A Competência normativa das agências reguladoras e seus limites principiológicos no direito brasileiro

The transition of the liberal state to welfare state, globalization and the crisis of funding from the government spending on the multiple roles demanded an overhaul of the means of intervention in the economic domain and structure organizational of the Public Administration by enhancing the performance of regulatory functions. Therefore appear in Brazilian law independent regulatory agencies with legal administrative particular that gives autonomy increased, with fixed terms and stability of its leaders, police and competencies, normative and administrative judges. In this scenario, given the autonomy granted by the laws of the creation of regulatory agencies, the legislative competence becomes the most contentious issue, as not infrequently is innovation in the legal system. The main foundations of innovative extension producible by regulatory agencies, which diverges doctrine, are the constitutional attribution of own competence of the Public Administration and the discretionary power. Thus, it is necessary to delimit the constitutional and legal foundations of special legislative powers of these autarchies in our legal system, seeking ways to limit and control the production rules of those entities, for the purpose of position them before the powers constitutionally constituted. We note that with the constitutionalisation of administrative law regulatory agencies found limits to its performance in the normative constitutional principles, especially through the principles of efficiency, morality and proportionality, which has enabled a more effective control of their normative acts

A função social do contrato como concretização de direitos fundamentais nas relações privadas

This dissertation deals with the social function of the contract, based on constitutional principles, especially those relating to fundamental rights. The social function of the contract (general clause) is described in the Civil Code so intentionally generic, no precise criteria to define it. Because of the fluidity of this principle, it is justified its closer study, seeking to assess its various meanings and looking away from the legal uncertainty that an unlimited conceptual vagueness can cause. The social function of the contract arises from a transformation experienced in private law from the inflows received from the Constitutional Law, the result of an evolutionary process by which it became the state structure, leaving the foundations of the classical liberal state and moving toward a vision guided by existential human values that give the keynote of the Welfare State. Arose, then the concern about the effectiveness of fundamental rights in relations between individuals, which is studied from the inapplicability of fundamental rights in private relations (U.S. doctrine of State action), passing to the analysis of the Theory of indirect horizontal effect of fundamental rights (of German creation and majority acceptance), reaching the right horizontal efficacy Theory of fundamental rights, prevailing Brazilian doctrine and jurisprudence. It has also been investigated the foundations of the social contract, pointing out that, apart from the provisions of the constitutional legislation, that base the principle on screen, there have also been noticed foundations in the Federal Constitution, in devices like the art. 1, III, the dignity of the human person is the north of the relationship between contractors. Also art. 3rd, I CF/88 bases the vision of social covenants, equipping it for the implementation of social solidarity, as one of the fundamental objectives of the Republic. Still on art. 170 of the Constitution it is seen as a locus of reasoning in the social function of the contract, the maintenance of the economic order. It is also studied the internal and external aspects of the social function of the contract, being the first part the one that considers the requirement of respect for contractual loyalty, through the objective good faith, as a result of the dignity of the hirer may not be offended by the other through the contract. On the other hand, the external facet of the social function of the contract, in line with the constitutional mandate of solidarity, indicates the need for contractors to respect the rights of society, namely the diffuse, collective and individual third party. In this external appearance, it is also pointed the notion of external credit protection, addressing the duty of society to respect the contract. There has been shown some notions of the social contract in comparative law. Then, there has been investigated the content of principle study, through their interrelationships with other provisions of private and constitutional law, namely equality, objective good faith, private autonomy and dignity of the human person. We study the application of the social contract in contractual networks as well as the guidance of conservation of contracts, especially those denominated long-term captive contracts, considering the theory of substantive due performance, concluding with an analysis of the social contract in code of Consumer Protection

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

O licenciamento ambiental pelos municípios: uma análise sobre o federalismo cooperativo adotado pela Constituição Federal

In complex federal systems as that found in Brazil, which provides simultaneous attributions to of the Union, States and Cities in many aspects, the definition of performance limits of each of these entities, in procedural or material aspect, generates many (positive and/or negative) competence conflicts, bringing insecurity to general administered. Environmental licensing is one of the most important instruments of environmental management, seeking the realization of the fundamental right to an ecologically balanced and sustainable development. Despite its importance, the environmental licensing has not been more effective due the conflict related to the authority to regulate regardind environmental law. This essay will analyze the structure of competence distribution for conducting the environmental licensing processes, the conflict between laws, the performance of the municipal environmental agencies, the cooperation between the licensing agencies and the future about the additional regulatory law of article 23 of Federal Constitution

Análise do processo judicial eletrônico (PJe) sob os parâmetros da discursividade processual e do acesso democrático à justiça

The conceptions of the judicial function, the process and the factors of legitimacy of the norm of decision are changed according to the model of State (liberal, social democratic and constitutional). The right of access to justice, likewise, follows the ideals present in constitutional movements experienced in different historical moments. The deficit of legitimacy of the judiciary is recurring subject of study in the doctrine, especially in the face of democratic standards that permeate the current paradigm of state. Under the process law, the essential element for the distinction of the states based on the rule of law (formal and material) and the democratic constitutional state lies in the democratic guarantee of participation to the litigants in the process of elaborating the norm of decision. The concern about the participatory democracy and the concretion of fundamental rights has as presupposition the conception of popular sovereignty. Keeping this effort in mind, the civil procedure cannot be oblivious to such considerations, especially when it justifies its constitutional conformation from the institutionalization of discourse within the procedural field (democratic principle) and of the democratization of access to justice, leading to the necessary contestation of the theory of instrumentality of the process. The democratic prospects of civil procedure and the concern about the legitimacy of the rule of decision cannot be moved away from the analysis of the judicial function and the elements that influence the legal suit s progress. The computerization of the judicial process entails extensive modification in the way the judicial function is developed, in view of automation of activities held, of the eliminating of bureaucratic tasks, manual and repetitive, and of streamlining the procedure. The objective of this study is to analyze the dogmatic changes and resulting practices from the implementation of the Judicial Electronic Process (JEP), prepared by the National Council of Justice, under the parameters of procedural discourse and democratic access to justice. Two hypotheses are raised, which, based on a bibliographic-documentary, applied and exploratory research, are contested dialectically. The expansion of publicity of procedural acts and the facilitating of communication and practice of such acts are elements that contribute to the effective participation of the recipients of the norm of decision in its making process and, therefore, the democratic principle in the procedural field. Ensuring access (to the parts) to the case files and reasonable duration of the process along with the preservation of its founding principles (contradictory, legal defense and isonomy) are essential to ensure democratic access to justice within the virtual system

Direitos da personalidade: uma análise acerca da concretização da tutela constitucional

It dares to ensure that the Constitution of the Republic strengthened the rights of personality. No longer considering the denial of protection to intangible rights, against the imperative command coming from the art. 5 ° of our highest law, relevant to items V and X. Overlooking these emerge with precision, those rights of personality. Innocuous have been isolated attempts of the opposition to this constitutional protection. Deny it, or rather to restrict it, as it has done insignificant part of the doctrine and isolated judgmental pronouncements, no longer prove appropriate. Today, more than before, there is pointed out that if the human being has personal rights acquired from the design, adding to this other identity elements that allow the projection of a particular social personality. Such rights, it is worth mentioning, there are bases on the principle of human dignity that is considered general provision for the protection of personality. Based on the demonstration of this fact, after climbing into the general theory of personal rights and demonstrate the legal protection that has been present in his favor, it is hoped will, general objective, to show the effectiveness of this constitutional protection. At that point, will be reserved for special to the procedural tools that it has made a decisive contribution to the realization and effectiveness of the rights of the personality, a reality that must be imposed for the benefit of the dignity of the human person, presented here as basic foundation of the Democratic State of Law. The brazilian legal system provides the normative basis needed to provide an adequate protection to personality, from the general clause of the protection of the personality. For the achievement of its effectiveness, however, is an important update methodological and cultural of the Right as well as an effective deployment of public policies and private ensuring a better quality of life for citizens

A contribuição de Diké na formação do Emílio ou o papel da jurisdição constitucional na concretização do direito social à educação

The fundamental social right to education has a lengthy constitutional argument, having been declared as a right to everyone in the Title dedicated to the fundamental rights and warrants and, later, scrutinized in the Social Order Chapter exclusively devoted to this theme, where specific rights are guaranteed and fundamental duties are imposed to family, society, and state. In that which concerns education, the 1988 Constitution is the result of a historical-normative process which, since the days of the Lusitanian Empire wavering between distinct levels of protection warrants in some way the educational process. Nevertheless, not even the State s oldest commitment to education has been fully achieved, namely, the annihilation of illiteracy. Even as other fundamental social rights, education is inflicted with the lack of effective political will to reach its fulfillment, and this is reflected in the production of doctrine and jurisprudence which reduce the efficacy of these rights. The objective of this work is to analyze what part is to be played by the constitutional jurisdiction in the reversal of this picture in regards to the fulfillment of the fundamental social right to education. Therefore it is indispensable to present a proper conception of constitutional jurisdiction its objectives, boundaries and procedures and that of the social rights in the Brazilian context so as to establish its relationship from the prism of the right to education. The main existing obstacles to the effective action of constitutional jurisdiction on the ground of social rights are identified and then proposals so as to overcome them are presented. The contemplative and constructive importance of education in the shaping of the individual as well as its instrumental relevance to the achievement of the democratic ideal through the means of the shaping of the citizen is taken into account. The historical context which leads to the current Brazilian educational system is analyzed, tracing the normative area and the essential content of the fundamental right to education aiming to delineate parameters for the adequate development of the constitutional jurisdiction in the field. This jurisdiction must be neither larger nor narrower than that which has been determined by the Constitution itself. Its activity has been in turns based on a demagogic rhetoric of those fundamental rights which present a doubtful applicability, or falling short of that which has been established showing an excessive reverence to the constituent powers. It is necessary to establish dogmatic parameters for a good action of this important tool of constitutional democracy, notably in regards to the fundamental social right to education, for the sake of its instrumental role in the achievement of the democratic ideals of liberty and equality

Ideais formativos de homem da emissora de Educação Rural de Caicó (Rio Grande do Norte, 1963-1978)

Under the aegis of the third diocese bishop of Caicó, Dom Manuel Tavares de Araújo, the Broadcasting Station of Rural Education of that city was founded, in May 1 s" 1963 with the ideal of being then an educational city, preferentially for youths and adults, rural meu and women of the arca of Seridó in Rio Grande do Norte state. In the year of its 40th birthday (2003), we began the investigation of that radio station choosing as study object its educational and formative programming, in the inc1usion of the first fifteen years of its existence (1963-1978), period that reaches the official inauguration of the Radio Station and the end of the bishopric of its fOllllder as Bishop of Caicó. Elucidating and showing Man's formative ideaIs longed by that Catholic educational broadcasting station, underlying to its radiophonic programming, such as the idealization for it reached, is the objective of this Doctorate work. It was considered pertinent to discover the guidelines that historically have permeated the Social Doçtrine of the Catholic Church addressing its aggiornamento, especially in what concerns to the employment of the modern ways of communication for the distance with the aim of evangelizing and educating. In arder to understand the ideaIs of the investigated educational Radio, we have delimited the research to the thematic Catholic Church, means of social communication and base education. In face of the study object and the aim to be reached it was appealed, methodologically, to the notion of cultural action present in Certeau (1995), and to the understanding of educational formation backgrounded fIam the modern thinkers that discuss it. Such frame references have allowed us to analyze in a wider spectrum tl)e programming broadcasted on the air by the sound wavys of that educ(itional Çatholic Radio, as well as, the very acts of cultural idealizations that has orientated it in its foundations. The thesis here defended is that. the Radio, at procJaiming itself as a broadcasting station of rural education directed preferably to the rural sertanejo countrymen, without neglecting its admitted ends, has surpassed them in its overall range. It was identified an articulate approach of its programmatic modules with the guid,elines emanateq from the Catholic Teaching about the use of the. means of social communication. At conceiving, establishin,g and executing an ec1ectic programmatic and div,ersified grating, the Rural Radio of Caicó has transcended to a strict human-Christian formation to request the development of the human, spiritual and cQrporaldimensions, jointly. With suchprogramming, it addressed to the seridoenses as real meu and women inserted in the "sertanej.o" environment with effective structural and existential problems of alI types, induding the hunger, the thirst, the syndical organization, the cQoperativism, the colIective modero work and the absence of universalizing school education. Its radiophonic transmissions, I}lled by the demands of an enlarged, open, dialogic and responsible communication, wheneIllbracing dedicated modules to religious and catechetical emissions, to the entertainment, to the radiojoumalism, to the country root culture, and to the school education of b se for the modality of the School and of the radiophonic classes, subsumed to ideaIs that longed for the formation of a multifaceted and pluridimensional sertanejo Man; of men and women that, without abjuring the Catholicism, were able to understand, to dialogued and to live together with the general demands of a society in progressive mutation, whose economical, social, cultural and educational demands it IDade themselves to be felt through the sertão potiguar of the Serido region, equal way of the intemationalized world

O Evangelho segundo a Pastoral da Criança :por uma pedagogia da sobrevivência

This work aims to analyze social and educational actions at Pastoral da Criança, using education as a survival tool. This was done at Parque dos Coqueiros, a neighborhood in Natal, Rio Grande do Norte. The methodology for data collection was composed of comprehensive interview (Jean Kaufmann), participant observation (Robert Bogdan) and documental analysis (Le Goff); all os which bring reflections related to concepts such as strategies, tatics and know how (Michel de Certeau), configuration (Nobert Elias), and control technology (Michel de Foucault), care ethics (Leonardo Boff) and etno-theories (Natália Ramos). Pastoral da Criança is a social action organism that belongs to the National Conference of Bishops of Brazil, originated at Florestópolis, Londrina (Paraná), in the year of 1983. These actions have been an expression of a new logic of actions of the Catholic Church. It values the participation of laymen in the activities of the Pastoral. Thus, the parish is seen as a nucleus that irradiates the Church s Social Doctrine. At Rio Grande do Norte this institution has guided poverty stricken families on issues related to children s health as well as working with laymen for volunteer work. This is considered devotion, that is firmed by an individual and group mystique. The social and educational actions are done in three axes: 1) Monthly home visits, where there is mother-child support; 2) Life Celebration Day, where they weigh children and promote nutritional surveillance; 3) Meeting for Evaluation and Reflection, that aims to articulate community leaders to think about problems attached to the social actions they realize. This action tripod , as it is called by the Pastoral Agents are the types of actions that fundament survival education for poor children ranging from 0 to 6 years old. The families learn to deal with prevention, the essential, the alternative and probabilities of survival tactics due to exclusion matters or even social extermination. The Pastoral da Criança aims to recover childhood emotions in poverty stricken areas. It also has influence in the diminishing of malnutrition and mother and child mortality. This education for survival is the base on the art of teaching and learning of poverty stricken children. It is a social educational action, non assistencialist, but considered a shy action in order to promote mobilization of the communities that are accompanied for the emancipation and change of social conditions

Os Estados Unidos e as relações internacionais contemporâneas

O artigo analisa a posição dos Estados Unidos nas relações internacionais pós-Guerra Fria, tomando como referência as controvérsias sobre os alcances e limites da sua postura hegemônica, que adquirem maior impulso a partir da formulação da chamada doutrina Bush, sistematizada no documento A Estratégia de Segurança Nacional dos EUA. No tratamento da temática proposta, enfatizam-se os seguintes aspectos: estabelecimento de um paralelo entre a transição dos séculos XIX-XX e XX-XXI, situando as características do imperialismo de cada época; uma análise da atual política externa dos Estados Unidos, enfocando o debate entre unilateralismo e multilateralismo, com destaque para as reações geradas pela intervenção no Iraque; uma discussão crítica das abordagens que visualizam na agenda de segurança da administração Bush um indicador de perda de hegemonia, que imporia a substituição da busca do consenso pela dominação aberta.

A ruptura do pacto social no pensamento de Sade

As obras de Sade procuram retratar as práticas corruptas e libertinas presentes no regime despótico de Luís XV, apontando invariavelmente a alcova como lugar privilegiado de transformação do corpo e da mente e, ao mesmo tempo, de produção filosófica. A atualidade do pensamento de Sade revela-se no fato de colocar como tendencia da modernidade, a constituição narcísica da subjetividade que, em sua variante político-social, aparece sob a forma do conformismo político. Este artigo pretende apresentar o pensamento de Sade como urna crítica aos liames sociais, o que conduz à ruptura da idéia de pacto social formulada por Rousseau. A doutrina sem compaixão de Sade torna-se filosofia negativa na medida em que fornece os fundamentos da crítica à razão instrumental. Sendo pessimista quanto aos rumos do existente, a teoria sadiana aponta a animalidade humana como possibilidade de transcendencia da artificialidade dos laços sociais.

A inferência causal na filosofia moral de Hume.

Starting from the idea that the result of the Humean analysis of causal inferences must be applied coherently to the remaining part of his work, including its moral theory, the present master thesis aims at investigating whether Hume´s moral philosophy is essentially based on feeling, or whether this would not be rather essentially a consequence of our causal inferences in human actions and deliberations. The main idea consists in showing that our moral inferences, to the extent that they are for Hume empirical , depend on our belief in a connexion between something which has been previously observed and something which is not being observed ( but that it is expected to occur or to be observed in the future). Thus, this very belief must base our moral inferences concerning the actions and deliberations of the individuals. Therefore, must e o ipso induce us to associate actions and behaviors, as well as character and moral claims of men to certain moral feelings. Accordingly, the thesis is unfolded in three chapters. In the first chapter Hume´s theory of the perception is reported as essential part of the explanation or the principles that bind ideas in our mind and constitute our inferences. In the second chapter, the Humean analysis of causal inferences is presented and the way they contribute in the formation of our moral inferences is explained. In the third and last chapter, the formation of our moral inferences and the real contribution of the doctrine of freedom and necessity for the examination or our actions are analysed and discussed.

A estética transcendental kantiana à luz de Strawson

This work s objective is to make a literal interpretation of Kant s Aesthetic transcendental, the first pilaster of sustentation of the epistemology of Kant and to interpret it at Strawson s light. It contains the doctrine of sensitivity responsible for the intuitions, which rests on the concepts of space and time, and, with this, the tematização of two important questions. For Kant s philosophy in its epistemologic source what s the importance of the concepts of and time? How these concepts of space and time inscribe themselves with such statute as an investigatory task of metaphysics? The specification of the concepts of space and time as ingredients of the theories treated and enrolled in this work are segmented of the Aesthetic transcendental of Kant, and interpreted under Strawson s light. The research is divided in two chapter; first, constituted of two parts, the first part presents an introduction to the Aesthetic transcendental of Kant, to show the doctrine of the sensitivity which is part of with its forms space and time, authentic forms of the intuition. The second chapter, is constituted of four parts, that deal with the interpretation of the austere model of Strawson and related with Kant s transcendental Aesthetic. The conclusion of our work, about the declared objection of Strawson in its austere interpretation that refuses the idea of space and time, even keeping its a priori character, cannot be accepted. The apriority, the intuitivity and the ideality are theories non-separable in a coherent boarding of space and time of Kant s model of epistemology

Medicina filosófica: as relações entre medicina e filosofia na Grécia antiga e em Kant

This work deals with the relationship between medicine and philosophy, which has existed since Antiquity, and will also be discussed here from Kant s perspective. It presents the historical context formed by reciprocal influences of common notions regarding health/disease, balance/justice, and just measure, which are present in the medical discourse as much as in the philosophical one. It considers that Hippocratic medicine emerges from concerns about dietetics, thus creating the link between philosophy and medicine, which is important for our analysis on Kant s contributions to Hippocratic legacy. Taking into account these considerations, the work distinguishes between two aspects which are associated within the dietetics presented by Kant in his work The conflict of the faculties, studied here in the light of his Doctrine of virtue, particularly the duties to oneself in regard the care of one s body and the teleological conception. In this sense, the work indicates the role of Kantian thinking not only to enrich medical dietetics, by lending to it moral value, but also to enrich philosophy by highlighting its therapeutic effects

A falta de ética e de espírito público na política brasileira

Unfortunately, the Brazilian politics has been characterized by lack of ethics. In a few exceptions, our representatives often behave in the exercise of power as if they were there to care for their own interests and not public affairs. Despite the dissatisfaction that the situation seems to trigger to society, the electorate does not get to transform their anger into effective gesture in order to withdraw from the public setting people who can not fulfill their mandate at the polls. Instead, the re-election of bad politicians has become commonplace fact. In this study, we proposed to discuss the matter in light of traditional philosophical theories, by selecting exponents of ethical thought from the Ancient Period to the Modern. We put special emphasis on behalf of amorality in Florentine thinker's ideas, to Machiavelli s political doctrine.