Law and Justice

Keywords:

Legal Argumentation and Jurisdictional Decision Making
Alternative Dispute Resolution Mechanisms
Doctrine of the New Evidence
The Procedural Management by the Courts

Participating institutions to which the research group belongs:

NOVA School of Law

Researchers:

Margarida Ramalho de Lima Rego (Principal Investigator)
Maria Inês Gameiro
Mariana Machado França Gouveia Sande Nogueira
Jorge Miguel Morais Carvalho
José Manuel Lebre de Freitas
Rita Sofia Calçada Pires
Vera Cordeiro Pereira de Sousa Eiró

Doctoral Students:

João Pedro Ramos de Almeida Pinto Ferreira
Patrícia Andrea Rodrigues André
Ricardo Lopes Dinis Pedro
Sérgio Carlos Brites Mascarenhas de Almeida
Tânia Carvalhais Pereira
Teresa Cristina Nunes Violante Ferreira Nascimento

Collaborators:

Maria Lúcia da Conceição Abrantes Amaral Pinto Correia
Giovanni Damele

Structure of the research group:

This group consists of a research team dedicated to the study of legal argumentation and the judicial decision-making process in varied demonstrations and perspectives. According also to the Strategic Project of CEDIS, the aim of this group is the study of Law in its relationship with society, promoting multidisciplinarity and integrating purely legal research approaches but also those of other branches and opening itself to methodologies of legal analysis developed by other areas of knowledge or with their collaboration, being that the main points of interest of this group are: the way judicial decisions are taken in courts or when alternative dispute resolution (ADR) methods are used.

As the members of this group have different experiences and approaches to legal studies, its internal structure was designed to promote an organisation that best serves its proposed objectives and, at the same time, facilitates an integrated management of the group. The wide spectrum of research interests of Professor Margarida Lima Rego justified her appointment as head researcher of the group. Thus, although with different levels of intensity, she will be involved in the various lines of research to be developed by this group. Other members will dedicate themselves to only one, or in some cases two, of the research lines which are differentiated within the group.

One important line of research focuses on the analysis of the content, structure, legibility and intelligibility of judicial decisions, judicial discourse as one of the sources of legitimisation of judicial decisions and justice itself. The intention of this line is to bring together methodological contributions from legal theory and the philosophy of law with empirical methods of data collection, such as conducting a series of interviews with judges and other decision-makers, in order to identify sources of tension or discrepancies between legally recognised requirements, but also those nominated by doctrine, for the justification of decision and the practice of judicial decision-making. Also within this line of research is the group’s intention to explore the theoretical questions raised by the more performative side of law. The group aims to answer the next question of how a response of Law becomes a response of fact, revisiting for this purpose the theories of the division between fact and Law and between discourse and action in general, in line with the attention given by this unit to the study of Law in action.

Another important line of research focuses on the analysis of the recent Portuguese experience in ADR. Empirical research and data collection will be carried out in this group on all relevant and available arbitration decisions, both institutionalised and ad hoc. In order to understand the most important features of arbitration in Portugal, its analysis will be carried out by attempting to answer the following questions: whether arbitrators are truly independent; whether and to what extent decisions are based on an unwritten Solomonic rule that guarantees that all parties involved should meet with some success in the cause, as is often claimed; whether and to what extent the justification of the decision differs from that practiced by courts of law; who writes voting declarations and on what grounds. Within this line of research there will also be a special line of research dedicated to the analysis of the recent Portuguese experience of ADR in public and administrative procurement and taxation, with the aim of assessing the effective (or not) willingness of the State to move away from traditional courts and to take its disputes to private ADR. In addition, the role of ADR regulatory and supervisory authorities will be analysed to try to understand the existing conflicts and to set the boundaries of their intervention in this area.

An important focus of the research done by this group will also be the most relevant changes implemented in the Portuguese legal system by the new Civil Procedure Code, with special emphasis on the role of the court in directing and managing the process. Methodologically, this line will be traced in the recent plethora of multidisciplinary developments collectively named “doctrine of the new evidence”.

Objectives of the research group:

This research group intends to use and continue the experience gathered by some of its key elements in the multidisciplinary and large-scale study “Economic Justice in Portugal”, recently completed, and led by Professor Mariana França Gouveia and funded by the Francisco Manuel dos Santos Foundation (https://www.ffms.pt/estudo/24/a-justica-economica-em-portugal).

Following a similar strategy to the one applied in the above-mentioned project, it is the intention of this group to publish the reports containing the unprocessed data collected, thus providing the research bases for a wider number of members of the academic community as well as lawyers and private institutions involved in the issue of dispute resolution both in Portugal and abroad. And the group also intends to publish the intermediate and final conclusions of its multidisciplinary analysis. Both objectives are complementary and aim to contribute in different ways to the accumulation of knowledge in our community by promoting and disseminating the results of their research.

The strategy of this group for the dissemination of its research results also takes into account a double objective: that of sharing its work with the international community of legal scholars and that of providing the various legal actors present in our society with the various theoretical tools that facilitate the construction of better decisions and, in short, promote justice. In the wake of this last objective, it is vital that the results of this research receive the greatest possible national projection – that the results of this group’s research are disseminated locally in order to allow them to reach judges, lawyers and other legal actors, thus guaranteeing a greater chance of having a real impact on our society. This translates into the publication of books and articles in Portuguese, as well as the organisation of conferences, workshops and other similar actions aimed at promoting public knowledge of the group’s most relevant results.

Simultaneously, it is also a key objective of this group the international promotion of its results through the publication of scientific articles in internationally indexed journals with high impact factors. Looking back, this was possibly the most serious collective failure of the Portuguese community of legal academics. This group, on the contrary, decided to move as far away from tradition as possible, thus embracing the scientific indicators currently favoured by the international scientific community.

This goal is also related to the contribution that the group intends to give to the training of researchers. NOVA Direito has created the first doctoral programme in Law existing in Portuguese universities. Its first edition opened in 1997. Although other higher education institutions have followed in its footsteps, the constant search for innovation that is etched in the genes of this Faculty, as well as a growing experience, still leaves it comfortably at the head of what is done in the country. However, until the recent past, advanced training of law researchers, if it existed at all, was mostly conducted by law schools, without the creation of strong ties with R&D units, which this group also intends to change. Some of the Faculty’s current PhD students working in the areas of interest to this group have already been integrated into it. Over the next 2 or 3 years it is the group’s aim to reconcentrate the advanced training of legal scholars at CEDIS. The same is planned, although to a lesser degree, for Masters students. They will all be encouraged to integrate their individual research into the research projects to be developed within this group, and they will be provided, by the research group, with training to seek publication of their work in international journals indexed in reference indexers.

Given the group’s intention to integrate both legal and non-legal approaches, making use of methodologies developed by, or in collaboration with, other branches of knowledge, some of its projects will benefit from the work of other R&D units connected to the UNL. Currently, a project exploring the new evidence doctrine, working on the role of probability and statistics in judicial decision is being prepared, in collaboration with members of ISEGI and NOVASBE.