From Pontes de Miranda to Mireille Delmas-Marty: a journey to review the theory of sources of law to accommodate the new rights generated by nanotechnological revolution
| Autor | Wilson Engelmann |
| Ocupação do Autor | Doctor and Master in Law by the postgraduate Programo f Law of Unisinos/RS |
| Páginas | 2479-2494 |
Working Group: eory of Law • 2479
From Pontes de Miranda to Mireille Delmas-Marty
A journey to review the theory of sources of
law to accommodate the new rights generated
by nanotechnological revolution
Wilson Engelmann1
Abstract: There is a revolution on an unprecedented scale in progress: the na-
noscalewhich canbe representedby thescientic notation-9. The positive
andnegative eectsofthis revolutionare still poorlyunderstood Becauseof
this, the legal frameworks do not exist yet, being a challenge to Law. The Theory
of Legal Fact of Pontes de Miranda is a structural model present in all branches
of Law, although it has been created especially for Private Law. This theory
shows to be inadequate to account for the new rights and duties arising from
nanotechnology. It is proposed the adoption of a dialogue between the sources of
Law, in which national and international standards can interact to accommo-
date new situations, giving them constitutionally and conventionally adequate
legaleectsTheideaof organizingtherules inapyramidal structurewillbe
replaced by horizontal forms of arrangement of the several sources, which can be
handledasiftheywereopenandexibleringsforformaingLawwiththeuse
of discretion in a responsible and creative form.
Keywords: Nanotechnology. New Rights. Theory of Legal Fact. Sources of Law.
Introduction
Productsofdierent kinds whichareavailable to consumers
are already being produced at the nano scale. In laboratories, research
continues in an accelerated process of development. Industries invest
onthesenoveltiestryingtoincreasetheirprotconsideringtheadded
value that nanotechnology can provide. Scientists have not yet reached
a consensus on the most appropriate methodology for measuring the
potential risks that production and commercialization of products at the
1
Doctor and Master in Law by the postgraduate Programo f Law of Unisinos/RS.; CNPQ
Grant holder of Research Productivity; Professor of the referred Program of Master and
Doctorate.
2480 • XXVI World Congress of Philosophy of Law and Social Philosophy
nano scale may generate for workers, for consumers and for the envi-
ronment. Also, legal frameworks do not exist yet. There is a global de-
bate on this topic, but considering the lack of the referred methodology
and the absence of an inventory of the number of nano particles that
already exist, the establishment of regulation probably will not be very
simpleLawasarepresentativeofHumanSciencesseemsindierentto
theeectspositiveandnegativeoftherevolutioncausedbynan-
otechnology. It is necessary to bring the innovation that is under devel-
opment in Exact Sciences into Law. Therefore, this article aims to bring
some details about nanotechnology and to enhance that nanotechnology
requires changes in legal production. Thus, it is necessary to review the
Theory of Legal Fact, formulated by Pontes de Miranda, especially in the
seingoffactualsupportandinhowtheincidenceandinterpretationof
legal production are facilitated, in order to accommodate the new rights
and duties that are emerging from the discoveries at nanoscale. The the-
ory of sources of law has to be revisited, so that through the dialogue
betweenthesourcesoflaw itbecomes moreexibleThetopicisrele-
vant and necessary considering the need to integrate Law in the inno-
vative and challenging path generated by nanotechnology. Given these
objectivesand justicationthearticle alsoaims toanswerthe follow-
ing question: under what conditions the revision of the Theory of Legal
FactasplannedbyPontesdeMirandamaybesucientandadequate
to account for the new rights and duties generated from nanotechnology
and bring innovation to the construction of legal structures? This is a
problem that shows up to Law as a whole, but it can be examined from
the Theory of Legal Fact, formulated by Pontes de Miranda, as a cen-
tral anchor of his Treaty of Private Law. As Pontes de Miranda admits,
its formulation applies not only to private law, but it also supports the
construction of Public Law. So, it seems to be a paradigmatic theory to
analyze the need to review the way of construction of law as a whole.
From this perspective, it is possible to see the importance of this theory
and the need for its reformulation in order to ensure a longer and more
eectivelifetolaw
1. Theoretical foundation
ThereisatechnologicalandscienticrevolutioninprogressItis
developed on a scale that is poorly known, but that has unprecedented
possibilities and potential. It is the construction of things at the nano
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