Teoria crítica dos sistemas sociais e imaginação institucional na teoria jurídica

Abstract

This dissertation seeks to analyze two issues that unfold and guide the path to be followed: firstly, the possibilities of a critical theory of social systems and, secondly, a proposal for a weak/medium degree of normativity that allows for the outline of a legal theory of institutional imagination, based on organizational systems as a space for dialectic with the contingent synthesis of communicative decisions, in order to provoke reflexivity in the dogmatic self-description of law. In this way, "blind spots" and deficits are pointed out, as well as fostering a peripheral legal dogma that is attentive to the organizational question and the inevitable uncertainty of the future, according to which the law can generate congruent expectations of “controlled insecurity” and not just an ideal of legal security as a social benefit. In order to complete this itinerary and tackle the issues, a heterodox use is made of Niklas Luhmann's theory of social systems as his proto-theory of work, through a critical reading, which is not to be confused with surrendering to the Frankfurt School type of criticism, which raises the hypothesis that there is no "official" critical theory, but rather critical theories in the plural; while apparently conflicting dialogues are sought with thinkers with a more evident normative bias, such as Roberto Mangabeira Unger and his experimentalism of institutional imagination, in a use of cooperation and containment between the theoretical matrices for an outline of a legal theory of institutional imagination, which addresses the contingencies, transformations and complexities of law in modern society. At the end, with the recognition that much has not been observed, provisional conclusions are presented to the effect that a critical systems theory is viable as a weakly normative stance. Likewise, in the sense that the application of these systemic-critical assumptions, with the help of a pragmatic theory, can act reflexively on the law and its dogma, leading to the construction of a legal theory that observes and fosters innovations in the law.