Navegando por Assunto "Equidade (Direito)"

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Poder judiciário trabalhista como uma exigência de justiça social à luz da teoria de John Rawls: uma abordagem a partir da realidade brasileira
(Centro Universitário do Estado do Pará, 2020-07-06) Pinheiro, Shirley da Costa; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Koury, Suzy Elizabeth Cavalcante; http://lattes.cnpq.br/5382551862867769; Freitas, Sérgio Henriques Zandona; http://lattes.cnpq.br/2720114652322968
John Rawls' theory of justice as equity seeks to reconcile a theory of social justice with na institutional model. Based on this philosopher and given the conjectures surrounding the role and importance of the Labor Judiciary Power in Brazil, this research seeks to analyze whether this branch of the Judiciary constitutes a necessary institution in the basic structure of Brazilian society for the realization of social justice, in models of Rawlsian theory. Therefore, the research problem consists of investigating whether the Labor Judiciary Power constitutes a requirement of social justice before the Brazilian reality, in terms of John Rawls' theory of fair justice. For this, the work makes use of bibliographic and documentary research, through a qualitative approach and deductive method. First, Rawls' theory itself is examined, investigating whether it is dissociated from metaphysics and whether it can be applied in real societies. In the sequence, it focuses on the basic structure of the theory, with the investigation if the Judiciary is part of the basic institutions of the ideal theory and if Rawls elaborated na institutional design, in this basal structure, as an ideal of social justice. Then, an assessment is made of the legal scenario, national and international, in which the Labor Judiciary is inserted, with an examination of its current structure and the conditions of its installation. In the last part of the research, the Labor Judiciary Power is contextualized as a basic institution of Brazilian society, transporting Rawls' ideal theory to the Brazilian reality. Finally, it is concluded that the Labor Judiciary, with its judgments, constitutes an important institution for the realization of social justice, in face of the Brazilian reality, in terms of John Rawls' theory of justice as equity.
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.