Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

Michel Foucault e a dominação: contribuições para a sociologia

In this master s thesis I intend to carry out an interpretation of Michel Foucault s thought that points out the relations and theoretical, conceptual and thematic consequences with sociology in his work and theoretical propositions. For my argumentation and analysis I take as a base a specific part of his thought: the problem of domination in modern societies in the genealogic texts in the decade of 1970. It s about to identify how Foucault does his analysis of the relations of domination and the use of the power with the objective to suggest and point out his contribution to sociological analysis of domination. I will discuss the foucaultian program of the study of domination from four units of analysis: person constitution, knowledge, power and truth. The structure and division of the chapters will follow the specific and detailed study of each of those units of analysis, prioritizing their theoretical sense and consequences to the sociology. Thus, in the first chapter, I will highlight a little more the relations of affinity and the convergences between Foucault and the sociology in a way to offer more elements to justify the general objectives that this work intends to achieve. In the second chapter, I will analyze the subject of domination in Foucault s thought, discussing his basic presuppositions and its intrinsic relation with the heart of the foucaultian philosophical project, the person constitution. In turn, in the third and fourth chapter, I will discuss the interdependence between knowledge and power as an essential and opaque dimension of the ways of modern domination. In the fifth chapter, I will analyze the relation between domination and the truth discourse production

Do controle de constitucionalidade dos atos jurisdicionais transitados em julgado

The following study aims to verify in which hypothesis res judicata, when it comes of an unconstitutional decision, shall not prevail over Constitution. It displayed the characteristics of formal and material constitutional systems. It debated the concepts of existence, validity and efficacy of juridical rules and acts. It dissertated about the idea of Constitution s superiority and about the birth of the judicial review of constitutionality. It focused some contemporary models of this judicial review and its historical evolution in Brazil, showing its effects towards the current Constitution. It sustained that the decision given by Supremo Tribunal Federal during abstract control of rules must bind even legislative bodies, preventing them to produce the same rules previously declared unconstitutional. It held up that all parts of the decision of Supremo Tribunal Federal oblige, even the juridical arguments employed, in both diffused and concentrated reviews. It showed that, despite these models of review live together in Brazil, our constitutional system preferred the concentrated one, considering one only court over the other constitutional organs. It discussed about res judicata with the purpose of clarifying its juridical nature, its objective and subjective limits and its regulation in collective demands. It explained that the material res judicata is an effect of a decision which cannot be reviewed, which makes the law s will free of discussion, binding the contendants and avoiding that other courts, judging future demands about the same object, may decide differently. It showed how the regulation of res judicata in collective demands, in respect oh their subjective limits, is useful to demonstrate that it is not the material law who must adapt itself to res judicata as traditionally thought, but res judicata, as a warranty of juridical certainty and security, who must be shaped from the debated rule. It presented to view the main doctrinal conceptions about res judicata s review in the hypothesis of unconstitutional judgement. It concluded that the decisions forged by unconstitutional rules or interpretations reputed not compatible to the Constitution by Supremo Tribunal Federal, in spite of it can make res judicata, may be reviewed beyond the term to file a recissory claim, since while the debated law is still valid, no matter if its decision was before or after the res judicata. At the end, it asserted that, when it is not legally authorized, the judicial review of res judicata is not admissible, after the term to file a recissory claim, under the argument that there was no direct violation to the constitutional principle or rule

A objetivação do controle concreto de constitucionalidade nas decisões do Supremo Tribunal Federal

The independence of the United States and the revolutions that emerged in Europe in the eighteenth century led to the birth of the written constitution, with a mission to limit the power of the State and to ensure fundamental rights to citizens. Thus, the Constitution has become the norm and ultimate founding of the State. Because of this superiority felt the need to protect her, emerging from that constitutional jurisdiction, taking control of constitutionality of provisions his main instrument. In Brazil, the constitutionality control began with the Constitution of 1891, when "imported" the American model, which is named after incidental diffuse model of judicial review. Indeed, allowed that any judge or court could declare the unconstitutionality of the law or normative act in a concrete case. However, the Brazilian Constituent did not bring the U.S. Institute of stare decisis, by which the precedents of higher courts eventually link the below. Because of this lack, each tribunal Brazilian freely decide about the constitutionality of a rule, so that the decision took effect only between the parties to the dispute. This prompted the emergence of conflicting decisions between judicantes organs, which ultimately undermine legal certainty and the image of the judiciary. As a solution to the problem, was incorporated from the 1934 Constitution to rule that the Senate would suspend the law declared unconstitutional by the Supreme Court. With the introduction of abstract control of constitutionality, since 1965, the Supreme Court went on to also have the power to declare the invalidity of the provision unconstitutional, effectively against all without the need for the participation of the Senate. However, it remained the view that in case the Supreme Court declared the unconstitutionality of the fuzzy control law by the Senate would continue with the competence to suspend the law unconstitutional, thus the decision of the Praetorium Exalted restricted parties. The 1988 Constitution strengthened the abstract control expanding legitimized the Declaratory Action of Unconstitutionality and creating new mechanisms of abstract control. Adding to this, the Constitutional Amendment. No. 45/2004 brought the requirement of general repercussion and created the Office of Binding Precedent, both to be applied by the Supreme Court judgments in individual cases, thus causing an approximation between the control abstract and concrete constitutional. Saw themselves so that the Supreme Court, to be the guardian of the Constitution, its action should be directed to the trial of issues of public interest. In this new reality, it becomes more necessary the participation of the Senate to the law declared unconstitutional in fuzzy control by the Supreme Court can reach everyone, because such an interpretation has become obsolete. So, to adapt it to this reality, such a rule must be read in the sense that the Senate give publicity to the law declared unconstitutional by the Supreme Court, since mutated constitutional

Desgaste corrosivo-cavitativo-erosivo de um aço-carbono em meio aquoso com frações de sal (NaCl), CO2 e particulados sólidos (SiO2)

A batch of eighty-four coupons of low carbon steel were investigated at laboratory conditions under a corrosive, cavitative-corrosive (CO2) and corrosive-erosive (SiO2 + CO2) in an aqueous salt solution and two levels of temperature. The following measurements were made on Vickers (HV0,05, HV0,10, HV0,20) Microhardness tests at three levels of subsurface layer. A turbulent flow collided on the cylindrical sample, with and without mechanical stirring and gas bubbling, with and without fluid contamination by solid particles of SiO2, at two temperatures. Surface Roughness and Waviness, under two conditions "as received, after machining" and "after worn out", as well as gravimetric and electrochemical parameter were measured on the two opposite generatrices of each cylindrical sample, on the flow upstream (0°) and downstream (180°) by Profilometry, Mass Variation and Linear Polarization Resistance (LPR). The results of the Microhardness and Surface Texture of all coupons were subjected to statistical comparison, using the software Statgraphics® Centurion XVI, 95% statistical certainty, and significant differences were observed in some arrays of measurements. The corrosive wear rate measured by LPR and mass variation shown to be sensitive to the presence of bubbles and hydrodynamic fluctuations inside the cell, considering the temperature and contamination of corrosive fluid by solid particles. The main results of visual inspection relative to some topologies of the surface damages involving different mechanisms that were seen to give explanation for some fluctuations in wear rates of the steel experimentally investigated

Imagens da morte: um estudo do gênero policial-fantástico em Poe, Wilde e Christie

The mirror has always been related to different symbols, usually connected to self-knowledge and truth. This is due to the fact that this object shows whoever looks oneself in it an image as close to reality as it is possible. On the other hand, the mirror is also associated to mysticism and to the supernatural for it can magically duplicate one who looks into it. This ambiguous characteristic turns the mirror into an element that is fantastic in itself and places it in the central position of our discussion. Therefore, in this study, we analyze the texts In a Glass Darkly, by Agatha Christie, The Oval Portrait, by Edgar Allan Poe, and The Picture of Dorian Gray, by Oscar Wilde, giving special attention to the study of the images and artificial representations of men: the mirror, as an ephemeral representation; and the portrait, as an attempt to eternize an ephemeral image. We also discuss themes such as jealousy, the double, and death in the several forms in which it appears in the texts: suicides, homicides, attempted murders, death in life (mourning, separation, and developmental phases) all of which are, somehow, related to the specular representations. The narrative resource of using a mirror to introduce the supernatural event, along with the theme of death in all the narratives we have studied, and the difficulty to place these texts within the pre-established genres led us to categorize them as being part of a hybrid genre that presents characteristics both of the fantastic and of the detective story which we have named fantastic-detective story

Foucault e a arte do cuidado de si: uma nova possibilidade de Discussão para a formação continuada de professores de língua inglesa

This thesis proposes a new thinking on the English teacher and their continuing education, leaving the picture emerging of a new professional, who is producing and being produced. From this perspective, I present an analysis of self writing of thirteen student-teachers, teachers on how they position themselves to be discursively constituted as subjects in the context of continuing education. As part of Applied Linguistics, the theory and method that supports the analysis of data are articulate key elements of Foucault notions, namely:The care of the self, seeking their connection with one another and care of and the self writing. In the theoretical notions of these elements are implied notions of others, such as speech, ethics, technology of the self, subject and truth. (Foucault, 1984, 1995, 2004c, 2006), and questioning the ethics of the subject. I propose to examine selected excerpts from the self writings of student teachers with a specialization in Teaching and Learning the English Language, seeking linguistic processes in the material production of subjectivities.In order to analyze the process of subjectivation, I examine the discursive statements of selected cuts, aiming to learn more specifically, the points of identification and fragments of the uniqueness of the teachers, showing how they care for themselves and reflect upon them in building their subjectivity from the technologies of the self, to occupy the position of English Language teachers. The results show that, in the exercise of self writing, the subject falls, and a practice of asceticism, discursively construct her/his subjectivity

A morada do pensamento: um encontro com Platão na busca da natureza do sentido em Frege

The ontological investigation of sense, from German philosopher Gottlob Frege s point of view, has, as its foundation, the understanding of reference, representation, thought and sense s categories. According to Frege s writings, On Sense and Reference, and Thoughts Logical Investigations, sense carries itself the solution for the problem of identity s relation. Sense gives us the knowledge s increment that identity doesn t give. But still there is a problem: the definition of sense's nature. Sense couldn t have its nature strictly defined because, in this case, it would be reduced to reference s category and thus, sense would be identified with the own extra-linguistic object, and this is a misconception. But Frege said that thought must be considered as the sense of the sentence. So, with this close relationship between sense and thought, a new goal in this investigation is putt in focus: thought. To Frege, thought is not a simple subjective performance of thinking, it is not a subjective representation, but it is an objective content that is real, eternal, and that exists by itself in a third realm . Thought exists in a realm beyond the world of subjective representations and beyond the world of sensible perception. From this point, the present investigation went back to Plato s World of Ideas. So, the platonic thinking was included in this debate about the metaphysic of the third realm in Frege, trying to clarify the original concepts of knowledge, reality and truth. To achieve this objective, the following dialogues had been included in our research: Theaetetus, Republic and Phaedo. And the following fregean questions had been brought to Plato's scope: how happens the new knowledge? What is the third realm s reality? What is the relation between truth and thought? Doing that we could see as much some of the platonic origins of Frege's approach, as some differences between this two philosophers

Os limites do poder regulamentar do Conselho Nacional de Justiça no contexto do Estado constitucional brasileiro

The creation of the National Council of Justice (CNJ) through the Constitutional Amendment nº 45/2004, derived from countless gaps in Brazilian law, mainly relating to procedural delays, ineffectiveness of judicial decisions, and the lack of mechanisms that enable, effectively, disciplinary accountability of judges. The council is constitutionally designed as a member of the Judiciary, which has administrative nature and laid assignments in art. 103-B, § 4 of the current Constitution, among which is to edit regulations to instrument its performance. However, since it came into force, the amendment raised extensive discussions, linked in particular to the constitutionality of the CNJ, which was made through the direct action of unconstitutionality nº 3367, against the alleged violation of the principles of separation of powers and federative form, as well as the limits of its regulatory powers, as has fanned out in ADI nº 3823/ DF, this one dealing on Resolution nº 07, which regulates the seal of nepotism practice in the judiciary. However, despite the Supreme Court has already pronounced on the matter, recognizing the constitutionality of the council, as well as the resolution already said, the debate is in a state of latency, and may erupt again with each new manifestation of regulatory CNJ, given the lack of agreement between doctrine and jurisprudence around the constitutional treatment of its regulatory powers. In this context undeniably reflection on the definition of the regulatory power of the CNJ, presents itself as extremely relevant, and current, in particular in the ambience of the Constitutional Rule of Law, where he strives for legal certainty and consolidation of regulatory institutions. So that it could reach a satisfactory result, skilled at resolving the problems raised, the present study analyzed the reasons that gave rise to the creation of the CNJ, demonstrating their indispensability, but also sought to characterize the status of their administrative and constitutional body, noting finally, the compatibility of its regulatory activities to constitutional principles. From this perspective, we adopted the deductive method and carried out research and bibliographic nature documentary.

Of madness and many-valuedness: an investigation into Suszko's Thesis

Suszko’s Thesis is a philosophical claim regarding the nature of many-valuedness. It was formulated by the Polish logician Roman Suszko during the middle 70s and states the existence of “only but two truth values”. The thesis is a reaction against the notion of many-valuedness conceived by Jan Łukasiewicz. Reputed as one of the modern founders of many-valued logics, Łukasiewicz considered a third undetermined value in addition to the traditional Fregean values of Truth and Falsehood. For Łukasiewicz, his third value could be seen as a step beyond the Aristotelian dichotomy of Being and non-Being. According to Suszko, Łukasiewicz’s ideas rested on a confusion between algebraic values (what sentences describe/denote) and logical values (truth and falsity). Thus, Łukasiewicz’s third undetermined value is no more than an algebraic value, a possible denotation for a sentence, but not a genuine logical value. Suszko’s Thesis is endorsed by a formal result baptized as Suszko’s Reduction, a theorem that states every Tarskian logic may be characterized by a two-valued semantics. The present study is intended as a thorough investigation of Suszko’s thesis and its implications. The first part is devoted to the historical roots of many-valuedness and introduce Suszko’s main motivations in formulating the double character of truth-values by drawing the distinction in between algebraic and logical values. The second part explores Suszko’s Reduction and presents the developments achieved from it; the properties of two-valued semantics in comparison to many-valued semantics are also explored and discussed. Last but not least, the third part investigates the notion of logical values in the context of non-Tarskian notions of entailment; the meaning of Suszko’s thesis within such frameworks is also discussed. Moreover, the philosophical foundations for non-Tarskian notions of entailment are explored in the light of recent debates concerning logical pluralism.