him to
reintegrate into society in a constructive way.

The application of the Theory of Punishment in Brazil faces criticism and debate,
especially in relation to the effectiveness of custodial sentences, prison overcrowding and the
need for investment in prevention and rehabilitation policies. The country has been looking
for alternatives, such as the application of rights-restricting penalties, to diversify the forms of
criminal response.

In short, it seeks to balance the fundamental principles, aiming at justice, proportionality
and effectiveness in the fight against crime, always in line with the values enshrined in the
Constitution.

Chapter 4. CHAPTER IV 47

4.13 Legal Acts and Facts

Legal Acts and Facts play important roles in the relationships and events that give life
to the legal system. These concepts are essential to understand how human actions and natural
circumstances are intertwined in the legal universe, influencing rights and duties.

Legal Acts are manifestations of human will with the aim of creating, modifying,
extinguishing or declaring rights. Legal Facts, on the other hand, are natural or human events
that produce consequences in the field of Law, regardless of the will of the parties involved.

4.13.1 Practical Examples

Legal Acts: A purchase and sale contract is a classic example of a legal act. The parties
involved express their willingness to create obligations and rights related to the transaction.

Legal Facts: The birth of a person is a legal fact. From this natural event, a series of rights
and duties arise, such as the right to life and the obligation of parents to care for and educate the
child.

4.13.2 Interesting

Acts may be Void or Voidable. Null Acts are considered invalid from their origin, as they
disrespect mandatory norms. Voidable Acts, on the other hand, are initially valid, but may be
invalidated by defects that compromise the will of the parties, such as error, willful misconduct
or coercion. This differentiation is crucial to understanding the legal implications of these events.

A classic example of a Void Act is a contract that violates a legal norm, making it invalid
from its origin. Let’s consider a contract that has as its object an illegal activity, such as the sale
of illicit drugs. As the legislation explicitly prohibits the marketing of substances of this nature,
if the parties enter into a contract to carry out this activity, the act is null and void, as it goes
against an imperative rule, violating public order and good customs.

The null and void nature of this contract means that it will not produce legal effects and
will not generate any rights or obligations between the parties. Invalidity is intrinsic to the act
from the outset, reflecting the contradiction to the established legal order.

An example of a Voidable Act may be a contract of sale where one of the parties has been
coerced into entering into the agreement. Suppose a person, due to a serious and illegitimate
threat, agrees to sell a property for a price significantly below market value.

In this case, coercion (defect of consent) compromises the free and conscious will of

Chapter 4. CHAPTER IV 48

the party. The contract of sale, although initially appearing to be valid, becomes voidable due
to the presence of this defect. Annulment renders the contract liable to be considered invalid
retroactively, as if it had never existed. This is aimed at protecting the will of the parties involved
in legal transactions.

49

5 CHAPTER V

5.1 FIRST LESSONS IN LAW

How has your journey been so far? I imagine that you started reading the book without
understanding some legal concepts and that, little by little, you are increasing your understanding
of the topics. I’m sure you know a little more now than you did when you started reading.

From now on, let’s cover some legal topics in a more practical way. Don’t worry, as it is
not our goal to exhaust any subject. In fact, practically all the content will be reviewed in various
disciplines of the Law course.

For now, we just need you to start familiarizing yourself with some words and concepts.

5.1.1 Age of Majority and Capacity

The concepts of age of majority and capacity are decisive in Law, especially in determining
people’s autonomy and responsibility. These concepts, although often used interchangeably,
have distinct meanings and shape legal relationships according to life stages and individual
development.

5.1.1.1 Majority

The age of majority marks the transition point at which an individual reaches the legally
established age to be considered an adult, acquiring full civil capacity. In Brazil, the age of
majority is reached at 18 years of age. Upon reaching this age, it is presumed that the individual
is mature enough to fully assume legal responsibilities.

5.1.1.2 Ability

Capacity, in turn, refers to the ability to personally perform the acts of civil life. It can
be divided into legal capacity (or enjoyment), which is inherent to the person from birth and
regardless of age, and de facto (or exercise) capacity, which is linked to the age of majority and
maturity to perform legal acts.

5.1.1.2.1 Practical Examples

Buying and Selling Property: A person under the age of 18 may encounter restrictions
regarding certain acts, such as the purchase and sale of real estate. The actual ability to conduct
such business may be limited until you reach the age of majority.

Chapter 5. CHAPTER V 50

Contracts and Obligations: Signing contracts that involve significant commitments, such
as financial loans, usually requires the age of majority. Minors may have their ability to exercise
limited in these contexts, unless there is specific authorization or legal representation.

5.1.2 Interdiction and Special Situations

It is worth noting that, in special situations, the civil capacity of adults may be restricted.
Someone with mental incapacity may be judicially interdicted, losing, in whole or in part, the
ability to perform certain acts, even if they are over 18 years of age.

Adulthood and capacity delineate the boundaries between childhood, adolescence and
adulthood, establishing criteria for full participation in the legal spheres. These concepts reflect
not only an age issue, but also the assessment of maturity and aptitude to assume obligations and
rights in society.

5.1.3 Absolutely incapable

The concept of Absolutely Incapable refers to a category of people who, due to specific
conditions, are considered legally incapable of performing certain acts of civil life, regardless of
their age. That incapacity covers all legal acts, preventing such individuals from carrying out
certain activities without proper representation.

The Absolutely Incapable are usually defined by the law, which establishes criteria to
identify who falls into this category. In the Brazilian context, the Civil Code of 2002 deals with
this issue, establishing three categories of absolutely incapable:

Under the age of 16: Individuals under the age of 16 are considered absolutely incapable.
In such a case, the legislation presumes that the necessary maturity for the performance of full
legal acts has not yet been reached.

People who, due to illness or mental deficiency, do not have the necessary discernment to
practice these acts: this group includes those who because of illness or mental deficiency, are
unable to understand the consequences of their actions and, therefore, are unable to exercise their
capacity fully.

That even for a transitory because they are unable to express their will: this refers to
situations in which a person, even temporarily, is unable to express his will in an understandable
way. It may include moments of unconsciousness, mental confusion, or other transient conditions.

It is important to highlight that the Absolutely Incapable need legal representation for
the practice of legal acts. Generally, a legal representative, such as a parent, guardian or curator,

Chapter 5. CHAPTER V 51

is appointed to act on behalf of these persons, ensuring the protection of their interests and the
legal certainty of their decisions. The protection conferred on this category aims to safeguard
the rights of these individuals and avoid harmful situations resulting from their possible lack of
discernment.

5.1.4 Relatively incapable

The Relatively Incapable are those who, although they have greater autonomy compared
to the absolutely incapable, still have their ability to exercise legal acts restricted in certain
situations. Brazilian legislation, specifically in the Civil Code of 2002, defines two categories of
relatively incapacitated persons: minors between 16 and 18 years of age and people who, due to
illness or mental deficiency, have reduced discernment in certain circumstances.

Minors between the ages of 16 and 18: Individuals between the ages of 16 and 18 are
considered relatively incapable. In this age group, the legislation presumes that they already have
a higher degree of discernment and maturity compared to those under 16 years of age, but they
have not yet reached full civil capacity.

Due to this relativity, these individuals may perform some legal acts independently, but for
others, considered more complex or risky, they may need the assistance of their legal guardians.

People with reduced judgment due to mental illness or disability: Another category of
relatively disabled includes people who, due to mental illness or disability, have reduced judgment
in certain situations. This condition allows these people to perform legal acts autonomously in
some contexts, but in others, especially when they require greater discernment, they may need
legal assistance or representation.

The relativity of disability seeks to adapt legal protection according to the degree of
maturity and discernment of each individual. The goal is to balance the autonomy of these people
with the need to safeguard their interests in situations that may involve risks or complexities
beyond their full capacity to understand. Thus, it is possible to ensure that, even if limited in
some aspects, they can participate in civilian life in a progressive manner and adapted to their
specific needs.

Normally, the Relatively Incapable are assisted by their father, mother or legal guardian
during the practice of acts of civil life.

Chapter 5. CHAPTER V 52

5.1.5 ABLE

In the field of law, persons considered capable are those who are fully capable of exercising,
by themselves, the acts of civil life, without the need for representation or legal assistance. Civil
capacity is a key attribute for fully participating in legal relationships, allowing individuals to
enter into contracts, carry out transactions, and exercise their rights and duties autonomously. In
the context of the Brazilian Civil Code of 2002, persons considered capable include:

Over 18 years of age: upon reaching the age of 18, a person is presumed to have reached
the necessary maturity to fully exercise their rights and obligations in the field of Civil Law. The
age of majority is, therefore, a legal framework that confers full civil capacity.

Emancipated persons: emancipation is a legal institute that anticipates full civil capacity
before the age of 18. It can occur for several reasons, such as marriage, effective public employment,
graduation in higher education, among others. The emancipated person acquires the capacity to
exercise in its totality.

Foreigners with permanent residence in Brazil: Brazilian legislation grants full capacity
to foreigners with permanent residence in Brazil, provided that Brazilian laws are observed.

Legal entities: Legal entities, such as companies, associations, and foundations, are
considered capable of performing legal acts in accordance with the purposes for which they were
created. They act through their legal representatives or competent bodies.

Persons who, even for a transitory cause, can express their will: even in transitory situations
of mental illness or deficiency, a person may be considered capable if he or she can express his
or her will in an understandable manner. This is an important caveat, ensuring that in temporary
circumstances, the ability is not automatically denied.

Civil capacity is an essential principle for people’s autonomy in the legal context, allowing
them to participate fully in society and exercise their rights and obligations consciously and
responsibly.

5.2 Introduction to Brazilian Law

Brazilian Law, at its core, is a complex system that reflects the historical, social and
cultural evolution of Brazil. Its structure is shaped by diverse influences, from indigenous
traditions and the colonial period to the most recent transformations. This introduction aims
to shed light on the main characteristics of Brazilian Law, highlighting its importance in the
organization of society.

Chapter 5. CHAPTER V 53

The trajectory of Brazilian Law dates back to the beginnings of colonization, when the
norms imposed by the Portuguese colonizers coexisted with the legal practices of the indigenous
populations. Over the centuries, the legal system has been shaped by European, African and
Amerindian influences, but mainly by Roman Law.

The Federal Constitution of 1988 is the cornerstone of the Brazilian legal system. It
outlines the fundamental principles, rights and duties of citizens, in addition to structuring the
Executive, Legislative and Judicial branches. Complementary and ordinary laws and ratified
international treaties are the primary sources of law.

Brazilian Law is divided into branches that cover specific areas of social life. Civil Law
deals with the relationships between citizens, while Criminal Law deals with infractions and
punishments. Labor law regulates labor relations, and tax law addresses tax issues, and so on.

The legal system in Brazil faces contemporary challenges, such as the need to adapt to
technological and social changes. Not long ago, a judge refused a power of attorney with an
electronic signature – which seems to me to be a delay. At the same time, we are at the forefront
in the protection of the environment, human rights and citizenship.

5.2.1 Decree-Law 4.657 of September 4, 1942

Decree-Law No. 4,657, of September 4, 1942, better known as the Law of Introduction
to the Rules of Brazilian Law (LINDB), establishes fundamental rules on the application and
interpretation of laws in Brazil. It serves as a general guide for understanding the legal system
and for resolving issues related to the temporality, effectiveness, and validity of legal norms.

If you want to understand the law, start by learning about it. Its main objective is to
promote uniformity in the application of the law and harmony between different legal systems.

Some of its guidelines consist, for example, of determining how laws should be interpreted,
how they come into force, and how they can be repealed. It also states that no one can claim
ignorance of a law in order not to comply with it.

5.2.1.1 Key points

• Validity and Repeal: The LINDB addresses the issue of the entry into force of laws,
establishing rules to determine the moment when a rule begins to take effect and for the
repeal of old laws by subsequent laws.

• Application in Time and Space: regulates the temporal application of laws, clarifying
how the norms should be interpreted in relation to facts that occurred before or after their

Chapter 5. CHAPTER V 54

entry into force. It also deals with the spatial application of laws, indicating how they
should be interpreted in different territories.

• Interpretation of Legal Norms: establishes principles and guidelines for the interpretation
of legal norms, aiming to ensure the effectiveness of the legal system. It encourages the
pursuit of the purpose of laws and consideration of the social context in which they are
applied.

• Integration of the Legal System: addresses the integration of the legal system, suggesting
that, in the absence of specific rules, the applicator of the Law should resort to general
principles and analogies to decide concrete cases.

• Legal Acts: provides for legal acts in general, indicating guiding principles for their
validity, effectiveness and interpretation.

An interesting curiosity about the Law of Introduction to the Rules of Brazilian Law
(LINDB) is that it is known for its stability and longevity. The original text was promulgated in
1942, during the government of Getúlio Vargas, and, over the years, has undergone few substantial
changes.

Despite the significant social, political and economic transformations of the decades, it
remains one of the pillars of the Brazilian legal system. Its stability reflects the timeless essence
of the principles it contains, which continue to guide the application and interpretation of laws in
Brazil.

5.3 Introduction to International Law

International Law emerges as the legal system that transcends national borders, regulating
the relations between States and other entities on the global stage. This complex field develops to
deal with the interactions between international people, whether in times of peace or conflict.

5.3.1 Divisions of International Law

5.3.1.1 Public & Private

Public international law deals with relations between states and international organizations.
It involves norms governing peace, security, human rights, and diplomacy.

Private International Law deals with cross-border issues involving individuals and
businesses, such as international contracts and commercial disputes.

Chapter 5. CHAPTER V 55

5.3.1.2 Conventional and Customary

International Convention Law refers to the norms derived from treaties and agreements
between states.

Customary international law is based on repeated practices by States, regarded as legal
obligations even in the absence of treaties.

5.3.1.2.1 Examples of Practical Applications

Vienna Convention on Diplomatic Relations

This treaty establishes the rules and protocols for diplomatic relations between states,
defining, for example, diplomatic immunity and rules for the opening of embassies.

Rome Statute of the International Criminal Court

The Rome Statute created the International Criminal Court (ICC), a permanent tribunal
to try individuals accused of genocide, war crimes, crimes against humanity, and aggression.

Inquisitiveness

An intriguing example is the principle of immunity from jurisdiction, which grants
immunity to representatives of foreign states from being tried by national courts. This immunity
seeks to protect diplomatic relations, but it also raises complex issues when it comes to human
rights violations.

International law, marked by its constant evolution and adaptation, reflects the need for
global cooperation. As the world becomes increasingly interconnected, this legal field plays a
crucial role in promoting peace, justice, and mutual respect among nations.

Hague Convention

The Hague Convention is an international treaty that aims to establish rules for cooperation
between countries in legal matters. It was established in 1899 and currently has more than 80
signatory countries and establishes rules for the resolution of international conflicts, including the
protection of children in cases of international abduction, the legalization of public documents,
and the application of laws in transnational cases.

Key Aspects

Chapter 5. CHAPTER V 56

The convention is made up of a number of rules, which cover a wide variety of legal
issues. Some of the important points of the convention include:

• Child Protection: Establishes rules for the protection of children in cases of international
abduction. For example, if a child is taken from one country to another without the consent
of the parents, the convention establishes procedures to ensure the safe return of the child
to the country of origin.

• Legalization of public documents: regulates requirements for the legalization of public
documents in cross-border cases. For example, if a public document issued in one country
needs to be used in another country, the convention establishes procedures to ensure that
the document is recognized as valid in the destination country.

• Law enforcement: Determines criteria for law enforcement in cross-border cases. For
example, if an individual commits a crime in one country and flees to another country,
the convention establishes procedures to ensure that the person is tried for the crime
committed.

5.3.1.2.2 Examples of Practical Applications

International Child Abduction

If one parent takes a child to another country without the consent of the other parent,
violating their custody rights, the Hague Convention provides a mechanism to seek immediate
return of the child to his or her country of habitual residence.

Refugee Case

The convention can be applied in complex cases involving refugees and forced
displacement situations, where children may be at risk of abduction by a parent.

Inquisitiveness

An interesting curiosity about the convention is that it was created in response to the
growing need for international cooperation in legal matters. The convention was created in 1899,
at a time when international relations were becoming increasingly complex and interconnected.

Legislative Decree No. 148 of 2015

For an international treaty to be effective in Brazil, it must be ratified and promulgated
internally, signifying the commitment to comply with such rules. Ratification is the process

Chapter 5. CHAPTER V 57

by which the state expresses its agreement to the terms of the treaty, while enactment is the
formalization of the state’s commitment to abide by the treaty.

After ratification and promulgation, the treaty enters into force in Brazil. Entry into force
may occur immediately after promulgation or at a later date as set forth in the treaty itself or by
agreement between the parties.

About the requirements for the legalization of foreign public documents, for example,
it came into force in Brazil through Legislative Decree No. 148 of 2015, which approved the
text of the Convention on the Elimination of the Requirement of Legalization of Foreign Public
Documents, signed in The Hague on October 5, 1961.

We are talking here about the apostille of foreign documents for validity in Brazil or
apostille of Brazilian documents for validity abroad. For example, is a wedding performed in the
United States valid in Brazil? I answered this question in an article called Divorce in Brazil from
Foreign Marriages (ALVES, 2023):

Yes. The marriage is valid everywhere, but to produce effects in Brazil, the marriage performed abroad
needs to go through a simple administrative process, which guarantees the authenticity of the documents.
You don’t need a lawyer, but the help of one always makes everything easier.
And the procedure consists of two stages, the first being the apostille of the document that proves the
marriage abroad, usually a marriage certificate or certificate, carried out by a competent authority abroad.
After apostille, with the annotation of the document at a registry office of persons in Brazilian territory or
Brazilian consulate abroad.
With the completion of the two acts, the applicant will receive a Brazilian document, which can be the
marriage certificate or equivalent. And at this point, your marriage is on a par in all respects with a wedding
held in Brazil.

Brazil has its own laws to regulate marriage. In the same way, the United States has laws
to deal with the subject and, even if at some point the laws are divergent, The Hague Convention
in an international treaty allows the validation of an act carried out in another country, for
validity in another, harmonizing the application of different legal systems. This is The essence of
international law.

5.4 SOME CONTROVERSIES IN LAW

To the extent that we explore laws and norms, we come across situations in which the
application of the law seems to be far from the ideal of justice. This is the fertile ground for
controversies in Law, in which the complexities of legislation meet the constant challenge of
balancing interests, principles and values.

In the book First Steps to Understand the Philosophy of Law, I seek to bring reflections

Chapter 5. CHAPTER V 58

on the concepts of justice from Plato’s logic. See (ALVES, 2024):

If I have a gun and I leave it with someone to keep it safe until I am asked to return it and when the time
comes I ask for it to be returned, should I get it back? If we consider the issues of the right to property and
possession, yes.
But if, when faced with my request to have the gun back, my friend notices that I am not well, that I have
lost my lucidity, or that I am drunk to the point of not having the discernment to make right decisions,
should he return it to me just because it is my right of ownership?

I do not think so. The questions related to law and justice are divergent and convergent to
the point that there are no absolutely right or wrong answers, only the exercise of principles that
make it possible to make decisions that maintain social balance.

Realize from such provocation that Law and Justice are not always synonymous, and there
may be unfair legal situations. In fact, if you stop to think about it, the people who persecuted
Anne Frank were following orders to which they were legally bound, by legal provision, while
those who hid her, in a secret refuge, were breaking the law.

Anne Frank was a young German Jew, born in Frankfurt on June 12, 1929. His family
immigrated to the Netherlands in 1933, fleeing Nazi persecution in Germany. However, during
World War II, the Nazis occupied the Netherlands, and the Frank family had to go into hiding to
avoid persecution.

She and her family hid in a secret space in the rear annex of Anne’s father, Otto Frank’s
office building in Amsterdam, where they lived for more than two years. During this time, Anne
kept a diary, which became famous as “The Diary of Anne Frank”. The diary chronicles their
life, thoughts, and feelings while they were in hiding.

Unfortunately, the Frank family was betrayed and imprisoned by the Nazis in August 1944.
Anne and her sister Margot were eventually transferred to Auschwitz and then to Bergen-Belsen,
Nazi concentration camps. Anne Frank died of typhus at Bergen-Belsen in March 1945, just days
before the camp was liberated by Allied forces.

Anne Frank’s diary was discovered by Miep Gies, one of the people who helped the
Frank family during their period of hiding. Published by her father Otto Frank, the only surviving
member of the family, “The Diary of Anne Frank” became one of the most moving and widely
read works on the horrors of the Holocaust. Anne Frank symbolizes the tragic loss of life during
the Nazi regime, and her diary is an important historical reminder of the events of that dark
period.

Her brutal persecutors acted within the law while Anne, her family, and allies were
considered criminals. Do you realize that the law is not always fair?

Chapter 5. CHAPTER V 59

The pursuit of strict legality can sometimes lead to outcomes that defy common sense and
popular perception of justice. The rigidity of norms, often necessary to maintain legal stability,
can, paradoxically, be a source of injustice, especially when laws fail to evolve as quickly as the
nuances of society. In the same way, being too flexible can be the gateway to injustices.

Adjusting to the complexity of legal decisions often means confronting ethical and moral
dilemmas. Interpreting laws in sensitive cases, such as issues of individual rights, property, and
liability, can lead to resolutions that defy expectations of equity.

In an ever-changing world, controversies in law also reflect contemporary challenges,
such as the rapid evolution of technology, complex environmental issues, and changing social
dynamics. The legal profession often struggles to keep up with these challenges, generating
heated debates about the balance between legal stability and adaptive justice.

Among several current controversies, we are going to work on some.

5.5 Autonomous Protective Measures of the Maria da Penha Law

In 2023, I wrote a text that was only published in 2024, called How Protective Measures
Impact Property and Custody Relations in Family Law, and is part of the collection Reflections
on Family Law. In this article, I set out to identify the use of protective measures provided for in
Law 11.340/2006 (Maria da Penha) to achieve unfair objectives, and the results of the research
are worrying.

On that occasion, I began the text by arguing that the content was unpopular and here, I
repeat my words. Many people won’t like what they read, but I guarantee it’s the result of serious
research.

5.5.1 Concept

Protective Measures are an important legal instrument in the context of the Maria da
Penha Law. Brazilian legislation aimed at preventing and combating domestic and family violence
against women. These measures aim to ensure the physical, psychological and patrimonial
integrity of the victim, in addition to curbing and preventing further episodes of violence.

They play a fundamental role in the reason of the Maria da Penha Law, by offering a
quick and effective response to situations of imminent or continued risk. They can be applied in
both criminal and civil spheres, and are intended to ensure the safety of the victim, preventing
the aggressor from approaching and preventing further episodes of violence.

Chapter 5. CHAPTER V 60

5.5.2 Examples of Protective Measures

Removal of the aggressor: One of the most common measures is the judicial order for
the aggressor to maintain a physical distance from the victim, avoiding any type of contact or
approach.

• No Contact: This may include a ban on contact through phone calls, messages, social
media, or any other form of communication.

• Restriction of Weapons: In cases where the offender possesses firearms, the court may
order the seizure of these weapons as a preventive measure.

• Departure from the Common Household: If the aggressor and the victim share the same
home, the protective order may determine that the aggressor temporarily leave the place.

• Alimony: In situations of property violence, the measure may include the granting of
provisional alimony to the victim, if there is financial dependence.

Protective Orders, therefore, play a key role in breaking the cycle of domestic violence,
providing the victim with a safe environment and promoting accountability of the perpetrator.

But what about when used for illicit purposes?

5.6 Inappropriate Use of the Law

The jurisprudence admits the granting of Autonomous Protective Measures. In short, it is
a protection for women who are victims of domestic violence, which will not become a criminal
investigation or prosecution.

Then the problem begins because the Protective Measure is usually granted based only
on the victim’s word, in the sense that there is a risk in that relationship. And when there is no
investigation, prosecution or ascertainment, the ground becomes suitable for exaggeration and
unseemly practices.

We are talking about documented cases in which false reports remove the alleged aggressor
from the home, in a situation, for example, in which the wife would not have the right to remain in
the property in the event of separation or that force him to stay away, while she uses the couple’s
property alone, delaying the division.

Chapter 5. CHAPTER V 61

We also have documented cases of wives who ask for protective measures to prevent their
husbands from being able to see their children, even with favorable court decisions from the
Family Court.

I ask you to read an excerpt from the article (ALVES, 2024):

You see, I worked on a case in which the wife accused her husband of threatening her and had, in her favor,
a protective order to remove him from the couple’s residence. For two years after the separation, she lived
in her spouse’s private property, in which she would have no interest in the event of a divorce, and without
paying anything. There were two years in which the ex-husband spent resources on a lawyer and lived on
rent, even though he had a private property that he would not communicate in case of legal separation, in
order to be able to remove the accusation and repossess his property.

The ex-wife certainly profited almost forty-eight thousand reais from the accusation
because if she had vacated her husband’s house and rented a property of a similar standard, she
would have spent that amount. And, even if in the end there is an action for reparation that can
correct this distortion, there will be no useful result in cases where there is a malicious spouse
who has already embezzled his or her assets or who does not even have assets.

In this particular case, there was still damage to the property. In addition, the ex-wife did
not pay taxes and left owing consumer bills, as a terrible tenant authorized by the judiciary.

I saw a case in the press in which the partner accused the cohabitant of raping her
stepdaughter. The man was arrested and beaten to death by other inmates. The investigation later
found that there was, in fact, no rape. There was his desire to separate and, as the house where
they lived was his, his partner, instead of leaving the private property, saw fit to put him in jail to
continue using the property with his daughter for an indefinite period. And the worst: he had
legal guidance for it.

As the purpose of the topic is to demonstrate that the law is not always fair, I think we
have a lot to reflect on to try to minimize the consequences of the inappropriate use of protective
measures in the context of the family process.

5.7 Sex Crimes

It is perhaps the cruelest point of law at the moment.

In the past, many sex offenders have gone unpunished, as they committed their crimes
underground, without witnesses or evidence. Jurisprudence then created the possibility that the
authorship of sexual crimes would not need to be proven, but only the word of the victim would
suffice.

Chapter 5. CHAPTER V 62

And the victim’s word has become so valuable that even in situations where medical
reports and forensic examinations indicate, for example, that the sperm found on the victim was
not the accused’s, there was a conviction.

Accusations against ex-husbands or partners for the practice of sexual crimes have also
gained prominence in divorce proceedings. One strategy to avoid the division of assets is to put
the alleged aggressor in jail and prevent him from claiming his share of the estate.

And since the victim’s word is enough to convict the defendant of crimes of this nature,
often the cheating is efficient and achieves illicit goals at the cost of someone’s freedom. The
issue has become so serious that there are already studies pointing to the fact that couples who
live in surrogacy have a much lower chance of ending their relationship in a criminal charge.

It happens because it is not anyone’s interest to remove a false aggressor from a property
where there is a monthly cost to live. But in situations of the husband’s private property or
the couple’s common property, the complaints arrive in droves and there appears to be a clear
relationship between the existence of assets and false accusations.

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6 CHAPTER VI

6.1 CONTEMPORARY ISSUES IN LAW

We have reached the point of seeking to understand some of the most current issues of
Law. It is not the objective of this chapter to exhaust the understanding of the topics to the point
of feeling like a specialist, but to seek the initial contact with the terminology and make a brief
introduction, so that you, the reader, can take your first steps to understand the Law.

6.2 Digital Law

Digital Law, also known as Cyber Law or Computer Law, refers to the set of rules,
principles, and legislation that regulate legal relationships in the digital sphere. It covers issues
related to information technologies, the internet, e-commerce, online privacy, cybercrime, and
other legal aspects associated with the digital world.

6.2.1 Application Example

A common example of the application of Digital Law is the protection of online privacy.
Laws and regulations, such as the General Data Protection Regulation (GDPR) in the European
Union and the General Data Protection Law (LGPD) in Brazil, establish rights and responsibilities
when handling personal information online. Companies operating on the internet, for example,
must comply with specific requirements for collecting, storing, and processing users’ personal
data.

6.3 Inquisitiveness

An interesting curiosity about Digital Law is the concept of “cryptocurrencies” and their
impact on financial and tax laws. The emergence of decentralized digital currencies, such as
Bitcoin, raises legal questions about their regulation, taxation, and use in financial transactions.
Adapting traditional laws to deal with these innovative forms of digital assets is a constant
challenge for legal systems around the world.

6.3.1 Data Protection

Data Protection gained prominence with the emergence of the General Data Protection
Law (LGPD), Law No. 13,709/2018, in Brazil. This legislation was inspired by the European
Union’s General Data Protection Regulation (GDPR) and established guidelines and rules for the
processing of personal data by public and private organizations.

Chapter 6. CHAPTER VI 64

6.3.2 Objectives of the LGPD

The main objectives of the LGPD are to ensure the privacy and security of the personal
data of Brazilian citizens. It seeks to balance the legitimate use of personal information by
companies and government agencies with the protection of individual rights to privacy and
control over their data.

6.3.3 Main features

• Consent: Obtaining the explicit consent of the data subject for the processing of personal
information.

• Transparency: The obligation of organizations to provide clear and transparent information
about how data is collected, used, shared, and stored.

• Subject Rights: The LGPD grants data subjects a number of rights, including access to
data, correction of incorrect information, and the right to delete personal data, among
others.

• Responsibility and Accountability: Organizations are responsible for demonstrating
compliance with legislation by adopting security measures and best practices for data
processing.

6.3.3.1 Application Examples

• Companies and E-Commerce: Companies that collect and process customer data for
business transactions must comply with LGPD regulations. This includes protecting
financial information, identification data, and consumer preferences.

• Healthcare Industry: Healthcare institutions must ensure the security and privacy of
medical records and patients’ personal information by adopting strict data protection
measures.

• Human Resources: Human Resources departments need to ensure the security of employee
information, from personal data to performance records and evaluations.

The LGPD represents an important milestone in data protection in Brazil, imposing strict
guidelines and encouraging a culture of privacy in all spheres of society. Its impact is noticeable
in various areas, from online transactions to the handling of sensitive information in critical
industries such as healthcare and human resources.

Chapter 6. CHAPTER VI 65

6.3.4 Cybercrime

Cybercrime refers to criminal activities that are carried out through the internet or directed
at computer systems and networks. These crimes involve the use of information technology to
harm individuals, organizations, or the digital environment itself.

Legal grounds related to cybercrime vary by jurisdiction, but generally include violations
of unauthorized access laws, online fraud, identity theft, defamation, malware distribution, and
more. Specific laws are often enacted to address these crimes and punish offenders.

6.3.5 Laws

Several countries have specific laws to deal with cybercrime. Some examples include:

• U.S. Computer Fraud and Abuse Act (CFAA): Establishes penalties for improperly
accessing computers and networks.

• Brazil’s Computer Crimes Law (Law 12.737/2012): Known as the “Carolina Dieckmann’s
Law”, it criminalizes the invasion of electronic devices to obtain data without authorization.

6.3.5.1 Example of Cybercrime

A common example is “phishing,” which involves sending fraudulent messages to trick
people into revealing personal information, such as passwords or credit card numbers. This
practice violates laws related to fraud and unauthorized access, provided for in article 154-A of
the Penal Code.

6.3.5.2 Inquisitiveness

A curiosity about cybercrime is the constant evolution of the techniques used by criminals.
They frequently adapt and innovate their approaches to circumvent security measures. This
highlights the ongoing need to update laws and cybersecurity to address new digital threats. In
addition, the global nature of the internet makes combating cybercrime a challenge that requires
international cooperation between law enforcement and law enforcement agencies.

In Brazil, in 2023, after the invasion of the profile of first lady Rosângela Lula da Silva,
known as Janja, on the X platform (formerly Twitter), the National Cybersecurity Policy (PNCiber)
was decreed, by an act of her husband, President Luiz Inácio Lula da Silva, proposed by the
Institutional Security Office of the Presidency of the Republic (GSI/PR). This is Decree No.
11,856/2023, which addresses a set of needs pointed out by different institutions and cybersecurity
experts to improve national governance.

Chapter 6. CHAPTER VI 66

Among the measures intended with the decree are:

• Promote the development of national products, services and technologies aimed at
cybersecurity;

• Ensure the confidentiality, integrity, authenticity and availability of the solutions and data
used for the processing, storage and electronic or digital transmission of information;

• Strengthen diligent action in cyberspace, especially for children, adolescents and the
elderly;

• Contribute to the fight against cybercrime and other malicious actions in cyberspace;

• Encourage the adoption of cyber protection and risk management measures to prevent,
avoid, mitigate, mitigate and neutralize vulnerabilities, incidents and cyberattacks, and
their impacts;

• Increase the resilience of public and private organizations to incidents and cyberattacks;

• Develop education and technical-professional training in cybersecurity in society;

• Foster scientific research, technological development and innovation activities related to
cybersecurity;

• Increase the coordinated action and exchange of cybersecurity information between the
Union, the States, the Federal District and the Municipalities; the Executive, Legislative
and Judicial Branches; the private sector; and society in general;

• Develop regulatory, enforcement, and control mechanisms aimed at enhancing national
cyber security and resilience; and

• Implement collaboration strategies to develop international cooperation in cybersecurity.

6.3.6 Alternative Means of Conflict Resolution

Society is increasingly litigious. Access to information and the improvement of the
conditions of access to justice have been increasing, year after year, the number of lawsuits
submitted to the Judiciary.

And as much as there are investments in technology and personnel, judges cannot
overcome the challenges of the number of cases pending trial.

In a scenario where human relationships are often crossed by challenges and divergences,
the search for effective methods of conflict resolution becomes a pressing need. In this context, the

Chapter 6. CHAPTER VI 67

Alternative Means of Conflict Resolution (ARM) emerged, offering an innovative and humanized
approach to dispute management.

6.3.7 Rethinking the Traditional Conception

The Alternative Means of Conflict Resolution propose a paradigm shift in relation to
the traditional approach, often based on judicial litigation. Rather than conducting disputes
through lengthy and adversarial court proceedings, ARMs propose more collaborative and
consensus-oriented pathways.

6.3.7.1 Diversity of Approaches

Alternative means include various approaches, including mediation, conciliation,
arbitration and negotiation. Each of these tools has distinct characteristics, but they all share the
common goal of promoting communication, mutual understanding, and the search for solutions
that meet the interests of the parties involved.

6.3.7.2 Benefits of Alternative Means

Among the benefits inherent to Alternative Means of Conflict Resolution, speed,
confidentiality and flexibility stand out. By avoiding formal court proceedings, parties have the
opportunity to maintain greater control over the outcome of the dispute and explore solutions
tailored to their specific needs.

6.3.7.2.1 Expanding the Possibilities

ARC is not limited to individual issues; They find application in various contexts, from
trade disputes to family and community issues. This comprehensiveness demonstrates the
versatility and effectiveness of these methods in promoting restorative justice and building
healthier, more collaborative relationships.

By entering into Alternative Means of Conflict Resolution, we open doors to building a
more peaceful and constructive culture. These methods not only offer practical solutions to the
challenges of the present but also lay the foundation for a society where justice and harmony are
achieved through dialogue and mutual understanding.

6.3.8 Conciliation

It is perhaps the most important alternative method of conflict resolution (ARM), it
stands out for its collaborative approach and the active search for agreements between the parties

Chapter 6. CHAPTER VI 68

involved. Unlike judicial litigation, conciliation offers a space in which mediators, known as
conciliators, facilitate communication and guide the parties in the search for consensual solutions.

6.3.8.1 Advantages of Conciliation

• Agility: Conciliation is often faster than the court process, providing efficient resolution
to disputes.

• Savings: Cost reduction is a clear advantage, as conciliation avoids legal fees and expenses
associated with litigation.

• Preservation of Relationships: By promoting dialogue and collaboration, conciliation
seeks to preserve relationships between the parties, being especially valuable in family or
business disputes.

• Confidentiality: Conciliation sessions are usually confidential, providing a safe
environment for the parties to openly discuss their concerns.

• Party Control: The parties involved retain control over the process and the outcome, in
contrast to the imposition of a decision by a third party, as occurs in court proceedings.

6.3.8.2 Application Examples

Commercial Disputes: Conciliation is often used to resolve contract disputes, intellectual
property issues, and disputes between companies.

• Family Matters: In cases of divorce, child custody and division of property, conciliation
offers a more pleasant environment to deal with sensitive matters.

• Labor Disputes: In the labor sphere, conciliation can resolve disputes between employers
and employees more quickly and effectively.

6.3.8.2.1 Inquisitiveness

In conciliation, the conciliator plays an active role in facilitating communication between
the parties, encouraging empathy and mutual understanding. It is common for him to propose
creative solutions and suggest alternatives, aiming to find common ground for the resolution
of the conflict. This collaboration-centric process highlights conciliation as a humanized,
people-centered approach to dispute resolution.

Chapter 6. CHAPTER VI 69

6.3.9 Mediation

Mediation is an alternative method of conflict resolution (ARRM) that relies on the
intervention of an impartial third party, the mediator, to facilitate dialogue between the parties
in dispute. This process aims to enable the parties themselves to build mutually satisfactory
agreements, promoting understanding and collaboration.

6.3.9.1 Advantages of Mediation:

• Party Empowerment: Mediation puts parties at the center of the process, empowering
them to make decisions that best suit their needs and interests.

• Preservation of Relationships: By facilitating communication and understanding,
mediation seeks to preserve personal or professional relationships that may be affected by
disputes.

• Confidentiality: Mediation sessions are usually confidential, allowing the parties to openly
discuss their concerns without fear of external repercussions.

• Time and Resource Savings: Mediation is often faster and more cost-effective than court
litigation, reducing the time and costs associated with the process.

• Flexibility: The mediation process is flexible, adapting to the needs of the parties and
allowing for customized solutions.

6.3.9.1.1 Application Examples

Business Conflicts: Disputes between partners, contractual issues, and commercial
disputes can be resolved effectively through mediation.

School Environments: mediation can be applied in conflicts between students, teachers or
parents, promoting a more harmonious educational environment.

Inquisitiveness

In mediation, the mediator acts as a neutral facilitator, not imposing decisions but
encouraging the parties to develop their own solutions. An interesting curiosity is that mediation,
as a method of conflict resolution, dates back to ancient traditions in several cultures. Indigenous
societies, for example, often turned to elders or community leaders to mediate disputes and
restore harmony within the community. This highlights the universality and timelessness of the
concept of mediation as an effective approach to resolving conflicts.

Chapter 6. CHAPTER VI 70

6.3.10 Arbitration

Arbitration is an alternative dispute resolution method (ARRM) in which the parties
involved agree to submit their disputes to an impartial third party, the arbitrator, whose decisions
have the force of a court award. In Brazil, Law No. 9,307/1996, known as the Arbitration Law,
establishes the legal basis for the practice of arbitration, offering a normative framework that
encourages the use of this method.

6.3.10.1 Legislation

The Arbitration Law (Law No. 9,307/1996) regulates arbitration in Brazil, establishing
principles and guidelines for the choice of arbitrators, arbitral proceedings, and recognition and
enforcement of arbitral awards.

6.3.10.2 Advantages of Arbitration

• Technical Expertise: arbitration allows for the choice of arbitrators with specialized
knowledge of the subject matter in dispute, ensuring a more technical and specialized
approach to the conflict.

• Confidentiality: Unlike court proceedings, arbitration proceedings are generally
confidential, preserving the privacy of the parties and the litigation.

• Agility and Efficiency: Arbitration is often faster than court litigation, providing efficient
dispute resolution.

• Procedural Flexibility: Parties have more flexibility to tailor arbitral proceedings according
to their needs, making the process more adaptable and effective.

6.3.10.2.1 Application Example

Arbitration is commonly used in commercial, contractual, and corporate disputes.
Companies that want to resolve conflicts in a more efficient and specialized way often resort to
arbitration to avoid the slowness of judicial courts. Very common in international business, in
which the parties can choose which laws apply to the case, they can be defended by lawyers from
different countries and even choose the language of the case.

Inquisitiveness

A notable curiosity about arbitration is that it has been used throughout history, being
found in ancient business practices. Civilizations such as the Phoenicians and the Greeks already
employed similar methods of arbitration to settle commercial disputes. This historical aspect

Chapter 6. CHAPTER VI 71

highlights the long tradition and global acceptance of arbitration as an effective means of dispute
resolution.

Extrajudicial

Out-of-court procedures represent a broad category of alternative dispute resolution
(ADR) methods that take place outside the formal judicial system. These procedures encompass
various practices, including negotiation, conciliation, mediation, and arbitration, but mainly
administrative procedures that replace judicial proceedings, such as in situations of inventory,
divorce, and others, carried out in notary public offices. In Brazil, although there is no specific
legislation that covers all out-of-court proceedings, Law No. 13,140/2015, which deals with
mediation, and Law No. 9,307/1996, on arbitration, are examples of regulations that regulate
some of these methods.

Legislation

Although there is no specific legislation covering all out-of-court proceedings, Law
No. 13,140/2015 regulates mediation within the scope of the Public Administration, Law No.
9,307/1996 establishes the legal framework for arbitration, Law No. 11,441/2007 authorizes
inventories and divorces in notary public, etc.

Advantages of Out-of-Court Procedures

• Autonomy and Control: The parties involved maintain control over the process and
decisions, providing a more personalized resolution.

• Confidentiality: Many out-of-court proceedings, such as mediation and arbitration, are
usually conducted confidentially, preserving the privacy of the parties.

• Agility: Resolving conflicts through out-of-court procedures is often faster than traditional
court proceedings.

• Technical Specialization: the possibility of involving professionals specialized in the
subject in dispute provides a more technical and in-depth analysis.

6.3.11 Challenges and Perspectives of Law

Law is an environment of clash between challenges that emerge from social relations
and the perspectives that outline the future. In this scenario, reflecting on the challenges and
perspectives of Law becomes a necessity for professionals in the search for solutions.

Chapter 6. CHAPTER VI 72

6.3.11.1 Intrinsic Challenges

When we look at the challenges that permeate the Law, we are faced with the incessant
mutability of laws in the face of a reality in constant transformation. The speed with which
technology advances challenges the adaptation of regulations, throwing us into unexplored ethical
and legal questions. The protection of privacy in the digital world, the regulation of artificial
intelligence, and the boundary between individual freedom and collective security are just a few
examples that echo in the courtroom of the 21st century.

We can treat as a challenge the lack of standardization of judicial decisions and the ease of
changing understandings in the Courts. It is as if there were no commitment to the interpretation
of a thesis, which can be changed at the discretion of the judge.

6.3.11.2 Guiding Perspectives

We envision perspectives that are not limited to the shadows of challenges. The
strengthening of democratic principles, the search for equity and inclusion, and the
transformative role of legal institutions in the construction of fairer and more egalitarian
societies outline promising horizons. The expansion of access to justice, the promotion of
diversity, and the recognition of human rights as an unshakable foundation project a future in
which the scales of justice are balanced with the strength of the ideal.

6.3.11.2.1 Examples in the Scales of Justice

Technological Challenge: The privacy dilemma in the digital world is evident in cases
such as the clash between the need for cybersecurity and the individual’s right to privacy, bringing
up ethical and legal issues.

Inclusive Perspective: the expansion of access to justice is noticeable in initiatives that
seek to facilitate the understanding of the legal system by the population, such as free legal
assistance programs and legal education projects in communities.

6.4 Reflection

To reflect on the challenges and perspectives of Law is to tread intricate paths that demand
an attentive and committed look at the ideal of a just society. As we confront the complexities
of the present, we are called to ponder the impact of our decisions on the construction of the
future, in which the scales of justice are balanced in the hands of those who see in Law not only a
system, but a transformative force.

Chapter 6. CHAPTER VI 73

6.5 Legal Globalization

Globalization, by breaking down borders and intertwining cultures, has brought with it a
new chapter in the challenges faced by the Law. As ordinary individuals in different corners of
the world engage in business transactions, contractual relationships, and everyday interactions
through digital platforms, the reach of conflicts transcends territorial boundaries, requiring a
reconfiguration of legal approaches.

6.6 Transnational Challenges

Global commerce, driven by shopping apps and online platforms, brings people from
different continents together on an unprecedented scale. However, this virtual proximity also
brings with it an inevitable complexity that can become conflictual. When disagreements arise
between parties located in different jurisdictions, challenges emerge that go beyond the traditional
understanding of the law.

6.7 Regulation and Conflicts of Jurisdiction

One of the crucial challenges is cross-border regulation. How to reconcile different legal
systems when a commercial transaction between a Brazilian and Chinese individual, through
a phone application, for example, results in contractual disputes? Conflicts of jurisdiction,
the determination of applicable law, and the enforcement of court decisions become intricate,
requiring a cooperative approach and internationally recognized legal norms.

6.8 Global Consumer Protection

Globalization also highlights the need for more robust consumer protection in a global
context. How do you ensure that consumer rights are respected when transactions take place
virtually, and products cross borders before reaching the hands of the buyer? The harmonization
of consumer protection standards at the international level becomes a constant pursuit.

6.9 International Mediation and Arbitration

To address these challenges, alternative methods of conflict resolution, such as international
mediation and arbitration, emerge as effective tools. By allowing parties to choose neutral
arbitrators and agree on applicable law, these methods offer flexibility and adaptability in a
globalized legal landscape.

Chapter 6. CHAPTER VI 74

6.9.1 Perspectives for International Collaboration

Despite the challenges, globalization also offers opportunities for closer collaboration
across jurisdictions. International agreements and treaties, as well as the creation of global norms,
become crucial to establishing common ground that promotes justice and effectiveness in the
resolution of transnational conflicts.

In the scenario of globalization, legal professionals are called upon to bring innovation
and collaborative thinking to courtrooms and negotiation tables. By weaving together the global
legal fabrics, they play a vital role in finding solutions that transcend borders and promote justice
in an increasingly interconnected world.

6.9.2 Impact of Technology on Law

The rise of technology has sparked a revolution in the legal universe, shaping not only the
way legal professionals operate but also redefining the traditional structures of the legal system.
This impact is wide-ranging, covering everything from everyday practice to the most profound
structural transformations. Let’s explore some dimensions of this phenomenon.

6.9.3 Automation and Artificial Intelligence

The advent of artificial intelligence (AI) and automation has transformed legal practice.
Software that specializes in contract review, document analysis, and legal research speeds up
processes that were previously time-consuming. Predictive algorithms help in predicting judicial
outcomes, contributing to more informed decision-making.

6.9.4 Online Platforms and Access to Justice

Technology has been an ally in expanding access to justice. Online platforms facilitate
communication between lawyers and clients, allowing for virtual consultations and remote case
follow-up. Additionally, initiatives such as online legal aid services seek to make legal advice
more accessible to a wider range of people.

6.9.5 Blockchain and Legal Security

Blockchain technology, known for its application in cryptocurrencies, also finds a place
in law. Blockchain-based smart contracts enable the automation and automatic execution of
contractual clauses, increasing security and transparency in transactions.

Chapter 6. CHAPTER VI 75

6.9.6 Virtual Reality and Virtual Hearings

Virtual reality has impacted court proceedings, especially in times of globalization and
travel restrictions. Virtual hearings, held through online platforms, have become a reality, reducing
geographical barriers and optimizing the time of everyone involved in the process.

6.9.7 Cybersecurity and Data Protection

As technology advances, cybersecurity becomes a central concern in the legal field. The
protection of data, both personal and corporate, is gaining prominence, and legal professionals are
challenged to adapt to strict regulations to ensure the confidentiality and integrity of information.

6.9.8 Ethics and Artificial Intelligence

The integration of artificial intelligence raises complex ethical questions. Transparency in
algorithms, equity in the use of technology, and accountability in cases of automated decisions
become critical areas of discussion, requiring constant reflection on the ethical role of the legal
professional in this scenario.

6.10 Future Perspectives

The impact of technology on law is an ever-evolving journey. As innovations emerge,
prospects include the personalization of legal services, the consolidation of global standards for
data protection, and the continued integration of technological tools for a more efficient and
accessible legal practice.

In the midst of these transformations, legal professionals are challenged not only to adapt
to new tools, but also to guide technological development in an ethical and legal framework. The
intersection of the legal world and technology will shape the future of law, charting a path that
aims to balance innovation with the core values of justice and equity.

76

7 FINAL THOUGHTS: THE PATH TO MORE PROFOUND
UNDERSTANDING

7.1 Encouraging Continuity in Legal Studies

We have come to the conclusion of this journey through the vast territory of Law, and it
is with joy that we close this book, not as an end, but as a starting point. The teachings found in
the past pages represent the First Steps to Understanding Law.

No one disputes that we are dealing with a complex science, full of nuances and concepts
to be explored. In closing this book, I want to inspire you to continue seeking new sources of
knowledge, to explore classic and contemporary works, to participate in courses and debates that
will expand your legal frontiers.

It is important to understand that Law is not a static discipline; It constantly evolves in
response to societal transformations. Just as the law adapts, it is also critical that its understanding
improves over time. It is not necessary to embrace all knowledge at once; Learn a little each day,
absorbing consistently, and allow yourself to grow organically, in your own time.

By continuing your studies, you not only acquire technical knowledge, but also develop a
precious skill: critical reflection. Law is an instrument that shapes not only norms, but the way
we perceive the world and social relations. Your learning journey isn’t just academic; it’s one of
self-discovery.

Finally, I want to reassure you: don’t feel pressured to know everything. Law is vast and
multifaceted, and its journey is unique. Every discovery, no matter how small, is a significant
step toward more profound understanding.

Always remember: the effort dedicated to study is rewarded not only with mastery of
legal concepts, but with a renewed perspective on society, justice, and the role we play in this
intricate scenario.

Thus, I encourage you to continue this journey, to question, to debate, and to absorb
knowledge with passion and curiosity. May this farewell be only the prologue to a long and
enriching story that unfolds before you.

With gratitude for your company on this trip.

Suggestions for Further Reading

Chapter 7. FINAL THOUGHTS: THE PATH TO MORE PROFOUND UNDERSTANDING 77

Below you will find the bibliographic references that I used during the research to write
this book. How about choosing some of them to read as well? I am sure that you will find content
of all kinds, from the simplest, for those who are just starting out, to highly complex works, for
those who wish to delve deeper into the science of Introduction to the Study of Law.

You will notice that in addition to books, I have also used articles and texts that are
available on the internet and can be consulted for free. I believe that knowledge should be,
whenever possible, made available at no cost or with a low investment value, to reach a larger
number of people.

To paraphrase a fictional character, with great power comes great responsibility. What do
you intend to do with the knowledge about Law that you are acquiring?

78

8 CONCLUSION

The study of law is not simply the accumulation of legal norms and procedural rules. It is,
above all, a way of understanding how societies organize themselves, resolve conflicts, protect
rights, and shape collective values. This article has sought to offer an accessible yet structured
introduction to the legal world, presenting its core concepts, institutional frameworks, and social
relevance through a bibliographic research methodology grounded in didactic and foundational
texts.

By exploring the nature, sources, and functions of law, as well as its connection with
ethics, justice, and public order, we have emphasized the idea that law is a dynamic and human
institution. It is constantly evolving in response to historical, political, cultural, and technological
transformations. Recognizing this dynamism is fundamental to the development of a legal mindset
that is not limited to normativity, but open to critical analysis and social responsibility.

Furthermore, this guide aimed to bridge the gap between abstract legal definitions and
the lived experience of law in everyday life. From understanding how legal norms are created
and applied to recognizing the different branches of law and their roles in society, the objective
was to lay a solid foundation for students and readers at the beginning of their legal journey. Such
a foundation is crucial not only for academic advancement but for the cultivation of an ethical
and reflective posture toward legal practice.

In conclusion, legal education must go beyond technical training. It must foster critical
thinking, civic awareness, and a deep commitment to justice. The first steps into the study of law
should inspire a lifelong engagement with the legal system—not as something imposed from
above, but as a structure built collectively, with the potential to promote dignity, equality, and
social transformation. This work, therefore, is not a final word, but an opening: an invitation to
keep questioning, learning, and contributing to the continuous renewal of the legal order.

79

9 REFERENCES

Alves, M.T.E. (2023) Primeiros Passos para Entender a História do Direito. 2.ª ed. São Paulo:
Dialética.

Alves, M.T.E. (2024) Primeiros Passos para Entender a Filosofia do Direito. São Paulo: Dialética.

Alves, M.T.E. (2023) ’Divórcio no Brasil de Casamentos Estrangeiros.’ Blog do Advogado.
Available at: https://www.marcoadv.com/post/divorcio-no-brasil-de-casamentos-estrangeiros
(Accessed: 21 December 2023).

Rabinovich-Berkman, R.D. (2007) Un viajen por la historia del derecho. Buenos Aires: Quorum.

Platão (2021) A República. São Paulo: Editora La Fonte.

Alves, M.T.E. (2024) ’Como as Medidas Protetivas Impactam as Relações Patrimoniais e de
Guarda no Direito de Família’ in Reflexões Sobre o Direito das Famílias. São Paulo: Dialética.

Mello, C.M. (2023) Introdução ao estudo do direito. 4. ed. Rio de Janeiro, RJ: Processo. [e-book]
Available at: https://plataforma.bvirtual.com.br (Accessed: 11 December 2023).

Montesquieu, C.S. (1996) O espírito das leis. São Paulo: Martins Fontes.

Rufino, E.A. and Rufino, E.A. (2018) Das origens míticas do Direito grego. Curitiba: Editora
Appris.

Diniz, M.H. (2006) Compêndio de Introdução à Ciência do Direito. 18 ed. São Paulo. Saraiva.

Kelsen, H. (2021) Teoria Pura do Direito. São Paulo: Forense.

Brazil (1942) Decreto-Lei 4.657, 4 September.

Brazil (1940) Decreto-Lei 2.848, 7 December.

Brazil (2015) Decreto Legislativo n. 148.

Beccaria, C. (2017) Dos Delitos e das Penas. São Paulo: Edipro.

Aristóteles (1995) A Constituição de Atenas. São Paulo: Editora Hucitec.

Brazil (1988) Constituição Brasileira (1988). Constituição da República Federativa do Brasil de

Chapter 9. REFERENCES 80

1988: promulgada em 5 de outubro de 1988. Brasília, DF: Senado.

Vernant, J-P. (2008) As origens do pensamento grego. 17. ed. Translated by Í.B.B. da Fonseca.
Rio de Janeiro: Difel.

Lacerda, G. (2007) Direito no Cinema: relato de uma experiência didática no campo do Direito.
Rio de Janeiro: FGV.

Reale, M. (1956) Horizontes do Direito e da História. São Paulo: Saraiva.

Santos, S.A. (2009) Introdução ao Direito civil: ius romanum. Belo Horizonte: Del Rey.

Cheiri, V.K. (2006) Estudos em Direito, Política e Literatura, Volume 1. Curitiba: Juruá.

Gomes, R.A. (2006) ’“Com que Direito?”: análise do debate entre Las Casas e Sepúlveda –
Valladolid, 1550 e 1551.’ [Dissertação (Mestrado em Direito)] – Pontifícia Universidade Católica
de Minas Gerais, Belo Horizonte.

Azevedo, L.C. (2005) Introdução à História do Direito. São Paulo: Revista dos Tribunais.

Schwartz, G. (2006) A Constituição, a Literatura e o Direito. Porto Alegre: Livraria do Advogado.

Sen, A.K. (2000) Desenvolvimento como liberdade. Translated by L.T. Motta. São Paulo:
Companhia das Letras.

Brum, A.J. (1988) Democracia e partidos políticos no Brasil. Ijuí: Ed. Unijuí, p. 166.

Aristóteles (1964) Arte retórica e arte poética. São Paulo: Difusão Europeia do Livro.

Aguiar, R. and Maciel, J. (2018) Manual de História do Direito. 9.a ed. São Paulo: Saraiva Jur.

Wolkmer, A.C. (2002) História do Direito no Brasil. 3. ed. Rio de Janeiro: Forense.

Castro, F.L. de (2017) História do Direito geral e do Brasil. 13.a Edição. Rio de Janeiro: Lumen
Juris.

Grassi, F.D. (1996) Direito Romano hoje: síntese da história e da filosofia do Direito romanista.
Frederico Westphalen-RS: URI, p. 53.

Gilissen, J. (2008) Introdução histórica ao Direito. Lisboa: Calouste.

Altavila, J. (1989) Origem dos Direitos dos povos. São Paulo: Ícone, p. 100.

Chapter 9. REFERENCES 81

David, R. (2000) O Direito Inglês. São Paulo: Martins Fontes, p. 3.

David, R. (1996) Os grandes sistemas do Direito Contemporâneo. 3. ed. São Paulo: Martins
Fontes, p. 284-285.

 

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