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Introduction: aims and points of departure. 1. The problem of the knowledge of law: whether previous general rules may support a casuistic decision. 2. The problem of legal ethics: whether there are autonomous rights, which do not depend on positive law. 3. The ways of modern dogmatics to deal with these problems. 4. The question remains the same.
In this paper, an analysis of Robert Frost’s poem Mending Wall is presented as a hermeneutical key to investigate and criticize two examples of the oblivion of the reasonable distinction and the reasonable relationship between ethics and law proposed by a new Brazilian private law movement called Escola do Direito Civil-Constitucional (The Private-Constitutional School of Thought). Those examples of unreasonable relationship between ethics and law are: 1) the right to be loved and 2) the right to get a private education without paying for it.
In his works, Hans Kelsen elaborates several objections to the so-called “doctrine of natural law”, especially in his essay The Natural-Law Doctrine Before the Tribunal of Science. Kelsen argues that natural law theorists, searching for an absolute criterion for justice, try to deduce from nature the rules of human behavior. Robert P. George, in the essay Kelsen and Aquinas on the ‘Natural Law Doctrine’ examines his criticism and concludes that what Kelsen understands as the Natural-law doctrine does not include the natural law theory elaborated by Thomas Aquinas. In this paper, we will try to corroborate George’s theses and try to show how Aquinas’ natural law theory can be vindicated against Kelsens criticisms.
This article considers the Brazilian Legal System and the requirements of an act performed by public administration. To do so, it presents six main chapters. The first one considers Brazilian Constitution as it regards State form, legal and judicial systems. The second chapter presents the public administration stated in the Constitution. The requirements of a public administration act are presented in the third chapter. The improbity law, which determines how public administration acts should be performed, is presented on the fourth chapter. How one of the main judicial courts of Brazil has understood this law is the topic of the fifth chapter. The sixth chapter presents a proposal of how could be Phronesis used to solve misunderstandings about improbity in the Brazilian Legal System.
In 2003, a number of banks adopted the Equator Principles (EPs), a voluntary Code of Conduct based on the International Finance Corporation’s (IFC) performance standards, to ensure the ecological and social sustainability of project finance. These so called Equator Principles Financial Institutions (EPFI) commit to requiring their borrowers to adopt sustainable management plans of environmental and social risks associated with their projects. The Principles apply to the project finance business segment of the banks and cover projects with a total cost of US $10 million or more. While for long developing countries relied on World Bank and other public assistance to finance infrastructure projects there has occurred a shift in recent years to private funding. The NGOs have been frustrated by this shift of project finance as they had spent their resources to exercise pressure on the public financial institutions to incorporate environmental and social standards in their project finance activities. However, after a shift of NGO pressure to private financial institutions the latter adopted the EPs for fear of reputational risks. NGOs had laid down their own more ambitious ideas about sustainable finance in the Collevecchio Declaration on Financial Institutions and Sustainability. Legally speaking, the EPs are a self-regulatory soft law instrument. However, it has a hard law dimension as the Equator Banks require their borrowers to comply with the EPs through covenants in the loan contracts that may trigger a default in a case of violation. ...
The mainstream law and economics approach has dominated positive analysis and normative design of economic regulations. This approach represents a form of applied neoclassical and new institutional economics. Neoclassical and/or new institutional economic theories, models, and analytical concepts are applied automatically to economic regulatory problems.
This automatic application of neoclassical economics to economic regulatory problems loses sight of the valid insights of non-neoclassical schools of economic thought and theories, which may illuminate important aspects of the regulatory problems. This thesis, therefore, advocates an integrated law and economics approach to economic regulations. This approach identifies the relevant insights of neoclassical and non-neoclassical schools of thought and theories and refines them through a process of cross-criticism. In this process, the insights of each school of thought are subjected to the critiques of other schools of thought. The resulting refined insights, which are more likely to be valid, are then integrated consistently through various techniques of integration.
Not only does neoclassical (micro and macro) law and economics overlook the valid insights of non-neoclassical schools of thought, it is also highly reductionist. It ignores the interdependencies of legal institutions, highlighted mainly by the comparative capitalism literature, and the structural interlinkages among socio-economic actors, highlighted by economic sociology and complexity economics. Rather, it takes rational individuals and their interactions subject to the constraint of isolated institution(s) as its unit of analysis. In place of this reductionist perspective, the thesis argues for a systemic approach to economic regulations. This systemic perspective replaces the reductionist unit of neoclassical regulatory analysis with a systemic unit of analysis that consists of the least non-decomposable actors’ network and its associated least non-decomposable institutional network. Then, the thesis develops an operationalized and replicable systemic framework for systemic analysis and design of institutional networks.
Both the systemic and integrated approaches are theoretically consistent and complementary. The systemic approach is in essence a way of thinking that requires a broad and rich informational basis that can be secured by using the integrated approach. Due to their complementarity, they give rise to what I call “the integrated and systemic law and economics approach.” The thesis operationalizes this approach by setting out well-defined replicable steps and applying them to concrete regulatory problems, namely, the choice of a corporate governance model for developing countries and the development of a normative theory of economic regulations. These concrete applications demonstrate the critical bite of the integrated and systemic approach, which reveals significant shortcomings of mainstream law and economics’ answers to these regulatory questions. They also show the constructive potential of the integrated and systemic approach in overcoming the critiques advanced to the neoclassical regulatory conclusions.
The operationalized integrated and systemic approach is both a law and economics as well as a law and development approach. It does not only provide an alternative to mainstream law and economics analysis and design of economic regulations. It also fills a significant analytical lacuna in the law and development literature that lacks an analytical framework for analysis and design of context-specific legal institutions that can promote economic development in developing economies.
[Tagungsbericht] Making finance sustainable: Ten years equator principles – success or letdown?
(2013)
In 2003, a number of banks adopted the Equator Principles (EPs), a voluntary Code of Conduct based on the International Finance Corporation’s (IFC) performance standards, to ensure the ecological and social sustainability of project finance. These so called Equator Principles Financial Institutions (EPFI) commit to requiring their borrowers to adopt sustainable management plans of environmental and social risks associated with their projects. The Principles apply to the project finance business segment of the banks and cover projects with a total cost of US $10 million or more. While for long developing countries relied on World Bank and other public assistance to finance infrastructure projects there has occurred a shift in recent years to private funding. The NGOs have been frustrated by this shift of project finance as they had spent their resources to exercise pressure on the public financial institutions to incorporate environmental and social standards in their project finance activities. However, after a shift of NGO pressure to private financial institutions the latter adopted the EPs for fear of reputational risks. NGOs had laid down their own more ambitious ideas about sustainable finance in the Collevecchio Declaration on Financial Institutions and Sustainability. Legally speaking, the EPs are a self-regulatory soft law instrument. However, it has a hard law dimension as the Equator Banks require their borrowers to comply with the EPs through covenants in the loan contracts that may trigger a default in a case of violation. ...
This paper traces the development of National Socialist cultural and legal policy towards the arts. It examines the role of censure in this development starting with Hitler's first attempts at power in the Weimar republic. It then looks more closely into aspects of the development of new policies in and after 1933 and their implementation in institutions of the totalitarian state. As the paper shows, policies were carried out within a legal framework that included parliament and constitutional law but they were often also accompanied by aggressive political actions. Racial and nationalistic ideologies were at the heart of the National Socialist discourse about culture. This discourse quickly established modernity as its principal enemy and saw modernist culture (in the broad sense of the word), and especially art criticism, as being under Jewish domination. True German Kultur was set against this; Hitler himself promoted German art both through exhibitions and through policies which included the removal of un-German art and the exclusion of writers and artists who did not conform the cultural ideal. As Jewish artists and intellectuals in modernist culture posed the greatest threat to the establishment of a new German culture, Nazi policies towards the arts embarked on a process of censure, exclusion and annihilation. The purpose of these policies was nothing less than the elimination of all modernist (Jewish and ‘degenerate’) culture and any memory of it.
The revolution will be tweeted : how the internet can stimulate the public exercise of freedoms
(2012)
This article discusses how new technologies of communication, especially the Internet and, more specifically, social network services, can interfere in social interactions and in political relations. The main objective is to problematize the concept of public liberty and verify how the new technologies can promote the reoccupation of public spaces and the recovery of public life, in opposition to the tendency to valorize the private sphere, observed in the second half of the twentieth century. The theoretical benchmark adopted for the investigation is Hannah Arendt's theory about the exercise of fundamental political capacities in order to establish a public space of freedom, as presented in “On Revolution”. The “Praia da Estação” (“Station Beach”) case is chosen to test the hypothesis. In 2010 in the Brazilian city of Belo Horizonte, different individuals articulated a movement through blogs, Twitter and facebook, in order to protest against the Mayor’s act that banned the assembling of cultural events in one of the main public places of the city, the “Praça da Estação” (Station Square). By applying Arendt's concepts to the selected case, it is possible to demonstrate that the Internet can assume an important role against governmental arbitrariness and abuse of power, as it can stimulate the public exercise of fundamental freedoms, such as freedom of assembly and manifestation.
In this concise volume, author and legal scholar Michael Stolleis provides an overview of the development of the modern German welfare state. Stolleis’ analysis focuses on labor law and social policy, while acknowledging the influence of economic, social, and cultural factors thereon. Origins of the German Welfare State does not emphasize a complete understanding of its subject; rather it seeks to provide insight into the development of German social policy in relation to the political/ historical eras in which it finds itself, leading to a deeper understanding of the foundations of social policy. ...