The Law of Justice Journal is a Law School publication of the University of Passo Fundo. The journal is directed to the publication of unpublished papers of professors and students of the Graduate stricto sensu Law Programs national and international institutions. Its objective is to disseminate scientific papers, research results related to the editorial lines of the journal: Constitutional jurisdiction and democracy; and Social Relations and Power dimensions. The paper’s publication are subjected to blind peer evaluation and subjected to publication standards. ISSN 1413-7038 | ISSN 2238-3212 (online). Index: Scopus, Sumarios, Google School, Latindex, Senado Federal, Ibict, Capes Periodicos, Diadorim, CiteImpact Factor. Capes - Law - Qualis A1.
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A atuação da comissão interamericana de direitos humanos e as reformas dos sistemas de justiça penal na américa latina
The research focuses on the protection of human rights and the reform movements regarding criminal justice systems in Latin America. Its objective is to evaluate the relationship between the Inter-American Human Rights System and the reform movements, in the Latin American context. Thus, methodologically, the work addresses the experience of the Uruguayan criminal justice system movement, by the analysis of the Peirano Basso v. Uruguay case, to understand the relationship between the decisions of the Inter-American Commission on Human Rights and the local reform movement. In conclusion, based on the study of the parameters defined by the Inter-American Commission on Human Rights in the Uruguayan case, it is presented the existence of a correlation between the actions of the Inter-American System and the accusatory reform in that country, indicating the possibilities of supranational dialogue for the expansion of the protection of human rights in Latin America.
Non-intervention and Cosmopolitanism in the Construction of Global Citizenship
O presente ensaio articula o princípio da não intervenção nos assuntos internos de outros Estados e o cosmopolitismo como condição para a paz. A hipótese é de que perspectivas que fundamentam a existência de uma cidadania global, por vezes consideradas cosmopolitas, universalistas ou globalistas, podem ser utilizadas para a construção do direito internacional sob um viés multicultural, mesmo em tempos de “globalismo cibernético” ou de “integração comunicativa” fomentada pela globalização e de incongruências ou anacronismos sobre o alcance do princípio de não intervenção na contemporaneidade. As considerações que aqui se expõem decorrem de pesquisas bibliográficas sobre os conceitos e substância do dever de não intervenção para o direito internacional e de cosmopolitismo jurídico mormente a partir de Kant, para então refletir, sem a pretensão de esgotar o tema, sobre cidadania global como conceito que se adequa aos objetivos de uma sociedade internacional multicultural diante dos desafios atuais. O método utilizado é o dedutivo, com abordagem qualitativa que tece breves considerações sobre a não intervenção a partir dos direitos humanos.
Integração da cláusula arbitral como instrumento de acesso à justiça: proteção ou restrição aos direitos da personalidade?
This article highlights the importance of implementing alternative conflict resolution methods, with an emphasis on arbitration, as an effective instrument for access to justice and the protection of fundamental rights and personality. To this end, it is based on the contextualization of arbitration as a method of providing access to justice and protection of personality rights, on the analysis of the role of the arbitration clause in this context and, also, on the reflection on the constitutionality of the arbitration clause in the appropriate means of conflict resolution. The approach method adopted is deductive, with a descriptive approach as a method of procedure, and the study is classified as bibliographic. It is concluded that arbitration is an extremely important institution as an adequate means of resolving conflicts, as it provides faster responses and effective access to justice, and is not considered unconstitutional when the parties opt for adequate conflict resolution.
Motoristas de aplicativo e a busca por um trabalho digno no Brasil
This paper explores the principle of sustainability in the context of atypical jobs, with a particular emphasis on app-based drivers. This study begins by examining the principle of sustainability, its origins, and its applicability within Labor Law. It then delves into the growing trend of atypical work in the modern era, a phenomenon driven by economic globalization and technological advancements. The latter part of this research narrows its focus to app-based drivers, specifically Uber drivers, and discusses the efforts made by the Brazilian legislative and judiciary branches to enhance labor and social security protections. In this context, this study also examines Brazilian Complementary Law Project 12/24 and despite its normative text assuring a minimum workday, pay per hour worked, social security rights, and union organization, its approval could potentially increase Uber service prices, diminish workers’ pay, and eradicate their work schedules. The research methodology is bibliographic and employs deductive reasoning.
Posição de atores não estatais no reconhecimento do direito da personalidade à dignidade menstrual
The research focuses on the action of non-state actors in the right to menstrual dignity. It is hypothesized that the lack of equitable access to rights relating to the menstrual period results in indignity. The research problem is: how can non-state actors, international and national, contribute to the realization of this right in Brazil, in the 21st century? The general objective is to investigate the possible participation of non-state actors in implementing the right to menstrual dignity; and the specific objectives are: a) Investigate the recognition and implementation of menstrual dignity by international non-state actors; b) Analyze the construction of the right to menstrual dignity by non-state actors in Brazil in the 21st century. The approach method was dialectical, using historical and comparative procedures It is concluded that non-state actors influenced national recognition regarding the topic, however, existing public policies are insufficient to promote this right.
atores não estatais, dignidade menstrual, direitos humanos, direitos da personalidade, políticas públicas.
This paper aims to point out the urgency of rethinking the classic categories of modern constitutionalism. Based on the insurgencies of groups historically excluded from the Brazilian constitutional experience, possibilities for the future are considered that are not only associated with the enunciation of rights, but also promote tensions for hegemonic law. A qualitative research methodology is adopted, revisiting bibliographical productions that dialogue with the insurgent proposal now developed. At the end, the hermeneutics of the oppressed is seen as a criterion for legal interpretation that considers the systems of domination present in Brazilian society.
Direito Penal do Inimigo e a possível influência da sua racionalidade sobre as políticas migratórias europeias e sobre a integridade do Estado de Direito
The research analyzes the possible influence of the rationality of the Criminal Law of the Enemy on the migration policies of the European Union and the United Kingdom, and its implications for the integrity of the Rule of Law. It is argued that this rationality, guided by the tendency to punish subjects considered enemies of the State, even before they commit a crime and using practices that are questionable as to their legitimacy, is present in European migration policies, especially after the attack of September 11, 2001, leading, among other factors, to non-compliance with the human rights of migrants and refugees. To this end, a deductive method was used with a bibliographic review technique, using Günther Jakobs' theory of “Criminal Law of the Enemy” as a theoretical framework, and its dialog with relevant sources of European migration law.
The concept of the standard of proof in common and continental law
The article examines the concept of the standard of proof in common and continental law, and considers approaches to determining the level of evidentiary force required for a court decision. The author analyzes the development of the doctrine of proof in the Anglo-American and European legal systems, compares the criteria used in civil, criminal and administrative proceedings. Particular attention is paid to such categories as beyond reasonable doubt and preponderance of evidence, which are key to Anglo-Saxon law, as well as the role of judicial discretion and formalized rules of evidence in the continental system. The author identifies the main problems of standardization of evidence, including issues of legal certainty, objectivity and admissibility of evidence. The analysis suggests possible ways to harmonize approaches to the evaluation of evidence in the international context. Special attention is paid to the interaction between the general and continental approaches to the process of evidence, given the growing integration of legal systems and the development of international cooperation in the field of justice. The author analyzes the practice of international judicial bodies, such as the European Court of Human Rights and the International Criminal Court, which play a key role in the development of universal standards for the evaluation of evidence.
ABSTRACT: The purpose of this paper is to understand how the relations between by one side, the Brazilian and the State of Santa Catarina Governments and the Indigenous Peoples, by another side are strategically defined as “allies or enemies” and how these definitions determined the way in which historically and legally several Indigenous ethnicities were impacted by territorial demarcation policies and agrarian conflicts in Santa Catarina. To put this study in march a qualitative methodology was utilized, based on based on documentary research thar consisted in the consultation and analysis of documentary sources such as books and legal papers. Though this research it was possible to perceive that these Indigenous Peoples labeled as “allies” or “enemies” have been impacted in the dynamics of their rights even after the promulgation of the 1988 Brazilian Constitution. This occurred in the case of “allied” ethnicities that actively contribute to the interests of the Government, but it also occurred in the case of those “enemy” ethnicities, who only seek for better living conditions beyond those policies proposed by the Government.
Social Control in the Digital Capitalism Era: private and public surveillance, and its environmental costs
Digital surveillance is increasingly influential in social control and crime fighting, ranging from the use of facial recognition technologies in security cameras to mass online data mining. This surveillance requires huge data centers, located far from the public. This article explores the architectural and ideological framework that sustains and legitimizes this surveillance and sets out to answer what is the environmental impact of these used for social control? In addition, it addresses the social control exercised by the State through digital technologies and the use of private data for targeted marketing. Finally, the global data storage superstructure that supports state and private surveillance and its environmental impacts are exposed, hidden under the myth of the dematerialization of digital technologies and the deliberate concealment of these structures from the public. To this end, a hermeneutic-phenomenological methodology was employed.
Climate Change and Human Displacement: Towards Validation of Rights
Climate migration presents a series of heterogeneous and awkward problems. There is a sharp disagreement on climate change as a triggering reason for human migration, both internal and cross-border. The trails of these relocations unwrap a vista of provocative accounts. Yet, the central concern is not how they move to a safer zone or expose themselves to additional risks. Rather, we encounter the absence of a normative framework to support the claims of the groups of these ill-fated people who get displaced because of disastrous environmental events. The debate here is partly about the scientific uncertainty of acceding to the branding of ‘climate’ migrant status and partly about the lack of international legal denomination to isolate such a group as ‘migrants’ with all its variants. Here, a slice of the global narrative revolves around the repudiation of climate change-induced migration. The 1951 Convention is hardly beneficial for climate migrants, and this deficiency is rooted in the Convention’s inability to incentivize states, giving birth to a thin legal framework. Additionally, the international climate change regime has been unsuccessful in producing any synergy with international refugee law. In this paper, we argue that this lack of interaction originates in the questionable application of state sovereignty doctrine that has blemished international refugee law and climate change negotiation. In the wake of a diminishing window of choice, there is a need to upgrade the climate change negotiation mandate to include a clear state obligation requirement to recognize the rights of climate migrants. This claim is entirely consistent with the dynamic structure of international climate governance and holds the potential to advance a code of ‘collective rationality’ over narrow state interests.
Deliberation on specialized courts as mitigation to judicialization in the health sector
The study questioned the reasons why specialized health courts were not yet pervasive in the country, given the studies that consider it can provide judicial services in a more agile way and with better quality than the current practice. With this objective in mind, initially, the work reviewed studies of institutional logics that seek to understand the discourse and actions of groups of actors favorable to changes in certain contexts, without being able to achieve this purpose. The research sought evidence regarding the possibility of introducing specialized health courts and the regulation of their governance, which consisted of interviews with professionals who characterize some of the most important actors in the field, in addition to a documentary survey on the subject. The research confirmed, with little nuance on the part of the interviewees, that the specialized health court is confirmed as a more agile model that can provide better legal results. However, among the impeding factors for its implementation are the differences between the actors on how the composition and exercise of medical advice will take place at these courts, which reflect the conflicts still in progress between the logics prioritized by the actors with greater decision-making power.
The aim of this paper is to develop a critical analysis of the coloniality of the Indigenous Land Time Frame Thesis in Brazil. The article aims to analyse the hypothesis that the Frame Thesis is a coloniality project that is unfinished and an ongoing process in contemporary society in Brazil. A deductive method is used to conduct a dogmatic and comparative research based on a decolonial approach. This paper uses the Taunay-Ipegue Indigenous Land concept from the Terena Indigenous People in the Estado do Mato Grosso do Sul, Brazil, as a decolonial filter. The research is justified because the decolonial filter is an important mechanism for decolonising. Finally, as the results achieved through the investigation, the paper claims that the Time Frame Thesis is a coloniality project that is unfinished and an ongoing process in contemporary society in Brazil as a domination process into the dimensions of time, power, being, and knowledge, and it harms the indigenous people's autonomy and survival.
A Desconstrução do controle jurisdicional de políticas públicas sobre o exercício de direitos sociais
The recourse to legal terminology hides the arguments, philosophies and, justifications responsible for its construction. They are accepted, either for their technical nature, or for professional custom. Nevertheless, by deconstruction them, one could review their closed reasons and neglect options. In Constitutional Law, public policies are banned from judicial review for its political character and, social rights are diminished for its state dependency. This article, employing a qualitative and deductive methodologies, seeks to deconstruct these terms. First, it argues that public policies work as statutes, legal norms and, contracts before the Judiciary, therefore, it refutes the arguments against the judicial review. Second, this research demonstrates that, although termed social, these rights convey a subjective nature, which allows the availability of individual remedies. This research affirms, nonetheless, that the justification of social rights either by constitutional principles or by recourse to comparative law represent a false necessity. Social Rights subsist as fundamental rights, able of individual remedies and judicial review.
The article analyzes the model of consumer law that has been constructed in Colombia since the Constitution of 1991 and in Brazil, with the Federal Constitution of 1988, by means of the deductive method. It is verified in both cases that the implementation of the constitutional principle has given rise to a process of constitutionalization of contract law by subjecting the economic relations of the market and in these, the consumer relationship to the intervention of the State, translated into special legislation for the consumer and successive jurisprudential rules, which together give rise to the constitutional bases of consumer law in both countries. It is concluded that the principle of consumer protection elevated to constitutional rank is a milestone in both legal systems that stands out as key in the construction of a consumer protection system.
“Suspicious behavior”? Personal and vehicular search: validity parameters.
O objetivo deste artigo é identificar, Ã luz do garantismo, parâmetros probatórios e epistêmicos verificáveis, ainda que posteriormente, para buscas pessoais ou veiculares feitas por policiais sejam constitucionalmente válidas, tendo por hipótese a inconsistência da chamada atitude suspeita para sua execução. A metodologia utilizada foi a investigação do tipo documental-bibliográfica, com abordagem qualitativa e descritiva. A importância teórica de parâmetros jurídico-constitucionais para essa validade, decorre da dignidade humana, devido processo legal, ampla defesa e da vedação de provas ilícitas. A prática é fornecer subsídios aos atores do sistema de Justiça Criminal na análise dos casos e sua aplicação no âmbito do Poder Judiciário, evitando condenações injustas. Conclui-se que o STF reconheceu a dimensão epistêmica do processo penal, inclusive sobre a prova (standards), afastando injustiças ou vieses cognitivos, e não apenas aspectos normativos dos direitos e garantias fundamentais, por condutas de agentes estatais, buscando aprimorar a prestação jurisdicional no caso concreto.
Garantism. Personal and vehicular searches. Evidence. Supreme Court.
CRITICISM OF LEGAL POSITIVISM IN 20TH CENTURY LEGAL EDUCATION
The main theme of this article is the analysis of the epistemological perspective prevailing in Brazilian legal education during much of the 20th century, legal positivism, and its impact on legal education during that period. In some aspects, the text also contains analyses, albeit superficial, of legal research and the then-current model of legal knowledge production. The work also contains, albeit to a lesser extent, an analysis of legal idealism during that same period. The main objective of the work is to present the main criticisms formulated about the epistemological influence of legal positivism, as well as the consequences it brought to legal education in the historical period in question. Although it is not the main objective, these issues were also, in part, analyzed in relation to legal idealism. The text was written based on interdisciplinary bibliographical research, taking the form of a literature review, and its text is divided into five sections, considering the introduction and the conclusion.
Copyright (c) 2024 Law of Justice Journal http://creativecommons.org/licenses/by-nc-nd/4.0
Post-extrativism as an answer to socio-environmental problems in Latin America and the Caribbean from environmental rationality
The objective of the research is to analyze post-extractivism as a solution based on environmental rationality so that Latin America and the Caribbean can face climate change and other socio-ecological problems arising from the civilization crisis. The methodology is developed through the hypothetical-deductive method. It is basic, qualitative, exploratory and bibliographical research. The initial part studies the civilizational crisis, with emphasis on the environmental bias. The second moment sees sustainable development as a mask that does not solve the aforementioned crisis. The last part of the research examines post-extractivism as a resource for another (environmental) rationality. In conclusive terms, it is demonstrated that there is hope to improve ecological awareness to face the global civilization crisis and encourage feasible political and institutional responses, including those based on a rationality that is not economic, in favor of human survival and sustainability on Earth.
Interaction, emergency and perspective: The ontological and epistemological statutes of punishment
The notions of interaction, emergence and perspective have been used in different fields of knowledge to better explain certain phenomena that are of interest to the social sciences. The purpose of this article is to discuss them in relation to punishment, seeking to demonstrate how these notions can help us to better understand their ontological and epistemological status. We will argue that these notions allow us to place the social sciences in continuity with the natural sciences, but without limiting them to their epistemological horizon, if we take into account an ontology of abstract and collective objects, such as punishment. In the end, we hope to clarify why it can be said that punishment emerges from interactions in a human perspective, which means that only those who share a culture can understand it specifically as a cultural emergent.
Chevron case and ADPF 747: judicial deference to administrative decisions on environmental issues in the Supreme Courts of the United States and Brazil
The aim of the essay is to examine the extent of judicial deference to administrative decisions in environmental protection contexts. To this end, it conducts a comparative analysis between the rulings in the case Chevron v. NRDC, adjudicated by the U.S. Supreme Court, and the ADPFs 747, 748, and 749, decided by the Brazilian Federal Supreme Court. The framework provides a concise overview of each case, highlighting their disputed aspects; the primary bases for the decision of each Supreme Court; the reason it is deemed a landmark case for the study of environmental law in the respective country; and, ultimately, whether there is judicial deference to the administrative decision and the degree to which this occurs.
The inter-american protection of the human right to freedom of union association: a comparative analysis of anti-union conduct in Brazil
This paper aims to verify the low effectiveness in guaranteeing freedom of association by the logic of international human rights law. At first, it will be necessary to historicize the principle of indivisibility and its practical difficulty, mainly the discredit to those of the second dimension: Social Rights. The next topic, historical precedents of the Inter-American Court will be addressed in which they ratify freedom of association within the legal corpus of Human Rights, starting with the analysis of the case "Baena Ricardo et al versus Panamá". Lastly, Advisory Opinion nº 27/2021 of the Inter-American Court is correlated by stating that it is a positive obligation of the State to guarantee freedom of association. This study adopted the documentary and bibliographical review as a research technique, and also the hypothetical-deductive method on the following question: do repeated measures to restrict trade union freedom in Brazil violate article 8 of the San Salvador Protocol?
Conflito entre Capital e Trabalho: uma tentativa de conciliação e uma alternativa Ã CLT aos Pequenos e Micro Empreendedores
Based on legislation, doctrine and jurisprudence, this study, by the hipotetic-deductive method, seeks to build a model of legal business alternative to the employment relationship governed by the Consolidation of Labor Laws (CLT), but without disrespecting the rights of workers. The innovation of the study lies in the treatment of situations in which one of the agents has capital and the other only workforce. It is concluded that the main aspect to legitimize this business, so as not to represent fraud to labor legislation, is the equitable division of profit.
Algorithmic discrimination and intellectual property: The dimensions of coexistence between fundamental rights protections
Through a deductive-logical method, it’s addressed the delicate association between the fundamental dimensions of proportional effectiveness concerning algorithmic transparency, which emerges in the face of the new dynamics of automated algorithmic discriminations, and the guarantee of a minimum conservation of intellectual property rights over algorithmic applications. The theme is justified based on the foundational response of the judiciary – and regulation – which has been to find in the programming of such applications a black box to be opened and unveiled, shifting a civil consumer relationship toward a new verticalization (akin to the State-Individual effectiveness of fundamental rights). The assumption is that the extent to which programming, protected by secrecy, is unveiled should be proportional to the fundamental good being established as preeminent in the collision, with justifiable restrictions on its effectiveness.
From tragedy to governance of the commons: the importance of indigenous people in sustainable regional development
This research aimed to discuss the importance of indigenous peoples in sustainable regional development, based on Elinor Ostrom's principles of governance of the commons. The general objective was to explore how these principles can be applied to strengthen the management practices of indigenous communities, considering the relationship between natural resource preservation and contemporary challenges. Specific objectives were established to analyze the theory of common goods and the Tragedy of the Commons, evaluate the principles of governance of common resources, investigate the governance of indigenous peoples in the search for sustainable development and examine the role of Indigenous Lands in environmental preservation . The methodology adopted was based on qualitative, explanatory research, and was supported by bibliographical sources and legal documents. Previous results indicated that Indigenous Peoples play a vital role in environmental preservation, ensuring the reduction of deforestation and CO2 emissions.
Legal Regulation of Access to Justice in Cases Related to the Protection of the Rights of Military Officers and Conscuits During the Conditions of Marital State in Ukraine
The purpose of the article consists in revealing access to justice during wartime in cases related to protection of rights, freedoms and interests of military personnel and conscripts. Active hostilities are taking place in most regions of Ukraine, and this makes it impossible to delivery justice in administrative courts. However, the High Council of Justice has resolved this issue properly, so access to justice in Ukraine during the wartime in cases related to protection of rights, freedoms and interests of military personnel and conscripts is currently possible in accordance with the Constitution of Ukraine. The methodological basis of the research is presented as comparative-legal and systematic analysis, formal-legal method, interpretation method, hermeneutic method as well as methods of analysis and synthesis. Conclusions. The article analyzes the decision of the ECtHR, and based on this, the author concludes that financial costs are considered by the ECtHR as an obstacle to access justice. Access to court is effective only when a person will have a real opportunity to challenge wrongful actions in practice.
Freedoms and interests of military personnel and conscripts
Constituent an-archy against sovereignty
I intend to carry out in this article a critique of the idea of sovereignty based on a reinterpretation of the theory of constituent power thought by Carl Schmitt, reinterpreted, however, in a democratic-radical key with the help of the 1843 text by the young Marx dedicated to the critique Hegel’s theory of the State and the notions of novelty and self-constitution of society thought by Cornelius Castoriadis. The objective is to oppose the idea of sovereignty, understood as a unified and foundational power (arkhé), to the possibility of a constituent an-archy (notion proposed by Reiner Schürmann), that is, a social order without foundation, capable of overcoming encryption of the people as a false subject of sovereignty, insofar as they are nothing more than its object, as demonstrated by Sanín-Restrepo’s theory of encryption of power.