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Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-06-14T12:36:45Z No. of bitstreams: 1 Fafadzi Akpene Agbe.pdf: 1069651 bytes, checksum: 4be093486e7e99aad7fa19c0b0e67ce5 (MD5) / Made available in DSpace on 2018-06-14T12:36:45Z (GMT). No. of bitstreams: 1 Fafadzi Akpene Agbe.pdf: 1069651 bytes, checksum: 4be093486e7e99aad7fa19c0b0e67ce5 (MD5) Previous issue date: 2018-04-13 / Conselho Nacional de Pesquisa e Desenvolvimento Científico e Tecnológico - CNPq / The main objective of this work is to study the conception of justice as fairness according to John Rawls in his work "The Theory of Justice". The analytical and continental aspects of contemporary Western philosophy in the philosopher's thinking show that it is precisely the defeated challenge of putting into dialogue both traditions that explain the impact of the work, in a way that will makes it possible to return some of the substantive issues in political theory. Thus the main result in this respect is the demand for social justice in the basic structures of societies concerned with the fate of the less fortunate. The principle of difference is the driving force of this demand / Esta dissertação tem como objeto de estudo a concepção de justiça como equidade de Jonh Rawls em sua obra Uma Teoria de Justiça. Constatando uma harmonização de aspectos das duas vias, analítica e continental, da filosofia ocidental contemporânea no pensamento do filosófo, a pesquisa chega à conclusão de que é justamente o desafio vencido de colocar em diálogo ambas as tradições que explica o impacto da obra de Rawls, tendo possibilitado a volta das discussões de questões substantivas em teoria política. Assim o principal resultado da pesquisa foi constatar a exigência de uma justiça social nas estruturas básicas das sociedades preocupadas com a sorte dos menos favorecidos. O princípio rawlsiano de diferença é motor desta exigência

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-07-25T11:55:07Z No. of bitstreams: 1 João Roberto Gorini Gamba.pdf: 1388908 bytes, checksum: a1aa5ab64c48bdcd98f07fb990d408a8 (MD5) / Made available in DSpace on 2018-07-25T11:55:07Z (GMT). No. of bitstreams: 1 João Roberto Gorini Gamba.pdf: 1388908 bytes, checksum: a1aa5ab64c48bdcd98f07fb990d408a8 (MD5) Previous issue date: 2018-05-29 / This thesis works with the concept of justification of the State, differentiating it from the legitimacy (empirical aspect) and legality (normative aspect) and seeks to verify the fulfillment of the justifying function of contractarianism and proceduralism models in the context of modernity and late modernity, respectively. To do that, it uses a historical-evolutionary approach to the problem of justification. Therefore, it verifies the insufficiency of contractarianism and proceduralism justifications, but not without first realizing a historical reconstruction of the problem, presenting the Aristotelian theory in antiquity, and the theological-religious, typical of the Middle Age, noting the need for a rationally structured justification for the political and legal order in modernity. In this context, contractarianism theories will be presented to fulfill this function and are analyzed here from their different formulations, from Thomas Hobbes to Immanuel Kant, through John Locke and Jean-Jacques Rousseau, verifying the importance of these theories for the configuration of Modern state. Then, it analyzes the overlapping consensus by John Rawls, the legitimation by procedure by Niklas Luhmann, and procedural theory of deliberative democracy by Jürgen Habermas, as they contribute to the problem of State justification and seek to give additional breath to the modern project. In the end, it concludes by the insufficiency of contractarianism and proceduralism models in their task of justifying the Modern State, which undermines the effectiveness of its legal system, especially with the advent of late capitalism, in which the problem of justification is aggravated by the advance of science and technique not only in productive models, but especially in politics with the denominated technocracy, in such a way as to affect the founding constructs of modernity, notably by reducing the participation of the individual in the productive system and in the democratic process, forcing us to rethink the typically modern forms of State and law in a moment of a possible inflection of modernity / Esta tese trabalha com o conceito de justificação do Estado, diferenciando-o da legitimidade (aspecto empírico) e da legalidade (aspecto normativo) e busca verificar o cumprimento da função justificadora dos modelos contratualistas e procedimentalistas no âmbito da modernidade e da modernidade tardia, respectivamente. Para tanto, vale-se de uma abordagem histórico-evolutiva do problema da justificação. Assim sendo, verifica a insuficiência das justificações contratualistas e procedimentalistas, mas não sem antes realizar uma reconstrução histórica do problema, apresentando a teoria aristotélica, na antiguidade, e as teológico-religiosas, típicas do medievo, anotando a necessidade de uma justificação racionalmente estruturada para a ordem política e jurídica na modernidade. Neste contexto, as teorias contratualistas serão apresentadas para cumprir com esta função e são aqui analisadas a partir de suas diferentes formulações, de Thomas Hobbes a Immanuel Kant, passando por John Locke e Jean-Jacques Rousseau, verificando a importância destas teorias para a configuração do Estado moderno. Em seguida, analisa o consenso por sobreposição de John Rawls, a legitimação pelo procedimento de Niklas Luhmann e a teoria procedimental da democracia deliberativa de Jürgen Habermas, na medida em que contribuem para problema da justificação do Estado e buscam dar fôlego adicional ao projeto moderno. Ao final, conclui pela insuficiência dos modelos contratualistas e procedimentalistas na sua tarefa de justificação do Estado moderno, o que abala a efetividade de sua ordem jurídica, especialmente com o advento do capitalismo tardio, em que o problema da justificação se agrava com o avanço da ciência e da técnica não só nos modelos produtivos, mas especialmente na política com a chamada tecnocracia, de tal modo a afetar constructos fundantes da modernidade, notadamente ao reduzir a participação do indivíduo no sistema produtivo e no processo democrático, forçando-nos a repensar as formas tipicamente modernas do Estado e do direito em um momento de possível inflexão da modernidade

學者研究中國上古時期政治思想，往往以漢武帝以後的儒家思想作為國家權力正當性的基礎，但是此理論的缺憾是，如果只以儒家思想作為國家意識形態的標誌，就難以解釋西漢武帝以前的國家權力正當性是如何運作的。其實早在作為中國最早期實行帝制的秦王朝，已憑著統一的法律標準與有利於專制王權實行管治的官僚機構，確立國家專制權力的基本模式。 / 本文試圖從儒法之爭的框架跳出來，從法律思想的角度，考察先秦至秦代的法律觀念、法律與國家官僚機構的關係及法律原則與「國家意識形態」的關係等議題。為了更貼近自秦至秦知識分子的「生活世界」，本文採用回到文本本身的研究方法，找出反映儒、道、法各家思想特徵的文本及其中的思想如何互相對話與融合，並從中探討戰國中後期至秦的知識分子與國家官僚對法律與政治觀念的表達，及其中的政治關懷。 / 本文將從法律思想與國家意識形態的角度，更緊密地考察法律觀念背後反映的政治權力意識，從先秦至秦「刑」、「法」的觀念與實踐的起源、秦國家法律標準、秦法律原則與官僚政治道德的關係三方面探討秦代國家專制權力的正當性基礎。 / Conventional studies on Ancient Chinese political thoughts consider Confusianism as the basis for legitimising the ruling of the state. However, this theory fails at explaining the period before Han Wudi(漢武帝) officially proclaimed the supreme status of Confusianism. As early as Qin Dynasty(秦朝), the state has established a centralised authoritarian government through its standardised legal practice and complex bureaucratic system. / Therefore, this study avoids the orthodoxy in explaining political thoughts with the struggle between Confucianism and Legalism and investigates the relationship of laws and the bureaucratic system as well as that of legal principals and state ideology in pre-Qin and Qin period. By scrutinising the contemporary thoughts through careful textual analysis, this study expounds the encountering of Confusianism, Daoism, and Legalism and also their synthesis. Upon this, it moves on further to examine how the literati and the bureaucrats in later Warring-States period(戰國時代) to Qin Dynasty delineated laws, political beliefs, and the political concerns therein. / From the perspective of state ideology, this study aims at analysing the conception of political power as reflected by the legal thoughts in three dimensions: 1) the origin and practice of "xing"(刑) and "fa"(法) in Pre-Qin and Qin period; 2) the historical image and the relationship between legal standard and state ideology as embodied in the reform of Shang Yang(商鞅變法) in the Qin state(秦國); and 3) the legal principles and the political morality of the state bureaucrats in the later Warring-States period and Qin Dynasty. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / 余嘉浩. / Thesis (M.Phil.) Chinese University of Hong Kong, 2015. / Includes bibliographical references (leaves 195-204). / Abstracts in Chinese and English. / Yu Jiahao.

Contemporary conflicts over such issues as abortion, same-sex marriage, circumcision, and veiling highlight the need for renewed reflection on the justification of religious norms and authority. While abstract investigation of these questions is necessary, inquiry into them is not foreign to religious traditions. Philosophical engagement with these traditions of inquiry is both intellectually and practically advantageous. This does not demand, however, that these discussions be conducted within a discourse wholly internal to a particular religious tradition; dialogue between a religious tradition and philosophical reflection can be created that is mutually beneficial. To that end, this dissertation explores a central issue in philosophy of halakha (Jewish law): the relation between the justification of halakhic norms and halakhic-legal practice. A central component of philosophy of halakha is the project of ta'amei ha-mitzvot (the reasons for the commandments). Through such inquiry, Jewish thinkers attempt to demonstrate the rationality of Jewish religious practice by offering reasons for halakhic norms. At its best, it not only seeks to justify halakhic norms but also elicits sustained reflection on issues in moral philosophy, including justification and normativity. Still, there is a tendency among its practitioners to attempt to separate this project from halakhic-legal practice. Legal practice is thus isolated from philosophical reflection, and the reasons for the norms do not guide their application. Ta'amei ha-mitzvot therefore also provokes queries in legal philosophy concerning the relation between normative and legal justification. This study explores the relation between the justification of halakhic norms and halakhic-legal practice in modern Jewish thought by placing it into dialogue with both moral and legal philosophy. This occurs in two stages: First, the philosophies of halakha of three influential twentieth-century Jewish thinkers, Yeshayahu Leibowitz (1903-1994), Joseph Soloveitchik (1903-1993), and Eliezer Berkovits (1908-1992) are examined and critically assessed. It is shown that despite the denials of Leibowitz and Soloveitchik, all their accounts of the reasons for the commandments influence their approaches to halakhic-legal practice; they each combine a foundationalist approach to justification with skepticism about the practical normativity of reason; and none of them adequately grounds halakhic-legal authority. However, their skepticism is based on unduly constricted conceptions of reason and untenable alternative sources of normativity, such as will, metaphysics, or revelation. Second, through engagements with the work of Jürgen Habermas and Joseph Raz an alternative to their accounts of the justification of halakhic norms and authority is developed. This alternative is described as critical philosophy of halakha, for it does not attempt to justify halakhic norms or authority but articulates the rational constraints on, and practical consequences of, their justification. In terms of justification, this account is contextualist, that is, pragmatic and intersubjective, rather than foundationalist, and it is responsive to failures of justification. Correspondingly, it entails pluralism yet avoids moral and epistemic relativism. In terms of authority, this account is instrumentalist and thus mediates between normative and legal justification without reducing the latter to the former. Consequently, authority is circumscribed as opposed to total. Critical philosophy of halakha therefore represents a method whereby the modern religious believer may hold herself accountable to both her faith and other individuals.

The dissertation provides a systematic analysis of global obligations relating to a decent standard of living. Global obligations represent a type of extraterritorial obligations, which does not presuppose any causal link between acts/omissions of global actors and individuals’ inability to enjoy their human rights. Global obligations are a key legal tool for empowering the most vulnerable individuals, promoting social justice, and reducing extreme poverty and inequality worldwide. Despite their importance, global obligations have not yet received adequate legal recognition, regulation, and realization. They are the least elucidated and the most unfulfilled type of extraterritorial obligations. Many scholars and practitioners highlight a major discrepancy between globalization and contemporary human rights law: socio-economic rights obligations are still often considered to be applicable only within states’ borders (if at all); obligations of intergovernmental organizations and non-state actors are frequently believed to be exhausted by negative duties to respect human rights; and contemporary mechanisms of the implementation of global obligations (for instance, obligations of development cooperation or international assistance) are insufficient, inefficient, and often violate human rights. In this context, the justification, conceptualization, and furtherance of global obligations is a task of paramount importance. The primary goals of the dissertation are, therefore: first, to justify global obligations as human rights obligations of multiple actors; second, to analyze their nature, status, types, content, scope, right-holders, and duty-bearers; and third, to examine contemporary mechanisms used for the realization of global obligations and suggest some measures for their improvement. The research is aimed at proposing a coherent and plausible framework for a reconstruction of human rights law regulating global obligations. The dissertation intends to uncover the interrelation between philosophical discourse, normative legal order, and legal practice. On the one hand, it demonstrates how contemporary theories of global justice can contribute to the justification, conceptualization, allocation, and implementation of global obligations. It translates philosophical ideas into the language of law and incorporates empirical findings in relation to global obligations. On the other hand, it explores whether human rights theory and practice are capable of, and essential to, solving the most pressing issues of global justice, extreme poverty and inequality alleviation. In particular, it shows that the existing international soft and hard law instruments, customary international law, and human rights practice also give an important framework for the legal acknowledgement, specification, and attribution of global obligations to various actors. The dissertation takes a form of three Articles. The first Article provides a legal-philosophical justification for and outlines a legal conception of global obligations of multiple actors relating to a decent standard of living. The second Article undertakes a legal analysis of global obligations for sustainable development. The third Article explores the legal theory and practice of global obligations to assist in the realization of socio-economic rights.

The aim of this study is to suggest, by selective example, a form of jurisprudence which relates to and may have a salutary effect upon law and justice in post-apartheid South Africa. I describe three ways in which South Africa can be regarded as negotiating a transition - from apartheid to post-apartheid, from modem to post modern and from colonial to postcolonial. I argue for a jurisprudence which directly concerns itself with each of these three overlapping and mutually informing modes of transition: an approach to law and justice which is post-apartheid, postmodem and postcolonial. Since my account of law and justice engages with all three transitions, it has the potential to bring about a positive transformation in the conservative legal theory currently in favour with the judiciary. I suggest that the positivist approach followed by the judiciary during apartheid led in most cases to a removal of ethics from the legal universe and a diremption of law and justice. I contend further that the current approach of the judiciary still bears the hallmarks of positivism, in its continued adherence to the 'literal approach' to constitutional interpretation and its misunderstanding of the role of morality in adjudication. I argue that positivism, with its potential to produce injustice, should be abandoned in favour of an approach based on a postmodem epistemology which incorporates a concept of justice which is both substantive and avoids the pitfalls of natural law: the historical exhaustion of classical teleology and the failure of religious transcendence to command widespread respect. The postmodem theorists I draw on, Michel Foucault, lacques Derrida and lean-Francois Lyotard, cumulatively point to the fai lure of the Enlightenment to ground legal practice upon the universalising faculty of reason. Postmodem jurisprudence. informed by postcolonial theory, postulates justice as an ethic of alterity and is able to reintroduce ethics into law in a manner which avoids the critique of Enlightenment epistemology. Having set out the jurisprudential views of these theorists, I turn to the activity of constitutional interpretation to demonstrate the way in which the judiciary's current approach to interpretation could be positively transformed through the introduction of interpretative techniques related to poststructuralism and specifically deconstruction. I argue that interpretation is an activity necessarily informed by values and that the indeterminacy of the language of the Constitution provides the interpreter with choice. Provided the choice is ethically motivated, interpretation is a transforrnative activity. Having concluded the expository section of this dissertation, I provide a close reading of two Constitutional Court judgements, Azanian Peoples Organisation (AZAPO) v President of (he Republic of South Africa and S v Makwanyane and Another. These judgements, decided under the interim Constitution, are arguably the most important judgements of the Constitutional Court to date. They represent sites of the judiciary's internal struggle to respond to the requirement for a new epistemology and practice of interpretation, which provide the means to adjudicate justly and also suggest ways in which to justify its decisions. My study is largely restricted to these two cases, and although I refer to other cases for their bearing on particular issues, I do not aim at a comprehensive survey of the Constitutional Court's record to date. Nevertheless. this study concludes with some provisional remarks about the record of the Constitutional Court since its inception and suggests possible ways in which the jurisprudence I have argued for may be pursued in furtherance of justice. / Theses (M.A.)-University of Natal, Durban, 2000.

This thesis outlines the guiding principles of obligations law in Quebec, more particularly its contractual component. We are trying to establish a model of analysis that will seek to define and legitimize the precepts of justice that should guide judicial intervention in contractual relationships. / As part of this study, we identify certain principles that are fundamental in the theory of contract: notably, commutative justice, contract commutability, subjective rights and legitimate interests. We establish the relationship between each of these basic concepts to conclude that to be consistent with the principles of commutative justice, contract commutability shall not be based on a monetary equivalent of benefits but on the respect of a standard based on peaceful coexistence of rights and interests. It consists therefore of a normalization of contractual relations which ceases to be purely subjective. This finding leads to several inferences: the addition of the circumstances of the execution and termination of the contract, rather than simply its creation, to the possibilities of judicial review, a better legitimization of such review and the recognition of the principle of good faith as a privileged instrument for a fairer contractual commutability. Moreover, the last part of our thesis is devoted to examining judicial practice interventions based on good faith in order to illustrate the principles expressed in the study.

This thesis examines the role of emotion in the criminal law. It identifies the current understanding of emotion in the law, and challenges this understanding as it is revealed in the rules of criminal liability. It offers a new approach to understanding emotion which has important implications for the grounds of legal knowledge, the structure of the rules of criminal liability, and the process of judgment. Chapter One reviews theoretical approaches to understanding emotion in philosophy, psychology and law. The chapter introduces a number of theoretical approaches to analyzing emotion, focusing particularly on the development in the understanding of the relationship between emotion and reason. Chapter Two examines models of moral and legal responsibility to identify their implicit understanding of emotion. Chapter Three focuses on the role of emotion in the rules of criminal liability, and, in particular, in the criminal defences of provocation, duress and self-defence. The law understands emotion to be an entity explainable in terms of the 'mechanisms' of'cognition' and 'affect' which underpin it. The chapter argues that the law adopts a different and conflicting understanding of these mechanisms in the rules of criminal liability, and that these differences have important normative implications. Chapter Four challenges the grounds of knowledge upon which assessments of criminal liability are based. Emotion becomes a metaphor for the need to reconceive the rules of criminal liability and the process of judgment. The chapter adopts a social constructionist approach to understanding emotion. Using this approach, it reassesses the role of emotion in the criminal defences of provocation, self-defence and duress, and explains the process of judgment as an emotional phenomenon. The thesis concludes that a constructionist approach to understanding emotion is well suited to the assessment of conduct in its spatial, historical and cultural context; and for this reason ought to be emphasized in the legal assessment of liability and punishment.