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Além da racionalidade dogmática: uma tentativa de reeleitura do conceito de validade jurídica com base na hermenêutica filosófica de Hans-Georg Gadamer
(Universidade Federal do Pará, 2011) COSTA, Júlio César Sousa; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
The present work deals with two major knowledge areas: Philosophy and Law. It results from a study aimed at approximating Hans-Georg Gadamer’s philosophical hermeneutics and legal hermeneutics. This work results from trying to make a reflection on the concept of legal validity, seen as central to the dissertation calls "dogmatic rationality", based on Hans-Georg Gadamer’s philosophical hermeneutics, with its influence on law, and that puts forward as a philosophical perspective of positivism inherent in overcoming the current law, what is constructed by a new designation of what is meant by legal interpretation. To perform this research, started from the understanding of the concept of legal validity from the analysis of the Hans Kelsen’s work, as the author of the representative legal positivist tradition in thinking that dealt with more acuity of that concept, and in contrast to that, too one seeks to make the analysis of that concept in the Robert Alexy’s work, as an example of what has been called today "post-positivism" – that is, in an attempt to overcome the still prevailing dogmatic rationality in interpreting right, at least in Brazil. The theoretical approach involved, besides the central Hans-Georg Gadamer’s philosophical perspective, the search for authors who do an analysis of their assumptions. We tried to illustrate, though, such an application, through a possible reading of the expanded concept of the hermeneutic circle proposed by the author. After all, there was certain fundamental concepts of Gadamer’s philosophy – such as the hermeneutic circle, the tradition, the temporal distance, the “awareness of the effects of history” and the application as a way of understanding – are also usable for legal interpretation enabling a more thorough reflection on the way to renewed understanding of the law. It is therefore a qualitative study and exploratory nature, of which methodological procedures departed, especially about its literature.
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Capítulos de uma história: a decisão do STF sobre união homoafetiva à luz do direito como integridade
(Universidade Federal do Pará, 2015-06) MAUÉS, Antonio Gomes Moreira
This work analyses the STF ruling that recognized same-sex unions, based on law as integrity theory of R. Dworkin and on documentary research about the subject. It criticizes the use of legislative intent as a ground to conclude that the Constitution prohibits same-sex unions and argues that the construction of the right to equality in the field of sexual orientation in Brazilian law authorizes the judiciary to recognize these unions.
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Jurisdição constitucional e precedentes vinculantes no Brasil
(Universidade Federal do Pará, 2011) MAGALHÃES, Breno Baía; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The work provides some discussion regarding the binding effect, which aim to reconcile such institute within the practice of Brazilian judicial review, pointing out the importance of the constitutional interpretation made by the Supreme Court and the protection of fundamental rights. In said work, precedents are binding principles, which have gravitational force justified by the principle of equality in applying the law and the constitutional complaint is considered an important instrument for the interpretation of the binding precedent, capable of keeping the ways open for further distinguishing or reconsideration of prior decisions. Thus, the category that imposes the formal binding is the decision norm, which is a legal proposition able to sustain the ruling of the court on the (un) constitutionality of the act. We conclude that the refusal to give a broader transcendent binding effect indicates a strengthening of the diffuse control, allowing the interpretation and development of the precedents. Ronald Dworkin´s theory of law was chosen to support the conclusions of the study.
Acesso aberto (Open Access)
Responsabilidade objetiva e direitos fundamentais: uma reflexão sobre o parágrafo único do artigo 927 do Código Civil Brasileiro a partir de Paul Ricoeur
(Universidade Federal do Pará, 2011) FEIO, Kleber Vinicius Gonçalves; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
This work focuses on strict liability. It is, more specifically, an analysis of the sole paragraph of Article 927 of the Brazilian Civil Code, read as a general clause of strict liability. The research methodology adopted focused on the literature search. As theoretical framework, the work is based on the compilation "Le Juste" by Paul Ricoeur. Therefore, this work clearly has ties to the ethical thought and theories of justice. This work, moreover, emphasizes the interpretation of Ricoeur about the Theory of Justice by John Rawls. Structurally the work is divided into four chapters, the first presents the state of the art and indicates the direction of our investigation. The second deals with the evolution of the concept of responsibility, as outlined by Ricoeur. The third is our foundation: the Rawls’ theory of justice, reinterpreted by Ricoeur. The fourth, our concluding remarks.
Acesso aberto (Open Access)
A tutela dos direitos fundamentais como limite ao poder privado
(Universidade Federal do Pará, 2009) SANTANA, Agatha Gonçalves; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324