A legitimação jurídico-moral da regulação estatal à luz da premissa liberal republicana: autonomia privada, igualdade e autonomia pública. Estudo de caso sobre as regulações paternalistas

A presente tese tem por objetivo principal estudar a legitimação jurídico-moral da regulação estatal. Trata-se de tema de grande relevância e extrema atualidade em decorrência de dois fatores. Por um lado, desde o fenômeno da virada kantiana e da retomada da preocupação com o estabelecimento de uma teoria da justiça, tornou-se necessária a análise de justificação jurídico-moral de toda e qualquer instituição político-jurídica positivada. Por outro lado, entre as inúmeras instituições político-jurídicas positivadas, cresce cada vez mais a utilização das medidas jurídicas regulatórias, através das quais o Poder Público direciona ou controla a conduta dos agentes com o intuito de atingir determinada finalidade. Instituto econômico que é, ao interferir na alocação de riquezas, bens e serviços no mercado, a regulação estatal há tempos já vem sendo objeto de análise em uma perspectiva de legitimação econômica. Tradicionalmente, ainda dentro do paradigma da racionalidade, os economistas sempre apontaram as falhas de mercado como as razões a justificar as regulações estatais em um viés econômico. Mais recentemente, por sua vez, os adeptos da economia comportamental, rompendo ou relativizando as lições da Rational Choice Theory, têm apontado também as ações irracionais em heurística como razões a justificar as regulações estatais em um viés econômico. Ocorre, entretanto, que a regulação estatal é um instituto interdisciplinar. Ao direcionar ou controlar a conduta dos indivíduos, limitando ou implementando direitos e liberdades, a regulação constitui instituto simultaneamente jurídico e moral. A presente tese, portanto, buscará apresentar as razões a servir de justificação para a regulação estatal em uma perspectiva jurídico-moral. Neste ponto, adotar-se-á como paradigma de aferição de legitimação jurídico-moral das instituições político-jurídicas positivadas (entre as quais as regulações estatais) um liberalismo-republicano, consistente na compatibilização do liberalismo-igualitário com um republicanismo moderado. Desta forma, o estudo buscará defender a possibilidade de a legitimação jurídico-moral das diversas regulações estatais encontrar fundamento em um ou alguns de três valores jurídico-morais: a autonomia individual privada, as condições igualitárias e a autonomia pública. No que diz respeito à implementação da autonomia individual privada e das condições igualitárias, primeiramente, a tese defenderá a possibilidade de ser realizada uma nova leitura jurídico-moral dos institutos econômicos das falhas de mercado e das ações irracionais em heurística. Neste sentido, o conceito de falhas de mercado e o conceito de ações irracionais em heurística, em uma leitura jurídico-moral como razões a justificar a legitimação das regulações estatais, devem ser entendidos como situações em que o atuar livre dos agentes no mercado viole ou deixe de implementar os valores jurídico-morais fundamentais da autonomia individual privada e das condições igualitárias. Ainda no que diz respeito às influências liberal-igualitárias, a tese sustentará que, mesmo na inexistência de falhas de mercado ou de ações irracionais em heurística, será possível o estabelecimento de regulações estatais que encontrem justificação no valor jurídico-moral fundamental da igualdade, desde que tais regulações estejam destinadas a implementar as condições igualitárias mínimas necessárias à manutenção da própria autonomia individual privada e da dignidade humana. Por outro lado, no que diz respeito às influências republicanas, será exposto que as regulações estatais podem encontrar legitimação jurídico-moral também no valor jurídico-moral fundamental da autonomia pública. A saber, as regulações podem se encontrar legitimadas jurídico-moralmente quando da implementação dos projetos e políticas deliberados pelos cidadãos e pela sociedade no exercício da soberania popular, desde que tais projetos coletivos não violem os requisitos mínimos de dignidade humana dos indivíduos. A tese defenderá que os princípios da proporcionalidade e da igualdade podem exercer um papel de destaque na análise de legitimação jurídico-moral das regulações estatais. O princípio da proporcionalidade, neste ponto, será útil instrumental metodológico na aferição de legitimação jurídico-moral de uma medida regulatória em uma perspectiva interna, quando da aferição da relação estabelecida entre os meios e os fins da regulação. O princípio da igualdade, por sua vez, será útil instrumental metodológico na aferição de legitimação jurídico-moral de uma medida regulatória em uma perspectiva comparativa entre as diversas medidas regulatórias existentes. Por fim, uma vez enfrentados os pontos mais sensíveis pertinentes à justificação de toda e qualquer medida regulatória bem como estabelecida uma teoria geral acerca da legitimação jurídico-moral da regulação estatal, a presente tese realizará um estudo de caso acerca da legitimação jurídico-moral especificamente das regulações que utilizam argumentos de natureza paternalista. Trata-se de regulações que, ao direcionar a conduta de agentes com o intuito de zelar por bens, direitos e interesses destes próprios indivíduos cuja liberdade é restringida, apresentam-se extremamente controversas. Será exposto que, desde a clássica obra On Liberty de JONH STUART MILL, o paternalismo jurídico vem sendo tradicionalmente associado a uma conotação pejorativa de violação aos valores jurídico-morais fundamentais. A tese, porém, adotará posição segundo a qual as regulações paternalistas podem eventualmente encontrar legitimação jurídico-moral na promoção ou proteção dos valores jurídico-morais fundamentais da autonomia individual privada e da igualdade. Além disto, defenderá o estudo que os institutos econômicos das falhas de mercado da assimetria de informações e dos problemas de coordenação bem como os institutos econômicos das ações irracionais em heurística, adotados na nova leitura jurídico-moral proposta, servirão de instrumental útil na identificação das situações em que tais regulações paternalistas se encontram legitimadas jurídico-moralmente diante da premissa liberal-republicana.

Os direitos humanos como temática global e soberania no sistema internacional pós guerra fria: a Conferência de Viena

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Struggles over legitimacy in global organizational restructuring: A rhetorical perspective on legitimation strategies and dynamics in a shutdown case

Critical organization scholars have focused increasing attention on industrial and organizational restructurings such as shutdown decisions. However, we know little about the rhetorical strategies used to legitimate or resist plant closures in organizational negotiations. In this paper, we draw from New Rhetoric to analyze rhetorical struggles, strategies and dynamics in unfolding organizational negotiations. We focus on the shutdown of the bus body unit of the Swedish company Volvo in Finland. We distinguish five types of rhetorical legitimation strategies and dynamics. These include the three classical dynamics of logos (rational arguments), pathos (emotional moral arguments), and ethos (authority-based arguments), but also autopoiesis (autopoietic narratives), and cosmos (cosmological constructions). Our analysis adds to the previous studies explaining how organizational restructuring as a phenomenon is legitimated, how this legitimation has changed over time, and how contemporary industrial closures are legitimated in the media. This study also increases our theoretical understanding of the role of rhetoric in legitimation more generally.

Struggles Over Legitimacy in Global Organizational Restructuring: A Rhetorical Perspective on Legitimation Strategies and Dynamics in a Shutdown Case

Critical organization scholars have focused increasing attention on industrial and organizational restructurings such as shutdown decisions. However, little is known about the rhetorical strategies used to legitimate or resist plant closures in organizational negotiations. In this article, we draw from New Rhetoric to analyze rhetorical struggles, strategies and dynamics in unfolding organizational negotiations. We focus on the shutdown of the bus body unit of the Sweden-based Volvo Bus Corporation in Finland. We distinguish five types of rhetorical legitimation strategies and dynamics. These include the three classical dynamics of logos (rational arguments), pathos (emotional moral arguments), and ethos (authority-based arguments), but also autopoiesis (autopoietic narratives), and cosmos (cosmological constructions). Our analysis contributes to previous studies on organizational restructuring by providing a more nuanced understanding of how contemporary industrial closures are legitimated and resisted in organizational negotiations. This study also increases theoretical understanding of the role of rhetoric in legitimation more generally.

La literatura jurídica como praxis moral

Resumen: La dimensión literaria del acto comunicacional científico-jurídico es un elemento implícito en la interacción de la retórica y dialéctica jurídicas. La matriz artística surge ya del parangón ofrecido por Aristóteles en la Retórica: la evocación de la antistrofa (figura que nos reenvía a pulso cierto al arte poético) lo dice todo, apenas sugiriendo. La comunicación que defenderemos consiste en afirmar que la belleza del acto comunicacional científico jurídico y la perfección de su arte son imputables a su autor y supone una responsabilidad de tipo moral que trasunta en el arte comunicativo el vaso de lo comunicado. Existe una lealtad del recipiente al contenido implícita en la metáfora aristotélica, que requiere una fidelidad del científico para dar cuenta del tesoro que lleva en sus vasijas endebles.

The legitimation of risk and Bt cotton: a case study of Bantala village in Warangal, Andhra Pradesh, India

This article explores Ulrich Beck’s theorisation of risk society through focusing on the way in which the risk of Bt cotton is legitimated by six cultivators in Bantala, a village in Warangal, Andhra Pradesh, in India. The fieldwork for this study was conducted between June 2010 and March 2011, a duration chosen to coincide with a cotton season. The study explores the experience of the cultivators using the ‘categories of legitimation’ defined by Van Leeuwen. These are authorisation, moral evaluation, rationalisation and mythopoesis. As well as permitting an exploration of the legitimation of Bt cotton by cultivators themselves within the high-risk context of the Indian agrarian crisis, the categories also serve as an analytical framework with which to structure a discourse analysis of participant perspectives. The study examines the complex trade-off, which Renn argues the legitimation of ambiguous risk, such as that associated with Bt technology, entails. The research explores the way in which legitimation of the technology is informed by wider normative conceptualisations of development. This highlights that, in a context where indebtedness is strongly linked to farmer suicides, the potential of Bt cotton for poverty alleviation is traded against the uncertainty associated with the technology’s risks, which include its purported links to animal deaths. The study highlights the way in which the wider legitimation of a neoliberal approach to development in Andhra Pradesh serves to reinforce the choice of Bt cotton, and results in a depoliticisation of risk in Bantala. The research indicates, however, that this trade-off is subject to change over time, as economic benefits wane and risks accumulate. It also highlights the need for caution in relation to the proposed extension of Bt technology to food crops, such as Bt brinjal (aubergine).

Risk definition and the struggle for legitimation: a case study of Bt cotton in Andhra Pradesh, India

This article explores the struggle for legitimation associated with the attempt to define the risk of Bt cotton, a genetically modified crop, in Andhra Pradesh, India. Beck asserts that, given the uncertainty associated with risk society, efforts to define risk are creating the need for a new political culture. This article argues that this political culture emerges from attempts to legitimate power within risk definition. This is examined using critical discourse analysis on interview excerpts with key figures in the Bt cotton debate. Legitimation is explored using the categories of legitimation developed by Van Leeuwen. These are (a) authorisation; (b) moral evaluation; (c) rationalisation; and (d) mythopoesis. The analysis highlights that the political culture which emerges in response to risk society is in a state of constant flux and contingent upon the ongoing struggle for legitimation with regard to the definition of risk.

Negotiating social and moral order in internet relay chat

Although internet chat is a significant aspect of many internet users’ lives, the manner in which participants in quasi-synchronous chat situations orient to issues of social and moral order remains to be studied in depth. The research presented here is therefore at the forefront of a continually developing area of study. This work contributes new insights into how members construct and make accountable the social and moral orders of an adult-oriented Internet Relay Chat (IRC) channel by addressing three questions: (1) What conversational resources do participants use in addressing matters of social and moral order? (2) How are these conversational resources deployed within IRC interaction? and (3) What interactional work is locally accomplished through use of these resources? A survey of the literature reveals considerable research in the field of computer-mediated communication, exploring both asynchronous and quasi-synchronous discussion forums. The research discussed represents a range of communication interests including group and collaborative interaction, the linguistic construction of social identity, and the linguistic features of online interaction. It is suggested that the present research differs from previous studies in three ways: (1) it focuses on the interaction itself, rather than the ways in which the medium affects the interaction; (2) it offers turn-by-turn analysis of interaction in situ; and (3) it discusses membership categories only insofar as they are shown to be relevant by participants through their talk. Through consideration of the literature, the present study is firmly situated within the broader computer-mediated communication field. Ethnomethodology, conversation analysis and membership categorization analysis were adopted as appropriate methodological approaches to explore the research focus on interaction in situ, and in particular to investigate the ways in which participants negotiate and co-construct social and moral orders in the course of their interaction. IRC logs collected from one chat room were analysed using a two-pass method, based on a modification of the approaches proposed by Pomerantz and Fehr (1997) and ten Have (1999). From this detailed examination of the data corpus three interaction topics are identified by means of which participants clearly orient to issues of social and moral order: challenges to rule violations, ‘trolling’ for cybersex, and experiences regarding the 9/11 attacks. Instances of these interactional topics are subjected to fine-grained analysis, to demonstrate the ways in which participants draw upon various interactional resources in their negotiation and construction of channel social and moral orders. While these analytical topics stand alone in individual focus, together they illustrate different instances in which participants’ talk serves to negotiate social and moral orders or collaboratively construct new orders. Building on the work of Vallis (2001), Chapter 5 illustrates three ways that rule violation is initiated as a channel discussion topic: (1) through a visible violation in open channel, (2) through an official warning or sanction by a channel operator regarding the violation, and (3) through a complaint or announcement of a rule violation by a non-channel operator participant. Once the topic has been initiated, it is shown to become available as a topic for others, including the perceived violator. The fine-grained analysis of challenges to rule violations ultimately demonstrates that channel participants orient to the rules as a resource in developing categorizations of both the rule violation and violator. These categorizations are contextual in that they are locally based and understood within specific contexts and practices. Thus, it is shown that compliance with rules and an orientation to rule violations as inappropriate within the social and moral orders of the channel serves two purposes: (1) to orient the speaker as a group member, and (2) to reinforce the social and moral orders of the group. Chapter 6 explores a particular type of rule violation, solicitations for ‘cybersex’ known in IRC parlance as ‘trolling’. In responding to trolling violations participants are demonstrated to use affiliative and aggressive humour, in particular irony, sarcasm and insults. These conversational resources perform solidarity building within the group, positioning non-Troll respondents as compliant group members. This solidarity work is shown to have three outcomes: (1) consensus building, (2) collaborative construction of group membership, and (3) the continued construction and negotiation of existing social and moral orders. Chapter 7, the final data analysis chapter, offers insight into how participants, in discussing the events of 9/11 on the actual day, collaboratively constructed new social and moral orders, while orienting to issues of appropriate and reasonable emotional responses. This analysis demonstrates how participants go about ‘doing being ordinary’ (Sacks, 1992b) in formulating their ‘first thoughts’ (Jefferson, 2004). Through sharing their initial impressions of the event, participants perform support work within the interaction, in essence working to normalize both the event and their initial misinterpretation of it. Normalising as a support work mechanism is also shown in relation to participants constructing the ‘quiet’ following the event as unusual. Normalising is accomplished by reference to the indexical ‘it’ and location formulations, which participants use both to negotiate who can claim to experience the ‘unnatural quiet’ and to identify the extent of the quiet. Through their talk participants upgrade the quiet from something legitimately experienced by one person in a particular place to something that could be experienced ‘anywhere’, moving the phenomenon from local to global provenance. With its methodological design and detailed analysis and findings, this research contributes to existing knowledge in four ways. First, it shows how rules are used by participants as a resource in negotiating and constructing social and moral orders. Second, it demonstrates that irony, sarcasm and insults are three devices of humour which can be used to perform solidarity work and reinforce existing social and moral orders. Third, it demonstrates how new social and moral orders are collaboratively constructed in relation to extraordinary events, which serve to frame the event and evoke reasonable responses for participants. And last, the detailed analysis and findings further support the use of conversation analysis and membership categorization as valuable methods for approaching quasi-synchronous computer-mediated communication.

"Well, now I'm upset": Moral and social orders in the playground

There is much still to learn about how young children’s membership with peers shapes their constructions of moral and social obligations within everyday activities in the school playground. This paper investigates how a small group of girls, aged four to six years, account for their everyday social interactions in the playground. They were video-recorded as they participated in a pretend game of school. Several days later, a video-recorded excerpt of the interaction was shown to them and invited to comment on what was happening in the video. This conversation was audio-recorded. Drawing on a conversation analysis approach, this chapter shows that, despite their discontent and complaining about playing the game of school, the girls’ actions showed their continued orientation to the particular codes of the game, of ‘no going away’ and ‘no telling’. By making relevant these codes, jointly constructed by the girls during the interview, they managed each other’s continued participation within two arenas of action: the pretend, as a player in a pretend game of school; and the real, as a classroom member of a peer group. Through inferences to explicit and implicit codes of conduct, moral obligations were invoked as the girls attempted to socially exclude or build alliances with others, and enforce their own social position. As well, a shared history that the girls re-constructed has moral implications for present and future relationships. The girls oriented to the history as an interactional resource for accounting for their actions in the pretend game. This paper uncovers how children both participate in, and shape, their everyday social worlds through talk and interaction and the consequences a taken-for-granted activity such as playing school has for their moral and social positions in the peer group.

A phenomenological explication of dream interpretation among rural and urban Nguni people

Psychologists investigating dreams in non-Western cultures have generally not considered the meanings of dreams within the unique meaning-structure of the person in his or her societal context. The majority of dream studies in African societies are no exception. Researchers approaching dreams within rural Xhosa and Zulu speaking societies have either adopted an anthropological or a psychodynamic orientation. The latter approach particularly imposes a Western perspective in the interpretation of dream material. There have been no comparable studies of dream interpretation among urban blacks participating in the African Independent Church Movement. The present study focuses on the rural Xhosa speaking people and the urban black population who speak one of the Nguni languages and identify with the African Independent Church Movement. The study is concerned with understanding the meanings of dreams within the cultural context in which they occur. The specific aims of the study are: 1. To explicate the indigenous system of dream interpretation as revealed by acknowledged dream experts. 2. To examine the commonalities and the differences between the interpretation of dreams in two groups, drawn from a rural and urban setting respectively. 3. To elaborate upon the life-world of the participants by the interpretations gained from the above investigation. One hundred dreams and interpretations are collected from two categories of participants referred to as the Rural Group and the Urban Group. The Rural Group is made up of amagqira [traditional healers] and their clients, while the Urban Group consists of prophets and members of the African Independent Churches. Each group includes acknowledged dream experts. A phenomenological methodology is adopted in explicating the data. The methodological precedure involves a number of rigorous stages of expl ication whereby the original data is reduced to Constituent Profiles leading to the construction of a Thematic Index File. By searching and reflect ing upon the data, interpretative themes are identified. These themes are explicated to provide a rigorous description of the interpretative-reality of each group. Themes explicated w i thin the Rural Group are: the physiognomy of the dreamer's life-world as revealed by ithongo, the interpretation of ithongo as revealed through action, the dream relationship as an anticipatory mode-of-existence, iphupha as disclosing a vulnerable mode-of-being, human bodiliness as revealed in dream interpretations and the legitimation of the interpretative-reality within the life-world. Themes explicated within the Urban Group are: the phys iognomy of the dreamer's life-world revealed in their dream-existence, the interpretative-reality revealed through the enaction of dreams, tension between the newer Christian-based cosomology and the traditional cultural-based cosmology, a moral imperative, prophetic perception and human bodiliness, as revealed in dream interpretations and the legitimation of the interpretative-reality within the life-world. The essence of the interpretative-reality of both groups is very similar and is expressed in the notion of relatedness to a cosmic mode-of-being. The cosmic mode-of-being includes a numinous dimension which is expressed through divine presence in the form of ancestors, Holy Spirit or God. These notions cannot be apprehended by theoretical constructs alone but may be grasped and given form in meaning-disclosing intuitions which are expressed in the lifeworld in terms of bodiliness, revelatory knowledge, action and healing. Some differences b e tween the two groups are evident and reveal some conflict between the monotheistic Christian cosmology and the traditional cosmology. Unique aspects of the interpetative-reality of the Urban Group are expressed in terms of difficulties in the urban social environment and the notion of a moral imperative. It is observed that cul tural self-expression based upon traditional ideas continues to play a significant role in the urban environment. The apparent conflict revealed between the respective cosmologies underlies an integration of the aditional meanings with Christian concepts. This finding is consistent with the literature suggesting that the African Independent Church is a syncretic movement. The life-world is based upon the immediate and vivid experience of the numinous as revealed in the dream phenomenon. The participants' approach to dreams is not based upon an explicit theory, but upon an immediate and pathic understanding of the dream phenomenon. The understanding is based upon the interpreter's concrete understanding of the life-world, which includes the possibility of cosmic integration and continuity between the personal and transpersonal realms of being. The approach is characterized as an expression of man's primordial attunement with the cosmos. The approach of the participants to dreams may not b e consistent with a Western rational orientation, but neverthele ss, it is a valid approach . The validity is based upon the immediate life-world of experience which is intelligible, coherent, and above all, it is meaning-giving in revealing life-possibility within the context of human existence.

Free will, moral responsibility and ADHD

One of the oldest problems in philosophy concerns the relationship between free will and moral responsibility. If we adopt the position that we lack free will, in the absolute sense—as have most philosophers who have addressed this issue—how can we truly be held accountable for what we do? This paper will contend that the most significant and interesting challenge to the long-standing status-quo on the matter comes not from philosophy, jurisprudence, or even physics, but rather from psychology. By examining this debate through the lens of contemporary behaviour disorders, such as ADHD, it will be argued that notions of free will, along with its correlate, moral responsibility, are being eroded through the logic of psychology which is steadily reconfiguring large swathes of familiar human conduct as pathology. The intention of the paper is not only to raise some concerns over the exponential growth of behaviour disorders, but also, and more significantly, to flag the ongoing relevance of philosophy for prying open contemporary educational problems in new and interesting ways.

Free will, moral responsibility and ADHD

One of the oldest problems in philosophy concerns the relationship between free will and moral responsibility. If we adopt the position that we lack free will, in the absolute sense—as have most philosophers who have addressed this issue—how can we truly be held accountable for what we do? This paper will contend that the most significant and interesting challenge to the long-standing status-quo on the matter comes not from philosophy, jurisprudence, or even physics, but rather from psychology. By examining this debate through the lens of contemporary behaviour disorders, such as ADHD, it will be argued that notions of free will, along with its correlate, moral responsibility, are being eroded through the logic of psychology which is steadily reconfiguring large swathes of familiar human conduct as pathology. The intention of the paper is not only to raise some concerns over the exponential growth of behaviour disorders, but also, and more significantly, to flag the ongoing relevance of philosophy for prying open contemporary educational problems in new and interesting ways.

Queensland Aborigines, multiple realities and the social sources of suffering: Psychiatry and moral regions of being (Part 1)

This two part paper considers the experience of a range of magico-religious experiences (such as visions and voices) and spirit beliefs in a rural Aboriginal town. The papers challenge the tendency of institutionalised psychiatry to medicalise the experiences and critiques the way in which its individualistic practice is intensified in the face of an incomprehensible Aboriginal „other‟ to become part of the power imbalance that characterises the relationship between Indigenous and white domains. The work reveals the internal differentiation and politics of the Aboriginal domain, as the meanings of these experiences and actions are contested and negotiated by the residents and in so doing they decentre the concerns of the white domain and attempt to control their relationship with it. Thus the plausibility structure that sustains these multiple realities reflects both accommodation and resistance to the material and historical conditions imposed and enacted by mainstream society on the residents, and to current socio- political realities. I conclude that the residents‟ narratives chart the grounds of moral adjudication as the experiences were rarely conceptualised by local people as signs of individual pathology but as reflections of social reality. Psychiatric drug therapy and the behaviourist assumptions underlying its practice posit atomised individuals as the appropriate site of intervention as against the multiple realities revealed by the phenomenology of the experiences. The papers thus call into question Australian mainstream „commonsense‟ that circulates about Aboriginal and Torres Strait Islander people which justifies representations of them as sickly outcasts in Australian society.