Made available in DSpace on 2017-07-10T19:07:24Z (GMT). No. of bitstreams: 1 DISSERT Fabrizio FINAL2.pdf: 1397899 bytes, checksum: a9889067e8b8d13db73ec96ae6279f0e (MD5) Previous issue date: 2014-03-14 / This work aims to analyze the legal regulation of labor relations taken in the core of regionalization processes undertaken through economic integration. We intend to demonstrate that the fundamental freedoms upon which are laid down the economic integration, in particular the free movement of workers, are not human freedoms, but derivation of the reification of human relations. Although the main backdrop is the MERCOSUR, other regionalization scenarios are also part of the analysis. To make the diagnosis of the legal texts of economic integration of MERCOSUR, it starts from the Lukacsian conception of reification, using a critical perspective on regulatory texts that rule the labor relations in this economic bloc. Therefore, concepts of Marxian alienation and Weberian rationalization lead to understanding of this analysis. There is still an approach from a historical perspective about the formation of rights reified as a result of the implementation of the capitalist and its regional and global expansion. / O presente trabalho tem por objeto a análise da regulamentação jurídica das relações de trabalho tomadas no bojo dos processos de regionalização empreendidas por meio de integração econômica. Pretende-se demonstrar que as liberdades fundamentais sobre as quais se assentam a integração econômica, em especial a livre circulação de trabalhadores, não são liberdades humanas, mas sim derivação da reificação das relações humanas. Embora o pano de fundo principal seja o MERCOSUL, outros cenários de regionalização fazem parte também da análise. Para proceder à análise dos diplomas jurídicos que regem a integração econômica do Mercado do Sul, parte-se da concepção lukacsiana de reificação, utilizando-a em perspectiva crítica aos textos normativos que regem as relações de trabalho no bloco econômico. Para tanto, concorrem os conceitos marxiano de alienação e weberiano de racionalização. Há ainda uma abordagem, sob uma perspectiva histórica, da formação dos direitos reificados em decorrência da implementação do sistema capitalista e de sua expansão regional e global.

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / The word education comes from the latin educare meaning "drive out". Education, understood here as the act of educating, it can occur at school, interaction with colleagues or can be developed via the media. Until the nineteenth century, education was a privilege for the few, the intellectual formation was restricted elites and popular classes were indoctrinated in accordance with the interests of the elite. In the twentieth century, the progressive education and postmodern trace other purpose for education, not indoctrination but rather the formation of critical citizens who are able to understand the reality around them and transform it. The functions performed by education, according to the progressive pedagogical thought of Paulo Freire and postmodern and the reports of the UNESCO (2013, 2014) and by the UNDP (2015), forward this study to the analysis of education in space freedom. The Capability Approach crafted by Amartya Sen (1979a, 1985, 2010) focuses on the freedom that the individual must possess to perform the beings and doings it considers of value to your life, having the freedom to expand their set of freedoms. By adopting the Capability Approach as a theoretical framework this paper aims to provide answers the following question: what is the contribution of the Capability Approach in the analysis of the roles (instrumental and intrinsic) of education in the lives of individuals? The main objective of this study was to present education in the Capability Approach and explores the relevance of education not only as a tool for the expansion of human freedom but also as an important resource for their very existence, by allowing the individual to develop their judgment and discernment skills. The theoretical and bibliographic references used allowed to describe various aspects associated with access to education that strengthened the importance of analyzing education through the prism of human freedoms. Education not only improves the social and economic conditions of individuals, but contributes to its formation as a human being, aware of the reality around him, respect human diversity (racial, gender, cultural, religious, etc.), knowledgeable of their rights and duties, opinion leader. Education, formal and informal, makes the free individual to exercise control over your own life and achieve what he considers value for you (positive freedom), not only acts as an instrumental freedom, but rather as an intrinsic freedom by value which has in shaping the individual as a human being (substantive freedom). / A palavra educar vem do latim educare que significa conduzir para fora ou direcionar para fora . A educação, entendida aqui como o ato de educar, pode ocorrer na escola, na interação com colegas ou pode ser desenvolvida via meios de comunicação. Até o século XIX, a educação escolar era privilégio para poucos, a formação intelectual era restrita as elites e as classes populares eram doutrinadas de acordo com os interesses da elite. No século XX, a educação progressista e a pós-moderna traçam outra finalidade para o ensino, não mais a doutrinação e sim, a formação de cidadãos críticos que sejam capazes de compreender a realidade a sua volta e transformá-la. As funções desempenhadas pela educação, de acordo com o pensamento pedagógico progressista de Paulo Freire e pós-moderno e com os relatórios apresentados pela UNESCO (2013, 2014) e pela UNDP (2015), encaminham este estudo para a análise da educação no espaço da liberdade. A Abordagem das Capacitações trabalhada por Amartya Sen (1979a, 1985, 2010) focaliza a liberdade que o indivíduo deve possuir para realizar os beings and doings que considere de valor para a sua vida, ter a liberdade para expandir o seu conjunto de liberdades. Ao se adotar a Abordagem das Capacitações como referencial teórico este trabalho pretendeu responder o seguinte questionamento: qual a contribuição da Abordagem das Capacitações na análise dos papéis (instrumental e intrínseco) da educação para a vida dos indivíduos? O objetivo central do presente estudo foi apresentar a educação na Abordagem das Capacitações e explorar a relevância da educação não só como instrumento para a expansão da liberdade humana, mas também como um recurso importante pela sua própria existência, por permitir ao indivíduo desenvolver suas habilidades de julgamento e discernimento. O referencial teórico e bibliográfico utilizado permitiu descrever diversos aspectos associados ao acesso à educação que fortaleceram a importância de se analisar a educação sob o prisma das liberdades humanas. A educação não só melhora as condições sociais e econômicas dos indivíduos, mas colabora para a sua formação enquanto ser humano, consciente da realidade a sua volta, que respeita a diversidade humana (racial, de gênero, cultural, religiosa, etc.), conhecedor de seus direitos e deveres, formador de opinião. A educação, formal e informal, torna o indivíduo livre para exercer o controle sobre sua própria vida e realizar o que considera de valor para si (liberdade positiva), não atua somente como uma liberdade instrumental, mas principalmente, como uma liberdade intrínseca pelo valor que possui na formação do indivíduo enquanto ser humano (liberdade substantiva).

L’émergence de l’internet, au delà de son aspect novateur et de ses prérogatives pratiques, a eu pour conséquence l’apparition d’un nouveau type de délinquance et de nouveaux profils criminels qu’est la cybercriminalité. En effet, si l’utilisation d’internet est aujourd’hui indéniablement entrée dans les moeurs, Internet est également un vecteurs d’activités illicites. Or le cyberespace est un territoire virtuel qui ne connaît aucune frontière physique. La cybercriminalité est donc une matière complexe en ce qu’elle est transnationale, mobile et très technique. Elle semble apparaître comme un fléau moderne pesant sur les libertés individuelles des utilisateurs des réseaux numériques / The emergence of Internet beyond its innovative nature and its prerogatives led to the appearance of a new type of delinquency and new criminal profiles. Indeed if using Internet is now undeniably into the customs, Internet is also a vector of illegal activities. However cyberspace is a virtual land that knows no physical borders. Therefore cybercrime is a complex matter because it is transnational, highly mobile and really technical. It seems to appear as the modern scourge weighing on individual freedoms of users of digital networks.

Mobility, as the ability among newcomers and citizens to move temporarily and circularly across international borders and between states, has become a pervasive norm for a significant portion of Canada’s population. Despite its pervasive nature and the growing public interest, however, current research has been limited in how Canadian policies are reacting to the ability of citizens and newcomers to move. This thesis seeks to fill that gap by analyzing Canada’s treatment of mobility within and across policies of immigration, citizenship and foreign affairs. An analytical mobility framework is developed to incorporate interdisciplinary work on human migration and these policy domains. Using this framework, an examination of policy developments in each domain in the last decade reveals that they diverge in isolation and from a whole-of-government perspective around the treatment of mobility. In some instances policy accommodates or even embraces mobility, and in others it restricts it.

In 1986, the Supreme Court of Canada cogently summarized various judicial concerns relating to the expansion of public interest standing. In doing so, the Supreme Court invited judges to engage in a purposive and functional enquiry in exercising their discretion to grant access to public interest litigants. That enquiry should take account of the broad social, political and legal factors that provide the backdrop to the constitutional claim. However, both judges and commentators alike have failed to meet this challenge. Instead, they have applied the principles of standing in an increasingly categorical and abstract manner. To this end, they have employed the abstractly defined, directly affected individual without considering who he or she is in the particular circumstances, or what benefits he or she would bring to the litigation process. This is of particular concern when our context is inequality. The increasing abstraction of public interest standing jars discordantly with the purposive interpretation of section 15(1) of the Charter, so that while equality is determined in a contextual fashion, equal access is still conceived of in an abstract fashion. In abstracting the directly affected individual out of relations of radical inequality, there has been a presumption that we all, as individuals, have an equal opportunity (and equal resources) to raise our constitutional concerns in the courts. This presumption cannot be accepted. We need to inject some context into standing. To do so, we must appreciate that inequality is a product of the distribution of power in society, and that equality is to be furthered through multi-dimensionality and respect for diversity. Armed with these insights, we must revisit the judicial concerns that underpin the development of the public interest standing doctrine, and unpack their meaning in a purposive fashion. When we do so, we will begin to appreciate that the traditional resolution of these concerns actually serves to exclude disadvantaged persons from enforcing their Charter rights and obscures the diffuse causality characteristics of disadvantage. From the contextual perspective of social-inequality-as-power, the concerns underpinning public interest standing actually promote judicial access for the public interest organization that represents disadvantaged persons. / Law, Peter A. Allard School of / Graduate

Reputational interests are protected against defamatory and injurious statements by the common law o f defamation, which permits the targeted individual to recover damages for the injury to his reputation. At the same time, this body of common law sets limits to the constitutional right to free expression of the person who made the penalized communication. However, since s.32(l) of the Canadian Charter of Rights and Freedoms - according to the Supreme Court of Canada - restricts the Charter's application to the actions of legislative, executive and administrative branches of government, the Charter will be at best a bit player in defamation litigation governed by common law rule. This thesis deals with the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the common law of defamation has achieved the correct balance between the protection of the individual's reputation and freedom of expression, or whether it needs to be modified in order to better accord with the Charter. A n important component of this thesis is its review of the decision of Hill v. Church of Scientology, where the Supreme Court of Canada addressed the question of whether defamation law needs to be reconsidered in light o f the Charter protection of free expression, and found the balance struck by the current law to be appropriate. A critical look at this decision, and more generally at the law of defamation itself, particularly its presumptions of falsity, malice and damages, will reveal the problems with the common law's resistance to making any major allowance for free expression. The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods. / Law, Peter A. Allard School of / Graduate

The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter. / Arts, Faculty of / Political Science, Department of / Graduate

This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists. / Law, Peter A. Allard School of / Graduate

The quest for institutional transformation has created a need to continually challenge traditional notions of what an academic is and should be. While several studies have explored academics' experiences to engender transformation systems, few studies have focused strictly on emerging academics (permanently working scholars within the first five years of academic careers). These early-career academics are faced with the challenge of adapting to the institutional culture and meeting disciplinary standards of performance. Their novelty in the system makes them more vulnerable to the effect of these challenges. This study aimed to identify how they navigate these challenges, what defines them as academics, what impacts their academic freedoms, how they challenge disciplinary standards of performance, and the extent to which institutional culture affects their experiences. Through a purposive and snowball sampling strategy, 20 academics were selected from the University of Cape Town (UCT) to study. They were interviewed using a semi-structured approach and were asked openended questions with an interview guide. Thematic analysis was used to analyze the interview data as it utilized an ideographic approach in providing insights into the participants' lived experiences. This methodological approach also helped prioritize how the study is carried out and explore participants' meaning-making processes. The participants perceived being an academic as an opportunity for subjective self-expression and a character-building process. They conceded that being an academic required genuine intellectual curiosity and a platform to engender innovation. The study also uncovered the effects of UCT's institutional and transformative plan on assimilating into the academic space. Academics perceived the performance appraising structure as too prescriptive and affirmed their desire to harness their positions to build strong interpersonal relations with students. The study recommends a more comprehensive and longitudinal approach to studying academic experiences focusing on the psycho-social factors influencing these experiences. The research further suggests a streamlined and faculty-based approach to further strengthening educational support systems at UCT.

La détention et l’exploitation de l’information apparaissent au cœur du développement de l’économie contemporaine, faisant de l’identification ainsi que de la protection de l’information des enjeux permanents pour les opérateurs économiques. Mais toutes les informations ne se valent pas. Seules celles bénéficiant d’une protection directe ou indirecte et conférant un avantage concurrentiel font l’objet d’un contrôle attentif des entreprises et des autorités de concurrence. Dans ce contexte, les libertés économiques, circonscrites à la liberté contractuelle, la liberté d’entreprendre et la libre concurrence, constituent, alternativement, un guide, un support ou une limite à la divulgation de l’information protégée. Justifiant l’absence de divulgation de certaines informations protégées, les libertés économiques consacrent le respect des secrets d’affaires. A l’inverse, elles peuvent imposer une divulgation et en dicter les modalités. Suivant un mouvement de balancier, les conditions de divulgation de l’information protégée, au sein d’échanges informels, dans le cadre d’opérations de normalisation, ou dans une optique de libre mise à disposition, influencent à leur tour les libertés économiques qui s’en trouvent contraintes, renforcées ou renouvelées. Au regard de ces interactions constantes dessinant un cadre évolutif, il importe de s’interroger sur la réalité de l’autonomie de la volonté des opérateurs économiques dans la gestion de leurs informations protégées. / Possession and exploitation of information are essential to the development of the contemporary economy, making the identification as well as the protection of information permanent stakes for economic operators. But information is not always given the same value. Only those which are granted direct or indirect protection, and which give a competitive advantage are subject to close scrutiny by companies and competition authorities. In this context, economic freedoms, circumscribed by contractual freedom, freedom of enterprise and free competition, may in turn be considered as guide, a support or a limit to the disclosure of protected information. Justifying the lack of disclosure of some protected information, economic freedoms ensure the respect of trade secrets. Conversely, they may force the disclosure of protected information, and dictate the terms of this disclosure. Following a pendulum movement, the conditions for disclosure of protected information, in informal exchanges, in the framework of standardization operations, or in view of free provision, influence economic freedoms which in turn are constrained, reinforced or renewed by this operation. Following these constant interactions that draw on an evolving framework, it appears important to question the real autonomy of the economic actor’s will in the management of their protected information.