ICJ - Instituto de Ciências Jurídicas

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Agora exibindo 1 - 20 de 29

Acesso aberto (Open Access)
Uma análise do caso Ximenes Lopes versus Brasil: o debate sobre políticas públicas, saúde mental e direitos humanos no sistema interamericano de direitos humanos
(Universidade Regional Integrada do Alto Uruguai e das Missões, 2020-04) ALENCAR, Evandro Luan de Mattos; RAIOL, Raimundo Wilson Gama
This paper deals with an analysis of the Ximenes Lopes versus Brazil case in the Inter-American Human Rights System. The problem is to answer the contributions of the case in question to the paradigm of human rights, public policies and mental health in Brazil. The objective is to analyze the jurisprudential construction of the Ximenes Lopes vs. Brazil Case in the Inter-American Human Rights System and its impact on the human rights protection policy arising from the dialogue between internal and external legal systems. For the pretensions of this work it was tried to adopt the methodology of socio-juridical research, of qualitative bias, based on the research and review of specialized literature.
Acesso aberto (Open Access)
Aplicação do princípio jusambiental do poluidor-pagador às situações de trabalho análogo ao de escravo
(Centro Universitário do Distrito Federal, 2019-04) MARANHÃO, Ney Stany Morais; MESQUITA, Valena Jacob Chaves; GARCIA, Anna Marcella Mendes
It is started on the hypothesis that work in slave-like conditions constitutes a labor-environmental pollution modality, attracting, as a consequence, all the rich normative estuary that gives substance to the Environmental Law in benefit of the adequate legal protection of the balance of the work environment. In this line of reasoning, the legal potentialities resulting of incidence of polluter-pays principle at this peculiar type of environmental damage are questioned. The research is qualitative, eminently bibliographical, and the hypothetical deductive method was used to test the initial hypothesis, confirming it.
Acesso aberto (Open Access)
A autoridade dos direitos humanos entre autonomia e bens básicos: o debate filosófico da teoria da lei natural de John Finnis com o positivismo liberal de Joseph Raz
(Escola da Magistratura do Rio Grande do Norte, 2020-04) PINHEIRO, Victor Sales; MACHADO, Ayrton Borges
This research explores the normative concept of human rights by summarizing the debate between the natural law theory of John Finnis and the liberal positivism of Joseph Raz, two of the most relevant analytical theorists of contemporary jurisprudence. To follow this debate, the article presents and criticizes three central arguments of Raz for the understanding of human rights: his thesis of unlimited authority, considered as exclusionary reason; his conception of practical reason and the autonomy of subjective interests; and the emergent order of human rights as limiting sovereignty. Then, the paper addresses Finnis' theory of natural law, also in three core arguments for the elucidation of human rights concept: the thesis of basic human goods as the foundation of natural rights; the universality and intrinsic value of human rights, according to the dignity of the human person; and the relationship between legitimate authority and the common good, based on the normativity of human rights. Finally, it concludes that Finnis is able to respond to the difficulties identified in Raz. Its methodology is hypothetical-deductive, based on bibliographical research, following a review of the primary and secondary literature of these authors and formulating general hypotheses about human rights.
Acesso aberto (Open Access)
Bioetica, gestão do meio ambiente e pagamento por serviços ambientais: teoria e prática de uma estratégia para proteção ambiental no sistema capitalista
(Universidade Estadual de Londrina, 2020-03) ALENCAR, Evandro Luan de Mattos; RAIOL, Raimundo Wilson Gama
This article aims to conduct a bioethical discussion on environmental management and payment for environmental services. The methodology to be adopted will be qualitative research, with a socio-juridical bias, with bibliographical and documentary data collection, to answer the problem of how the payment for the maintenance of environmental services presents itself as a bioethical proposal for the promotion of health and preservation of environment in the context of natural resource management in the capitalist system. The results show that payments for environmental services are a juridical and economic proposal to face the issues of collective health and environmental protection.
Acesso aberto (Open Access)
A convenção da criança e os limites na responsabilização de crianças e adolescentes no Brasil: rupturas e permanências
(Universidade do Estado do Rio de Janeiro, 2019) SOUZA, Luanna Tomaz de; ALBUQUERQUE, Fernando da Silva; ABOIM, Josilene Barbosa
This research will seek to verify the contribution of the Convention on the Rights of the Child (1989) to establish limits to state power in the responsabilization of children and adolescents in conflict with the law in Brazil. The dialectical method will be used with bibliographical and documentary bases to analyze the ruptures and stays in the investigation of infractions existing before and after the validity of the Convention.
Acesso aberto (Open Access)
Da escravização ao encarceramento de mulheres negras no Brasil: contribuições para a produção acadêmica no Brasil
(Instituto Brasileiro de Ciências Criminais, 2019) SOUZA, Luanna Tomaz de; SANTOS, Lucas Morgado dos; SOUZA, Nilvya Cidade de
Female incarceration is among urgent human rights agendas in Brazil. Several segments of social movements have been linked to the struggle for detention, including the creation of fronts by states. The criminal sciences cannot escape the requirement to analyze and make theory based on the centrality of race and gender relations in understanding mass incarceration and body control strategies in contemporary capitalist societies. Understanding this phenomenon in its entirety is a necessary effort in the fight against the historically structured racist penal system in the country. This paper seeks to verify how the academic works that mobilize the category “race” in the field of female incarceration relate the current configuration of black women’s incarceration to the processes of enslavement in Brazil. The work has a feminist methodological basis and uses bibliographic and documentary research. The works available in the CAPES Journal Portal are analyzed. It appears that the works do not link slavery to the current incarceration of black women in Brazil, nor do they deepen the analysis of the structural dimension of racism in the historical constitution of the penal system.
Acesso aberto (Open Access)
O Dano existencial na sociedade de consumo
(Centro Universitário 7 de Setembro, 2018) VERBICARO, Dennis; CRUZ, Raiza da Costa Santos
The present article, through the deductive method and through national and foreign bibliographic research, aims to analyze the phenomenon of existential damage in con sumer relations. In today's society, there is a strong harassment of the Cultural Industry for the consumer to submit to a consumption pattern aimed at personal self-satisfaction, or even ac ceptance in the social environment. The media's appeal for the acquisition of goods and ser vices overwhelms the psyche of consumers, especially the most vulnerable groups, generating an artificial freedom of choice and artificial happiness, insofar as their personal dissatisfaction with life, or even their Emotional and social needs could be appeased by the satisfaction and pleasure of buying. The research also addresses the novel discussion of consumer behavioral vulnerability to consumer harassment in the context of hypermodernity.
Acesso aberto (Open Access)
Dignidade humana, humilhação e forma de vida
(Universidade do Estado do Rio de Janeiro, 2019) MATOS, Saulo Monteiro Martinho de
In normative terms, human dignity usually implies two consequences: (a) human beings cannot be treated in some particular ways due to their condition as humans; and (b) some forms of life do not correspond to the ideal life of our community. This study consists in discussing the meaning of this idea of human dignity in contrast to the concept of humiliation in the context of institutional, i.e. political and legal, rights. Two concepts of human dignity will be discussed. The first absolute/necessary and formal/transcendental concept implies the proposition “because human beings have dignity, the following cluster of rights is valid.” Conversely, the second contingent and material concept corresponds to the thought “for being able to live in dignity, we must respect the following rights.” This paper claims that human dignity should be understood as the right to be protected from humiliation. Humiliation is the experience of incapacity or absence of self-determination.
Acesso aberto (Open Access)
O direito brasileiro atende às diretrizes de governança de incentivos fiscais para combate ao BEPS?
(Universidade Católica de Brasília, 2020-06) SCAFF, Luma Cavalero de Macêdo; SILVA, Maria Stela Campos da; NOGUEIRA, Rodrigo Baia
The development of a tax incentive control system is an especially problematic aspect for legal systems. An interesting way to improve understanding of the subject is to evaluate legal norms from studies and guidelines produced by international organizations. In this paper, the studies on governance of tax incentives produced in the context of Combating Erosion of the Tax Base and Transfer of Profits (BEPS), conducted by the Organization for Economic Co-operation and Development (OECD), are adopted as a theoretical reference to answer the question: does the brazilian legal system comply with the guidelines of legal incentives to oppose BEPS? It is concluded that, although the system has standards that are in line with the guidelines, they are insufficient for their reception.
Acesso aberto (Open Access)
Direito de Propriedade e Teoria da Justiça: a defesa da propriedade na justiça distributiva a partir da concepção de John Rawls
(Universidade Federal de Santa Catarina, 2019-08) SÁ, João Daniel Macedo
This article addresses the property right theme from John Rawls theory of justice. The objective is to analyze to what extent Rawls conception of justice accepts the defense of individual private property. In order to reach this objective, we first present the contours of the concept of property and discuss the understanding of property in the context of distributive justice. Finally, we analyze the defense of property from the conception of justice proposed by Rawls. It is intended to demonstrate that the right of property is a substantive liberty, to a certain degree and extent inviolable and unavailable, and that although Rawls does not consider that the right to property of the land deserves to be protected by the first principle, its formulation allows that right to be protected as a basic liberty, in addition to the second principle, to the extent that it enables the reduction of social and economic inequalities and the increasing of equal opportunities.
Acesso aberto (Open Access)
Direito natural (objeções e defesas)
(Universidade Federal de Sergipe, 2019-08) RODRIGUES, Denis Leite
The article deals with considerations about natural law, highlighting first the initiative, dating from the end of the nineteenth century, to retake it as a legal field, in the form of a discipline to be considered in law studies and as an effective part of the legal system. Then, based on typical doctrines of positivism, arguments against the effective consideration of natural law will be analyzed, trying to demonstrate their inconsistency.
Acesso aberto (Open Access)
Diversidade sexual e proteção integral à infância e juventude no direito internacional
(Universidade do Estado do Rio de Janeiro, 2019) SMITH, Andreza do Socorro Pantoja de Oliveira
In the present study, it is argued that sexual orientation constitutes an integral protection’s scope foreseen in the international norm about the human rights of the child, which imposes to the state and the society the development of actions and policies with the objective to promote discussions about sexual diversity and sexual rights as a mechanism of prevention and confrontation to violences of this nature.
Acesso aberto (Open Access)
O Estado de Coisas Inconstitucional na ADPF 347 e a sedução do Direito: o impacto da medida cautelar e a resposta dos poderes políticos
(Fundação Getulio Vargas, 2019) MAGALHÃES, Breno Baía
This article intends to analyze the State of Unconstitutional Affairs from the evaluation of the impacts of the interim order granted by the STF in the three branches of the Republic and the possibility of social changes from it. Dealing with the decision of the STF in ADPF 347 as a decision that creates political paths to be covered by the involved agents, in this case, the Executive, Legisla tive and Judicial powers, it seeks to evaluate the feasibility of the answers pre sented in order to reach, or not, the requirements formulated by the judicial decision. The data collected in the scope of the powers were contrasted with the objectives of the interim orders and with the justifications of the State of Unconstitutional Affairs. Next, the article argues for the impossibility of changes in the factual situation presented through legal categories, based on Gerald Rosenberg’s theses on social changes through law. The study concludes that the granted interim orders are not effective, because the powers presented answers that follow the same nature of the policies traditionally developed in Brazil, and that a social change is unlikely through the declaration of the State of Unconstitutional Affairs
Acesso aberto (Open Access)
Estudo de caso: Museu Nacional (o tombamento e a judicialização de sua preservação)
(Universidade Nove de Julho, 2019-06) VERBICARO, Dennis; RODRIGUES, Denis Leite; RAIOL, Raimundo Wilson Gama
This article presents information on the judicial pretension of promoting the preservation of the National Museum. The judicial measures began in 1993 by means of a Public Civil Action, filed by the Federal Public Prosecu. It will be exposed its judicial process, passing the Appeal in the Federal Regional Court of the 2nd Region and by the Special Appeal, in the Superior Court of Justice. In addition to the doctrine about government protection of historical buildings (administrative process in which the National Museum was object), will be informed jurisprudence of the Superior Courts, linked to the problem studied here.
Acesso aberto (Open Access)
Gestão dos resíduos sólidos recicláveis no fórum de Castanhal à luz do projeto reciclar direito, do Tribunal de Justiça do Estado do Pará
(Universidade da Amazônia, 2020-11) ALBUQUERQUE, Maria Claudia Bentes
Acesso aberto (Open Access)
A (im)prescindibilidade do laudo toxicológico definitivo, na condenação pelos crimes de tráfico de drogas, no Tribunal de Justiça do Estado do Pará
(Universidade Federal do Paraná, 2020-08) SOUZA, Luanna Tomaz de; ALVES, Panmella Stephanie Acácio
The purpose of this paper is to analyze the position of the Court of Justice of the State of Pará regarding the possibility of conviction in drug trafficking offenses without the definitive toxicological report. To this end, a jurisprudential survey will be carried out in the judgments of the Court, based on the deductive method and considering the provisions of Law 11,343/2006 (Brazilian Drug Law). The central hypothesis is that the Court has condemned people without the report, as remnants of an inquisitorial and prohibitionist policy. In the course of the article, the inquisitorial frame of the criminal procedural system, the delineations of the notion of materiality and truth, and the history of drug legislation in Brazil, in particular Law 11,343/2006, will be analyzed. This research presents itself as relevant, considering that it is about the largest court in the Brazilian Northern Region and that the analysis is about one of the fundamental evidences used at trials of one of the crimes that most imprisons people in the country.
Acesso aberto (Open Access)
A incrível doutrina de um caso só: análise do estado de coisas inconstitucional na ADPF 347
(Universidade Federal de Santa Maria, 2019) MAGALHÃES, Breno Baía
The article intends to make a dogmatic analysis of ADPF 347, a judicial precedent that inserted the category State of Unconstitutional Affairs (SUA) in the interpretative canon of the Brazilian Constitutional Law. The creation of said category implies the delimitation of its elements for their characterization and application in later cases. Thus, as a scientific method, the article intends to perform a dogmatic analysis of the elements that make up the identification of an SUA, according to the decision taken by the Federal Supreme Court (FSC). The dogmatic study proceeded from a description of its constitutional contours, that is, the requirements for the declaration of the ECI and its characteristics, to then challenge the constitutional characterization of the category under consideration and to highlight the mobilization of the FSC justices in order to limit its applicability only to the case of the prison system. The study concludes that the dogmatic categorie is problematic from the point of view of its argumentative coherence and its application will be restricted to the case of the Brazilian prison system.
Acesso aberto (Open Access)
A judicialização do refúgio no STJ: deferência ao executivo e incoerência interpretativa
(Universidade Federal do Paraná, 2019-04) MAGALHÃES, Breno Baía; CORRÊA, Gabriella Thaís Sousa
The present article intends to analyze the jurisprudence of the Brazilian Superior Court of Justice (Superior Tribunal de Justiça, or STJ), in order to identify which hypotheses of judicialization of refuge, according to the categories stipulated by Jubilut (2011), are presented in that court and if there is or not judicial deference to the Executive branch decisions on expulsion or denial of refugee status. This empirical article analyzed the entire content of 13 decisions of the STJ, among full bench and monocratic decisions. The methodology employed is institutionalist, focused on the jurisprudential construction of the rules and their impact on the achievement of their purposes. The study concludes that the STJ developed a doctrine of great deference to the Executive branch, stressing the impossibility of judicial review of the merits of administrative decisions on issues related to Brazil’s foreign policy. Finally, we argue, as a future agenda for research, that the judicial trend of total deference may indicate a position of the Brazilian State regarding a foreign policy of non-reception of refugees.
Acesso aberto (Open Access)
O Lugar do direito penal na luta dos movimentos de mulheres no Brasil
(Universidade do Estado do Rio de Janeiro, 2018-12) SOUZA, Luanna Tomaz de
The article analyzes the extent to which women's movements have used the use of criminal law as a mean of coping with the violence committed against women in Brazil and which are the problems arising from this linkage. First, we analyze the action of women's movements in Brazil, then the problems of recourse to the law in the actions of social movements and whether it can have an emancipatory bias. Finally, it is evaluated whether the action of the women's movements has imported a legitimation of a selective and violent system.
Acesso aberto (Open Access)
O papel da narratividade na teoria do direito de Ronald Dworkin: há uma teoria narrativa em “Como o direito se assemelha à literatura”?
(Rede Brasileira Direito e Literatura, 2019-12) GUIMARÃES FILHO, Gilberto; MATOS, Saulo Monteiro Martinho de
This paper has the purpose of assessing the role of narrativity in Ronald Dworkin’s theory of law. The research question is to know whether Dworkin’s theory of law can be considered a narrative theory of law. By narrative theory, we mean a theory that is based on a heuristic characterization of plots, narrative genres, characters etc.Dworkin introduces six theses in order to link literature and law, in his classic “How law is like literature”: (1) law, as a practice of identifying valid legal propositions, can be better understood whencompared to the practice of literature (synechist methodology thesis); (2) the compression of the practice of law always involves a descriptive and valuative dimension (normative theory thesis); (3) every judgment about art presupposes a theory about whatart is(aesthetical hypothesis); (4) every judgment about valid legal propositions presupposes the determination of what law is (political hypothesis); (5) the political hypothesis of law depends on understanding the intentionality of the political community (chain novel); and (6) The chain novel depends on understanding the institutional history of the political community (institutional history thesis). This paper’s conclusion is that Dworkin’s theory must be seen as a narrative theory, and thatwithout such narrative aspect, his theory would simply be a legal naturalistic theory, since the purpose or value of the law would thus become absolute.