Navegando por Assunto "Dworkin, Ronald, 1931-2013"

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A lei da alienação parental: aspectos controvertidos da aparente discricionariedade judicial no art. 5º à luz do debate Hart X Dworkin
(Centro Universitário do Estado do Pará, 2019-12-12) Queiroz, Carlos Márcio de Melo; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Brito Filho, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794; Matos, Saulo Monteiro Martinho de; http://lattes.cnpq.br/1755999011402142
The recognition of children and adolescents as subjects deserving special rights due to their condition of being in formation is a recent achievement in Brazil. Recognizing the disregard of their unique situation as persons in formation, it remains clear the violation of their rights, in particular, the fundamental right to healthy living with their family and parents even in the face of the occurrence of family dislocations, when, as a rule, a of parents proceeds to exercise predominantly parental powers over the offspring. This scenario of rupture of conjugality is not infrequently followed by a scenario of rupture of parenthood itself through acts of parental alienation. In order to understand this process, characteristic, doctrinal and legal aspects of such acts are analyzed. At first, the investigation turns to the conceptual evolution of parental alienation since the initial studies of Richard Gardner and also following the paths taken by the Brazilian legislation regarding the treatment given to children and adolescents from the doctrine of the risk situation until the doctrine of integral protection present in the constitutional body. Then, the shared custody will be defended as one of the guarantees of the maximum and healthy coexistence between parents and children, which came, in a historical legislative sequence, complemented by Law 12.318 / 2010, Parental Alienation Law. At the end, the perplexities arising from the apparent judicial discretion present in the interpretation of artigo 5 of Law No. 12.318 / 2010. These perplexities lead to question which interpretative matrices would point to a better answer for the application of the normative text by the magistrate, which implies the adoption of a theory for the interpretation of the law text. In the second moment, the research turns to the analysis of two theories that could be presented as an interpretative matrix for the perplexities found: Hart's renewed positivism and Ronald Dworkin's Law as Integrity. In this second moment, the analysis turns to ask how each of these theories is positioned to say what is the Law and from this position, determine how the vagueness or indetermination of the normative text should be resolved and, therefore, how It is possible for the judge from the interpretation, to integrate the legal text which, after all, is the purpose of the present investigation. With such tools, at the final moment of the work, it will be possible to face the indetermination of artigo 5 of the Parental Alienation Law and propose an interpretative matrix that best aligns with the Theory of Integral Protection of children and adolescents.
Reforma trabalhista e interpretação judicial: a teoria da justiça como equidade de Rawls e a teoria interpretativa do direito de Dworkin como ferramentas de atenuação do ativismo judicial trabalhista
(Centro Universitário do Estado do Pará, 2020) Mota, Saulo Marinho; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460
Labor judicial activism has been identified as one of the obstacles to the resumption of economic growth and job creation in Brazil. With the scope of trying to mitigate the effects of the referred phenomenon, the Labor Reform Law was edited, through which an attempt was made to introduce a profound change in the hermeneutic parameters of Labor Law, as denounced the alteration effected in article 8, paragraph 2, of the Consolidation Labor Laws. The solution adopted in the reform was to bring labor judicial interpretation to the canons of exclusive legal positivism. This work, starting from the demonstration of the mistake of the legislative option for exclusive legal positivism, proposes to evaluate whether the political theory of justice as equity of Rawls, in the field of political philosophy, and the interpretative concept of law conceived by Dworkin, in the legal theory, can constitute tools capable of offering a better response in the face of the negative effects of judicial discretion and activism. Therefore, after contextualizing the labor reform and pointing out the objective it intended, we seek to understand the terms of the change promoted in the hermeneutic area, both in a dogmatic sense and in the framework of the theory of law. Then, after describing exclusive legal positivism, the theory's only partial ability to help mitigate judicial activism is demonstrated. After this step, Rawls' political theory of justice and Dworkin's interpretive theory of law are explored to the extent that it is demonstrated that both, taken together, reconfigure, in more rational parameters, judicial activism and are consolidated as more adequate tools and capable of mitigating it when compared to the legislative option for exclusive legal positivism.