A world of constant technological change, the legal system, and constant scientific innovation.

Law has never been immune to the transformations of the world. Technological, social, and philosophical changes directly impact its evolution, challenging legislators and jurists to interpret new realities. In this article, we explore the main challenges faced by law today.

The invention of the printing press by Gutenberg is a landmark break from the Middle Ages to the Renaissance, just as technological advances are for our contemporary society. In the words of the historian George Minois:

The other element in the dissolution of medieval civilization is the printing press. One could almost say, without exaggeration, that the printing press killed the Middle Ages. In this respect, one cannot fail to make the connection with the current era, when the computer is killing the traditional mode of human relations. (...) (MINOIS, 2023, p. 411).

The Reaction to Innovation: The Press and the Catholic Church

The printing press was enthusiastically embraced by the Catholic Church, which initially saw it as a way to accelerate and disseminate the Christian message. Over time, the Church came to view the press as a vehicle for ideas contrary to its hegemony, adopting a more belligerent stance.

This parallel illustrates how we deal with technology, adopting it rapidly and only later reflecting on its consequences. This makes it difficult for legal professionals, especially legislators, to regulate its use.

To better understand the complexity of the legal profession, we turn to the theory conceived by the great jurist Miguel Reale, the Three-Dimensional Theory of Law, which posits that the essence of law lies in three elements: fact, value, and norm. In every society , facts occur , to which a certain value is attributed , and only then is it transformed into a norm , which conforms to the values ​​of that particular society.

Fact, Value, and Norm in a Technological Context

We already have the fact . Computing and information technology are already a reality. The value we attribute to this fact is already in the process of becoming concrete. Some values ​​have already been extracted from this fact and have even become law , as is the case with the confidentiality of personal data. It is unanimously understood that we have a right to privacy, as well as to the confidentiality of our personal information; therefore, in the face of the advancement of the internet, the Brazilian legislator created Law 13.709/2018, the General Law on the Protection of Personal Data – LGPD.

Beyond technological innovations, the law faces equally complex challenges in the socio-political sphere. Transformations in the role of the State and in the relationship between the branches of government also demand constant adaptation on the part of legal professionals.

Man and the State in constant mutation, the changing role of the State in the face of new social realities. 

It is not only technological changes that impact the alteration of reality and require the attention of legal professionals. Sociological and political changes are equally important, as they primarily alter the role of the State and, especially, its relationship with society.

It turns out that such changes are gradual and silent, since most of them lack a clear starting point, and are only noticed when there is sufficient historical distance. Understanding these progressions is essential, as this data allows for the development of strategies to avoid future problems. 

One jurist with keen perception who could clearly notice and portray social changes was Mauro Cappelletti. In his book "Judges as Legislators?", published in 1993, he described how the shift from the Liberal State to the Social State altered the role of the State, particularly the dynamics between the Executive, Legislative, and Judicial branches.

The Liberal State and the Emergence of the Welfare State

According to Cappelletti, the Liberal State can be described as a state whose duties are limited to non-interference; that is, the role of the state was to guarantee the prevalence of private interests, as well as not interfering in the lives or actions of individuals. With the First and Second World Wars, the devastation caused by the conflicts left most of the population in a state of penury, unable to rebuild their lives on their own. Therefore, in this context, the state ceased to be a passive agent and began to assume positive obligations, such as guaranteeing education, health, and even culture; thus, the Social State emerged. In Cappelletti's words:

It is a given of reality that social or welfare legislation inevitably leads the State to surpass the limits of the traditional functions of “protection” and “repression.” The role of government can no longer be limited to that of a “gendarme” or “night watchman”; on the contrary, the social state—the “État providence,” as the French expressively call it—must adopt the technique of social control that political scientists call promotional. This technique consists of prescribing programs for future developments, promoting their gradual implementation, instead of simply choosing, as is typical of classical legislation, between “right” and “wrong,” that is, between the “just” and the “unjust,” right and wrong. And even when social legislation itself creates subjective rights, it is more a matter of social rights than merely individual rights. (CAPPELLETTI, 1993, p. 41).

Naturally, with these new promotional obligations, the Legislative and Executive branches gained more prominence. The Legislative branch now has a wider range of topics to regulate, previously outside its competence, while the Executive branch has had to mobilize resources to enable the implementation of these new responsibilities. 

The Role of the Judiciary in Realizing Social Rights

It turns out that neither the Legislative Branch managed to regulate all the new social rights, nor the Executive Branch managed to put them into practice. In this context, the Judiciary Branch became a possibility to give concrete form to social rights and, in this way, to carry out a "small usurpation" of the Legislative and Executive Branches, by regulating social rights and determining how they should be implemented.

The debate about the limits of the Judiciary – whether its expansive actions represent a 'minor usurpation' or a violation of the separation of powers – is extremely current and is at the heart of the discussion about judicial activism.

Human Nature and Ethical Conceptions

With the collapse of scholasticism and the rise of humanism, the focus of philosophical debate shifted from theology to the human being. Initially, we studied human rights and the limits of human freedoms; currently, we study human life itself, bioethics.

Bioethics is not a new field of study, but its analyses are more relevant than ever, not only because of advances in human reproduction techniques, but also because of older issues such as abortion, euthanasia, and others, which are always at the center of public discourse, as well summarized by Professor Carla Faralli:

The reflection, of course, ranges from strictly biological themes (when can the beginning of life be defined) to themes of a philosophical and religious nature (the sacredness of life and death) and from philosophical themes to strictly legal ones (whether and how to establish rules): diverse ideologies, cultural models, and value systems are in conflict, as are different criteria for regulating action. The demand for legal regulation clashes in contemporary pluralistic societies with the lack of shared values, leading to the risk of creating limits that reflect only the moral values ​​of a few or of stifling scientific progress with decrees and laws. (FARALLI, 2022, p. 75).

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References

MINOIS, George. History of the Middle Ages: a thousand years of splendor and misery. 1st ed. São Paulo: Editora Unesp, 2023.

FARALLI, Carla. The contemporary philosophy of law: themes and challenges. 2nd ed. São Paulo: WMF Martins Fontes, 2022. CAPPELLETTI, Mauro. Judges as Legislators? 1st ed. Porto Alegre: Sérgio Antônio Fabris Editor, 1993.