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A formação do direito como ciência positivista em Kelsen
(Universidade Federal do Pará, 2015-10-29) ATALA, Danilo Pires; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
The current dissertation aims at investigating the limits of scientific objectivity of Law, as positivist science, on the theoretical referential of the Pure Theory of Law of Hans Kelsen. The method is deductive-descriptive in bibliographical research. The scientific objectivity of modern science (cartesian) through the isolation of the cognitive object and the use of rigorous method as condition of the truth made fortune in all branches of knowledge and also in Law; which was re-created in the ambit of the res extensa as positive law science on the concept of civil law of Hobbes anchored in renunciation of part of freedom as a natural law. Kelsen employed this way of thinking the knowledge in Law aiming to give it scientificity; isolating its object that, for him, is the positive norm totally isolated from the moral and nature. Kelsen denies the natural law or the inherent freedoms of the human being as law, and he also denies that moral can provide a necessary condition of validity of the positive law. The scientific principle of Law as normative science is the imputation. The method of his theory is the linking of higher norm on the norm, that is born on presupposed basic norm devoid of any moral, political and/or religious content, that only meets reality at the time of application; embarrassing with effectiveness. Interpreting the norm law, for Kelsen, is to apply the norm law, which has two functions: the knowledge of the legal system that goes to the outer limits of the frame and the creative function of the judge to fill the frame, rejecting the thesis of the correct decision. At this creative step, the judge may know the spurious elements contained or not in pure norm, which are the moral, policy and/or religion as a way to mitigate the subjectivity; so subjectivity is an ideal that rejects solipsism, but it does not reach the scientific objectivity. The current dissertation reached the following classification: the decision is binding when the frame limits are narrow; the decision is discretionary when the frame is large and contains several possibilities; the decision is illegal when it is out of the frame; the decision is arbitrary when there is no frame; judicial activism occurs on the constitutional frame in the implementation of fundamental laws by the judiciary. The dissertation is concluded by affirming that the mobilization of spurious elements – in other words, the renegades by the purity of law - is the only possibility to mitigate the subjectivity and that the scientific objectivity of law science as a normative science, reaches only the outer limits of the frame.
Acesso aberto (Open Access)
A interpretação da discriminação negativa no trabalho de acordo com o substancialismo
(Universidade Federal do Pará, 2011) PAMPLONA, Mário Sérgio Beltrão; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The core of this thesis aims to analyze the Interpretative Theory which may extract the best conception of law on the Workplace Discrimination subject, referring to the analysis of legal discourses sustained by the theoretical aspects of the procedural legal rationality and substantive legal rationality, making the proper association with the Brazilian legal system, with emphasis on the fundamental constitutional principles and rights related to the topic. The substantial rationality shall be treated with substantial support in the fundamentals of law, living in a political morality shared and accepted in a society personified by ethical and moral principles, such as the fair treatment and respect to all and tolerance to diversity, which are rooted in the liberal-egalitarian scenario according to the concept adopted by Ronald Dworkin. In Chapter I, the taxonomy of Workplace Discrimination shall be discussed, dealing with this topic under the context of the fundamental rights, elements of the principles‟ theory and the public interest, revealing thus the nature of a difficult case. On the second chapter, the approach refers to the legal rationalization process when a court decision is to be given - turning evident the relationships between rationality and language, the relevance of the method, with emphasis to the topic‟s problematizing bias and systematic thinking. In chapter III, discussion will be made on procedural rationality according to Robert Alexy, considered the criticism addressed to both the topic and systematic thinking, on the aforementioned author‟s constructive process of legal argumentation theory. Fourth chapter focuses the substantial rationality according to the Ronald Dworkin‟s integrity theory, pointing out the principles of political morality which are the very foundation of the Law‟s integrity – which substantively may interdict the judicial discretion during legal interpreting, leading to a correct answer positively parameterized by the principles and fundamental rights.
Acesso aberto (Open Access)
A responsabilidade civil objetiva como dever fundamental e sua incidência nas relações privadas
(Universidade Federal do Pará, 2012) SILVA, Adelvan Oliverio; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The work examines sociological and philosophical foundations of objective liability, specifically the responsibility by the "risk". it assumes that the way most of the civilian doctrine analyzes the institution mitigates the potential for strict liability to be understood as an element of organization of functionally differentiated, characterized by excessive complexity and the radical contingency that permeate the communication made between social systems, among humans and between these and those. it concludes that the risk is an unsurpassed feature of complex societies, and analyzing the consequences of that for the formation of the human been who can commit to a political life, it proposes, based mainly on the philosophical studies of Paul Ricoeur and dogmatic constitutional robert alexy, that liability is objectively high level legal and moral duty of the fundamental subjects of law, primarily in the bulge between the relations among individuals.