Normative Closure Research Articles

THE CONSTRUCTION OF THE CIVIL LIABILITY STANDARD OF MOTORSPORT SPORTS LEAGUES IN BRAZIL

Civil liability is a way of resolving patrimonial and extra-patrimonial compensation arising from an unlawful act, represented by an action or omission that causes harm to another, even if the damage is exclusively moral. The research sought to answer the problem found, namely: what is the responsibility of motorsport sports leagues in Brazil for accidents caused during races? Thus, the research had the general objective of defining the responsibility of motorsport sports leagues in Brazil for accidents caused during races. And specifically, analyze the general rules of civil liability provided for in the civil code; verify the agent's civil liability; examine the athlete's term of self-responsibility in motorsport sports leagues. The research modality chosen for the development of the theme is normative-legal empirical research, verifying the norms of the Brazilian Automobile Confederation with norms in force in the legal system, in a qualitative approach of the exploratory type in primary research sources (laws, norms, decrees) and secondary (books, articles, monographs, dissertations and theses). The research presents the application of the general rules of civil liability provided for in the civil code due to the lack of specific regulation by automobile confederations; and the feasibility of the sportsman's responsibility in relation to the civil liability of motorsport sports leagues. In conclusion to the research, it was demonstrated that it is necessary to provide for a normative closure in the statute to guarantee legal security within a sporting space, since it is a place where risk is imminent and is part of the activity, which can cause losses and damages.

Curricular Centralization Policy in Brazil: A Discursive Perspective on Academic Researches

This article discusses the possibility of expanding the analysis of the new of curriculum hegemonized in the current Brazilian educational policy. Based on post-structural/post-foundational ontological appropriations of the Theory of Discourse (TD) in the field of curriculum, we challenge the defense of an educational project common to all and with projections that set an ideal to be achieved. Refers to those that seek to sustain this paradigm - in a movement to maintain the status quo, as well as those who seek to challenge it - in a movement of dispute for an ideal of emancipatory education capable of promoting social transformation. Gathering texts of academic production between 2014-2018 that has indicated a discursive analysis around the policies of curricular centralization in the Brazilian context. The aim is answering the following questions: How has the policy of curricular centralization been approached by discursive researches? How does the discursive perspective help us to challenge the current hegemonic model of curricular policy without establishing a normative closure? Highlights that the discoursive perspective puts on suspicion of curricular centralization policies and enphatizes the importance of radical political condition in the process of its contestation, with a view to favoring multiple curricular subjectivities based on democracy. Key-words: Discursive Perspective; Curriculum Policy; Curricular Centralization; Academic Researches; Brazilian Policies.

Research of the modern status of theoretical and normative closure of the concept of public-service activity

The Journal is a collection of scientific articles, first published in English, dealing with current problems of law and law-enforcement. There are also publications covering issues of legal education. The journal contains reviews on scientific editions. It may be used by scholars, legal and law-enforcement practitioners, and postgraduates.

Sociology of law and the problem of normative closing the discourse

Sociology of law, as well as other special sociological disciplines dealing withsocial institutions, is burdened by the epistemological - methodological diffi -culties in their studies (sociological studies of law). Th e diffi culties are causedby the diff erentiation of the institutions in the terms of building self- identityand autonomy and they appear in the form of institutional resistance anddiscursive exclusion. All the problems can be identifi ed as the eff ect of the operationalclosure of the institutions and production of the self-description. Inthe case of law we discuss the normative closure of the discourse as an expressionof the institutional resistance and discursive expropriation. Th e focus ofthe work are the epistemological and methodological diffi culties as a problemfor the Sociology of Law, and the problem of the normative closing of thelegal discourse as the cause. Th e manifestation of the epistemological - methodologicaldiffi culties can be seen in several instances : a) the institutionalreactivity of rights as a “social problem” , b) the construction of the identityrights through the establishment of diff erences, c) determining the sociologyof law as an external perspective on law and d) the normative closing of thelegal discourse through the eff ects of conceptual and discursive expropriation.When asked how the sociology of law can deal with these diffi culties in principlecorresponds in the end of this work.

Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”

Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of normative fragmentation. It provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to fragmentation, with particular focus on the use of general public international law in the context of the WTO dispute settlement. Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied to the case law of the WTO. Findings – The paper suggests that the Appellate Body’s approach has not been driven by the institutional myopia and normative closure of which they are sometimes accused, but rather a judicial sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint. Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing attention in particular to the importance of international lawyers and tribunals in contributing to fragmentation, not just responding to it. The fragmentation of international law is, in part, the product of ongoing boundary work, and the “fragmentation jurisprudence” of the Appellate Body has predictably involved boundary work of a particularly intense kind.

Breaking Open Utopia: Science Fiction as Critique in the GDR

Abstract In this article I offer a reading of Angela and Karlheinz Steinmüller’s novel Andymon (1982) in order to show how science fiction was able to function as critique in the German Democratic Republic. Andymon, a popular novel in a popular genre, establishes an extended analogy between spatial closure and temporal foreclosure to challenge the restrictive epistemological fixity the authors associated with both classical utopian texts and the cultural-political framework of socialist realism. By modeling competing dynamics of closure in its two primary spaces—aboard a vast spaceship and on the eponymous newly-settled planet—Andymon is able to offer a challenge from within a cognitive structure that links perfect knowledge of the past to the total determination of a future horizon. This destabilization of the past as an object of cognition thereby opens possibilities for the utopian reimagination of the future. Science fiction is thus able to critique both the official policy of socialist realism and the normative closure of classical utopian literature; the fact that Andymon enacts a critique of formal dimensions (closure, openings) on the level of plot can in turn contribute to our understanding of the relationship between the mass genre of science fiction and key legacies of critical theory. (CG)

Democracy and the Need for Normative Closure

Democracy and the Need for Normative Closure

Having one's cake and eating it: the paradox of contextualisation in socio-legal research

Traditional doctrinal scholarship provides an important service to practising lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their interrelationship (Chynoweth, 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities, and feed back in to legal practice once they are used in deciding cases. The method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell, 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney, 1998, p. 76; Vick, 2004), for ‘not being self-conscious about its assumptions’ (Twining, 1999, p. 44) and for cultivating what Geoffrey Samuel (2009) calls the ‘authority paradigm’. Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called the ‘practical insider attitudes’ (Twining, 2000, p. 129; for a discussion, see Banakar, 2003, p. 8). Externally, i.e. from the standpoint of policy-makers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm's normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel, 2009, p. 432). It fosters an understanding of the law as a system, which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel, 2009; see also Banakar, 2009b). These scholars place the law in the broader sociocultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.

A PRIMA FACIE DEFENSE OF HOBBESIAN ABSOLUTISM

AbstractHobbes advocates ‘thin absolutism’; a system of authority that merely ensures respect of the core concepts of sovereignty – hierarchy and normative closure. This new interpretation of Hobbes's absolutism shows that the concerns regarding sovereign tyranny are not fatal to his account of political authority. With thin absolutism, the sovereign is neither necessarily ineffective nor inherently dangerous. This, then, leaves Hobbesian absolutism in the position of being a ‘reasonable contender’– a system of political authority that might require our allegiance, but at the very least requires serious attention.

After Fidel: The US–Cuba System and the Key Mechanisms of Regime Change

This paper critically examines the different ways that analysts and policy-makers have assessed the future shape of the Cuban regime following the future passing of its long-time revolutionary leader, Fidel Castro. Certainly, from a social science perspective, the future of Cuba after Fidel Castro is open. On the other hand, different, often mutually inconsistent scenarios for regime transition suggest that Cuba's future is over-determined. Both features of social reality — openness and over-determination — create space for visions, ideologies, strategies, and other normative interventions designed to impose a particular cognitive and political order on social reality. While social science should try to include such ‘subjective factors’ in its objective account, it must maintain a critical distance from the normative closure and hopeful predictions that ideologies and strategies of necessity imply. Based on an analytical distinction between relatively stable systems and rapidly changing systems, this paper identifies and goes on to discuss the major systems of primary relevance for Cuba's future.

A better world through law? The implications of the theories of Niklas Luhmann for green economics

This paper considers the implications of the theories of Niklas Luhmann for attempts at achieving social change through law. According to Luhmann, modern society consists of all that can be communicated and understood as having meaning. Such communications are structured according to functionally differentiated subsystems such as law, politics, science, economics and education. Luhmann applies the biological term, 'autopoiesis', to explain how social systems produce and reproduce themselves by the interaction of their own elements and in so doing, participate in society's construction of reality. Each system distinguishes itself from its environment through binary codes and then reconstitutes phenomena entering its environment by applying its own internal binary code (such as legal/illegal in the case of law). This normative closure means that direct or simple exchanges or communications between social systems, or between individuals and social systems, are impossible. We therefore need to abandon notions of 'steering' social systems in predetermined ways and bringing about social change directly through legal norms. Progressive change may occur but this will depend more on how events entering each social system are reconstituted by those systems, rather than on the motivation and planning of social campaigners. Luhmann offers a way of describing society that seeks to engage with, rather than avoid, the increasing complexity and contingency of modern society, and which enables us to see that whether law achieves 'justice' depends on the viewpoint from which law (or any other social system) is being observed.

Of Planets and the Universe: Self-contained Regimes in International Law

Contemporary legal practice requires the allocation of authority within a complex system of legal prescriptions. As international law has extended to areas as diverse as trade, environmental regulation and human rights, the consequences of breach of international legal obligations become more difficult to assess. The authors probe the role of the lex specialis maxim as a tool for the effective placing of special secondary rules within the general international law of state responsibility. The central question is: Are the general rules on state responsibility to apply residually? The authors answer in the affirmative. 'Conceptual' arguments for so-called self-contained regimes are unconvincing. Scholars who perceive international law as a unified legal order might be led to apply a presumption in favour of the applicability of the general international law of state responsibility. Scholars who regard international law as no more than the sum total of loosely interrelated subsystems tend to advocate a presumption in favour of the normative closure of a particular regime. In the authors' view, neither presumption is helpful, since both tend to obfuscate the value judgments that legal decision-making inevitably involves. Instead, the authors propose that a fallback on general international law, including resort to countermeasures, may be justified on normative grounds. A closer analysis of four subsystems that have often been associated with the notion of self-contained regimes - diplomatic law, European Community

The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy

The article connects two strands of the recent sociolegal debate: (1) the empirical discovery of new forms of spontaneous law in the course of globalization, and (2) the emergence of deconstructive theories of law that undermine the law's hierarchy. The article puts forward the thesis that law's hierarchy has successfully resisted all old and new attempts at its deconstruction; it breaks, however, under the pressures of globalization that produced a global law without the state, as self-created law of global society that has no institutionalized support whatsoever in international politics and public international law. Consequently, the article criticizes deconstructive theories for their lack of autological analysis. These theories do not take into account the historical conditions of deconstruction. Accordingly, deconstructive analysis of law would have to look for new legal distinctions that are plausible under the new conditions of a doubly fragmented global society. The article sketches the contours of an emerging polycontextural law. I. Deconstructing Systems After deconstruction, what is left of law as a hierarchy of rules, founded on a political constitution, endowed with an institutional identity, based on the distinction between legislation and adjudication and legitimated through democratic representation and constitutional rights? Derrida (1990) uses the conceptual tools of deconstruction to dismantle the political architecture of the legal system: Deconstruction is generally practiced in two ways or two styles, although it most often grafts one to the other. One takes the demonstrative and apparently ahistorical allure of logico-formal paradoxes. The other, more historical or more anamnesic, seems to proceed through readings of texts, meticulous interpretations and genealogies. (Derrida 1990:957, 959) Deconstruction reveals the foundation of law, the origin of its authority, to be a grandiose logico-formal paradox. Law is grounded only on itself, based on an arbitrary violence without ground, la fondation mystique de l'autorite. Nor does the genealogy of legal decisions reveal law's stable identity as a system of valid rules, but only exposes law's recurrent aporias, situations of undecidability with ever shifting unstable differences in changing historical contexts. Law becomes a deconstructed disunity of discursive fragments which at the same time is haunted by the never satisfiable specter of justice.1 At first sight, theory stands in stark contrast to the intentionally obscure language of deconstructivism, which is not willing to reveal its theoretical presuppositions. The contrast holds true for style as well as for substance. While deconstructivism refuses to define a specific method or determine a guiding theoretical intention (Derrida 1988:82), systemism stylizes itself as an orderly theory cultivating conceptual precision and elaborating systematic theory constructs.2 In substance, the theory of law as an autopoietic system stresses law's autonomy, its normative closure, structural determination, dynamic stability, emerging eigenvalues in binary codes and normative programs, and its reflexive identity.3 How does this theory respond to the challenge of deconstruction? Is the radical constructivism of autopoietic law the very counter-program to anti-metaphysical deconstructivism? Second-order theory's first answer to deconstruction, may come as an surprise.4 Instead of reaffirming law as a system of rules, it observes law as a chain of operations that observes other operations under a certain scheme. Thus, it does away with any stable identity of law. Observing systems in its double meaning dissolves the stable order of legal structures into a fluid sequence of differences that acts simultaneously as the subject and the object of legal distinctions and indications. In second-order observation, law loses any fixed identity, any welldefined ontological status (Luhmann 1989). …

(A) Just Rhetoric?

The collected essays in Postmodern Jurisprudence seek to apply postmodernist theories, and in particular deconstruction, to jurisprudence. The book's organising theme is an attack on what the authors describe as law's 'logonomocentrism,' a pun on the deconstructive term 'logocentrism.' 'Logocentrism' refers to the characteristic manoeuvre of philosophical projects that attempt to explain the world, justice or ethical norms in terms of 'concepts claimed to exist in themselves, complete, self-referring and proper' (p 10). These explanatory concepts are presented in opposition to others which, by comparison, are seen as inferior, deviate, peripheral, indirect, distorting or inessential. Thus distinction, the creation of an interior and exterior, or a centre and a periphery, is the characteristic logocentric device. Logocentric projects fail, deconstruction argues, because the concepts used for theoretical explanation always turn out to bear a curious relationship of mutual dependence as well as differentiation from the marginalised, deviate or excluded concepts. The authors' 'logonomocentrism' applies this analysis to law. The legal equivalent of logocentrism is 'the presentation of law as a unified and coherent body' of thought grounded in reason (p 27). However, 'an entity, work or field can claim unity only if it can be clearly delineated from the outside' and '[p]ower is legitimate [only] if it follows the law, nomos and, if nomos follows logos, reason' (pp 26-27). Hence, logonomocentrism is the attempt to view law as a coherent, self-sufficient, unified, ordered body of principles, subject to and justified by reason. The book's major argument is that this picture of law is misleading. It attacks the organic unity of law, law's self-sufficiency and independence from other disciplines, and law's grounding in reason. It claims that law 'cannot be seen any longer as a coherent, closed ensemble of rules or values' (p 27). The authors argue that the law nevertheless attempts to creato the illusion of rational order, self-sufficiency and coherence. It does so by the use of rhetorical and figural language that legal actors and legal theorists refuse to recognise as rhetorical and figural, because this would undermine law's claim to be grounded in reason. Law tries to 'keep out of its empire those other discourses that it has pronounced alien to its scientific or normative closure' (p xi). Law thus spurns mere rhetoric; yet the authors claim that when jurisprudential arguments are studied carefully, they are revealed to depend heavily on rhetorical and figural language. The final chapter of the book, which is nothing short of a tour de force, is as much a symbol of the book's positions as an articulation of them. The authors niingle literary, legal and philosophical themes through an elaborate commentary on Melville's Billy Budd. The commentary is offered in the form of a fictitious law review article whose authors are accused of plagiarism by a former student. This premise allows the authors of Postmodern Jurisprudence to juxtapose the 'article' with a pastiche of interviews, letters and other documents concerning copyright law,