Teses em Direito (Doutorado) - PPGD/ICJ

URI Permanente para esta coleçãohttps://repositorio.ufpa.br/handle/2011/6401

O Doutorado Acadêmico em Direito pertence ao Programa de Pós-Graduação em Direito (PPGD) do Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA). O curso de Doutorado foi aprovado e implantado em 2003. Para a elaboração da proposta, buscou-se identificar temas comuns desenvolvidos pelas duas Áreas de Concentração, para fundi-las em uma única, o que resultou na criação da Área “Direitos Fundamentais e Relações Sociais”. Atualmente, o Programa oferta cursos de Mestrado Acadêmico e Doutorado (único da área de Direito na Amazônia), e se estrutura em torno de uma única Área de Concentração: Direitos Humanos. Possui cinco Linhas de Pesquisa: Constitucionalismo, Políticas Públicas e Direitos Humanos; Direitos fundamentais: concretização e garantias; Direitos Fundamentais e Meio Ambiente; Estudos Críticos do Direito; Sistema penal e Direitos Humanos. Sua missão é formar profissionais que, compreendendo a realidade local, rica em recursos, mas ainda com baixos índices de desenvolvimento econômico e social, trabalhem para transformá-la. Para isso, objetiva ofertar sólida formação teórica, aliada à competência política e social.

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Agora exibindo 1 - 20 de 47

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Adoção internacional: o melhor interesse da criança e seu direito fundamental à convivência familiar em face da subsidiariedade
(Universidade Federal do Pará, 2021-06-29) FURTADO, Maria Marlene Escher; RIBEIRO, Cristina Figueiredo Terezo; http://lattes.cnpq.br/9188707404168670
The thesis presented deals with International Adoption from the perspective of the best interest of the child and his/her fundamental right to family life confronting its subsidiarity in Brazilian legislation. The problem raised in this research was: “to what extent does the subsidiarity of international adoption in Brazil affect the realization of the child's right to family life in the perspective of child’s best interest?”. The objective was: “to investigate the obstacles to international adoption and obstacles to effective family life in the perspective of the principle of subsidiarity”. The method used was the deductive one and the techniques were bibliographic research; jurisprudential, via decisions of the Third Panel of the STJ; and the field, where visits and semi-structured interviews were carried out with the Federal Central Administrative Authority, State Judicial Commissions of International Adoption in the states of Pará, Ceará, Rio de Janeiro, Santa Catarina, Rio Grande do Sul, and Mato Grosso do Sul, and also, forms were applied, via e-mail, to the State Judicial Commissions for International Adoption from all over Brazil, to ACAF, in Courts of Childhood and Youth, State Prosecutor's Office, as well as in bodies accredited to act in international adoption. The main results found were: that the current Brazilian legislation puts international adoption as the last resort and, thus, does not guarantee the effectiveness of the child’s right to family life in a situation of adoptability; that from the analysis of the decisions of the STJ, the best interest of the child is family life, with its institutionalization being the last resort; and that from the analysis of the interviews and applied forms, it was found that most professionals do not consider subsidiarity to be an obstacle; however, it was identified that professionals with longer experience in international adoption understand differently, arguing that subsidiarity “runs against time” and delays the child's adoption process. The conclusion reached was that insofar as the subsidiarity principle places international adoption as a last resort, the fundamental right of the child to family coexistence is not taken into account in view of his/her best interest in being raised and developed in the midst of a family that cares and loves the child.
Acesso aberto (Open Access)
Áreas protegidas na Amazônia brasileira como instrumento de gestão ambiental: a situação do município de Oriximiná, estado do Pará
(Universidade Federal do Pará, 2013) FLORES, Maria do Socorro Almeida; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
Creating intervention restricted environments from the expansion of human activities was the model used by industrialized countries to preserve remaining ecosystems of their development process. Brazil adopted this restrictive model through the creation of protected areas, among other instruments. This thesis examines the establishment of protected areas as an instrument of environmental policy in the brazilian Amazon to use as empirical observation units the protected areas in the Calha Norte region, in the State of Pará, which corresponds to a region with low human impact and, as an area located in the endemism guiana region, high concentration of biodiversity, as well as the presence of considerable sociobiodiversity (indigenous civilizations, Quilombola communities and traditional populations). This thesis examines this issue considering the possibility to visualize in environmental management the sustainability of the biodiversity maintaining, which includes respectively the physical basis, the nature resources and the cultural, religious and indigenous peoples ways of life, the Quilombola remaining communities and traditional populations in the region. The primary goal of this thesis is to show that the legal protection of biodiversity and socio-biodiversity is intrinsically related to the concept of bio-responsability, which is based on a set of factors such as legal, political, administrative and economic establish relationships between them to ensure environment sustainability not only as a passive legal good, but as a dynamic allocation process, contributing with the elements to construction of a new meaning for the biodiversity protection, which includes especially the sociobiodiversity by considering the protected areas as one of the instruments for this conceptualization.
Acesso aberto (Open Access)
A atuação do sistema interamericano de proteção dos Direitos Humanos na defesa dos direitos econômicos, sociais e culturais
(Universidade Federal do Pará, 2011) TEREZO, Cristina Figueiredo; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
This following doctoral thesis aims to study the performance of the organs of the Inter-American Human Rights System regarding the protection and promotion of the economic, social and cultural rights. For this, the research starts with considerations about what would be such rights, analyzing and refuting theories and concepts that have tried to refuse them as Human Rights norms, which would have motivated the development of vague normative provisions and the absence of monitoring mechanisms as well, as had been planned for the scroll of the Human Rights group, called civil and political rights. In order to demonstrate that economic, social and cultural rights are part of a fully justiciable rights group, the thesis also examines elements that are commonly attributed to them, such as: such as progressive achievement, prohibition of retrogressive measures, maximum available resources and minimum core content, from what is developed by the United Nations Committee on Economic, Social and Cultural Rights, to thereafter present how the organs of the Inter-American System deal with such issues. Of the study of international norms and of the monitoring international system, that were specially built for the economic, social and cultural rights, are verified several levels of legal obligation, of which proposes a classification for the different mechanisms to the access of the regional Human Rights Protection System, which can be directed to the supervision of a jurisdictional organ or quasi-judicial, or by other means that also promote those rights and allow redress in case of violation. The different mechanisms are used by organs of the Inter-American System to protect the economic, social and cultural rights. Due to its importance, the Commission and the Inter-American Court of Human Rights have been studied by this following research, attributing focus on its performance to the rights protection concerned, as well as recent modifications in their functions and procedural rites.
Acesso aberto (Open Access)
O Código florestal e a perspectiva amazônica: transformações paradigmáticas desde o agro do negócio para o agro da ecologia
(Universidade Federal do Pará, 2020-12-21) MARTINS, Evilhane Jum; MOREIRA, Eliane Cristina Pinto; http://lattes.cnpq.br/7471628624621314
This thesis aims to analyze the Amazonian agroecological epistemology as an instrument to the re-reading of the Forest Code through an investigation thatstarts from the developmentalist logic of the agribusiness to the Amazonian agroecological perspective. For that purpose, the research is based on the following problem: what are the limits and possibilities for the production of counter-hegemonic interpretive views about the Forest Code from the Amazonian agroecology as an episteme? In order to answer the research problem, the methodology employed obeys the trinomial: Base Theory/Approach, Procedure, and Technique. AsBase Theory and Approach this research has an epistemological matrix conducted by the systemic complex perspective, which is based on authors with a multidisciplinary view through the connection of areas of knowledgesuch as Political Ecology, Environmental Geopolitics, Sociology, and Environmental Law. The Procedureused is initially supported by the historical method,which in the present case will conduct the studies on the evolution of Forest Code in Brazil, as well as the monographic method. The Technique to beused will be projected in four interconnected moments, which will consist of the preparation of reviews, extended abstracts, data analysis and annotated bibliographies. Regarding the results, it is shown that the Amazonian agroecology as episteme is not onlya possibility, but is effectively a subvention to a paradigmatic transformation from the interpretive outlooks of complex, multidimensional, and counter-hegemonic matrix, about the Forest Code.
Acesso aberto (Open Access)
O controle de constitucionalidade da pena desproporcional em busca da resposta certa
(Universidade Federal do Pará, 2015-10-16) PICKERELL, Manuela Bitar Lelis dos Santos; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
The research notes the need to accomplish in Brazil the judicial review of disproportionate penalty. If the stain pen is in jeopardy of conduct, the judge must acquit the defendant. However, if the stain remains at excessive quantum of sentence in the abstract, then the judge should disregard the sanctioning secondary rule applying to the case another penalty, withdrawal of paternal criminal legal system, which is proportional to the present situation. The Dworkin’s theory allows this judicial review to show that a decision leading to the principles of the law of the discussion forum devoted to democracy, and not vice versa. Moreover, the present law as an argumentative practice that aims to give the case the right answer, which will be achieved through a constructive interpretation of the moral principles of the community, Dworkin tie this election of the new sentence, away from the judicial decisionism. For the election of substitute penalty, the judge must find the settlor principle of incrimination, seeking it in another criminal type. This will be worth (right answer) to apply to the case.
Acesso aberto (Open Access)
Desenvolvimento sustentável: parâmetros para uma interpretação jurídica da sustentabilidade ambiental
(Universidade Federal do Pará, 2015-10-27) SANTANA, Raimundo Rodrigues; MATTOS NETO, Antonio José de; http://lattes.cnpq.br/4719479439779242
This study supports the idea that the meaning of the concept of sustainable development and their predominant use in the legal world deserve to be reviewed. Therefore, sustainable development should be recognized as an ideology, something that is part of a broader ideological system. It can not therefore be understood as a legal principle. It is believed that this ideal is not in a valid legal basis for dealing with contemporary social and environmental problems, interpreting them legally. By contrast, environmental sustainability, although derived from sustainable development, contains conceptual autonomy. It’s able to acts an important legal principle for interpreting the socio-ecological facts, strengthening and affirmation of the rule of environmental law.
Acesso aberto (Open Access)
Detenção agrária de terras públicas: implicações jurídicas na regularização fundiária
(Universidade Federal do Pará, 2011-12-16) BARRETO, Andréia Macedo; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The present paper is about the legal treatment given to occupations of public land in rural areas, called land holding. Based on local observation, literature, cases law and legislation, we found out that the land holding does not confer the land possession or the property to the holder itself but it allows an adjustment of occupation with the government. The given situation deals with public lands, agricultural activity development as well as the importance of working on the referred land. Legal explanation relies on the Constitution interpretations which forbid this mean of property acquisition based on a single act of an individual as well as the legal situations that submit the permission for occupation to the Government acquiescence, through a regular administrative procedure. Besides it is based on agrarian laws which establish the needed requirements to the allocation of rural property in the public domain. Before the formal permission for occupation it may have set the land holding of public lands which has nothing to do with the matter regulated by our Civil Code. Areas occupied by indigenous, “quilombolas”, traditional agroextractive populations as well as the rural workers and their families do not fit this concept. For these ones, the Government assures the territorial and possessory rights. Therefore, we conclude that Brazilian legal system refuses public lands possessions in certain situations but it accepts them in others with both Government acquiescence and without it. Hence, the present work aims to establish distinctive criteria between land owner and holder proposing the stay of both legitimate owner and holder but the incorporation of the illegitimate occupied land to the public property roll.
Acesso aberto (Open Access)
Direito de propriedade e justiça distributiva no Brasil: ampliação das capacidades como forma de combater a pobreza rural
(Universidade Federal do Pará, 2015) SÁ, João Daniel Macedo; TRECCANI, Girolamo Domenico; http://lattes.cnpq.br/4319696853704535
This work discusses property rights relations from the modern notion of distributive justice. It analyzes the extent to which rural private property constitutionally defined favors a notion of distributive justice compatible with the foundations of the democratic State based on the rule of law. It is based on egalitarian liberal thinking of John Rawls, to defend the role of justice in preserving the freedom of the individual, while considering that the value of dignity implies equal access to political, social, and, to some extent, of economic goods, that should be ensured mainly by the state. It is argued that in a just society, everyone should receive equal share of the benefits that society provides and of the costs that it requires. Supporting this idea, it is also based on Amartya Sen thoughts to argue that property right is intrinsically important, but also instrumentally valuable to enable individuals to achieve development. Further, the thesis argues that the classical liberal notion of property-liberty, which generates the absolute and exclusive power over the thing, and the social notion of property-duty, based on social function, converges on the notion of property-capacity, whose focus is on promoting real freedom of choice for individuals. The work will demonstrate that the State must, in order to fight rural poverty, and for the sake of justice, ensure more equitable access to ownership rights of rural lands in the country. It presents, based on government statistics, a criticism to rural development policies for not giving the correct approach for individuals to obtain the set of capabilities and functioning’s associated with the minimum conditions for a worthy life. The land issue is directly linked to income and wealth, but poverty has multiple dimensions that prevent the exercise of basic capabilities, putting people in situations of extreme hardship and deprivation. Public policies should seek the expansion of human capabilities, and if the right to property integrates this list of capabilities, then it must be guaranteed to all.
Acesso aberto (Open Access)
Direito internacional em movimento: mecanismos de responsabilização de empresas transnacionais por violações de direitos humanos
(Universidade Federal do Pará, 2021-12-06) VIEIRA, Flávia do Amaral; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
In this thesis, I investigated how transnational corporations operate - especially in the Global South - and are regulated, through international law, coloniality, and neoliberalism, and the dynamics of human rights movements that strain these power relations. I explore the conflict between two languages of human rights, based on two types of proposals for accountability of these companies in relation to human rights violations, those based on soft law instruments and those based on a binding treaty. Analyzing these languages in depth, I investigated the challenges and limits of the production of human rights in an international dimension, based on the observation of the operational nuances of global civil society in the impact on the construction of effective mechanisms of corporate accountability for human rights violations. The focus is on advocacy movements at the United Nations in the struggle for a binding Treaty on the subject, as well as on the political resistance of the Global North to the project. In this sense, the thesis explores the tension in the production of human rights in a world under corporate governance. I found that the search for these normative resources created what is now generically called the “Business and Human Rights” agenda, a term by which a new area of technical, practical and theoretical action in Law has been recognized. I highlight the approval of resolution 26/9, now known as the “treaty resolution”, and analyze the successive drafts of the treaty, identifying that the proposals do not necessarily consider international geopolitics and the historical relations of imperialism, dependence and coloniality between the North and Global South States. When confronting - or adapting to - the capitalist mode of production, the debate on the draft Treaty on Business and Human Rights becomes a key point of this historical time, given the announcement of climate changes considered irreversible connected to human impact, and with the deepening of extreme poverty on the planet. In this sense, the research sought to contribute to the relevant ongoing discussions, allowing a deeper understanding of the connotations and implications of different approaches in favor of imposing human rights obligations on corporations.
Acesso aberto (Open Access)
Os direitos humanos de acessibilidade e locomoção das pessoas com necessidades especiais: a realidade paraense, com ênfase em Belém/PA
(Universidade Federal do Pará, 2008) RAIOL, Raimundo Wilson Gama; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
It presents the problematic daily faced by people with special necessities toward the archtecturing barriers in building destinied for public use and in collective transportation means, as well as toward the lack of accessible equipment and elements of the urban facilities. It makes use of survyed data about the people mentioned above. It analizes this problematic under the focus of human rights. It points out the indispensability of eliminating or adaptating the barriers mentioned above. It shows how the issue is dealt with by the international rules and how it is substantiated in national and state constitutional rules, in town organic laws and in infraconstituinal legislation specific in federal, provincial, and town levels, as well as in technical rules. It presents the precariousness of the physic-environmental structures, mainly in the town of Belém, State of Pará. It contains proposals for the maintenance of the accessibility and locomotion rules of the people involved and the concretion of these human rights.
Acesso aberto (Open Access)
Direitos humanos, alteridade e filosofia da libertação: a outra América Latina
(Universidade Federal do Pará, 2021-05-05) LOBO, Lívia Teixeira Moura; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
The basic idea of the thesis is to persist in the study of otherness as an ethical foundation of human rights, but now reflecting how normativity based on otherness can contribute fundamentally to human rights. In introduction the fragility of human rights is presented, either because they are a field of veiled ethical disputes that forge violence, as because they are a field in which conflict generates debate and, consequently, critical thinking. Latin America, as the Other, acts in this debate claiming an alterity that the law tends to cover up. The otherness makes demands that the law does not know. The first chapter is dedicated to a literature review about human rights, indicating the porosity of this language to a new criticism. The modern origin and the subject's promise of emancipation contrast with the oppression carried out through the liberal morality that permeates these rights. At the same time, it is a language so widespread that it seems wasteful to direct efforts to another area, where the means to act, to claim morally and politically are not known. The second chapter will confront Levinas' otherness, in which the Other is absolutely Other in its metaphysical exteriority that impels the freedom of the passive Self. Dussel presents an interpellant Other, which suggests, attacks, provokes, becomes aware of his neglected alterity and goes on to the praxis of liberation. There is an independent performance in the Other of the philosophy of liberation, he does not need approval, his helplessness is fruitful, criticism develops from the negativity of the current totality. The positive and critical-negative ethical principles are presented as that which requires, in the abstract, a normativity based on otherness. The last chapter proposes to consolidate the reach of the general objective, addressing the basic distinction of the philosophy of Dussel and Levinas, and the emergence of that of the analytical method so the Other leaps into critical reflection as the source of all ethical transformation - it is about a metaphysical moment and the return to totality. The Politics, which houses the law as an institution, subsumes the ethical principles in a similar way, informing human rights primarily about its formal aspect of legitimacy, about its role as a claim language in the face of system corruption and about the constitutive intersubjectivity of the system. subject that holds them back, making the predicate consensus of the symmetrical discursive participation of those who form the political community more solid.
Acesso aberto (Open Access)
Dispositivo drogas e governamentalidade neoliberal: funções estratégicas para o exercício do poder sobre os corpos e a população
(Universidade Federal do Pará, 2022-03-14) LIMA FILHO, Eduardo Neves; CHAVES, Ernani Pinheiro; http://lattes.cnpq.br/5741253213910825; https://orcid.org/0000-0002-8988-1910; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
The present study is developed with the objective of analyzing the strategic role of the drug device in neoliberal governmentality evidenced in Brazil and its strategic function for the exercise of power over bodies, over the population and the exercise of the power of death. In order to do so, itstarts from the theoretical-methodological tools developed by Michel Foucault, especially his analysis of power, including his studies on discourses, and his research on neoliberal governmentality. Thus, the work starts from the idea that it is possible to make use of Michel Foucault's research on power and knowledge, as well as his studies on neoliberal governmentality to understand the dynamics of the fight against drugs in the neoliberal context and its role in the exercise of referred to dynamics of exercising power. Based on the Foucauldian approach, the research problem corresponds to asking to what extent the drug device is managed in the neoliberal context from its usefulness to satisfy certain needs of groups that hold capital, enabling the control of bodies, the population and the exercise of the power of death. To answer the question, the work begins with a critical description of the methodological instruments developed by Michel Foucault, especially in his studies on knowledge and his analysis of power, which are fundamental for thinking about policies to combat drugs from the relations of power and forms of resistance in the neoliberal context. Then, it analyzes neoliberalism and its relations with biopower, emphasizing that Foucault does not reduce his analysis of neoliberalism to an exclusively economic issue and that is what is specific and singular in his position. It also deals with the anti-drug policy, starting with an analysis of drugs as a device in the Foucauldian sense. Then, a genealogical analysis of drug prohibitionism is carried out, without the intention of carrying out an approach that universalizes the issue. The analysis takes place through a cut aimed at understanding the current policy of drug repression in Brazil - without ignoring the strong international influences - from the ruptures that have occurred over the years and the conjunctural changes in the relations of power and resistance, especially since the rise and consolidation of neoliberalism. Finally, the strategic role of the war on drugs policy in neoliberal governmentality is demonstrated, especially in Brazil, concluding that the drug device is able to enable and justify the exercise of disciplinary power, biopolitics and sovereign power, especially over certain vulnerable groups because of its economic condition constantly worsened and precarious by neoliberal policies, as well as it is demonstrated that the changes, triggered in the neoliberal context, regarding the exercise of State racism and its intimate relationship with drug policy, which makes it possible to exercise the power of death on those groups.
Acesso aberto (Open Access)
A educação jurídica positivista e as diretrizes do ensino jurídico: currículo e prática pedagógica no curso de direito da UFPA no horizonte das competências e habilidades
(Universidade Federal do Pará, 2012) MORAES, Élcio Aláudio Silva de; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
This thesis discusses the contemporary legal education from the perspective of the influence of the theoretical and methodological legacy of legal positivism on the organization of the law curriculum in Brazil. Specifically, it examines the political-pedagogical project of the UFPA law school and its curriculum, which is attached to theoretical dogmatism, clearly observed by the disciplines that follow the written law and by the unilateral pedagogy developed in class, predominantly based on lectures. The research focuses on the critical analysis of the National Curriculum Guidelines of Legal Education, which opted for critical, reflective and humanists abilities and skills, in contrast with the UFPA political-pedagogical project of its law course, organized in the traditional sense, in which persist dogmatic pedagogical practices, the teaching as transmission of knowledge, as verbalization of a content that prioritizes the formal rules and procedures, and that forgot the learning for emancipation.
Acesso aberto (Open Access)
A eficácia das decisões de controle concentrado de constitucionalidade nos sistemas italiano e espanhol
(Universidade Federal do Pará, 2010) FREITAS, Juliana Rodrigues; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The Italian´s and Spanish´s systems of concentrated control of constitutionality have features that distance them from the pure kelsen´s model and, at the same time, allow us to identify them with the North American´s model of constitutionality control. The assignment of binding effect, in horizontal and vertical planes, to the constitutional decisions, even if it is not an element used to identify, so immediately, the constitutional jurisdiction of the European countries, is, undoubtedly, one of its characteristic elements, and gives rise, in this context, to the figure of the previous binding. So for these precedents may be adopted in regard to the principle of equality in law enforcement, it is essential that requirements are defined in a reasonable and objective way, due to the Constitutional Courts gives effect binding to its decisions.
Acesso aberto (Open Access)
Envelhecimento populacional e previdência social: a questão social da longevidade e o financiamento dos sistemas previdenciários, sob a ótica do princípio da solidariedade social
(Universidade Federal do Pará, 2011) NASSAR, Elody Boulhosa; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The central theme of this work is population aging and its pivotal correlation to longevity and social security funding. The longevity that is so intensely pursued is a factor of concern in contemporary society vis-à-vis related social questions of oldness and social protection in the area of the social security. This work is divided in six chapters. The first chapter ponders on the correlation between the progression of time and its consequences on the decline of human beings, as a basic notion for the understanding of the oldness. The second chapter examines the meaning of the concepts related to aging as well as of the newly emerging expressions on the diversity of oldness by underscoring the use of chronological criterion as the parameter for the legal definition of the concept of the old. In the third chapter, the definition of the social issue of the aging is studied. This definition is examined through a statistical analysis related to the new and growing social group that requires adaptations of the civil society, the family and government. In this context, the condition of women is also treated by pointing out differences in the oldness between the genders. In the fourth chapter, the emphasis is on the social achievements related to aging in light of the legitimation and justification of social rights of Social Security as an effective means of social inclusion and achieving dignity at old age. In the fifth chapter, it is demonstrated that new social questions emerge from the aging of the world population. Consequently, new social, political and economic questions demand novel policies by the government in order to guarantee the quality of life of the aging as a fundamental human right. In the sixth chapter, solidarity is suggested as the fundamental postulate upon which the principles of social security are based. Moreover, solidarity is argued to be the central logic of any pension plan and that it conflicts with the logic of the market or science. This work utilizes extensive, interdisciplinary, national bibliography on the various issues contained in the chapters of the thesis, as well as foreign doctrine, with emphasis on the legal literature, as the base of support of the arguments above-mentioned. It is concluded that social security reforms and the neoliberal preaching defense of capitalization do not take into account the issue of equity in formulating policies for Social Security and that the State should be the main responsible for guaranteeing fundamental social rights. This thesis advocates that, in the case of the elderly, solidarity is an ethical requirement, and above all, an ethic of urgency.
Acesso aberto (Open Access)
O exercício dos direitos de acesso ambiental como garantidores de democracia ambiental e direitos humanos: os impactos socioambientais, após a duplicação da Estrada de Ferro Carajás na cidade de Marabá – Pará
(Universidade Federal do Pará, 2022-08-30) PINHEIRO, Olinda Magno; TRECCANI, Girolamo Domenico
In this thesis, we investigated following the normative genesis of International Conventions and national legislation on the environment and human rights, on the extension and application of the so-called Rights of access to information, participation and access to justice in environmental issues, and how they have been effective or not, the exercise of these rights the reality of the neighborhoods Araguaia and Nossa Senhora Aparecida, located on the route of the “EFC” Railway, in the urban area of Marabá. It was defended and proved, as the main hypothesis, that the denial of these access rights opens space, not only for the violation of rights inherent to a healthy environment, but also contributes to mitigating the population's perception of socio-environmental impacts. In that, followed for this analysis, mainly the theoretical referential of the State of Environmental Democracy, and adopted as scientific method the hypothetical-deductive, which was allied to the technique of bibliographic and documentary research, together with the field research developed in these neighborhoods, in which several socio-environmental impacts were widely raised, mainly from the duplication of the railway branch between the years of 2012-2016, still having repercussions today, a diversity of negative impacts, linked to the exploration and disposal of ore through the railbranch. Thus, the feasibility of this thesis was considered, whose central problem was to research: to what extent, the individual or collective exercise of environmental access rights, has contributed to the perception and prevention of socio-environmental impacts, especially in the Araguaia and Nossa Senhora Aparecida neighborhoods, in the urban area of Marabá, located on the EFC route (Estrada de Ferro Carajás). In conclusion, that in communities such as those studied in this research, the exercise of environmental access rights, in its three modalities, is of fundamental importance for the defense of the environment and also of other human rights, but it is fully observable that there is a nimbalance of forces among affected populations in the face of big business, represented by companies and their strategies to control social and population risks, thus affecting the exercise of environmental democracy and the guarantee of other human rights.
Acesso aberto (Open Access)
Os Fundamentos da repercussão geral: as funções dos recursos aos tribunais de cúpula e o descongestionamento do STF
(Universidade Federal do Pará, 2021-12-20) SOUSA, Lizandro Rodrigues de; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
It is a thesis that investigates the theoretical and historical foundations that supported the new configuration of diffuse constitutionality control in the STF (Supremo Tribunal Federal), with the institution of the Repercussão Geral (RG). The methodology used required a cadence. In order to identify the foundations for the institution of the RG as a filter of admissibility of the Recurso Extraordinário appeal in Brazil, we deal with each possible foundation in a specific chapter. The first possible foundation considers the role of the vertex courts based on the description of the role of judges and of the top courts, given the current guidelines of conduct. From the observation that the process has evolved, from a means to the realization of subjective rights to an effective protection of rights through fair decisions and/or the promotion of the unity of law, the study analyzes how the process and functions of the vertex courts. Would the RG help the STF to configure itself not as a court of justice, but as a court of precedents? The second possible foundation supposes the recognition that there is a worldwide tendency to solve the phenomenon of congestion of the Vertex Courts by restricting access, in order to build them into true courts of precedents. Would RG be the Brazilian version of this trend? The third possible foundation comes from the finding of the separation of the STF from the court corresponding to the historical and political justification of its conception and the conception of the Recurso Extraordinário itself, of which the RG is a current and special requirement of admissibility. In this sense, from the Constitution of 1891 onwards, the embryonic destination of this resource to sustain the supremacy of the Constitution, the authority, validity and completeness of federal law, the nature and type of Brazilian federation, is evident. Could these scopes be pursued today with the knowledge of only a relevant part of the extraordinary appeals together with the operation of other instruments, such as the actions of concentrated constitutionality control, which did not exist in 1891? The fourth possible foundation is based on the assumptions of the model found in Mitidiero (2015) or Taruffo (2011), which distinguishes the Supreme Courts from the Superior Courts. It states that a constitutional court cannot be seen as the final source of justice in the specific case, but as a court of precedents, and that ways of selecting resources according to criteria related to the general importance of the issues raised is a fundamental requirement for that a vertex court is seen as supreme. Would RG be in line with this model? The study concludes that the RG joins a list of previous attempts, thought or implemented, to overcome the centenary crisis of the Supreme Court. That currently, the RG is inserted in a positive procedural context (repetitive appeals, collective actions...) in favor of the rationalization of the practice of the Brazilian vertex courts. And that the set of grounds exposed gave support to the implementation of the RG as a solution to the STF crisis and as a directing factor of our constitutional court towards an orderly action in pursuit of its nomophylactic, standardizing and paradigmatic functions in the field of constitutional law.
Acesso aberto (Open Access)
A gênese do culturalismo jurídico : a recepção crítica do positivismo pela escola do Recife – de Tobias Barreto a Miguel Reale
(Universidade Federal do Pará, 2021-04-30) PAES, Alberto de Moraes Papaléo; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
This research has as main objective to understand how the critical reception of Legal Positivism carried out by Recife’s School generated the legal-philosophical bases that overcame Legal Culturalism, and demarcated the genesis of the Brazilian legal identity. The work chose the following Guiding Questions: a) What sense will be used to understand the meaning of Legal Positivism? b) What can be understood by Recife’s School? c) What are the philosophical and legal bases that influence the creation of Legal Culturalism? d) What is Tobias Barreto de Menezes' thesis about Culturalism? e) What is Miguel Reale's thesis about Culturalism? We will start from three basic hypotheses: a) Legal Positivism, as stated by Morrison (2006), constitutes a number of orientations designed to understand Law as a knowable phenomenon based on data and scientific readings in modern times. Thus, our first hypothesis is that one of these guidelines, fractionated, contaminated by later interpretations, is the guidance that arrives in Brazil in response to Spirtual Eclecticism and Portuguese Natural Law, wich will mediate legal criticism in Brazil; b) Antônio Paim (1999) asserts that the Recife School constitutes the first major critical and innovative movement within Brazilian thought, with many authors conceptualizing it as an “outbreak of new ideas”, the death of metaphysics in Slyvio Romero's, Germanism in Tobias Barreto, that is, an ideal scenario for the flourishing of a philosophical-legal identity. Our second hypothesis is that the answer to the problems with the reception of Positivism in Brazil is the development of the Legal Culturalism thesis, finally; c) Tobias Barreto de Menezes is one of the exponents of Legal Culturalism, establishing the philosophical-legal premises of this theory. This tradition will be studied by several authors from Recife’s School and is continued in the following century with the fruitful contribution of Miguel Reale. Our third hypothesis is that in this debate, covered by current questions about the theory of law, lies the genesis of the Brazilian legal identity.
Acesso aberto (Open Access)
Greve ambiental individual: propostas para a sua efetividade
(Universidade Federal do Pará, 2021-12-21) ZWICKER, Igor de Oliveira; MARANHÃO, Ney Stany Morais; http://lattes.cnpq.br/5894619075517595; https://orcid.org/0000-0002-8644-5902; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The ILO’s Convention n. 155, an international human rights treaty that bears the hierarchical-normative position of supralegality in the Brazilian legal-constitutional system, provides for the possibility of triggering an environmental strike for the self protection of life or health, by a single worker. The research problem rests in the (in)effectiveness of ILO’s Convention n. 155, due to the series of obstacles that militate in favor of its ineffectiveness: the worker's vulnerability; the lack of protection for the environmental striker and the difficulty in recognizing the guarantee of employment; the lack of strengthening of anti-discrimination protections; the lack of recognition of the right to refuse work situations that involve an imminent and serious risk to life or health; deficiency in the collective governance of the work environment; the inexistence of an adequate exercise of the right to environmental information, at its three levels (right to inform, right to seek information, and right to be informed); and the worker's lack of technical knowledge to adequately exercise self-protection. The research goes deeper into the institute of the individual environmental strike and the general objective is to seek ways to guarantee the effectiveness of its outbreak, by a single worker. The research presents itself theoretical, for the delimitation of the environmental strike in its individual bias; jurisprudential, to recognize the meaning and scope of the institute in the iterative, current and notorious jurisprudence of the Superior Labor Court; and empirical, to verify the effectiveness of the environmental strike. The results show that, currently, the individual environmental strike is not effective, lacking proposals for its effectiveness. It concludes with the presentation of proposals for its effectiveness: caution in recognizing the abusiveness of individual environmental strikes, with inquiry into the extensive information offered to workers, so that they could exercise this right/guarantee; a reverse onus clause, that shifts the burden of proof onto the employer; the communication to other social actors and not just to the worker's direct superior; a supported decision-making, with recourse to technical advisers outside the company; the guarantee of indemnity for its free exercise, without fear of employer reprisal; and the protection of self-protection as an intrinsic corollary of freedom of association, with the presumption that the worker acted in good faith in defense of his life or health.
Acesso aberto (Open Access)
Identificação e quantificação do dano moral: fundamentação da decisão judicial na perspectiva jurídica e ética da lei natural
(Universidade Federal do Pará, 2018-11-23) BONNA, Alexandre Pereira; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
Reflect about tort law in terms an ethical and juridical reading in the field of identification and quantification of non pecuniary damages. Adopted as a theoretical assumption that has the purpose of two dimensions: a factual and an ideal, in the wake of Robert Alexy's Theory of Legal Argumentation (2014). It clarifies that concerning moral damage, in the first dimension (factual) exists the legal of off-balance-sheet assets legally protected, while in the second (ideal) it is argued that there are the true basic of men (ethics), which complement and strengthen an analysis of off-balance sheet data on the identification and quantification of moral damages. The Law of Extramarital Rights Derived from Right to Right, Based on Bebhinn Donnelly - in An Approach to Natural Law to Normativity (2007) - Mark Murphy in Natural Law in Jurisprudence and Politics (2006) and Natural Law and Practical Rationality 2001) - and John Finnis - in Natural Law and Natural Rights (2007) and Aquinas: moral, political and legal theory (2008). The research problem is to investigate the impact of the complementarity relationship between offbalance sheet assets and basic metric values and the quantification of moral damage, with the objectives of investigating and substantiating the statistical data of the basic years in the identification and quantification of moral, to investigate at the dogmatic and jurisprudential level the parameters for recognizing the moral damages, to present an ethical justification for moral damages based on the basic human goods, and to carry out a series of study with the ethical, developing ethical-legal reasoning of moral damage in concrete processes. It is guided by the hypothetical-deductive method, starting from general and abstract premises on the identification and quantification of moral damage in law and dogmatics, as well as on the history of basic human facts, particularized. It concludes from the analysis of some judicial decisions involving moral damages pronounced by the lower court judges of the civil and labor courts of the city of Belém, that they are limited from a legal and ethical point of view and that if they endorse the thesis described here, civil liability could play a more relevant role in constructing virtuous behaviors (identification of moral damage) and fair quantification of the indemnity value across the magnitude of the damage suffered (quantification of moral damage), as well as being better understood by academics and professionals in the Law, to the extent that the research in its global sense presents a proposal of systematization of the reasoning involving civil liability for moral damages.

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