Abstract
The paper argues that the electronic records inaugurate a new general theory of the procedural law. From two key concepts, (i) ‘connection’ (Deleuze) and (ii) ‘medium’ (McLuhan), the text seeks to draw the outlines of a new original principles, to the judicial proceeding, proposing seven new principles: (i) ‘connection’, (ii) ‘immateriality’, (iii) ‘interaction’, (iv) ‘intermediality’, (v) ‘hyperreality’, (vi) ‘instantaneity’ and (vii) ‘deterritorialization’. In the author’s opinion, the decisive factor is not the computer or electronic aspect, but its virtual inclusion on the network, on the Internet. The traditional procedural law is characterized by the principle of scripture, summarized in the Latin phrase “Quod non est in actis, non est in mundo” (what is not written in the records is not within the world of judicial proceeding). The records of paper, therefore, separate and disconnect the records of the world. The proceeding on the web – or networking process – connects the records and the case to the world and founded new prospects for interaction between the judge, the parties to the proceeding and the world of facts.
José Eduardo de Resende Chaves Júnior, President of the Latin American Judges Network – REDLAJ; Principal Judge of the 21st Court Circuit of Belo Horizonte, State of Minas Gerais, Doctor in Fundamental Rights by the Universidad Carlos III de Madrid; Coordinator of GEDEL – Justice and Electronic Law Study Group of the Judicial School of TRT-MG. Member of the Brazilian Institute of Electronic Law – IBDE.
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- 1.
Carvalho Leal, for example, quotes the following terms: electronic proceedings, electronic procedure, e-proceedings, digital proceedings, virtual proceedings, cybernetic proceedings, telematic judicial proceeding and tele-computerized proceeding. Cfr. LEAL in Jus Navigandi – Available at: http://jus2.uol.com.br/doutrina/texto.asp?id=9296 [01.04.2011].
- 2.
Professor José Carlos de Araújo Almeida Filho supports the terminology Material Law and Electronic Procedures in his manual. Cfr. ALMEIDA FILHO, (2007), 54–6.
- 3.
Angular in the sense of angular legal relation.
- 4.
- 5.
Augusto de Franco, in Carta Rede Social n. 171, available at: http://augustodefranco.locaweb.com.br/cartas_comments.php?id=260_0_2_0_C [01.04.2011].
- 6.
A graph with six vertices and seven edges. “A graph G is an ordained triple (V(G), E(G), Ψg) which consists of a set V(G) of vertices, a set E(G) of edges without intersection with V(G), and a function of incidence Ψg that associates to each edge of G a non-ordained pair of vertices (not necessarily distinct) in G.” BONDY, MURTY, 1976, p. 01.
- 7.
The analysis of social networks begins with two branches: (i) of whole networks and of (ii) personal networks. The first branch focuses on the relation of the group with the network; the other, on the individual with the network. The concept of multiplexity is involved in complex networks. This means the degree of multiplicity of the flow of social bonds found in a given social network. The novelty in the study of networks is in realizing the network structure not as determined and determining, but as changeable in time and space. Another concept of network theory is cluster, which is a group of social groups connected coherently (nodes). Cfr. RECUERO, last access on June 14, 2009
- 8.
Barry Wellman speaks of the rule ‘the more, more’, which applies in the interaction between networks on the internet: the more the social-physical network is used, the more the internet is used; the more the internet is used, the more the physical network is reinforced. Barry Wellman and Mena Gulia, “Netsurfers Don’t Ride Alone: Virtual Communities as Communities,” in Networks in the Global Village, ed. Barry Welmman, 331–66 (Boulder, CO: Westview Press, 1999). apud Castels (2002), 444.
There are many papers by Wellman and his group available at his virtual page at the University of Toronto, Access on 05/09/2008.
- 9.
The model ‘non-scale networks’ was formulated by Barabási. This model is based on the rich get richer phenomenon, as in Wellman. This means that the more connections there are to a node, the more opportunities there are of having others. Therefore, the networks are not equal, since there is a preferential link to the most widely used. Cfr. Barabási (2002), 79–82. The name ‘no stop-overs’ comes from the mathematical representation of the network, which follows a curve called power-law, also known as the ‘Pareto law’ or the ‘80/20 rule, which refers to a proportion that frequently occurs in network phenomena. Cfr. Barabási (2002), 66–71.
- 10.
Cfr. in www.augustodefranco.com.br – Carta Rede Social n. 171 [01.04.2011].
- 11.
In Portuguese, the “Vocabulário Ortográfico da Língua Portuguesa – VOLP” accepts both forms.
- 12.
Microsoft announces the launching of its competitor to Google: BING: www.bing.com.br
- 13.
The idea of common has roots in Negri and Hardt and is linked to Aristotle’s concept of ‘common place’, as described by Paolo Virno: “Today when we speak of “common place”, we usually understand it as stereotyped speech, almost devoid of any meaning, banalities, dead – “his eyes are headlights” – , repeated discourse. However, this was not the original meaning of commonplace. For Aristotle, the topoi koinoi are logical and linguistic forms of general value, as if speaking of the bone structure of each of our discourses, that which allows and ordains each particular utterance. These ‘places’ are common because no one – neither the refined orator, nor the drunk who blubbers meaningless words, nor the salesman or the politician – can escape them.” Cfr. Virno Paolo Gramática de la multitud (Madrid: Traficante de Sueños, 2003), 34–5.
- 14.
It is not by chance that Bill Gates retired to dedicate himself to his foundation, after donating 30 billion dollars of his personal fortune to it. Warren Buffett, owner of the Wall Mart chain, also one of the richest men in the world, did the same and donated 44 billion dollars to his foundation. This common fund begins with a budget larger than that of most countries in the world – about 10% of Brazilian GDP.
- 15.
French economist Yann Moulier Boutang, observes that: “When an economic operation between two agents A and B has an effect on a third agent C without a monetary transaction or convention of Exchange between A and C, or B and C, it is said that it creates an externality. If an externality created operates in detriment of C, that is, if it reduces his current wellbeing, or deprives him of enjoying a good, a potential service, it is said that it is a negative externality or an external dis-economy. If, due to the transaction between A and B, agent C sees an increase of his wellbeing, his wealth, opportunities for action, knowledge or improvement of his environment, it is said there is the creation of a positive externality. Economist Alfred Marshall introduced the idea of technologically possible externalities, for a company C which, through its geographic implementation, benefits the setting (transport, accessibility, market proximity) beyond its fiscal or mercantile contribution. For Marshall, the growth of the company that does not depend on the accumulation of capital and labor, but of technique, is explained by technological externalities”. Cfr. Moulier-Boutang (2004), 147.
- 16.
Traditionally, economics is seen as the science which seeks to balance human needs, which, by nature, are unlimited, to the resources which are always limited and scarce. One of the purposes of economic activity is the fight against scarcity. Cfr. Cotta (1978), 168.
- 17.
The so-called law of ‘decreasing income’ (or non-proportionals) was formulated by classical economists. According to this law, the relation between the quantity of the product and of one (or several) production factors has a tendency to decrease when production increases. In other words, this law says that duplicating inputs in a physical process does not duplicate production. Marx criticizes this law, stating that it applies more to agriculture than to industry, because technical growth itself stops the decrease. Cfr. Cotta (1978), 361–62.
- 18.
Cfr. Benkler Yochai, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven/London: Yale University Press, 2006), 60.
- 19.
Wetware and netware are correlate terms. The first refers to the individual capacity to operate hardware and software systems, a capacity that is developed from the point of view of the user or consumer, interactively, in production. The emphasis here is work and innovation, from the point of view of consumption. Netware is the collective outlook of this same interaction with consumption from the network. Cfr. Cocco (2003), 9–10.
Cfr. also Moulier-Boutang (2004), 54–5.
- 20.
Cfr. Ibid., p. 9.
- 21.
Cfr. Moulier-Boutang (2004), 55.
- 22.
Cfr. Marshall McLuhan, Os meios de comunicação como extensão do homem – trad. português Décio Pignatari (São Paulo: Cultrix, 1979), 54.
- 23.
Cfr. McLuhan, op. cit. (1969), 69.
- 24.
Cfr. Marshall McLuhan, Os meios de comunicação como extensão do homem – trad. português Décio Pignatari (São Paulo: Cultrix, 1979), 21.
- 25.
Cfr. Gilles Deleuze, “O Atual e o Virtual”, in Deleuze Filosofia Virtual, ed. E. Alliez, 49 (Rio de Janeiro: Editora 34, 1996).
- 26.
Pierre Lévi, O que é o virtual?, Trad. Paulo Neves (São Paulo: Editora. 34, 1996), 15–20.
- 27.
“Every instrument, as such, is the medium; and every medium is only such and is legitimated according to the purposes it was intended for (p. 206) (…) In other words, the instrumentalist view of proceedings is, by definition, teleological and the teleological method invariably leads to a view of proceedings as the instrument predisposed to carry out the chosen objectives”. Cfr. Cândido Rangel Dinamarco, A instrumentalidade do processo (São Paulo: Editora Revista dos Tribumais, 1990), 207.
- 28.
“This has in common with the instrumentality of forms its negative direction, that is, the function of warning of the functional limitations (of the forms there, here of the same procedural system). The negative side of the instrumentality of proceedings is a current methodological achievement, an awareness that it is not a purpose of itself (…) The positive direction of instrumental reasoning leads to the idea of effectiveness of proceedings, understood in the social and political legal context.” Cfr. Cândido Rangel Dinamarco, A instrumentalidade do processo (São Paulo: Editora Revista dos Tribumais, 1990), 379.
- 29.
Cfr. Sebastião Tavares Pereire, O processo eletrônico e o princípio da dupla instrumentalidade [Electronic Proceedings and the principle of Double instrumentality]. Jus Navigandi, Teresina, year 12, n. 1937, October 20, 2008. Available at: http://jus2.uol.com.br/doutrina/texto.asp?id=11824 [01.04.2011].
- 30.
This term was coined by Judge Antônio Gomes de Vasconcelos, during the debates in the Thematic Workshops of the I Congresso Mineiro – Justiça Digital e Direito do Trabalho (1st Minas Gerais Conference on Digital Justice and Labor Law), held by the Regional labor Tribunal of Minas Gerais and its Judicial School in the town of Caxambu, State of Minas Gerais, Brazil in August, 2008.
- 31.
“[…] the extrinsic medium in which proceedings are initiated, carried out and concluded: it is the extrinsic manifestation of this, its perceptible phenomenological reality.” Cintra Antônio Carlos de Araújo, et al., Teoria Geral do Processo – 17.ed (São Paulo: Malheiros, 2000), 277.
- 32.
Chief Judge Fernando Neto Botelho, one of the greatest Brazilian authorities in legal computing, also follows the line of developing new and specific principles in electronic proceedings. Cfr. Botelho (2009), available at http://www.amatra18.org.br/site/Index.do [01.04.2011].
- 33.
Latin etymology: actus,us ‘movement, impulse, right of passage, action, acting of a play’, noun derived from adj. actus,a,um, past participle of agère ‘place in movement’. Cfr. Antônio Houaiss, Dicionário Eletrônico Houaiss da Língua Portuguesa Mutiusuário 1.0.20 Editora Objetiva, Junho de 2003.
- 34.
Latin etymology: documentum,i ‘teaching, lesson, announcement, warning, model, example, clue, sign, indication, proof, sample, evidence that brings faith, document‘, from Latin verb docére ‘teach’; see doc(t)- Cfr. Houaiss, Antônio, Dicionário Eletrônico Houaiss da Língua Portuguesa Mutiusuário 1.0.20 Editora Objetiva, Junho de 2003.
- 35.
Décio Pignatari, Informação. Linguagem. Comunicação (São Paulo: Ateliê Editora, 2003), 13.
- 36.
This duality is well highlighted in the very dogmatics of electronic proceedings, as can be seen, in verbis, clause I, § 2o, Article I of Law 11.419/2006: “For the subject of this law, it is considered: I – any kind of electronic medium for storage or transfer of digital documents and files;”. (my highlight).
- 37.
“Propositio XXXIV: Dei potentia est ipsa ipsius essentia”. “Propositio XXXV: Quicquid concipimus in Dei potestate esse, id necessario est”. Cfr. Spinoza (1913(a)) 66.
- 38.
Cfr. Negri Antonio, Spinoza Subversivo – Variaciones (in)actuales – trad. esp. Raúl Sánchez Cedillo (Madrid: Ediciones Akal, 2000), 43.
- 39.
“It is an intelligence distributed everywhere, incessantly valid, coordinated in real time, which results in an effective mobilization of competencies’. We ad to our definition this indispensible supplement: the base and objective of collective intelligence are the mutual recognition and enriching of people, and not the worship of fetished or hypothesized communities” Cfr. Lévy Pierre, A inteligência coletiva – por uma antropologia do ciberespaço (São Paulo: Edições Loyola, 2003), 28–9.
- 40.
This is the only reason why Law 11.419/2006 (art. 11, § 6º), considered allowing access to outside network of the private documents only to the parties, those with power of attorney and the public prosecutor’s office.
- 41.
During the period of procedure of the actions of law, Roman proceedings were totally oral. Only when proceedings started to follow a formula did they become partially written. Cfr. José Rogério Cruz E Tucci and Luiz Carlos Azevedo, Lições de história do processo civil romano (São Paulo: Editora Revista dos Tribunais, 2001), 78.
- 42.
Germanic barbarian proceedings, in the high Middle Ages, were essential oral, although in the Iberian Peninsula there still retained aspects of the former mixed Roman proceedings. Cfr. Jefferson Carús Guedes, O princípio da oralidade (São Paulo: Editora Revista dos Tribunais, 2003), 21–3.
- 43.
Also known as the World Wide Web Consortium (W3C). The Semantic Web is a data web. There is a great amount of data used everyday that is not part of the web. The view of the Semantic Web is to widen the principles of the Web from documents to data. It allows humans and machines to work in true interaction. After all, the idea is to transform the web from a sea of documents into a sea of data. There is an excellent FAQ at http://www.w3.org/2001/sw/SW-FAQ#What1 [01.04.2011].
- 44.
The concept of ‘common’ has been used today in a post-structuralist political trend. The concept is formulated mainly by Negri and Hardt and Paolo Virno. The idea of ‘common’ as a noun is connected to the Aristotelian concept of ‘common place’. “Today, when we speak of ‘common place’, we usually understand stereotyped speech, almost deprived of meaning, banalities, dead metaphors – “your eyes are two beacons” – artificial conversation. However, this was not the original meaning of the expression ‘common place’. For Aristotle, the topoi koinoi are the logical and linguistic forms of general valor, as if it were the bone structure of each of our discourses, that which allows and ordains any specific utterance. These places are common because no one – neither the refined speaker or the drunkard who utters meaningless words, nor the trader or the politician – can set them aside.”. Cfr. Virno Paolo, Gramática de la multitud (Madrid: Traficante de Sueños, 2003), 34–5.
- 45.
The term “intermediality” is a concept under construction and may appear as a synonym of terms such as ‘intermedia’, ‘intermedias’, drawing close, within the scope of literary studies, of ideas such as ‘intertextuality’, ‘inter-semiotic transposition’, ‘interart studies’. “ In this discursive sphere, intermedial refers to the text which intentionally feeds itself from the conjugation of principles which guide different esthetic propositions and media definitions in the plane of a work, producing a multiple context within the specific textual unit.” Cfr. Gustavo Silva Saldanha, A leitura informacional na teia da intermedialidade: um estudo sobre a informação no texto pós-moderno. Perspect. ciênc. inf. [online]. 2008, vol.13, n.1, 55–66. ISSN 1413-9936. doi: 10.1590/S1413-99362008000100005., 2008. In Brazil, in the Literary and Language Graduate Studies Program of the Federal University of Minas Gerais, “intermediality” is the term chosen by the intermedia research group coordinated by Professor Thais Flores Nogueira Diniz. Cfr. http://www.letras.ufmg.br/poslit/13_projetos_pgs/projetos002.html [01.04.2011].
- 46.
The concept of hyper-reality was formulated by French sociologist Jean Baudrillard, from Borges’ fable about the cartographers of the Empire Who draw such a detailed map that it covers exactly the whole territory that was mapped. “Today abstraction is not a map, of the duplicate, of the mirror or of the concept. The simulation is the simulation of territory, of a referential, of a substance. It is the generation of models of an actual without the original or reality: hyper-real (…) The real is produced from miniaturized cells, matrices and memories, from models, from command – and can be reproduced an undefined number of times after this. It no longer has to be rational, because it no longer compares to any instance, ideal or negative. It is only operational. In fact, it is not the actual, since it is not involved in any imaginary. It is hyper-real, the product of synthesis irradiating combining models in a hyperspace without atmosphere. It is only operational. In fact, it is not the real, since it is no longer involved in any imaginary.” Cfr. Baudrillard (1991), 8.
- 47.
Cfr. Lévy Pierre, A inteligência coletiva – por uma antropologia do ciberespaço (São Paulo: Edições Loyola, 2003), 2009: http://caosmose.net/pierrelevy/nossomos.html [01.04.2011].
- 48.
Cfr. Jefferson Carús Guedes, O princípio da oralidade (São Paulo: Editora Revista dos Tribunais, 2003), 23.
- 49.
Moacyr Amaral Santos, Prova Judiciária no Cível e Comercial(São Paulo: Max Limonad, 1970), 41.
- 50.
Baudrillard formulates the concept of simulacrum, that is, the simulation that no longer takes the actual as its basis; the actual is only a reference, a virtual reality. The reality show is a hyper-real model, of a simulacrum that emancipates and disconnects from the commitment to reality. The simulation – simulacrum – tends to precede the actual (the real). Cfr. Baudrillard (2003), 8.
- 51.
Cfr. Elio Fazzalari, Instituições de directo processual – trad. Português Elaine Nassif (Campinas: Bookseller, 2006), 119.
- 52.
Cfr. Aroldo Plínio Gonçalves, Técnica Processual e Teoria do Processo (Rio de Janeiro: Aide Editora, 1992), 127.
- 53.
Cfr. Marshall McLuhan, O meio são as massa-gens – tradução de Ivan Pedro de Martins ; coord. por Jerome Agel (Rio de Janeiro: Record, 1969), 91.
- 54.
Cfr. Marshall McLuhan, O meio são as massa-gens – tradução de Ivan Pedro de Martins ; coord. por Jerome Agel (Rio de Janeiro: Record, 1969), 91.
- 55.
G. Deleuze and F. Guattari, Mil Platôs – capitalismo e esquizofrenia – Vol. 1 – trad. Aurélio Guerra y Célia Pinto Costa (Rio de Janeiro: Editora 34, 1995(a)), 111.
- 56.
The ‘double articulation’, the ‘double clawed lobster’, the ‘double bind’ Cfr. G. Deleuze and F. Guattari, Mil Platôs – capitalismo e esquizofrenia – Vol. 4 – trad. Suely Rolnik (Rio de Janeiro: Editora 34, 1997), 54, are the terms from and typical of Deleuze and Guattari.
- 57.
Cfr. G. Deleuze and F. Guattari, Mil Platôs – capitalismo e esquizofrenia – Vol. 1 – trad. Aurélio Guerra y Célia Pinto Costa (Rio de Janeiro: Editora 34, 1995(a)), 113.
- 58.
Cfr. G. Deleuze and F. Guattari, Mil Platôs – capitalismo e esquizofrenia – Vol. 1 – trad. Aurélio Guerra y Célia Pinto Costa (Rio de Janeiro: Editora 34, 1995(a)), 54.
- 59.
Cfr. Carlos Alberto Rohrmann, Curso de Direito Virtual (Belo Horizonte: Del Rey, 2005), 27–33.
- 60.
The following decision by the Brazilian Supreme Court is relevant, still based on paper proceedings:
PROCEEDINGS : CC 66981 UF: RJ – STJ – TRANSMISSION OVER THE INTERNET OF PORNOGRAPHIC IMAGES INVOLVING CHILDREN AND ADOLESCENTS. COMPETENCY ESTABLISHED BY THE SITE OF ILICIT PUBLICATION. 1. As understood by this Court, the crime foreseen in article 241 of Law 8.069/90 occurs at the moment of publication of the images, that is, when there is the issuing on the Internet of photographs of pornographic content. It is irrelevant, for the purposes of establishing competence, the site where the person responsible for the server of access to the virtual environment is to be found.
- 61.
Chief Judge Fernando Neto Botelho, on this issue, calls this the principle of ‘judicial ubiquity. Cfr. Botelho, 2009, available at http://www.amatra18.org.br/site/Index.do [01.04.2011].
- 62.
The expression was used by Magistrate and Law Doctor Antônio Gomes de Vasconcelos, in the Workshops of the 1st Minas Gerais Conference – Digital Justice and Labor Law, held in Caxambu, State of Minas Gerais, Brazil, August 21–23, 2008.
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de Resende Chaves Júnior, J.E. (2012). Proceedings on the Web. In: Kengyel, M., Nemessányi, Z. (eds) Electronic Technology and Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 15. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4072-3_6
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