Jurisdição comunitária: a interface sistêmica entre estado e sociedade para gestão de conflitos e a efetivação do acesso à justiça na policontexturalidade

Abstract

Inaugurating a model of a democratic state to ensure the exercise of social and individual rights, freedom, equality and justice as supreme values of a fraternal society, pluralistic and unprejudiced, committed in internal and international order to the peaceful settlement controversies, the 1988 Constitution proposes the breakup of a paradigm still invigorating and establishes a list of promises to be pursued. The understanding of this new perspective implies the need to reframe outdated grounds, among them that attach to the jurisdiction of a declaratory function linked to the legal monism, in the same way that we experience the law recognizes a complex society and polycontextural where conflict is present element and therefore requires assigning new meanings management and access to justice. The society is the locus of analysis; nothing happens outside. In this sense, there is a silent reform to justice, implementation of actions that constitute public policy in progress and a reconfiguration of the constitutions in Latin America, which introduce other forms of conflict treatments beyond that promoted by the judiciary, in the form of legal process. Such forms present, the jurisdictional, not adversarial institutions, such as mediation, which involves the facilitation of dialogue by a trusted mediator of conflict, among others. Institutes such as mediation demonstrate that power does not exist; that there are relations of diffuse power. This reinforces the strengthening of communities. The we akening of power exposes the resistance to change of the political subsystem of society and the failure of its elements, especially the functional, which was characterized by the monopoly of jurisdiction. The community, in turn, has several forms, including identifying an incorporated community and civic what constitutes the participatory citizenship, which is gaining ground in the legal environment with programs like community justice. This scenario shows paradoxes that are not resolved by normativism, which proposes a process of rational decision making through normative criteria of validity, which leaves room for a proposed policontexture, which allows us to observe, from the categories of systems theory, new senses of law and presents a concept of meaning attached to plurality. In order to analyze these new senses of law, it introduces autopoietic perspective, to identify what could not be thought of a one-dimensional dogmatic view. Thus, through the systemic method, advocated by Niklas Luhmann, which is not inductive or deductive, since it seeks to describe the systems (open and closed) and its relationship with he environment, it is possible to identify a new form of communication of the legal system which presupposes the recognition of difference and repels the consensus originated in the rational examination of validity claims. In this way, the term was designated as community jurisdiction, because it is based on the active participation of communities, besides the worry concerned to an effective access to justice in the contemporary world.