The Representation of the Sacred and the Insufficient Functional Differentiation of the Legal System in Brazil (original) (raw)
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SSRN, 2016
Abstract The Brazilian Legal system and its relation with the power in the current Brazilian scenery, and also the use of a posteriori rationality of the judge and the priori instrumentality of the legislator and of the Executive, is the theme of the present study. Its goal is to show a brief historical evolution of the Law and the State, the Power aspects, the forms of State and its acting with the origin of population. The next step is to present the use of Brazilian Legal System as a form of organization, that is, a priori instrumentality and the evolution from Liberal State to Social State, with significant changes in the legal aspects and in its form of acting. Furthermore, we carry on with the world crisis, especially the one of 1929, whose changes imposed by the end of Second World War (the decline of legal positivism) and also the advances which came with the globalization in 1990. Still considering crisis, it is discussed about the 2008 crisis and its consequences, the European crisis with its high costs of a Social State. A parallelism was done between the economy and the Law and besides that, it was drawn a legal scenery after these evolutions. Regarding these relations of power and the crisis of the power tripartism, we also showed that an ascension of Legal Law can be named as the legal protagonist or, for some, legal activism. These role has some reflexes in the Judicial Discretion, in the active management of processes, in the legal inflation of the Legislative and Executive (provisional measures), in the use of process as a strategy of power, in the legalization of politics and in the creation of binding overviews. Some case studies and considerations about justice were showed. This research is justified because the power, the contemporary legal scenery, the judicial role, the economy and the Law, and the forms of acting of the State (Liberal and Social) are current themes in the study of operators and Law scholars. Thus as these inquiries show great influence in the democratic state of Law. Suggested Citation: Fuga, Bruno, The Legal Order and its Relation with the Power and the Economy in the Current Brazilian Scenery, Instrumentality a Priori and Rationality a Posteriori (January 14, 2016). Available at SSRN: https://ssrn.com/abstract=2715672 or http://dx.doi.org/10.2139/ssrn.2715672
Brief Considerations About the Brazilian Secular State
International Journal of Law and Society, 2019
Law and religion do not mix. This is one of the fallacious maxims of recent years and that unfortunately brings several misunderstandings when it comes to the relationship between the state and the religious phenomena. It is not hard to see that countless perceptions on the subject, when presented in the media, academic, social and legal fields, do not take into account the constitutional foundations, the cultural values and, especially, the spiritual character of the human being as the structuring of human life. Nowadays, Brazil has been facing political and legal problems in view of the lack of understanding of the principle of Secularity applied in the Brazilian context. By electing an openly religious President, defender of the customs and practices of his religious belief, the comprehension of the subject is necessary to set aside misconceptions, in order to address the issue with the seriousness and scientificity that it deserves. In this sense, the purpose of this article is to clarify what it means to be a secular Brazilian State, aiming to demonstrate, as a result, that the secular model adopted in Brazil does not mean the absence of religiousness in the public sphere, but the guarantee and protection of all its expressions.
Brazilian law and legal culture in the XIX th century
Brazililan Law and Legal Culture in the XIX Century, 2018
After reviewing the place of legal history in Brazilian legal academia, and the theoretical basis of its recent development in the author's own work, the paper takes two paradigmatic fields of legal culture in 19 th century Brazil: the organization of the Judicial Power and the establishment of an Administrative Jurisdiction. Both reflect the importance of liberal conservative ideals in monarchical Brazil, and at the same time the importance of debates concerning the very idea of law and justice. The last two sections try to show how legal scholars were involved in these debates. Brasilianisches Recht und Rechtskultur im 19. Jahrhundert. Nach der Verortung von Rechtsgeschichte in der brasilianischen Rechtswissenschaft und der theoretischen Basis in der jüngsten Entwicklung in der eigenen Arbeit des Autors greift dieser Gastbeitrag zwei paradig-matische Felder der Rechtskultur im Brasilien des 19. Jahrhunderts auf: die Organisation der Judikative und die Gründung einer Verwaltungsgerichtsbarkeit. Beide spiegeln die Bedeutung liberal-konservativer Ideale im monarchischen Brasilien wider und zugleich die Bedeutung von Debatten über die Idee von Recht und Gerechtigkeit. Die letzten beiden Abschnitte versu-chen zu zeigen, wie Rechtswissenschaftler an diesen Debatten beteiligt waren. Legal scholarship and law itself have changed dramatically in the second half of the 20 th century. The creation of constitutional courts in several jurisdictions , the incorporation of social, welfare, and identity rights in constitutions , globalization, the presence of a transnational network of private actors in business transactions, the appeal to constant institutional borrowings and transplant across national borders, and finally the rise of the virtual world, all of these are important factors in the process of social and legal change. Legal theory has entered into a fruitful dialogue with new epistemological trends, such as analytical and hermeneutical philosophies 1). Legal historiography has also felt the influence of different strands of theory, many of them shaped *) Law School, University of São Paulo 1) In line with the wittgensteinian tradition as suggested by John Searle and the hermeneutic tradition of H.-G. Gadamer, particularly the way both traditions converge in the work of K a rl-O t t o A p el , starting with Transformation der Philo-DIESE DATEI DARF NUR ZU PERSÖNLICHEN ZWECKEN UND WEDER DIREKT NOCH INDIREKT FÜR ELEKTRONISCHE PUBLIKATIONEN DURCH DIE VERFASSERIN ODER DEN VERFASSER DES BEITRAGS GENUTZT WERDEN. BEITRAG AUS: ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE, GERMANISTISCHE ABTEILUNG
The development of the Sociology of Law in Brazil
Sortuz, 2021
The structuring of the sociology of Law as an autonomous discipline is a recent phenomenon both in world terms and in Brazil. To understand how the sociology of law was able to differentiate itself, in particular, from philosophy and theory of law, through its object and specific interests, is necessary to answer the central question of the paper: is it still necessary, in Brazil, the study of the sociology of law? The question was answered based on the assumption that (a) law is a social phenomenon, to (b) delimit the object of sociology of law, and therefore (c) to approach the past and the present of the discipline in Brazil, reaching the conclusion that (d) the current Brazilian moment demands even more the study of the external perspective of Law (sociology). Keywords: Sociology of Law, Brazil, Need. Resumen: La estructuración de la sociología jurídica como disciplina autónoma es un fenómeno reciente, tanto en el mundo como en Brasil. Para entender cómo la sociología jurídica logró diferenciarse, en concreto, de la filosofía y la teoría del derecho, a través de su objeto y sus intereses concretos, debemos responder la pregunta central del artículo: ¿es todavía necesario, en Brasil, el estudio de la sociología jurídica? Se ha respondido a la pregunta en base a la aceptación de que (a) el derecho es un fenómeno social, para (b) delimitar el objeto de la sociología jurídica, y por tanto (c) abordar el pasado y presente de la disciplina en Brasil, llegando a la conclusión de que (d) el momento presente en Brasil exige un estudio aún mayor de la perspectiva externa del derecho (sociología).
Brazilian Legal Culture: From the Tradition of Exception to the Promise of Emancipation
[This is just a preview of the paper. The full paper is avaiable at: http://link.springer.com/article/10.1007%2Fs11196-015-9449-2\] This article investigates the existence of an original Brazilian legal culture. It parts from a critical examination of the key moments in the history of Brazil through the accounts of its most important scholars, such as Caio Prado Junior, Darcy Ribeiro, Sergio Buarque de Holanda, Wilson Martins, Oliveira Viana, Roberto Damatta, Jose Murilo de Carvalho, among others. It identifies in the Brazilian legal culture something one might call tradition of exception, which can be found in many of its most prominent aspects, such as the persistent denial of any general or abstract regulatory standards, the uncritical introduction of foreign doctrines and legal patterns, the maintenance of aristocratic traditions in social life and the historical disregard of the Brazilian people as political subject. The article also offers a reflection on the problems and potentials of the current historic moment, in which for the first time Brazilians face the possibility of a genuine cultural emancipation.
“Law, Religion and ‘Public Health’ in the Republic of Brazil,” Law and Social Inquiry 26 (1): 9-33.
The essay evaluates the general problem that, while most modern republican constitutions follow the U.S. and French models in declaring religious freedom, absolute religious freedom is impossible and undesirable. How are religious freedoms constrained, and how much should they be? The essay evaluates the strategies by which limitations on freedoms of religion are constructed and imposed, especially the powerful isomorphism of law and science described by Boaventura de Sousa Santos. Taking the example of Afro-Brazilian religions in relation to the Brazilian state since 1890, post-emancipation, the essay argues that pseudo-scientific discourses of "public health" constrained the religious practice of former slaves, thus allowing the trompel'oeil of religious freedom to continue in the new republic, even as freedoms were in fact constrained by the state.
Ciências Sociais Unisinos, 2017
This article aims to explore some issues about laicity and religious freedom, the concordat signed between the Brazilian State and the Vatican, and the controversies arising from the proposal of the General Law of Religions. At the same time, it affirms the existence of multiple and divergent senses of laicity, allows observation of different agents in the search for marking, setting, updating, correcting and regulating its application by the State. Catholic and Evangelical activism has generated a lot of contradictory effects. There is a resurgence of religious disputes with consequences in the public sphere, especially in the political arena.