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This thesis draws on the theory and method of social ontology to explore why labour law struggles to provide for wage security and clarity of employment status today. It starts by exploring at a conceptual level the relationship between law and capitalism, before moving on to engage more specifically with the concept of the wage, situating the analysis in a theory of the wage's socio-economic function. The thesis understands the 'wage' as, initially, the market price of the commodity, 'labour power', which is exchanged in the labour market. As with any other 'price', the wage functions to coordinate decision making in the market. At the same time, however, the wage is also the cost of reproducing that commodity, a process which is not confined to the market but takes place in society more generally: this is the function of social reproduction. These two functions are not only conceptually and materially distinct; they are frequently in conflict. The price the market assigns to the labour commodity is not always, and not necessarily, that which is required to cover its costs of (re)production. The thesis shows that these functions of the wage find their expression in the various concepts the legal system uses to describe the payment made by employers to their workers. For example, the legal concept of the 'wage' corresponds closely to the economic idea of the wage as price, and the concept of 'remuneration' to the wage as the cost of social reproduction, shifting some of the social costs of employment onto the employer. How these conceptual tools are deployed, however, and thus how effectively these functions are performed in practice, depends on law's own view of its ontological status: that is, the implicit position that the legal system takes on what constitutes 'social reality' beyond the text of a particular case or statute, and thus its view of whether, and to what extent, legal concepts can shape, as well as respond, to it. The thesis shows that whether the legal system sees its concepts playing an active role in constituting social and economic relations, or whether it sees them as passively reacting to the 'demands' of a 'pre-constituted' economic system makes a difference to the effectiveness of law in practice. Understanding law's implicit ontology in this sense helps us to see why labour law struggles to provide for wage security and clarity of status. Thinking about law's relationship with social reality can thus make an important contribution to our understanding of the problems of low pay and unclear employment status today.

99 The Principle of Proportionality: Critique of Theoretical Standpoints and Its Relevance Abstract: A decision concerning a fundamental rights conflict needs to respect the principle of proportionality in order to be compatible with a constitutional order. The principle of proportionality obliges the court to adequately assess and weigh the conflicting fundamental rights or other constitutional principles in light of the particular facts. The proportionality of the decision is to be ensured by the so-called proportionality test. It consists of three steps: an assessment of the suitability, necessity and proportionality in a strict sense. The thesis The Principle of Proportionality: Critique of Theoretical Standpoints and Its Relevance describes the proportionality principle and the proportionality test in a specific legal- philosophical and legal-theoretical context. The first chapter introduces discursive theory as an important starting point for the rational application of fundamental right norms and the use of the proportionality test. For this purpose, it identifies the relationships between discourse, norms of justification and the proportionality principle. The second chapter of the thesis outlines, in relation to the existing approach of Czech legal theory, an alternative view of legal methodology...

La langue arabe est un des outils essentiels à l’analyse des données scripturaires à caractère juridique. C’est pourquoi les jurisconsultes musulmans ont développé dans leurs traités sur la méthodologie juridique, une linguistique qui n’a rien à envier à celle des grammairiens arabes classiques. Le "Muhtasar" d’ Ibn al- Hâğib est une des références en la matière. Ce travail vise d’une part, à déterminer le rôle de la langue arabe dans l’interprétation du Coran et de la Sunna. D’autre part, il tient à éclairer les procédés analytiques mis en œuvre par les usulistes dont ibn al- Hâğib en vue d’une analyse globale du discours. / The Arabic language is one of the main Tools to analyze oly legal elements. That’s why, the Muslim lawyers developed across their treatises about the legal methodology a part of linguistic that has nothing to envy to the classical Arabic grammar Works. The Ibn al- Hağib’s "Muhtasar" is one of the references in this field. This work aims to determine the Arabic language’s contribution in t e Koran and Sunna’s interpretation. On the other hand, it also holds to light up the analytic processes implemented by the usûl al-fiqh writers like Ibn al- Hâğib in scope to a global analysis of the speech.

Submitted by Maicon Juliano Schmidt (maicons) on 2015-04-01T15:50:11Z No. of bitstreams: 1 Rafael Tomaz de Oliveira.pdf: 1249853 bytes, checksum: 2118f3f943026ccb69acf5e2334dd9c7 (MD5) / Made available in DSpace on 2015-04-01T15:50:11Z (GMT). No. of bitstreams: 1 Rafael Tomaz de Oliveira.pdf: 1249853 bytes, checksum: 2118f3f943026ccb69acf5e2334dd9c7 (MD5) Previous issue date: 2013-03-19 / CNPQ – Conselho Nacional de Desenvolvimento Científico e Tecnológico / As presentes reflexões têm como objeto a decisão judicial e pretendem investigar as condições sob as quais se assenta uma decisão judicial. Vale dizer, pretende-se aqui dar conta daquilo que acontece e está implicado no momento em que uma questão jurídica é decidida. Pretende-se tomar o fenômeno da decisão judicial como objeto da análise para perguntar por aquilo que o sustenta e que está pressuposto na atividade do agente decisor. Quer-se saber se é possível afirmar a existência de um tecido básico que indique como os conceitos que são articulados e operacionalizados pelo autor de uma decisão jurídica podem produzir sentido. Essas questões colocam, no primeiro plano da análise, o problema da recuperação do sentido histórico e as possibilidades teóricas que nisso estão implicadas. As respostas a essas questões demandam a construção de ferramentas teóricas que permitam investigar o elemento da historicidade do sentido. Essa investigação se vale da hermenêutica produzida no século XX complementada pelo elemento epistemológico da história dos conceitos e da metaforologia para construir o seu quadro teórico de análise. Valendo-se desses instrumentos, a pesquisa procura apontar para o fato de que as abordagens que incorporam as bipolaridades tradicionais para retratar o problema da decisão, tais quais: universal-particular; direito-fato; lei-caso etc., acabam por eclipsar o verdadeiro elemento basal que sustenta a experiência jurídica e que emerge das configurações culturais e morais que compõem o horizonte de sentido da comunidade política. / These reflections have as object the judicial decision and intend to investigate the conditions under which a court decides. That is, we intend to give an account here of what happens and what is implicated when a legal issue is decided. It is intended to take the phenomenon of judicial decision as an object of analysis to ask for what sustains it and it is presupposed on the agent decider activity. We want to know if it is possible to affirm a basic fabric showing how the concepts that are articulated and operationalized by the author of a legal decision may make sense. These issues place in the foreground of the analysis, the problem of recovering the historical sense and the theoretical possibilities that are involved in it. The answers to these questions require the construction of theoretical tools that allow investigating the element of the historicity of meaning. This research makes use of hermeneutics in the twentieth century produced complemented by the element of epistemological history of concepts and metaforology. Making use of these instruments, the research tries to point out that the traditional approaches that incorporate traditional bipolarities to portray the decision problem, such as: universal-particular; law-fact, statute-case etc., end up eclipsing the true basal element that sustains the legal experience and that emerge from cultural and moral settings that makes up the horizon of sense of political community.

This essay proposes a conception of the general jurisprudence as a conceptual analysis aiming at inquiring the fundamental theoretical concepts of a given legal system. The author clarifies her proposal by analysing its key-terms, and, in particular, by explaining what should be the object of the general jurisprudence, in which sense it should be said “general”, what should be its methods, its epistemic status and its relations with related disciplines. / En este ensayo, la autora propone una concepción de la teoría general del derecho como análisis de los conceptos teóricos fundamentales de un ordenamiento jurídico. Tal concepción, que no se pretende exclusiva, si no que bien puede convivir con enfoques diferentes y diferentes modos de entender la disciplina, está articulada por medio de un análisis del significado atribuido a sus términos-clave, mediante el cual se intenta mostrar cómo ésta conciba al objeto de la teoría general del derecho, su carácter de generalidad, su estatus epistemológico y sus relaciones con las disciplinas afines.

This dissertation is the first ever written Institutional Ethnography (IE) of the Asignación Universal por Hijo para Protección Social, or "AUH" [Universal Child Allowance], Argentina's CCT (conditional cash transfer) program. CCTs are one of international development's favourite and fastest-growing anti-poverty initiatives. Through the AUH, the State transfers cash to the poor attaching certain conditions that refer to the health and education of their children. Most CCT programs target women, and the AUH is no exception, as the overwhelming majority of legal recipients of the AUH are poor mothers. CCTs have been praised for contributing to human capital accumulation and empowering women. Using IE, a feminist socio-legal methodology drawn from Canadian sociologist Dorothy Smith,† I conducted research with a total of fifty-eight informants: thirty-nine AUH recipient women - through in-depth semi-structured individual interviews, focus group discussions, and narrative photovoice - and nineteen professionals working at diverse corners of the AUH institution. I use the findings to answer two main questions: (1) What are AUH recipients' experiences with and attitudes toward the program? and (2) How do both State and non-State legal regimes work to influence the lives of the most vulnerable women in Argentina? In other words, how does the AUH play within a system of rules - formal and informal - that have traditionally exerted control over poor women? Following IE and Social Reproduction Feminism (SRF), I found that while the AUH program indicates women's decision-making roles within their families and communities, this policy initiative serves to entrench rather than rectify inequalities. The problematic that I have found through this study is administrative and obstetric violence against AUH recipient women. Discussion about the administrative and obstetric violence that AUH recipient women suffer while doing AUH work has remained at the margins of legal and social policy debates, generally underdeveloped in policy and scholarship conversations about the realities of Argentina's most vulnerable people. Recipient women depicted diverse acts of violence they suffered while doing AUH work: they were mistreated, dismissed, neglected, humiliated, and discriminated against by State agents; recipient women were treated as ignorant or infantilized; recipient women had their stipend partially stolen by bureaucrats; had to wait countless hours in unsafe conditions; were not heard by health actors when expressing concerns about their health; had no opportunity to give prior informed consent; and they faced barriers to accessing health services and contraception. I have found a disjuncture between women's lived experiences and the broader ruling relations that organize "AUH work." The findings show a disconnection between women's experiences of violence, bureaucratic actors' experiences and knowledge of the AUH, and a misalignment between bureaucrats' knowledge and the black-letter law. These disjunctures enable and facilitate violence against recipient women through fragmentation, invisibilization, rationalization, minimization, standardization, and objectification of women's experiences. In sum, the AUH facilitates violence against women and systematically obscures that violence. Following a legal pluralist approach, I show the complex role of the law: at times, it problematically excludes recipient women's actual experiences from the AUH legal framework; at others, it fails to protect recipient women against violence. I identify the formal legal regimes interacting and immersed in the AUH institution: human rights and constitutional law, administrative law, and the violence against women (VAW) legal framework. Despite an outstanding formal repertoire of rights, there is a gap between the formal laws and their effective translation into women's lives. The law is fragmented, complex, and sometimes contradictory. It cannot be limited to State-enacted formal laws; informal laws substantially impact people's lives, such as the rule to avoid retaliation from State actors by avoiding complaining. I argue that IE and legal pluralism can provide a more nuanced understanding of the law's complex institutional hierarchy and of the myriad ways by which recipient women's voices continue to be ignored and discredited within the law in the hope that the law can better respond (or at least stops interfering) with their needs. Ultimately, nothing less than the transformation of the socioeconomic order will achieve gender equality. Rather than "empowerment," we should strive toward emancipation, abolishing the structural colonial, patriarchal, and capitalist foundations of exploitation and oppression instead of integrating women into existing institutions and "empowering" them with shallow cash transfers.