¿Cómo resuelven los jueces? ¿Por qué eligen una interpretación en vez de otra? ¿Cuál es la razón por la que, al decir de los especialistas, prevalece la interpretación literal? Éstas son preguntas insondables. Para abordarlas, hemos recurrido a la vision unitaria que proporciona la filosofía, aplicándola a casos cualitativamente significativos. Analizamos la decision judicial en tanto opción favorecida en desmedro de otras, a la luz del utilitarismo benthamita. Entonces, emerge la presencia del juez como parte del proceso (en contraposición a la idealizada imagen neutral). Y si la normatividad no considera este fenómeno como elemento de política jurisdiccional, el ciudadano ve afectado su derecho material (aunque se cumplan los principios formales del proceso).

Made available in DSpace on 2016-04-28T14:16:33Z (GMT). No. of bitstreams: 1 Marcia Cristina Otaviani.pdf: 615650 bytes, checksum: 4c9d9c3902d84331c8dbc12d1e50b905 (MD5) Previous issue date: 2008-05-20 / Conselho Nacional de Desenvolvimento Científico e Tecnológico / Jeremy Bentham (1748-1832) was na English philosopher who wrote about how human actions should be treated. He believed only two sovereign masters should govern us all. Pleasure and pain should tell us what is right and what is wrong. Bentham thought that every man seeks actions to maximize pleasure and diminish pain. The author believed that human actions could be treated in a scientific fashion. To his objective, he proposed a moral science and, as a criteria to measure the masters which manage human actions Bentham developed a theory to quantify pleasure and pain. Such calculus will be presented in this paper in a manner to verify its characteristics. Hereby, we will demonstrate how science and art were understood by the author, as well as, his thoughts regarding logic, language and how knowledge has been perceived by man / Jeremy Bentham (1748-1832) foi um filósofo inglês que viveu durante os séculos XVIII e XIX e escreveu sobre como as ações humanas deveriam ser tratadas. Ele acreditava que somente duas forças deveriam dizer o que devemos ou não fazer. Essas forças, segundo o autor eram: o prazer e a dor. Todo homem, para Bentham, busca ações que maximizem o prazer ou diminuam a dor. O autor acreditava que as ações humanas podiam ser tratadas de maneira cientifica. Para alcançar tal objetivo ele propôs uma ciência da moral e, como critério para medir as forças que governam as ações humanas, Bentham desenvolveu um modo de mensurar o prazer e a dor. Iremos nesse trabalho expor como o autor propôs tal cálculo, buscando verificar quais eram suas características. Para isso, faremos uma apresentação de como o autor entendia ciência e arte e das suas idéias acerca da lógica, da linguagem e de como o autor acreditava que o conhecimento seria adquirido pelo homem

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This dissertation asserts a strong connection between democratic culture and the novel form in the period 1832--1867. As England debated constitutional reform and the extension of the franchise, novelists Charles Dickens, Elizabeth Gaskell, and George Eliot endeavoured to define human communities on democratic terms. Drawing on work of contemporary political philosopher John Rawls to develop a methodology that considers constitutions and novelistic representations as analogous contexts for reasoning about shared political values and citizenship, this study provides readings of Bleak House, North and South, and Felix Holt that emphasize each novel's contribution to the period's ongoing deliberations about pluralism, justice, and the meaning of membership in democratic life. When read alongside Bentham's work on legislative reform, Bleak House offers a parallel model of social interaction that weighs the values of diversity of thought, security from coercion, and the nature of harmful actions. Felix Holt and North and South are novelistic contributions to defining and contesting the attributes of the new liberal citizen. Through their central characters, as well as in their respective novelistic practices, Eliot and Gaskell highlight the difficulty of uniting autonomous individuals with collective social groups, and this was as much a problem for literary practice in the period as it was for constitutional reform.

For the last half-century, American politics has been ravaged by a war for control of the courts. While conflict between the courts of law and the elected branches of government has been a recurrent theme in American history, this conflict has taken on a heightened importance beginning with the rights revolution ushered in by the Warren Court. Judicial originalism was born as part of a backlash against Warren and Burger Court expansions of constitutional rights in areas as disparate as First Amendment protections for individual speech and the expansion of substantive due process to cover contraception and abortion. By the end of the Trump Administration, the judicial backlash against this expansion of constitutionalized rights appears to have gained the upper hand as the Supreme Court and lower courts of appeals, especially the Fifth Circuit, have begun a substantial counteroffensive. Roe v. Wade has been overturned, a longstanding goal of legal conservatives, and the groundwork has been set for a rollback of the federal administrative state, which has often seen by legal conservatives as a political foe. This dissertation discusses the theoretical underpinnings of contemporary conservative jurisprudence, with a particular focus on the formalistic interpretive methodologies of originalism and textualism. It argues that textualism, at least as advanced by Justices Scalia and Gorsuch, is philosophically confused, and it argues that originalism is insufficient to its purported task of weakening the judiciary through a limitation of judicial discretion. Because legal conservatives often defend their views as a natural outgrowth of a commonsense picture of political morality, grounded in the concepts of the rule of law, democracy, and the separation of powers, I also discuss the interplay between those concepts within legal conservative discourse. Contemporary legal conservative conceptions of these ideological constructs are compared to historical predecessors in the works of John Locke, Jeremy Bentham, Hans Kelsen, and others. I argue that the legal conservative versions of these constructs are defective and seriously imperiled by the threat of legal indeterminacy. I conclude that they should be reconfigured to meet this challenge.