scholarly journals «Etwas Morsches im Recht» sobre violência e direito / «Etwas morsches im recht» on violence and law (Tradução do texto original em Italiano)

Profanações ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 4
Author(s):  
Sandro Chignola ◽  
Augusto Jobim do Amaral ◽  
Evandro Pontel
Keyword(s):  
Political Philosophy ◽  
Legal Order ◽  
War And Peace ◽  
Revolutionary Violence ◽  
The Law ◽  
The Right ◽  
Do So

O texto procura refletir sobre as três modalidades em que classicamente a filosofia política ocidental dispõe a relação entre política e violência: aquela que procura excluir a violência, a opção que estabelece uma relação de domesticação/ funcionalização da violência e aquela que estabeleceria uma dialética entre violência de dominação e violência revolucionária. Para tanto, concentra-se na análise do texto benjaminiano “Zur Kritik der Gewalt” (1921), objetivando apontar a crítica de autor alemão contra a mediação jurídica própria do poder e da violência, desde as tentativas de conter e de normalizar a violência no ordenamento jurídico. Noutros termos, a crítica aponta para uma violência que é uma ameaça e um risco ao direito quando ela permanece externa ao circuito jurídico e resiste à formalização como meio para sua conservação. Enfim, como alguma coisa de podre há no Direito, ela não é demonstrada pela alternativa entre o caos e a ordem, entre barbárie e a civilidade, entre guerra e a paz, mas pela indeterminação que a lei, tendo que reproduzir continuamente em cada aplicação o rito da sua fundação, faz agir e deixa subsistir entre eles.AbstractThe text seeks to reflect on the three modalities in which the Western political philosophy classically disposes of the relation between politics and violence: that which seeks to exclude violence, the option that establishes a relation of domestication / functionalization of violence and that which would establish a dialectic between violence of domination and revolutionary violence. In order to do so, it concentrates on the analysis of the Benjaminian text "Zur Kritik der Gewalt" (1921), aiming at pointing out the criticism of German author against the legal mediation of power and violence, from attempts to contain and normalize violence in the legal order. In other words, the criticism points to violence that is a threat and a risk to the right when it remains outside the legal circuit and resists formalization as a means for its conservation. Finally, as something rotten in the law, it is not demonstrated by the alternative between chaos and order, between barbarity and civility, between war and peace, but by the indetermination that the law, having to reproduce continuously in each application the rite of its foundation, causes it to act and lets it subsist among them.      

Hybrid Warfare, Law, and the Fulda Gap

2018 ◽  
pp. 161-190 ◽  
Author(s):  
Aurel Sari
Keyword(s):  
Legal Framework ◽  
Legal Order ◽  
Critical Element ◽  
War And Peace ◽  
Hybrid Warfare ◽  
International Legal Order ◽  
Normative Expectations ◽  
Hybrid Threats ◽  
The Law ◽  
Do So

The law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the international legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. They do so by failing to meet the relevant normative expectations, by using a range of means, including noncompliance with the applicable rules, by instrumentalizing legal thresholds, and by taking advantage of the structural weaknesses of the international legal order, while counting upon the continued adherence of their opponents to these expectations. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. At the same time, the instrumentalization of law poses profound challenges to the post–Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.

Confidentiality and Patients’ Records: Balancing the Interests of Society and the Individual

1979 ◽  
Vol 7 (1) ◽  
pp. 49-70
Author(s):  
Robert E. Paul
Keyword(s):  
Third Parties ◽  
Legal Cases ◽  
The Law ◽  
The Individual ◽  
The Right ◽  
Privileged Communications ◽  
Physician Patient ◽  
Do So

This article defines and describes the interrelated but conceptually distinct terms “confidentiality,” “privilege,” “privileged communications,” “privacy,” and “records.” It reviews the parameters of these words, discusses the variance between the extent of the physician-patient and that of the much broader licensed psychologist-patient privilege in Pennsylvania and, in particular, reviews the situations in which assertions of confidentiality and privilege cannot prevent third parties from gaining access to records and the information contained in them and the legal cases which set out the law in these areas. Finally, it reviews the demands to see records by patients and the increasing willingness of courts, legislators, and regulators to grant not only access but also the right to correct, add to, or destroy such records if the patient wishes to do so.

Grotius and the Origin of the Ruler's Right to Punish

Grotiana ◽  
2007 ◽  
Vol 26 (1) ◽  
pp. 396-415 ◽  
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Constitutional Law ◽  
John Locke ◽  
Thomas Hobbes ◽  
The State ◽  
Constitutional Theory ◽  
War And Peace ◽  
The Law ◽  
The One ◽  
The Right

AbstractAn important aspect of any constitutional theory is the state's power to punish transgressions of the law, or the ius gladii. Although Grotius never formulated a complete, comprehensive constitutional theory, traces of such a theory can be found in many of his writings not explicitly devoted to constitutional law. Punishment even plays an important role in his books on war (and peace), since to punish transgressions of the law is ranked among the just causes of war.Given the fact that a state may punish transgressions of the law – transgressions by individuals within and even outside the state, but also transgressions of the law by other states – the question may arise concerning the origin of such a right to punish. It will be shown that Grotius did not give the same answer to this question in his various works. As the right to punish is concerned, we find a theory that seems to be akin to the one of John Locke in the De iure praedae (around 1605), one akin to the theories of the Spanish late-scholastics in De satisfactione and De imperio (around 1615), and a theory coming close to what Thomas Hobbes had said on the ruler's right to punish in the De iure belli ac pacis (around 1625).Of course, Grotius can only have been familiar with the theory of the Spanish late-scholastics, since those of Locke and Hobbes were still to be written by the time Grotius had passed away.

On the State of War and of Peace

2019 ◽  
pp. 142-192
Author(s):  
Jean Allain
Keyword(s):  
Dispute Settlement ◽  
The State ◽  
Third Party ◽  
War And Peace ◽  
Law Of Nations ◽  
The Law ◽  
The Right ◽  
Peace Treaties

Book Three has Rayneval taking the reader through the Law of Nations as it relates to war and peace. A focus is placed on the origins, causes, effects, and conduct of war both on land and at sea. The right of conquest in considered, including prisoners, hostages, as well as civilians in conquered territory. This Book also examines the various principles governing alliances and the role of Neutral Powers in times of war. Where the seas are concerned, Rayneval considers the role of Neutrals Powers, of the right to visit in times of war, of Letters of Marque, and the taking of Prizes. Where peace is concerned, Rayneval speaks of the nature and obligations flowing from peace treaties and invokes mediation as the sole basis of third-party dispute settlement.

Sins and Crimes

Philosophy ◽  
1968 ◽  
Vol 43 (163) ◽  
pp. 38-50 ◽  
Author(s):  
A. R. Lough
Keyword(s):  
Human Nature ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Homosexual Conduct ◽  
The Law ◽  
The Right ◽  
Do So

A law, say, prohibits homosexual conduct or punishes the prostitute for plying her trade. According to some it is a bad law, according to others a necessary one. Those who argue that it is a bad law do so on a variety of grounds—that it is sheer folly to try to change human nature by law, that such legislation can only be effective at the price of the right to privacy, that the punishment of acts arising from compelling desires is cruel and excessive, that the law has no business meddling in what people do to others with their consent. Those who argue that it is a necessary law do so on one ground, that the act in question is immoral, and that what is wrong must be punished, lest the law itself fall into disrepute by failing to carry out a consistent campaign against wrong-doing.

1 The Prerogative in Foreign Affairs

1986 ◽  
Author(s):  
Mann F A
Keyword(s):  
Foreign Policy ◽  
The State ◽  
Foreign Affairs ◽  
Financial Resources ◽  
War And Peace ◽  
The Law ◽  
The Government ◽  
The Right

The conduct of foreign affairs is an executive act of government in which neither the Queen nor Parliament has any part. It is the Government which represents the State and determines its policy, though Parliament has the right and the power to control the Executive, to withhold confidence in it, to refuse to grant the financial resources required to carry out its decisions, and thus to deprive the Government's foreign policy of efficacy. Hence the Government must be certain that its foreign policy has the support of Parliament. The affairs which the Crown conducts comprise the whole catalogue of relations with foreign nations which includes the declaration of war and peace, of belligerency and neutrality, and the recognition of foreign States and of their extinction. The law can control the conduct of foreign affairs if and in so far as the prerogative has been superseded by legislation, but even where this has happened there usually remains a residue of prerogative power vested in the Executive.

scholarly journals A Millennium After al-Farabī; Notes onʿAllāma Ṭabāṭabāʾī’s Political Philosophy

2021 ◽  
Author(s):  
SeyedAmirHossein Asghari
Keyword(s):  
Political Philosophy ◽  
The Other ◽  
Recent Period ◽  
Intellectual Tradition ◽  
General Belief ◽  
Ideal Society ◽  
The Right ◽  
A Minor ◽  
Do So

<p>It is essential to ask why there is so little attention paid to political philosophy among these scholars? Or, if there is, why does it remain a minor or marginal conversation? Did they consider the discussion on governance under the other areas of their expertise, such as jurisprudence (<i>Fiqh</i>)? And, if yes, what motivated them to do so? Or, at least in Shia Islam, did this arise from their general belief that if there is an Imam, he is the right person to govern the community, and if we are in the occultation era, then our only choice is to wait for the Imam to return? Consequently, there is no need to philosophize an ideal society, an occurrence of which only happens with the presence of an Imam. Clarifying the questions mentioned above requires another investigation. We leave these questions aside here and focus instead on contemporary Shia philosophers to examine their thoughts on political philosophy, Utopia, or any discussion of governance. Our goal is to identify the al-Fārābīan heritage of the Islamic intellectual tradition in a more recent period.</p>

scholarly journals A Millennium After al-Farabī; Notes onʿAllāma Ṭabāṭabāʾī’s Political Philosophy

2021 ◽  
Author(s):  
SeyedAmirHossein Asghari
Keyword(s):  
Political Philosophy ◽  
The Other ◽  
Recent Period ◽  
Intellectual Tradition ◽  
General Belief ◽  
Ideal Society ◽  
The Right ◽  
A Minor ◽  
Do So

<p>It is essential to ask why there is so little attention paid to political philosophy among these scholars? Or, if there is, why does it remain a minor or marginal conversation? Did they consider the discussion on governance under the other areas of their expertise, such as jurisprudence (<i>Fiqh</i>)? And, if yes, what motivated them to do so? Or, at least in Shia Islam, did this arise from their general belief that if there is an Imam, he is the right person to govern the community, and if we are in the occultation era, then our only choice is to wait for the Imam to return? Consequently, there is no need to philosophize an ideal society, an occurrence of which only happens with the presence of an Imam. Clarifying the questions mentioned above requires another investigation. We leave these questions aside here and focus instead on contemporary Shia philosophers to examine their thoughts on political philosophy, Utopia, or any discussion of governance. Our goal is to identify the al-Fārābīan heritage of the Islamic intellectual tradition in a more recent period.</p>

Sovereignty as a Right and as a Duty

2018 ◽  
Author(s):  
Jacob Weinrib
Keyword(s):  
Political Philosophy ◽  
Legal Order ◽  
Public Authority ◽  
Sovereign Power ◽  
The Right

The organizing principle of Immanuel Kant’s political philosophy is that each person has a basic right to equal freedom. This principle poses a challenge to the very possibility and purpose of sovereignty. It poses a challenge for the possibility of sovereignty because that idea divides persons into rulers and ruled and empowers the former to change the normative situation of the latter by conferring rights, powers, and immunities, or even imposing coercible obligations. But if each person has a right to equal freedom, how could sovereignty—with its attendant division of persons into ruler and ruled—be possible? Kant’s answer is that sovereignty is possible because it is constitutive of the condition in which private persons interact with one another on terms of equal freedom. Such an approach gives Kant resources both to explain how sovereignty can be justified to those bound by it and to deny that every organization that has a monopoly on violence exercises sovereignty. The right to equal freedom also has significant ramifications for thinking about the kinds of purposes that sovereign power may serve. Implicit in the justification of the sovereign’s right to exercise public authority is an overarching duty to bring the legal order as a whole into the deepest possible conformity with its own animating principle, equal freedom. Thus, Kant’s account of how sovereignty is possible culminates in an account of the duty that accompanies its exercise.

scholarly journals Clamo Ergo Sum: Establishing a Fundamental Right to Protest from Christian Theologies of Liberation

Humanities ◽  
2021 ◽  
Vol 10 (3) ◽  
pp. 102
Author(s):  
Marc V. Rugani
Keyword(s):  
Political Philosophy ◽  
Human Person ◽  
Historical Narratives ◽  
Rights Discourse ◽  
The Right ◽  
Do So ◽  
Theology Of Liberation

The prevailing particular historical narratives that established the modern rights system greatly affect the participation, tenor, and limits of rights discourse today, too often ignoring or suppressing voices of those suffering or silenced. This essay is a contribution to the subversion of those histories, adverting to inconsistencies, in particular histories of modern rights, the need to amplify the voices of those suffering on the margins of that history, and the dangerous consequences if we fail to do so. By applying Enrique Dussel’s political philosophy and Gustavo Gutiérrez’s theology of liberation significant contributions can be made toward affirming a fundamental right to protest. The right to protest articulates a right co-foundational with the rights to life, liberty, and property, and this right is well grounded in a Christian account of the dignity of the human person.

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