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Brazil has one of the worst distributions of income in the world. The wealth of the richest 1% of the population is equal to that of the poorest 50%. Brazil has a greater concentration of wealth than ninety-five percent of the countries on which data is available. In the legal field, tax justice is based on the constitutional principle of the “ability to pay”, according to which taxes should be paid based on the economic capacity of the taxpayer. This principle first appeared in the Brazilian legal order in the 1946 Constitution, was excluded from the texts of 1967/69, and reappeared in § 1 of article 145 of the 1988 Constitution. The aim of this paper is to examine two possible grounds for the ability to pay principle (equal sacrifices and proportional sacrifices) to show how, in Brazil, the interpretations that seek to assign a positive content to the principle are limited to the horizons of a particular form of State associated with the theory of equal sacrifice. This theory for its turn is consistent with a theory of justice, under which no expense or charge levied by the government can alter the distribution of welfare produced by the market. As the application of the ability to pay principle is done within the limits of that horizon, as a consequence, this principle does not play an important role in the issue of reduction of inequality in Brazil.
John Gray is the thinker who has reconstructed the main tenets of ethical pluralism inherent in the work of its initiator - Isaiah Berlin - and pointed to its consequences for political philosophy. In particular he singled out three levels of conflict in ethics identifiable in Berlin’s writings: among the ultimate values belonging to the same morality or code of conduct, among whole ways or styles of life and within goods or values which are themselves internally complex and inherently pluralistic.
It is the third, internal kind of conflict that proves to be the richest in implications.Because it undermines a whole constellation of contemporary liberal doctrines informed by the Kantian-Lockean tradition that conform to the legal paradigm. From the pluralist perspective such monumental theories (e.g. those of Rawls or Dworkin) are no longer sustainable due to the recognition that no ultimate value is immune to the phenomenon of incommensurability. Thus, irresolvable conflicts may also break out within the given regulative value.
Confronting ethical pluralism with general reflection on law has mostly negative consequences. Nevertheless, the incommensurability thesis sheds considerable light on certain legal disputes. This claim will be illustrated by interpreting from the pluralist perspective the controversy over the verdict by the European Tribunal of Human Rights of 3 November 2010 concerning hanging crosses in classrooms.
The increase in the volume of litigation verified since the 1990’s, having the Brazilian society as context, made the judiciary open itself to new technologies which facilitate the access to justice, as well as to a faster resolution of the demands. However, the intense insertion of technical rationalization in the process and decision operations by the judiciary, during the last years, led to a legalization supported by presuppositions of technical-instrumental regulation. According to the goal policy established by the CNJ, the annoyance of the instrumental rationality is present “with respect to purposes”, which demands, more and more, a mere fulfillment of previously instituted goals from the law operators. The matter is to know if the implementation of new technologies to solve the growing litigation coming from the complexity of societies is enough to adjust the Law to a post-conventional platform. If the social complexity implies resources coming from new technologies, it’s not certain that such technologies, on their own, satisfactorily answer a judicial model which, seen under the eyes of the post- conventional legitimacy and regulation, is adequate to complex societies. This illustrates that a judicial model, able to deal with the social plurality, must take into account not only the rules of instrumental rationality, but also the fundamental issues of communicative rationality. This current work intends to evaluate if the applicability of the instrumental rationality in the judiciary equally allows the law to extent the useful conditions of the communicative rationality to the consensual formation of will and opinion in the Democratic State of Law.
The Brazilian Constitution of 1988 declares Brazil as a Democratic State of Law. This formally democratic legal status has been facing difficulties when it comes to its material implementation. Brazilian legal procedures are still greatly influenced by the catholic heritage from Portugal in the times of colonization, translated in the present times into a strong moral set of dogmas that still reflects upon the legal production and interpretation in the country. Recently in Brazil, a debate brought to the Supremo Tribunal Federal, the Brazilian Federal Supreme Court, has evidenced the struggle between Ethics and Morality in the country’s legal scenario. The focus of the discussion was the possibility of abortion of anencephalic fetuses (in Brazil, abortion in considered a crime against life). In order to properly ground its decision, the Court invited scientists, doctors, members of feminist movements and representatives of certain religions to a public dialogue, in which both scientific-technical and purely moral-religious arguments were presented. Although these procedures encouraged and promoted a democratic and pluralistic legal debate, it seems like the crucial point of the discussion were not taken into account: the scientific character of Law. This is the object of the present manuscript: in order to ensure an intersubjective construction and application of Law, this must be perceived as an Applied Social Science and judges, lawyers, legislators and all other legal actors must proceed in a scientific way. To illustrate the theme, the specific case of abortion of anencephalic fetuses will be mentioned through the text.
A discussion regarding the complex relationship that exists between the concepts of efficiency and justice goes a long way back and raises several relevant arguments. One of them, and it must be rejected in advance, is that justice is in the realm of public law, while efficiency in that of private law. Is it unacceptable that the balance between public and private law leads to the belief of a divided legal system; one system, one set of laws, one legal system. Legislators and judges are responsible for determining a balance and no theory can postulate that the balance will always be found with a simple cut between public and private law to distinguish when the criterion should be justice or when it should be efficiency. It is reductionist to confine the discussion to single goals of efficiency and justice, when human dignity and human rights should also be considered when one is discussing law. Moreover, a discussion limited to only the concepts of justice and efficiency, relies on a belief that the terms are mutually exclusive. Posner has said that the economic analysis of law has limits and philosophy of law plays an extremely important role in this discourse, which must be interdisciplinary. There can be no goal other than the realization of human rights and there can be no justice if not shared by all of mankind.
The very idea of the European Convention on Human Rights is to bring the laws of contracting states into line with fundamental human rights principles. Where the Convention is not explicit, the Court should never rule restrictively so as to reduce the scope of a general right. In the case of homeschooling, the Convention sets forth the general principle that “the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” It must not, therefore, allow a contracting state to eliminate a means of achieving this desired by parents—unless the state can show that the means in question is ineffective.
In his new book, R. Dworkin advocates the unity of values thesis. He wants to circumscribe morality as a proper epistemological domain which is methodologically different from scientific inquiry. The epistemological independence of morality is supposed to be a consequence of the irreducible fact/value dichotomy. This paper sustains that unity of values thesis is methodologically correct; all moral reasoning must be a constructive interpretation of its meaning. However, that author fails to recognize that not every axiological interpretation implies moral consequences. From H. Putnam’s pragmatic realism, this paper intends to demonstrate that much of scientific inquiry relies on values interpretation, and that this kind of reasoning is morally neutral. Finally, it should be clear that epistemological choices in legal positivism – e.g. the decision on which aspects of social interaction are theoretically relevant – should not disturb the soundness of its argument nor should it be read as if it had moral implications. This paper concludes that positivist theories cannot be ruled out. Since the choice between descriptive and interpretative models requires a circular justification, legal theory is itself an activity governed by epistemic values interpretation. Likewise natural sciences, it can only be understood from an internal perspective. Accordingly, inclusive positivism holds the advantage of being more consilient than interpretivism, which is arguably parochial.
I will discuss issues which can be seen as taken strictly from the science fiction literature. Nonetheless, I would like to demonstrate that those issues not so far from now will have a big influence on the ethical discourse and also the law and social philosophy. The first part aims at clarifying concept of “cyborg” and “cyborgization”. I will consider only meanings coined for scientific or philosophical purposes. I will also indicate two experiments, which bring to life “the first cyborg” – term in which the head-scientist of these experiments used to describe his effects. In the second part I will show ideas of transhumanists in the context of technological achievements mentioned earlier. I will concentrate on the human enhancement idea, underling majority of transhumanist’s branches. I will try to demonstrate that it is realistic concept. In the third part I will shift my attention to some of consequences which flow from “cyborgisation” and human enhancements mentioned in prior parts. I will present two rights seen by transhumanist’s philosophers as able to become human rights in the near future. In these frames I will consider the “morphological freedom” and the “cognitive liberty”. At the end, in the fourth part I will summarize my considerations about the influence of semi-fictitious technologies. I will try to bring on an unambiguous conclusion that aforesaid issues could in the nearest future become very substantial for every area of the theory and policy of law.
The author will deal with the relationship between law and technology from the viewpoint of technology security standard. One of the relationships can be found in that law has been providing a security level of technology. They have been saying that law would often follow technology. Law is too slow to adapt the changing technology through the advancement of technology. Above all, information technology has an electronic rapidity and a legislation technology has a paper one. There might be a big estrangement between law and technology. However, law must provide a security standard of technology. The standard must be based on a relative security level. The relative level would premise on the ordinary, lawful and ethical use of technology. Most technology has been opened to the public without any technology impact assessment. Technology would have some defect, which the producers have overlooked. As a result, the users might often meet with the accidents caused on the defects.
Then law should provide a technology security standard to exclude the defects from the users’ viewpoint as secure as possible. The security standard must be reflected on the architecture standard of technology. The architecture standard may be a yardstick whether the creators can evade the responsibility for the accidents.
The standard would also premise on the ordinary, lawful and ethical use of technology. The ordinary use means that the users should use normally technology within the extent of the architecture standard. The ethical use means that the users should use technology being conscious of the defects in order to avoid accidents.
The relative security level may be the sum of the architecture standard and the ethical use of technology.
Civil Society became an important theme in the recent discussion of political or social theory. Civil Society is playing a substantial role for the legislation process. We can find it especially in the activities of international NGO. It gives a new aspect of the relationship between state and society, and legal philosophically speaking, of validity of law. Activities of Civil Society are socially recognized and their support systems are gradually institutionalized also domestic in Japan. But Japanese NPO has its own weak point, which arises from the political structure of our society.