Artigos Científicos - ICJ

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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.
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Secularização, Estado laico e Direito à liberdade religiosa: aproximação da sociologia histórica de Charles Taylor e da Filosofia Jurídica de John Finnis
(Universidade Estácio de Sá, 2020-04) PINHEIRO, Victor Sales; KAYEMBE, Marcela Santos Pimentel
This article addresses the right to religious freedom, in the light of the concepts of secularization and the secular state. It then uses the theoretical framework of Charles Taylor, whose historical sociological approach allows us to understand the transition from the medieval, community model of religion to the modern, individualistic model of religion, with the dual affirmation of religious freedom and neutrality (secularity) of the State to respect and guarantee it. Then, in the second session, the conceptual distinction is made between secularity and secularism, in order to underline the risk of subverting the logic of religious freedom, by limiting religion to the private sphere, depriving religion of all public relevance and, therefore, neutralizing the right to religious freedom. Finally, John Finnis' philosophical argumentation is developed, to articulate the right to religious freedom with the basic human good of religion, as being distinct from freedom of conscience, which distances it from the reductionist and individualistic liberal conceptions, showing the restrictive character of political secularism. It concludes that the State must not hinder, but must promote access to religion as a fundamental human right, constituting the common good. The main methodological contribution of this Article is the complementation of Finnis' analytical philosophy, which proceeds on a level of conceptual abstraction, with Taylor's sociology, which in a historical hermeneutics of the historical process of secularization.
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A água de lastro e a necessidade de efetividade das normas de proteção da biodiversidade marinha no contexto amazônico
(Dom Helder Escola Superior, 2019-08) SILVA, Renã Margalho; MOREIRA, Eliane Cristina Pinto
Precedents demonstrate that ballast water can influence in the biological balance of native species, proliferate diseases and generate economic, sanitary and social impacts. In view of the projections for growth of port traffic in the Amazon region, the risk of environmental damage is aggravated, with the possible affectation of local traditional populations, who are at the mercy of the inefficiency in the control of ballast water in Brazilian ports. This article, by means of the deductive method, aims to analyze the rules that control ballast water management, indicating some flaws in the internal regulations, and the worsening of risk to biodiversity and local populations. All this based on accidents precedents and on the projection of growth in cargo handling at Port of Vila do Conde, what is directly related to the growth of vessels traffic and worsening of risk to environmental pollution. Therefore concludes that the inefficiency of regulation and the inefficacy of the control of the ballast water of ships aggravate the vulnerability of the Amazon Region and its inhabitants.
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A responsabilidade objetiva do empregador à luz da proteção constitucional conferida ao meio ambiente do trabalho
(Dom Helder Escola Superior, 2019-08) LEAL, Pastora do Socorro Teixeira; ZWICKER, Igor de Oliveira
The importance of social rights is unquestionable: in the very reason for existing of the Federative Republic of Brazil, founded on citizenship, human dignity, social values of work and free initiative; in its fundamental objectives to construct a free, fair and supportive society, to eradicate poverty and marginalization, to reduce social and regional inequalities and to promote the good to all; in recognize, at the global level, the prevalence of human rights and duty of cooperation among peoples for humanity’s advancement. Labor-environmental protection, read from the macro principle of dignity of the human person, must find ways to guarantee the responsibility of the employer regarding affectations occurred in labor environment, in all nuances. In this sense, it is proposed an adequate constitutional reading to recognize, from the scientific autonomy of Environmental Labor Law, a microsystem of objective civil responsibility able to charge employer-polluter when he’s polluted the labor environment. The critical-methodological and legal-propositional methods were used, from hermeneutic eye to a critical analysis capable of orienting the proposed microsystem. Concluding, in the end, for practical need of its application as a way to protect and promote dignity of the human person.
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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.
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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.
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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.
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É possível compatibilizar abolicionismos e feminismos no enfrentamento às violências cometidas contra as mulheres?
(Universidade Regional Integrada do Alto Uruguai e das Missões, 2020-04) SOUZA, Luanna Tomaz de; PIRES, Thula Oliveira
This article aims to reflect on the intersections between feminisms and abolitionism in facing violence committed against women. It starts from a decolonial feminist methodology, using bibliographic and documentary research. In addition to legislation on the subject, articles submitted to the Gender and Punitive System Dossier of the Brazilian Journal of Criminal Sciences and national events in the same area were analyzed. In the end, it is proposed that the dialogue between abolitionists and feminists needs to be conducted by women in situations of violence, in order to be able to produce anti-racist, anti-capitalist and anti-colonial feminist abolitionism in confronting the various existing violence in our society
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Reflexões acerca da executividade das sentenças de improcedência em ações declaratórias negativas
(Universidade Federal de Minas Gerais, 2019-12) COSTA, Rosalina Moitta Pinto da
The paper analyzes the enforceability of the sentences of dismissal of declaratory claims of non-obligation, trying to demonstrate that, despite the doctrinal and jurisprudential tendency, it can not be said that any sentence of dismissal of a declaratory claim of non obligation is a title executive. Using as a methodological option the bibliographic research and the jurisprudence of the Superior Court of Justice, the study begins analyzing the evolution of the expansion of the hypotheses of declaratory tutelage. In the next topic, to face the movement that reached the Superior Court of Justice, triggering the revision in the classic doctrine that every declaratory sentence is a judicial enforceable title. It is concluded that not every decision of inadmissibility of a declaratory claim of non-existence of the obligation is a judicial enforceable title because this would generate an antinomy in our procedural system, in violation of the guarantee of due process, since it can not be admitted the execution of a sentence, which failed to examine all aspects of the existence or non-existence of the right to do so, and at the same time to limit its defense at the time of the impugnation to compliance with the sentence.
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Os sistemas internacionais de proteção aos direitos humanos e a responsabilidade do estado no enfrentamento à violência doméstica e familiar
(Centro Universitário UNIFAFIBE, 2019) SOUZA, Luanna Tomaz de; SMITH, Andreza do Socorro Pantoja de Oliveira; FERREIRA, Vida Evelyn Pina Bonfim
In the present article we analyze, from the performance of the international human rights protection systems, the extent of the State's responsibility in facing the violence committed against women. The purpose of the article is to verify how the global and inter-american human rights protection system has understood the state's role in situations of domestic and family violence. A feminist methodology based on the perspective of transformation of the institutions is realized, recognizing limits and also presenting potentialities in the defense and promotion of women's rights. The research is bibliographic and documentary, being analyzed the international and national documents of recognition of the rights of women and decisions of the Inter-American Court of human rights on the subject.
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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.
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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.
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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.
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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)
Reflexões filosóficas e teológicas sobre o direito natural
(Instituto Teológico Arquidiocesano Santo Antônio, 2019-07) RODRIGUES, Denis Leite
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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.
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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.
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Indicações geográficas e agrobiodiversidade no contexto amazônico: a necessidade de um desenvolvimento territorial que leve em consideração a identidade cultural inerente aos produtos oriundos do conhecimento tradicional
(Pontifícia Universidade Católica do Paraná, 2018-08) OLIVEIRA, Amanda Borges de; MOREIRA, Eliane Cristina Pinto
Investigating the potential of Geographical Indications for the protection of agrobiodiversity products derived from traditional knowledge is the central objective of this work. As for the methodology, it is an exploratory research, counting on data from Bibliographic Research and Field Research. The first one aimed at understanding the main concepts addressed in this work as Geographical Indications, Territorial Development and Agrobiodiversity. The Field Survey refers to the case of the Geographical Indication for the flour of Bragança -PA, still in the articulation phase, through direct observation and interrogation. A systematic observation and questioning based on forms directed to the main actors involved in the construction of the mentioned Geographical Indication project were applied, such as representatives of the cooperative elected to present the application to the INPI, public and private agents included in the process, besides the contributions of producers, reference in the production of the flour of Bragança. Therefore, from the case cited, through the induction method, it was concluded that for the protection of agrobiodiversity products, derived from traditional knowledge, it is necessary that the Geographical Indication project and its subsequent management be based on a the idea of territorial development, which takes into account not only the final product with economic prospects, but also the cultural identity inherent to the product, as well as the various social actors related to it, permeating its entire productive chain and collaborating to access markets in a qualitative way.
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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.
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A política nacional das relações de consumo como modelo de democracia deliberativa
(Casa Civil da Presidência da República, 2018-01) VERBICARO, Dennis
The article proposes an analysis of the civic identity formation and consumer policy actions as expressions of an instrumental concept of citizenship in a deliberative democracy model. This citizenship presupposes qualified public participation in the National Policy for Consumer’s relations, in particular through the Consumer Protection Representative Associations in Brazil. The State’s role as developer of effective and permanent activities of civil society will be redefined, mediating the dialogue between consumers and suppliers, which has repercussions in the prevention and suppression of illicit consumption and ensures the improvement of the quality and safety of products and services, placed on the economic market. The deductive method of investigation was used, based on national and foreign bibliographical research, resulting in the indication of political spaces of qualified consumer action, with a view to improving the legal protection of consumer relations.