Fábio Medina Osório, to “Zero Hora”: “The science of Law and the proliferation of rules”
Article in Zero Hora, on 05/07/2019, on the proliferation of legal rules and the culture of regulation in Brazil.
Translated from the original.
One of the most disturbing elements of the present day is the proliferation of rules amid a veritable culture of regulation. Starting with the voluminous Constitution, Brazil is known for the abundance of laws, decrees, ordinances, regulations and legal and administrative rules emanating from the federal, state and municipal levels.
The normative tangle is identified as a factor of legal instability and uncertainty, insofar as it generates obscurity in the institutional environment as to the existence of rights and duties.
In this sense, “legistics” is the art of making good laws, in its role as a science that studies the conception, drafting, systematization, and organization of normative acts, in accordance with the applicable logic and principles.
In the introduction to the Science of Law, it is normal to study the principles of the theory of norms, combating pathologies such as the unintelligibility and obscurity of rules, legislative inflation, or even the inefficiency or ineffectiveness of legislative action, in addition to normative contradictions.
Codification processes, the permanent technological updating of all sub-legal acts, rationalization, publicity and accessibility are essential factors in legisprudence (legística). Obviously, it is fundamental to qualify the action of Parliament and the Executive in producing these norms.
Some branches of law require permanent updating and careful systematization of their respective norms, which must always be compared with social reality through the pertinent judicial and administrative case law.
Currently, legistics studies only the text in abstracto , but a necessary complement is the examination of case law. All institutions must make their decisions available in a manner accessible and rationally traceable to citizens.
The low level of understanding of rules by society, in general, generates erosion of fundamental rights and precarious access to justice. Beyond the production of rules itself, institutions must reveal to society what their parameters are and what their bodies of case law are, so that everyone can guide their conduct in accordance with the principles of good faith, reasonableness, legal certainty and proportionality, mitigating risks.
FÁBIO MEDINA OSÓRIO
Lawyer and former minister of the Office of the Attorney General of the Union