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 the nanotechnological revolution
| Autor | Wilson Engelmann |
| Ocupação do Autor | UNISINOS |
| Páginas | 908-923 |
908 • XXVI World Congress of Philosophy of Law and Social Philosophy
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 the nanotechnological revolution
Wilson Engelmann1
Abstract: There is a revolution on an unprecedented scale in progress: the na-
noscale, which can be represented by the scientic notation 10-9. The positive
and negative eects of this revolution are still poorly understood. Because of
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
legal eects. The idea of organizing the rules in a pyramidal structure will be
replaced by horizontal forms of arrangement of the several sources, which can be
handled as if they were open and exible rings for formaing Law with the use
of discretion in a responsible and creative form.
Keywords: Nanotechnology. New Rights. Theory of Legal Fact. Sources of Law.
Introduction
Products of dierent kinds, which are available to consumers,
are already being produced at the nano scale. In laboratories, research
continues in an accelerated process of development. Industries invest
on these novelties, trying to increase their prot, considering the added
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
nano scale may generate for workers, for consumers and for the envi-
1 UNISINOS
Special Workshop: Law and technology • 909
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
simple. Law, as a representative of Human Sciences, seems indierent to
the eects — positive and negative — of the revolution caused by nano-
technology. 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 seing of factual support and in how the incidence and interpreta-
tion of legal production are facilitated, in order to accommodate the new
rights and duties that are emerging from the discoveries at nanoscale.
The theory of sources of law has to be revisited, so that through the
dialogue between the sources of law it becomes more exible. The topic
is relevant and necessary considering the need to integrate Law in the
innovative and challenging path generated by nanotechnology. Given
these objectives and justication, the article also aims to answer the fol-
lowing question: under what conditions the revision of the Theory of
Legal Fact, as planned by Pontes de Miranda, may be sucient and ad-
equate to account for the new rights and duties generated from nano-
technology 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 exam-
ined from the Theory of Legal Fact, formulated by Pontes de Miranda,
as a central anchor of his Treaty of Private Law. As Pontes de Miranda
admits, its formulation applies not only to private law, but it also sup-
ports 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 eective life to law.
1. Theoretical Foundation
There is a technological and scientic revolution in progress. It is
developed on a scale that is poorly known, but that has unprecedented
possibilities and potential. It is the construction of things at the nano
scale, which is, on the billionth part of a meter (ENGELMANN, 2011).
Para continuar a ler
PEÇA SUA AVALIAÇÃO