AGU Explica- Formas de integração da norma jurídica

Summary

The video explains the integration of legal norms in Brazilian law, highlighting how judges must make decisions even when the law is unclear or incomplete. It introduces three forms of legal norm integration: analogy, customs, and general principles of law, each with examples. Analogy applies similar rules to comparable situations, customs represent socially accepted practices, and general principles reflect foundational legal truths. The concept of equity is also discussed, though not explicitly mentioned in the law, as a way for judges to apply fairness in specific cases. The video emphasizes the flexibility within Brazilian law to address unforeseen legal situations.

Takeaways

• 😀 The Brazilian legal system requires judges to make decisions even when faced with gaps or ambiguities in the law, as outlined in Article 140 of the Brazilian Civil Procedure Code.
• 😀 The law cannot foresee every possible situation, so there are mechanisms in place to fill these gaps, known as 'integration of legal norms'.
• 😀 Article 4 of the Law of Introduction to Brazilian Law specifies that judges must use analogy, customs, and general principles of law to address situations not covered by explicit laws.
• 😀 Analogy allows judges to apply the same legal rule to similar situations, filling the gap when the law is silent on a specific issue.
• 😀 A famous example of analogy is the application of a decree regulating the responsibility of railway companies before the 2002 Civil Code, where it was used in cases involving land transport contracts.
• 😀 The application of analogy is restricted in certain fields of law, such as criminal law, where it cannot be used to harm the defendant, and tax law, where taxes cannot be imposed by analogy.
• 😀 Custom is another way to integrate legal norms, defined as a repeated practice over time that holds legal relevance and social obligation, even if not explicitly mentioned in the law.
• 😀 An example of a custom is the practice of post-dated checks, which, though not specifically addressed in the law, are recognized by jurisprudence in Brazil.
• 😀 The principle of legality limits customs, meaning that customs contrary to the law (such as not wearing seatbelts) do not invalidate legal obligations like traffic violations.
• 😀 General principles of law, according to jurist Miguel Reale, are foundational precepts that guide the legal system, influencing decisions with social, ethical, and political relevance.
• 😀 Equity, though not explicitly mentioned in Article 4 of the Law of Introduction, is another form of integration of legal norms where a judge uses their sense of justice in a specific case, but only in situations defined by law.

Q & A

What is the concept of 'vedação' (lifting) in the context of Brazilian law?

The concept of 'vedação' (lifting) refers to the principle that a judge cannot avoid making a decision on a case distributed to them, even if there are gaps or obscurities in the law. According to Article 140 of the Brazilian Code of Civil Procedure, a judge must always provide a ruling, regardless of the legal uncertainties.

Why is it impossible for lawmakers to foresee all future legal situations?

It is impossible for lawmakers to foresee all future legal situations because of the constant changes in society, technology, and other factors. As a result, there will always be gaps or situations where the law doesn't provide a direct answer, which necessitates the use of supplementary legal methods.

What is the role of the methods for integrating legal norms as described in the Brazilian legal system?

The methods for integrating legal norms help fill the gaps in the legal system. These methods, outlined in Article 4 of the Law of Introduction to Brazilian Law, include the use of analogy, customs, and general principles of law, to ensure that judges can make decisions even when there is no explicit law covering a situation.

What is the meaning of 'analogy' in the Brazilian legal context?

In the Brazilian legal system, analogy refers to applying the same legal rule to similar cases. If the law is silent on a matter, the judge looks for a similar situation in the existing legal framework and applies the same rule. For example, a decree that regulated the responsibility of railway companies was applied to all transport contracts in the absence of specific legislation.

Are there any exceptions to the use of analogy in Brazilian law?

Yes, there are exceptions. For instance, analogy cannot be used in criminal law if it would harm the defendant. Similarly, in tax law, one cannot impose taxes based on analogy alone.

What is meant by 'costume' in the Brazilian legal system?

A 'costume' refers to a practice that has been repeatedly followed over time and has legal relevance or social obligation. It is not explicitly written into the law but is recognized by the courts. An example is the use of post-dated or pre-dated checks, which, although not specified in the law, are acknowledged by judicial decisions.

Can a judge apply a custom that contradicts existing law in Brazil?

No, a judge cannot apply a custom that contradicts the law. For example, the widespread failure to wear seat belts does not negate the fact that failing to do so is still a traffic violation, as the law takes precedence over custom.

What are the general principles of law, and how are they used in legal decision-making?

The general principles of law are foundational truths that guide the entire legal system. These principles reflect ethical, political, and social values and are used by judges to interpret and apply laws in a manner consistent with broader societal norms and justice.

What is the concept of 'equity' in Brazilian law, and how does it relate to judicial decisions?

Equity refers to a judge’s use of discretion and sense of fairness to make decisions based on the specific circumstances of a case. However, equity is not a method of legal integration outlined in Article 4 of the Law of Introduction to Brazilian Law, and judges can only decide by equity in cases explicitly allowed by law.

Why is equity not considered a primary method of integrating legal norms in Brazil?

Equity is not considered a primary method because it is not explicitly mentioned in Article 4 of the Law of Introduction to Brazilian Law. Some legal scholars argue that equity should not be seen as a legal norm integration tool unless the law specifically permits it.