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In order to understand the impact of new technologies on the law through the science of law, it is essential to observe how Law researches are done. This paper pursues the following models of legal science: analytical (theory of formal rule); hermeneutics (interpretation theory) and empirical (decision theory) to appraise methodological procedures used in monograph researches in some Brazilian Law courses. This study was to detect which model of law science was used in the development of Law researches. The study was conducted, through Juris Doctors’ interviews. All of these respondents have written a monograph, which is a requirement to complete a Law course in Brazil. The main conclusions of this study were the following: 1) most of the monographs produced do not specify the methodology used for developing the work; 2) when the papers indicate the methodology used, the analytical model was prevalent. In these cases, the science of law appears as a systematization of rules for obtaining possible decisions. 3) Hermeneutic and empirical models were also used, but on a smaller scale. These researches revealed the inaccuracy of the methodological tools used to apprehend the reality. However, these strategies are significant to define the objects of study of law in the contemporary time. Answering the question about how Law researches are done in some Brazilian Law schools, this paper discusses the construction of classical models of science of law, which were taken as the theoretical framework of this work before the hypercomplex current problems.
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.
This paper aims to present the similarities and differences between Posner's defense of Law and Economics (LAE) and Holmes' pragmatism. The investigation is centered in the arguments of economic consequences of judicial decisions. Law and Economics tend to emphasize these arguments as a determinant characterization of legal pragmatism. These arguments involve some dilemmas: Is it possible to eliminate a rule, or reinterpret it according to the effect of its application in practical life? May these economic consequences serve as argument for a replacement of traditional interpretation? To what extent can we rule out the law with arguments of consequence? Despite the influence, LAE has some important differences with respect Holmes' legal pragmatism. Posner's LAE involves the economic principle of wealth maximization and its relations with utilitarianism and economic liberalism. Consequentialism in Holmes, by contrast, is based on a teleological interpretation of existing rules. It is important that the judge does not decide based on a specific economic theory. Also, legal pragmatism does not advocate abandoning the tenets of positivism that form the basis for the rule of law. Holmes defends a judicial restraint. Accordingly, the argument of consequence must have previous limits in precedents and statutes. However, both legal pragmatism and LAE are connected by the idea that the adaptation of the law to a reasonable end can not be absent from the canons of interpretation and adjudication.
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.
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.
Abstract of the German original article “Rechtssubjekte und Teilrechtssubjekte des elektronischen Geschäftsverkehrs“, to be published in S. Beck (ed.): Jenseits von Mensch und Maschine: Moralische und rechtliche Aspekte des Umgangs mit Robotern, Künstlicher Intelligenz und Cyborgs. Baden-Baden: Nomos, 2012.
Jurisprudence under the perspective of the new media and its effect on the communication of law
(2012)
Despite the law knowledge presumption, Jurisprudence has not always considered the effects introduced by the communication of law in the transition from the print to the electric revolution, using here concepts and ideas of McLuhan´s theory.
The use of Internet by Brazilian Courts (on line transmission of trials, the digital process, transformation of courts in source of news on what concerns their decisions) is an interesting example of how the new medium interferes in the substance of the message of law, since the movement of the messages must be considered to understand the epistemological domain of law. New elements are introduced by the new media and interact with the old meanings, concepts and processes of law and of the old media and can themselves bring new conflicts that are relevant to the comprehension of the complete and real dynamics of Law.
The process of finding evidence of what truthfully happened in a conflictive situation interests jurists and journalists but in different ways. When the work of journalists and judges are concerned the paradox is at stake. Both categories must tell a story about a conflict must listen to all involved, must inform what happened to the general public. Although both categories must use the freedom must use the freedom of speech their point of view about something with objectivity, their timing is different as well as the process and the effect of fulfilling their task. That question that should be made is what happen to law when it becomes the subject matter to the news in the world of full information? In what measurement journalists also pass judgements and how this affects the formal processes of law? The effort to answer these questions and the ones related to them is important to understand some of the problems that must be approached in order to establish the ways of law and of the mass media technological society.
A Privacy Impact Assessment (PIA) is a systematic risk assessment tool, enabling organizations to maintain compliance with data protection regulations, to manage privacy risks and to provide public benefits through the success of privacy-by-design efforts. An actual practical implementation of a PIA framework has been realized in the context of RFID applications encompassing detailed steps for the PIA process; a first successful review has been completed. The PIA also allows to introduce a pro-active mitigation of privacy risks through technical and organizational controls. The better the precautionary measures realize the relevant privacy objectives, the less likely will occur with the PIA process afterwards. The recent proposal for a far-reaching revision of the EU Data Protection Directive envisages to state a specific requirement to implement a PIA process. Indeed, since risks for privacy and non-disclosure of personal data are different in not identical circumstances, the protection measures should also be different, i.e. technology should assist in trying to achieve the (at least) second-best solution for the implementation of the data protection regime by a PIA. Insofar, privacy rules can be individualized and matched with the concrete needs in the given environment.
Axiomatic method and the law
(2012)