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Thesis (M.A.)--Guo li zheng zhi da xue, 1972. / On double leaves. Includes bibliographical references (leaf 56).

During the seventeenth and eighteenth centuries, the inhabitants of some parts of Europe and the North American colonies were confronted with proto-state institutional arrangements. In certain cases, they responded ambivalently. That ambivalence is at the heart of what I will call the 'limited government tradition'. The tradition's adherents thought that long historical experience, not to mention the events of their own times, provided ample evidence of the corrupting effects of power on those who wield it. Power-holders, left to their own devices, are likely to succumb to the temptations of power by exercising it arbitrarily. Where they are able to do so comprehensively and systematically, the upshot is tyranny. How, then, to ensure that state power is constituted in a manner that is inhospitable to tyranny? The tradition envisaged a range of measures, including a distinctive vision of 'the Rule of Law'. The Rule of Law would both define and enforce certain limits on state power. This study argues that the tradition's hostility to political absolutism is based on moral foundations which apply with equal force to economic power. The tradition ought to examine the modern constitution of economic power to determine whether it is hospitable to arbitrariness and tyranny. If such an examination is undertaken, we learn that modern economic power poses the kind of moral dangers that the tradition's Rule of Law project is designed to combat. However, the tradition assumes that it need not treat economic power as even a potential target of the Rule of Law. I will call that assumption the 'Consensus'. This study's first major aim is to explain the origins and stubbornness of the Consensus. Its second major aim is to persuade readers that the Consensus is mistaken: the tradition must regard economic power as, at least, a potential target of the Rule of Law.

A presente pesquisa busca analisar sob o ponto de vista ético as relações contratuais contemporâneas. Este trabalho inicia com o estudo do instituto do contrato, traçando uma linha de tempo desde a origem do contrato no Direito Romano até os tempos Modernos. Desse início entre os romanos interessou-nos para os fins perseguidos nesta Dissertação o modo como foi então tratada a questão da capacidade das partes contratantes. Na sequência, no período medieval a ideia que nos pareceu mais relevante para o esboço da história da teoria dos contratos foi a introdução do princípio da boa-fé. Já no período moderno a contribuição destacada foi a consagração do dogma da autonomia da vontade. Na sequência, a pesquisa procura demonstrar o declínio das formas de contratações consagradas no Direito Contratual Clássico, pois com o surgimento da nova sociedade de consumo massificada e o correspondente imenso incremento das necessidades sociais e econômicas de distribuição de bens e serviços, não foi mais possível que as contratações fossem baseadas na vontade individual, pelo menos não no sentido estrito e clássico da expressão, visto que não havia mais como compatibilizar o conceito pleno de manifestação da vontade individual, que pressupõe o domínio cognitivo pleno do objeto da contratação, com a realidade dos novos padrões de interação social criados pela economia contemporânea. Nesta linha, a pesquisa buscou demonstrar como são uniformemente aceitos pelo incontável número de aderentes que constituem as outras partes, homogeneizadas estas por múltiplas formas de adesão padronizadas, entre elas, as mais recentes, por meio da tecnologia informatizada. O trabalho pretende desenvolver uma reflexão ética sobre as formas de contratação em larga escala, feitas através desses instrumentos de adesão, cada vez mais complexos em sua forma e técnica, em que o Estado, embora insuficientemente, tutela o indivíduo, reconhecendo-o como vulnerável nessas contratações. Busca-se o entendimento do conceito de capacidade na atualidade, bem como dos limites em que o indivíduo exerce sua liberdade de escolha e autonomia nesses atos. A pesquisa busca demonstrar como nas contratações contemporâneas o princípio da boa-fé deixou de ser um “standard” das relações negociais, visto que a grande maioria dos contratos da atualidade não contempla o real interesse da parte vulnerável. Por fim, o presente trabalho tenta demonstrar o caráter parcial e, por isso, insuficiente das medidas tomadas para dar solução a essa dificuldade através das leis e códigos que regulam e que, na maioria das vezes, trazem mitigações “ex post”. O trabalho procura ainda sugerir novas soluções para que se proteja o indivíduo no momento de contratar como a exigência legal de instrumentos contratuais mais simples ou como a facilitação do distrato. Só assim, acreditamos, será possível conseguir verdadeira equidade nas relações contratuais, relações baseadas na boa-fé e que promovam os reais interesses das partes, buscando uma sociedade mais justa e equilibrada. / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior, CAPES / The present research seeks to analyze, from the ethical point of view, contemporary contractual relations. This paper begins with the study of the institute of contracts, tracing a timeline from the origin of the contract in the Roman Law to the Modern times. Concerning this beginning among the Romans, the main point of interest for the purposes pursued in this dissertation was the way in which the issue of the capacity of the contracting parties was then dealt with. Afterwards, in the medieval period, the idea that seemed to us most relevant to the history of contract theory was the introduction of the principle of good faith. In the modern period, the outstanding contribution was the consecration of autonomy of will as a dogma. Thereafter, the research seeks to demonstrate the decline of the consecrated contractual forms established in the Classic Contractual Law, for with the emergence of the new mass consumer society and the corresponding immense increase of social and economic needs in the distribution of goods and services, it was no longer possible that contractual relations were based on individual will, at least not in the strict and classical sense of the term, since there was no longer a way to reconcile the full concept of expression of individual will, which presupposes the full cognitive domain of the contracting object, to the reality of the new patterns of social interaction created by the contemporary economy. In this scope, the research sought to demonstrate how they are uniformly accepted by the countless number of adherents who compose the other parts, these then homogenized by multiple standardized forms of adhesion, among them, the most recent ones, through computerized technology. The paper intends to develop an ethical reflection about the large-scale forms of contracting , which are done through these instruments of adhesion, increasingly complex in their form an technique, in which the State, although not sufficiently, protects the individual, acknowledging them as vulnerable in these contracts. It is aimed to understand the concept of capacity in the present times, as well as the limits in which the individual exercises his freedom of choice and autonomy in these acts. The research intends to demonstrate that the principle of good faith is no longer a "standard" of business relations in contemporary contracting, since the great majority of current contracts do not contemplate the real interest of the vulnerable party. Finally, the present paper tries to demonstrate the partial and, therefore, insufficient character of the measures taken to solve this difficulty through the laws and codes that regulate and that, in in most cases, bring “ex post” mitigations. The paper also attempts to suggest new solutions in order to protect the individual when contracting, as the legal requirement of simpler contractual instruments or as the facilitation in the agreement of rescission. Only in this way, we believe, it will be possible to achieve true equity in contractual relations, relations based on good faith and which promote the real interests of the parties, persuing a fairer and more balanced society.

Doctorat en philosophie et lettres / info:eu-repo/semantics/nonPublished

Prof. H.P.P. Lotter

Ronald Dworkin has achieved prominence in the field of jurisprudence through his book, Taking Rights Seriously, (hereafter TRS) his many articles in the "New York Review of Books," and other publications that pursue a coherent philosophy for liberals. In response to criticism of his earlier work, Dworkin has expanded and clarified his liberal position on equality rights. This thesis will address how Dworkin's later writings attempt to fill in gaps that occur in Dworkin's first arguments for a hierarchical, principled picture of the law. It will be argued here that Dworkin's views require an unusual perspective on the concept of an individual, and this renders his rights-based political morality seriously deficient. The nature of Dworkin's theory is first indicated by an attack on the "ruling theory of law" which he characterizes as positivistic when asked what the law is, and utilitarian when required to decide what the law should be. His central criticism charges that legal arguments are incomplete without principles which refer to or are implications of rights. Dworkin's liberal political morality is founded on rights to equal respect and concern. The elaboration of what these rights mean is sustained throughout Dworkin's publications. He maintains that his liberal rights-thesis is the theoretical articulation of the constitutional right to equality. Applying Dworkin's rights-theory to the Regents of the University of California v. Bakke2 case illuminates many of the more abstract aspects of his views. This thesis will argue against Dworkin by focusing on the too-narrow conception of individuals implied by his theory of rights. The ideal Dworkin employs of a right to 'equality of resources' justifies an aggressive redistributional scheme, unchecked by a fuller conception of what is an individual. Dworkin is only able to hold his ideal of a right to 'equality of resources' together with his notion of individual rights by accepting a diminished concept of the individual. This argument suggests that a fuller conception of an individual recognizes the connection between merit and entitlement. Dworkin's scepticism regarding the feasibility of merit being protected by individual rights is undercut by introducing a distinction between merit and success. Leaving key aspects of an individual, such as merit and its related features, out of official deliberation about rights, conceptually inhibits the extent of individualizability in a rights theory. If we wish to maintain such features, and value their protection and cultivation by a political order, adopting Dworkin's rights-thesis and its consequences is impossible. / Arts, Faculty of / Philosophy, Department of / Graduate

Due to its pervasive affinity for conceptual abstractions, German criminal law has been said to suffer from a rationalist hubris that leads to the formulation of artificial rules and lacks respect for the realities of life. The following study will examine this hypothesis with respect to one area of German criminal law that is particularly characterized by an abstract, conceptual way of thinking: the area of what in Germany is called "offences against personal freedom". A case where a store detective suggested to a 16 year old female shoplifter that he would abstain from making a larceny report to the police if she engaged in sexual intercourse with him has caused a lot of debate in German criminal law as to the question of whether the detective infringed the shoplifter's "personal freedom" in a way prohibited by criminal law. This debate will be presented and contrasted with the approach Canadian criminal law would be likely to adopt had the case occurred in Canada. The thesis adopts a comparative, analytical approach that focuses on law reform: • comparative, because the question of whether German criminal law does lack respect for the realities of life will be examined by comparing German legal reasoning with Anglo-Canadian legal reasoning. • analytical, because when exploring what German and Canadian law regarding "offences against personal freedom" is, the focus will be on familiar, formal techniques of legal reasoning, such as those which draw on legislative texts, legislative history, underlying principles, academic commentary, fundamental values in the constitution, and theoretical concerns. • law reform, because the question is explored of whether German criminal law can learn from Canadian criminal law how to be more open to taking varying social locations of people affected by criminal law into account. In particular it is asked whether one can reconcile the traditional German conceptual approach that promises certainty of the law and the Canadian contextual approach that is better able to be attentive to equality as a fundamental right. It will be argued that such a reconciliation of approaches is possible and consists in a method that might be called egalitarian conceptualism. This approach unites the advantages of conceptual, abstract legal reasoning with the advantages of contextual thinking by merging equality as a fundamental concept with the existing conceptual framework of criminal liability. The principle "in dubio pro aequalitate" will be added to the principle "in dubio pro libertate". / Law, Peter A. Allard School of / Graduate

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Jurisprudence / (LL.D.)