Made available in DSpace on 2016-03-15T19:35:26Z (GMT). No. of bitstreams: 1 Aparecida Dinalli.pdf: 3549911 bytes, checksum: b1e85dd3d3fdcec495aeacff6cc2a5d8 (MD5) Previous issue date: 2014-08-28 / In this research, we studied the nature of the politic-institutional of the captainship, in the early Portuguese colonization in Brazil. We analyzed the conception Constitution and its semantic evolution and juridical-history within the modern political history. The idea of the written constitution, instrument of political institutionalization, is a cultural fact and therefore historical. The Constitution must be inspired in the social conditions and in the historical traditions of the people to whom they are destined. From the reading and analysis of the granting letters and captainship charters, we juridical system on which the colonization was established in the oversea period from 1532/49. We analyzed the contents of the Captainship charters and found that before the endowment letters of the British colonies in America, in which some authors foresee the beginning of the Constitution, the roots of our political constitution. The Granting Letters by the structural character of their forms, by the definition of attribution and powers, by fiscal identification, by the administrative forms, and by proposition of laws and duties of the dwellers worked as a basic document, a statute of Brazil in that time. The characters might contain disposition on taxes in general, on penalties to the various types of crime or contraventions, the military duty the civil freedom and patrimonial warrants; the utilization of forests and pasture, the onus and from of judicial proofs in conclusion, the charters were true Constitutional Letters . In the Gronting Letters and Captainship Charters , we find the constitutional roots of Brazil. / Nesta pesquisa, estudamos a natureza político-institucional das Capitanias, nos primórdios da colonização portuguesa no Brasil. Analisamos o conceito no vocábulo constituição , sua evolução semântica e histórico-jurídica dentro da história política moderna. A ideia de Constituição escrita, instrumento de institucionalização política, é um fato cultural e, portanto, histórico. As constituições devem se inspirar nas condições sociais e nas tradições históricas do povo para o qual elas se destinam. Da leitura e análise das cartas de doação e dos forais das Capitanias, conhecemos o regime jurídico sobre o qual a colonização se estabeleceu no Ultramar no período de 1532/49. Analisamos o conteúdo dos forais das capitanias e demonstramos que neles se encontram, anteriores às cartas de direitos das colônias inglesas da América, em que alguns autores entreveem embriões de constituição , as raízes de nossas constituições políticas. A carta de Doação , pelo caráter estrutural de suas normas, pela definição de atribuições e poderes, pela discriminação fiscal, pelas normas administrativas e pelo enunciado de direitos e deveres dos moradores funcionou como documento básico, em estatuto do Brasil nascente. Os forais podiam conter disposições sobre os impostos em geral, sobre multas para os diversos tipos de crimes e contravenções; o serviço militar; as liberdades civis e garantias patrimoniais; o aproveitamento de matas e pastagens; o ônus e forma de provas judiciais em conclusão, os forais eram verdadeiras cartas constitucionais . Nas Cartas de Doações e Forais de Capitanias encontramos as raízes constitucionais do Brasil.

Made available in DSpace on 2016-08-18T12:54:29Z (GMT). No. of bitstreams: 1 DISSERTACAO_GUSTAVO ANDRE DOS SANTOS.pdf: 679748 bytes, checksum: 9c99eb7bf238a3f423e6c5d8d418dfb6 (MD5) Previous issue date: 2015-01-19 / This theses aims to analyze the inter-institutional dialogue from the complex relationship between law and politics. It starts with an understanding of deliberative democracy from the tension between popular sovereignty and fundamental rights, as is proposed by the philosopher Jürgen Habermas. Therefore, it is sought to reconstruct the Brazilian constitutional history and strengthening the role of the judiciary over time, pointing out the problems that this stance produced in relations between the powers and the assumption of responsibilities by the Executive and the Legislature and the civil society, about the effectiveness of the Constitution. The rhetoric of "guardian of the Constitution" of the Supreme Court is analyzed in the broader context of democracy and the expansion of this apex body of the Judiciary. It points out how the enhanced model of judicial review into force accentuates one pole of the tension between public and private autonomy. Finally, it is sought to demonstrate that the recognition of a dialogical perspective in the constitution reading can contribute to increasing the legitimacy of the current judicial review, particularly in the complex relationship between constitutionalism and democracy, and foster the development of a feeling constitutional in Brazilian society. / O presente trabalho objetiva analisar o diálogo interinstitucional a partir da complexa relação entre direito e política. Parte-se de uma compreensão de democracia deliberativa no cerne da tensão entre soberania popular e direitos fundamentais, tal qual proposta pelo filósofo Jürgen Habermas. Diante disso, busca-se reconstruir a história constitucional brasileira e o reforço do papel do Poder Judiciário ao longo do tempo, apontando os problemas que essa postura produziu nas relações entre os poderes e na assunção das responsabilidades por parte do Executivo, do Legislativo e pela sociedade civil, quanto à eficácia da Constituição. A retórica do guardião da constituição é objeto de análise no contexto mais amplo da redemocratização e da expansão dos poderes do Supremo Tribunal Federal. Aponta-se como o modelo reforçado de controle de constitucionalidade em vigor acentua um dos polos da tensão entre autonomia pública e privada. Por fim, busca-se demonstrar que o reconhecimento de uma perspectiva dialógica na leitura da constituição pode contribuir para o aumento da legitimação do controle de constitucionalidade vigente, sobretudo no âmbito da complexa relação entre constitucionalismo e democracia, além de fomentar o desenvolvimento de um sentimento constitucional na sociedade brasileira.

[pt] O presente trabalho pretende compreender as origens e os fundamentos do ativismo jurisdicional do Supremo Tribunal Federal, que tem sido intensificada desde a Emenda Constitucional 45/ 2004. Relacionando-o ao contexto das tensões entre constitucionalismo e democracia, ficou demonstrando que a consolidação de um constitucionalismo democrático, que levou à expansão do poder judicial de maneira global, apresenta peculariedades no caso brasileiro, cujo processo historiográfico ainda revela a existência de estruturas arcaicas e o desenvolvimento de uma constitucionalização simbólica. A partir dessa análise histórica e teórica, é mostrado como no Brasil, em vez de um movimento ativista de reforço de direitos humanos pelo STF, a própria corte alarga seus limites jurisdicionais. Reconhece-se que a judicialização de relações sociais e políticas trouxe o judiciário para a cena democrática, mas se discute a legitimidade de se substituir a legislação pela jurisdição no papel de decidir questões morais de uma sociedade. Com base em teorias jurídicas contemporâneas, explicita-se porque há descrença na dignidade da legislação e uma preferência pela hegemonia judicial. Argumentos em favor da exclusividade ou superioridade do Judiciário em questões constitucionais são testados. Ademais, enfatiza-se que a democracia envolve conflito e que o direito pode oferecer uma arquitetura constitucional de interação entre os órgãos estatais sem menosprezar o papel da política na construção da realidade. / [en] This work aims to understand the origins and grounds of Supremo Tribunal Federal´s jurisdictional activism, that has been increased since Emenda Constitucional 45/2004. By relating it with the context of tensions between constitutionalism and democracy, it has been demonstrated that the consolidation of a democratic constitutionalism, which has taken to the global expansion of judicial power, has special features in Brazil, whose historiography process still reveals the existence of archaichs frameworks and the development of a symbolic constitutionalization. From this historical and theoretical analysis, it is showed how in Brazil, instead of taking place an activist movement of strengthening human rights by STF, the court itself extends its jurisdictional limits. It is acknowledged that the judicialization of social and political relations brought the judiciary to democratic scene, but it is discussed the legitimacy by replacing legislation for jurisdiction in the role of deciding moral issues from a society. Based in contemporary law theories, it is explained why there is a disbelief in the dignity of legislation and a preference for the judicial hegemony. There have been tested arguments in favor for the exclusiveness or the superiority of the Judiciary in constitutional issues. Furthermore, it is emphasized that democracy involves conflict and that law can offer a constitutional architecture of interaction between state departments without despising the politics´ role in building the reality.

Doctor Legum - LLD / The history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. w leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on he rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner. / South Africa

Doctor Legum - LLD / Within the context of South Africa‘s diverging religious, cultural and social backgrounds, new questions on the nature of a multicultural society are raised from the perspective of human rights. The universality and indivisibility of human rights are challenged by this diversity and consequently implies that standards, concepts and structures for implementation have to be reconsidered. International and national standards are being (re)interpreted and attention is not only focused on the contents of the norms but on the limitations imposed thereupon. The debate on whether limits should be set in permitting or accommodating cultural or religious pluralism is becoming extremely relevant. The manner in which these questions are responded to is even more prominent in the light of our history of apartheid which has disregarded respect for religious and cultural diversity. In the scope of this research emphasis will be placed on the right to freedom of religion and in particular the limitation of the right to religion in an attempt to balance conflicting rights and accommodates religious diversity. The right to freedom of religion albeit constitutionally entrenched is subject to reasonable and justifiable limitations. However, no clear guidelines have been formulated on the criteria for limiting the right to freedom of religion. The main aim of this research is to find guiding criteria to facilitate the imposition of limitations on the right to freedom of religion. The limitations of the right to freedom of religion are interrelated with the following research questions: Firstly, the definition afforded to the right to freedom of religion in accordance with national and international standards; secondly, the relationship between culture and religion and any interconnection that exists between these rights. This is followed by the influence of the particular value framework or normative commitments f the judiciary on the interpretation of the right to religion, as well as the relationship between the state and religion. The above issues will be researched both on a national and an international level. The aim is to conduct research that will build on an appreciation of the guidelines that should be employed in ensuring the protection of the right to freedom of religion. To this end comparisons will be drawn with other legal systems, which on the one hand acknowledge the protection of the right to freedom of religion and on the other hand have to find ways in which the right can be balanced in the event of conflict. It is envisaged that the research of the criteria imposed on the limitation of the right to religion both on a national and an international level will assist in suggesting criteria that will influence scholarly debate on the topic. In addition that this debate will allow for the formulation of a transformative approach within the South African context that sanctions the celebration of diversity in all its aspects and in particular the right to freedom of religion. / South Africa

La thèse examine les fondements de la légitimité des décisions démocratiques et interroge la nature de la démocratie comme régime politique. Elle prend son point de départ dans deux questions : 1° qu'est-ce qui confère à la décision démocratique sa légitimité ? 2° une décision doit-elle être démocratique pour être légitime ? Il s'agit de dégager les différentes manières de penser la légitimité des décisions politiques à l'intérieur du régime démocratique et, à partir de l'analyse de leurs limites respectives, de suggérer une conception duale de la légitimité qui vise à concilier les éléments entrant en tension dans les autres conceptions. Les conceptions procédurales sont incapables de faire droit à la possibilité que l'injustice de décisions populaires sape leur légitimité. À partir des figures de l'expert et du juge, on suggère que les approches substantielles risquent pour leur part d'imposer à la pratique démocratique des exigences extérieures à elle et qu'elle n'a pas les moyens de produire. Il s'agit alors de penser les conditions d'un constitutionnalisme démocratique, opérant une conciliation entre les exigences procédurales et substantielles de la légitimité. Envisager la démocratie dans sa durée permet de concevoir qu'elle se découvre à elle-même ses propres normes, en un exercice continu d'approximation et de perfectionnement. Cette hypothèse rattache le constitutionnalisme démocratique à une conception épistémique de la démocratie selon laquelle, sous certaines conditions contraignantes, les procédures d'autodétermination inclusive et égale tendent, plus sûrement que d'autres méthodes de gouvernement, à produire des choix collectifs substantiellement justes. / This thesis aims at examining the foundations of legitimacy for democratic decisions and hence at elucidating the nature of democracy as a political regime. Two questions are at its core. First, what makes a democratic decision legitimate? Second, must a decision be democratic to claim legitimacy? This work presents different accounts of legitimate decisions within the democratic regime. In light of their respective limits, it defends a dual conception of legitimacy that aims at reconciling, under specific conditions, the components that are in tension with one another in competing conceptions. I show that procedural conceptions are unable to account for the idea that the injustice or inanity of popular decisions might undermine their legitimacy, and that they result in a logical deadlock. Focusing on experts and constitutional judges, I suggest that substantive accounts tend to impose extrnal standards on the democratic process that it cannot generate on its own. I then introduce the idea of democratic constitutionalism and argue that procedural and substantive requirements for legitimacy may be reconciled within it. Democratic constitutionalism allows one to view democracy as discovering its own norms over a long-tem process of approximation and development. As such, it can be linked to an epistemic approach to democracy, according to which, under some restrictive conditions, the participative, inclusive and egalitarian procedures that democracy distinctively relies on tend to result in collective choices that are substantively more just than in other regimes.

The underlying premise explored is whether the right to gender equality as interpreted and imposed within the confines of dominant western ideologies of liberal legalism could create the space for meeting the particular needs of (South) African women and men who wish to live out their dreams and desires differently. Modernist discourses mask the political, social and economic power of law and are crucial for the maintenance of the status quo. This adherence to formal rules, extant legal texts and a legalistic culture is violently exclusionary and thus it is necessary to enter into critical discourses that lead to transformative jurisprudence and thought. Different voices have been silenced by these ideologies and it is essential that the stories of women and other outsiders are listened to in order to (re)introduce new futures and new possibilities to South Africans struggling to find a home for themselves in the post apartheid context. The recognition of more ethical approaches to law creates the space to move beyond liberal legalism to post liberal interpretations of the law, the Constitution and the right to gender equality. I therefore focus on exploring the inter relationships between the ethic of care, ethical feminism, ubuntu, and storytelling, which may render judg(e)ments less rigid and exclusionary, and make it more possible to ensure that we can ‘do things a different, a better, way’. Since 1994 the Constitutional Court has formulated a substantive test for equality infringements. This approach, although widely supported, continues to ignore the contextuality of situations and narratives. For this reason I submit that ethical feminist discourses and the insistence on attention to minor, marginal and subversive narratives can teach us much about ourselves and those that we deem to be 'different' from ourselves. Adopting a 'minor' jurisprudence such as the jurisprudence of care formulated in this thesis allows us to reconsider what is and to dream of what is yet to be. In such a way, sites of (legal) resistance are created and maintained, where the 'feminine' (as the beyond, and not 'lack') operates as a locus of change. The equality courts created by the Promotion of Equality and Prevention of Unfair Discrimination Act could be utilised as spaces of non violent and ethical judgment where the other before the law is seen as unique, considered with care, and thus freed from oppression. The aim of this research is not to conceptualise and categorise a new metanarrative or meta jurisprudence, but to introduce to the reader other ways of listening, seeing and being ways which are less violent, less exclusionary, and more accommodating of difference and diverse experiences of oppression and subordination. Furthermore, the aim is to challenge current legal traditions and to develop new thinking around an indigenous and ethical interpretation of gender equality. Copyright 2005, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. Please cite as follows: Bohler-Muller, N 2005, Developing a new jurisprudence of gender equality in South Africa, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-06152006-123856 / > / Thesis (LLD)--University of Pretoria, 2007. / Jurisprudence / Unrestricted

This research explores the implications of the distinction between transactional and relational understandings of the Numbered Treaties, negotiated by Indigenous peoples and the Dominion of Canada from 1871-1921. It deconstructs representations of the Numbered Treaties as “land transactions” and challenges the associated forms of oppression that emerge from this interpretation. Drawing on oral histories of the Numbered Treaties, it argues instead that they established a framework for relationship that expressly affirmed the continuity of Indigenous legal and political orders. Further, this dissertation positions treaties as a longstanding Indigenous political institution, arguing for the resurgence of a treaty-based ethic of relationality that has multiple applications in the contemporary context. It demonstrates how a relational understanding of treaties can function as a powerful strategy of refusal to incorporation within the nation state; arguing that if treaties are understood as structures of co-existence rather than land transactions, settler colonial assertions of hegemonic authority over Indigenous peoples and lands remain illegitimate. Furthermore, it examines how a relational orientation to treaties might inspire alternatives to violent, asymmetrical, and hierarchical forms of co-existence between humans and with other living beings. To this end, it takes up the potential for treaties to inform legal and political strategies that are reflective of Indigenous philosophies of relationality, providing applied examples at the individual, intrasocietal, and intersocietal levels. / Graduate / 2018-12-18

Deliberative democrats have argued that democracy requires citizens to seek consensus, using a familiar style of principle-based moral argument. However, critics like Iris Young object that deliberative democracy’s favoured model of reasoning is inadequate for resolving deep value conflicts. She and others have suggested that the aim of improving understanding across political differences could be achieved if our conception of legitimate democratic discourse were broadened to include a significant role for narrative. The question is whether such a revision would amount to abandoning the deliberative democratic goal of seeking reasonable resolutions of value conflict. This thesis argues that a narrative approach to deliberative democracy can realize its commitment to reasoned justification, while preserving the significance of differing perspectives and promoting mutual understanding. The narrative-contextualist approach is developed and illustrated with reference to public debate over issues such as cultural accommodation and historical justice.

Le constitutionnalisme révolutionnaire en France et en Chine est enraciné profondément dans l’histoire pré-moderne. La Révolution de 1789, ainsi que les trois Constitutions consécutives, en 1791, 1793 et 1795, ont combiné la « Constitution » et la « révolution » d’une façon sans précédent. Une logique semblable s’expose dans le parcours historique de ces deux pays. La Déclaration de 1789 et la Constitution de 1791 ont ouvert la voie vers un futur idéal, qui fut bientôt désenchanté par les conflits réels, surtout par la lutte entre l’autorité royale et le pouvoir législatif. De même, après la fin de la dynastie en Chine, on a aperçu également le conflit entre les pouvoirs exécutif et législatif, par lequel la « Première République » a été conduite dans une impasse. Au fur et à mesure de la turbulence de la Révolution, on assiste à la succession de plusieurs textes constitutionnels des deux côtés, qui reflètent la ressemblance non seulement entre les girondins et le Kuomintang, mais aussi entre les Montagnards et le Parti communiste chinois. Inaugurés semblablement par un coup d’État, les régimes « thermidoriens » ont été mis sur pied tant en France qu’en Chine. La Constitution de 1795 a tenté de maintenir le pouvoir aux mains des thermidoriens pour éviter la nouvelle dictature, mais sans succès. Au contraire, le régime communiste chinois s’efforce également de contrôler le pouvoir, avec succès, grâce à l’institution révisée selon la circonstance. Ainsi, compte tenu du rôle du Parti, le processus du constitutionnalisme se présente plus étendu en Chine. Pour ces deux pays, le constitutionnalisme révolutionnaire révèle effectivement le destin commun dans l’ère de modernité. / The revolutionary constitutionalism in France and in China is deeply rooted in the pre-modern history. The Revolution of 1789 and the three consecutive Constitutions in 1791, 1793 and 1795, combined the "Constitution" and the "revolution" an unprecedented way. The same logic is exposed in the historic journey in France and in China. The Declaration of 1789 and the Constitution of 1791 have paved the way toward an ideal future, which was soon disillusioned by the real conflicts, especially the struggle between the royal authority and the legislature. Similarly, after the end of the dynasty in China, we also saw the conflict between the executive and legislative branches, by which the "First Republic" has been led to an impasse. As the turbulence of the Revolution went on, several constitutions of both sides have been promulgated, which reflect the similarity not only between the Girondins and the Kuomintang, but also between the Montagnards and the Chinese Communist Party. Similarly resulted by a coup d’etat, the "Thermidorian" regime was established in France and China. The Constitution of 1795 sought to maintain the power in the hands of the Thermidorians to avoid new dictatorship, but without success. Instead, the Chinese Communist regime is also trying to control the power, successfully, by means of the constitution revised according to circumstances. Thus, given the role of the Party, the process of constitutionalism appears more dimensions in China. After all, for both countries, the revolutionary constitutionalism actually reveals the common destiny in the era of modernity.