scholarly journals Amartia Sen, crítico da teoria da justiça rawsliana

Problemata ◽  
2020 ◽  
Vol 11 (5) ◽  
pp. 45-59
Author(s):  
Enoque Feitosa
Keyword(s):  
Private Property ◽  
Social Rights ◽  
Social Body ◽  
Concrete Material ◽  
Theory Of Justice ◽  
Formal Element ◽  
The Social ◽  
The Right ◽  
Principle Of Maximum ◽  
Social Effort

The present paper focuses on Amartia Sen and an aspect of his reflection on the Rawslian theory of justice, especially about the justification of substantive and social rights and more particularly those that demand the discussion about the character and nature of the right to private appropriation of social effort. Thus, tehe focuse is understand an aspect of Amartia Sen's reflection exposed in the 3rd chapter of 'Development as freedom', in which Sen contrast the formulation of Rawls' theory of justice, regarding the priority that the author grants the formal element of freedom to the detriment of its materialization and concretization. In the name of those emerges a clear theoretical (and practical) conflict with the demands for the realization of certain rights, resulting in a dichotomy between liberties (as formal, procedural or negative freedoms) vis-a-vis the liberal-individualist tradition and within which they are opposed freedoms (understood in the context of the debate put there as concrete, material or substantive freedoms). So, we have an antinomy will be confronted with the Hart’s 'Essays in Jurisprudence and philosophy', in the sense of pointing out that a problem with Rawls' formulation is that he does not understand it necessary to reconcile the admission of private property as freedom with the general principle of maximum ‘equal freedom’. So want to ask is whether the model proposed by Sen tackles this issue better and more adequately, which implies a hypothetical framework by which, by establishing a small number of basic freedoms, the Rawslian formulation does nothing more than treat property rights as mere formal guarantee of those who have it and to the detriment of all other components of the social body. It is, therefore, as to the method, of research centered on bibliographic review.

A Study on the Social Rights of Female-Headed Single Parent with a Focus on the Right to Work and Care

2021 ◽  
Vol 37 (1) ◽  
pp. 75-115
Author(s):  
Soo Jung Jang ◽  
Kyungheun Baek ◽  
Byoung-Inn Kim ◽  
Hyejung Lee ◽  
Jin Bhang Oh
Keyword(s):  
Single Parent ◽  
Social Rights ◽  
Right To Work ◽  
The Social ◽  
The Right

The Contemporary Reception of St Thomas on Law and Politics

2021 ◽  
pp. 611-625
Author(s):  
Michael Pakaluk
Keyword(s):  
Private Property ◽  
Political Liberalism ◽  
Political Society ◽  
Human Beings ◽  
Social Nature ◽  
Law And Politics ◽  
The Social ◽  
The Family ◽  
The Right

The reception of Thomistic political and legal philosophy is considered with respect to what is called ‘political liberalism’. The appeal to a hypothetical state of nature should be rejected, as it misconstrues the social nature of human beings. Aquinas’ account of the origin of political society starts from an interpretation of human nature. On this basis one can account for human rights, the importance of the right to religious liberty, the family as the basic cell of society, civil society as including subsidiary authorities, the importance of private property, and the nature and role of freedom. A key question for the continued flourishing of a free society is what practically enables persons to govern for the genuine good of others.

In Defense of Productive Human Rights

2018 ◽  
Author(s):  
Bas van der Vossen ◽  
Jason Brennan
Keyword(s):  
Human Rights ◽  
Private Property ◽  
Human Life ◽  
Theory And Practice ◽  
Individual Rights ◽  
Theory Of Justice ◽  
Freedom Of Contract ◽  
The Right

The chapter defends economic liberties such as the right to private property and freedom of contract as basic human rights, which the authors refer to as productive human rights. Despite being largely ignored or criticized in the theory and practice of human rights, they serve all the key functions that human rights generally serve. Using a basic interest framework, the chapter show that productive rights qualify as human rights because they both directly serve the interests of individual rights-holders, as well as the interests of people across the societies in which they are upheld. The chapter concludes by reflecting on the theoretical implications of a theory of justice that omits productive rights, and focuses only on things like meeting people’s needs. Such a theory will end up distorting important truths about human life and agency.

PROPERTY RIGHTS AND THE RIGHT TO THE FRUITS OF ONE'S LABOR: A NOTE ON ADAM SMITH'S JURISPRUDENCE

2005 ◽  
Vol 21 (2) ◽  
pp. 279-289 ◽  
Author(s):  
AMOS WITZTUM
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Private Ownership ◽  
Theory Of Justice ◽  
Natural Justice ◽  
Ethical Position ◽  
The Right ◽  
Smith Theory

This paper provides further evidence to the argument that Smith' theory of justice did not follow the natural justice school and that subsequently the ethical position on acquiring private property is not independent of the effects which such acquisition may have on the property-less individuals. I will show that the justification for private ownership is based on “reasonable expectations” which owners of assets have with regard to the fruits of the asset. The expectation to subsist through the use of one's natural assets is equally reasonable. This is not to say that Smith believed that society should equally distribute income. But it does mean that the acquisition of private property must not interfere with the rights of individuals to subsist. Consequently, distribution is clearly an important part of Smith's conception of justice.

scholarly journals Any Chance for the Enforceability of the Human Right to Subsistence?

2020 ◽  
pp. 140-162
Author(s):  
Celia Fernández Aller
Keyword(s):  
Fundamental Rights ◽  
Social Rights ◽  
Legal Analysis ◽  
Human Right ◽  
Complex Issue ◽  
Philosophical Foundations ◽  
The Social ◽  
Wide Range ◽  
Policies And Programs ◽  
The Right

It is not true that the idea of the right to subsistence should not give rise to much controversy. In fact, social rights are not considered as fundamental rights by everyone. The aim of this paper is to analyze whether abstract social rights –and the right to subsistence in particular- should be put in constitutions and laws and if judges should be given powers to interpret them. The philosophical foundations and the content of the right are studied and five great challenges are presented, although the most powerful one is to focus on the social and political enforceability of the fundamental right to subsistence. Assessing the effectiveness of the right to subsistence, and the right to food particularly, is a complex issue. In the legal discourse, the question seems to be only suggested.  Even when the Constitutions expressly recognize this right in some countries, its implementation faces many constraints. The progressive realization of ESC rights requires a complex interaction of policies and programs in a wide range of sectors and institutions.The scientific method used in this work is the legal-sociological method, regarding the understanding of the rules, the lack of them, their effectiveness,  etc.   Several methodological techniques have been used, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity.

scholarly journals Emenda Constitucional Nº 90/2015: do Direito ao Transporte à Questão da Efetividade dos Direitos Sociais

2017 ◽  
Vol 18 (1) ◽  
pp. 65-72
Author(s):  
Marcelo Ferreira Ribas
Keyword(s):  
Fundamental Rights ◽  
Constitutional Amendment ◽  
Social Rights ◽  
Popular Participation ◽  
Social Effectiveness ◽  
The Public ◽  
Federal Constitution ◽  
The Social ◽  
Legal Nature ◽  
The Right

O presente artigo visa abordar a questão da efetividade dos Direitos Sociais a partir da análise da Emenda Constitucional nº 90/2015, que inseriu o transporte no rol dos Direitos Sociais da Constituição Federal. Para tanto, adota-se a metodologia de abordagem dedutiva, posto partir da análise doutrinária do direito material para compreender seus desdobramentos fáticos e, no desenvolvimento da pesquisa, emprega-se a técnica de documentação indireta, mediante o recurso à bibliografia de juristas que discorrem sobre o tema. Depreende-se que o reconhecimento do direito ao transporte como Direito Social apresenta-se como oportunidade para refletir acerca do conceito e da natureza jurídica dos Direitos Sociais e de seu lugar no ordenamento jurídico. Como Direitos Fundamentais, os Direitos Sociais privilegiam a igualdade material na sociedade e, para tanto, demandam prestações por parte do Estado em benefício da população carente. Juridicamente eficazes, a eficácia social ou efetividade encontra óbice na teoria da reserva do possível, por meio da qual o Estado alega insuficiência de recursos a serem dispendidos para a concretização desses direitos. Além disso, há também o poder de disposição do Estado para geri-los discricionariamente, por meio do qual age, por vezes, desconsiderando as expectativas da sociedade. Ao final, propõe-se o aprimoramento dos instrumentos que garantam a participação popular na gestão democrática do orçamento público e na tomada de decisões, em vista da superação dos problemas relativos à efetividade dos Direitos Sociais e, consequentemente, da distância existente entre a norma e a realidade.Palavras-chave: Transporte. Direitos Sociais. Reserva do Possível. Discricionariedade.AbstractThis article aims to approach the issue of the effectiveness of social rights from the analysis of Constitutional Amendment 90/2015, which inserted the transportation in the roll of social rights of the Federal Constitution. For that, the methodology of deductive approach is adopted, based on a doctrinal analysis of the material law to understand its unfolding events and, during the research development,the technique of indirect documentation is used, through the use of the jurists’ bibliography who discourse about the subject. It seems that the recognition of the right to transportation as a social right presents itself as an opportunity to reflect on the concept and legal nature of social rights and their place in the legal system. As fundamental rights, the social rights privilege the material equality in the society and, therefore, demand State provisions in benefit of the poor population. Legally effective, the social effectiveness or effectiveness finds obstacle in the reserve of the possible theory, whereby the State claims insufficient resources to be spent for the realization of these rights. In addition, there is also the State’s power to dispose of it at its own discretion, by means of which it sometimes acts in disregard of the society expectations. In the end, it is proposed to improve the instruments that guarantee popular participation in the democratic management of the public budget and in decisionmaking, in order to overcome the problems related to the effectiveness of social rights and, consequently, the distance between the norm and the reality. Keywords: Transportation. Social Rights. Reserve of the Possible. Discretion.

scholarly journals Dano and Alimanovic: the recent evolution of CJEU caselaw on EU citizenship and cross-border access to social benefits

2017 ◽  
Vol 3 (1) ◽  
pp. 65-80
Author(s):  
Rui Lanceiro
Keyword(s):  
Member State ◽  
Case Law ◽  
Social Benefits ◽  
Social Rights ◽  
Member States ◽  
New Approach ◽  
Cross Border ◽  
The Social ◽  
The Status ◽  
The Right

Since its inception, the concept of EU citizenship, as well as the rights and duties deriving therefrom, has evolved considerably, particularly in the area of social rights. ECJ case law has played a central role in defining the right of EU citizens to access social benefits in the host Member States, which meant a decrease in their degree of discretion to restrict the access to national social securities systems. However, the recent Dano and Alimanovic judgments represent a significant change from previous case-law, setting limits on the right of EU citizens to social benefits in the host Member States. The right of residence in another Member State appears to be dependent on the status of a worker citizen in accordance with the new methodology in order to avoid being an excessive burden on the social system of the host Member State. However, the new approach still leaves several unanswered questions. Were these decisions an attempt to address the “social security tourism” debate? Is the CJEU falling behind with regard to the protection of social rights? What will remain of previous jurisprudence?

scholarly journals The Committee of Members of the Constituent Assembly as a Left-Democratic Alternative to the Communists and the Whites in the Civil War

2021 ◽  
Vol 9 (1) ◽  
Author(s):  
Alexander Shubin
Keyword(s):  
Civil War ◽  
World War I ◽  
Private Property ◽  
State Regulation ◽  
Social Rights ◽  
Constituent Assembly ◽  
The Social ◽  
The Government ◽  
The Military ◽  
The Revolution

The Committee of Members of the Constituent Assembly (Komuch) was an option in the Civil War that was essentially distinct from both the Soviet and the White alternatives. Komuch differed from the Soviet and the White authorities, as it was characterised by a combination of advanced socioeconomic policy and a dogmatically principled commitment to parliamentary democracy. In the event of the military victory of such a power, the success of the social democratic model was not guaranteed (as the history of Europe during the interwar period demonstrated), but Russia’s chances of moving along a path that combined a social state and democratic institutions would have increased markedly. While criticising, and in many respects rightly so, the military policy of the Bolsheviks, the Social Revolutionaries and Mensheviks had to partially restore market capitalist relations. Their successful development was possible with the cooperation of the government and the bourgeoisie. The bourgeoisie demanded the dismantlement of “socialist conquests”, which Komuch was not going to do – both for ideological reasons and because the capitalist economy had begun to disintegrate during World War I and the Revolution. Komuch’s path involved the combination of a market economy (not necessarily just capitalist), state regulation, and broad social rights. After the Bolshevik promises, the workers and peasants took it quite calmly, fearing the possible cancellation of the social gains of the Revolution and expressing dissatisfaction with violations of promised civil rights. But the bourgeoisie, convinced of the “inconsistency” of dismantling institutions that infringed on the right of private property, stood in sharp opposition to Komuch, betting on its opponents in the anti-Soviet camp. At the same time, Komuch did not have time to build a state system for monitoring compliance with social rights and had to rely on the activity of trade unions, which, due to their social function, were critical of the government – in this case, Komuch. Komuch followed the law regulating the socialisation of land adopted by the Constituent Assembly and proposed a relatively successful version of regulating the food supply for the cities. Initially, the people’s army created by Komuch was also successful (enjoying support from the Czechoslovak Corps). However, Komuch faced a blockade by the Provisional Siberian Government. It was the opposition of more right-wing forces in the rear that predetermined the defeat of the Komuch alternative.

The Sound of Protest: Acousmatic Resistance in El Método

2020 ◽  
pp. 92-111
Author(s):  
Mónica López Lerma
Keyword(s):  
Drug Trafficking ◽  
Henri Lefebvre ◽  
Social Body ◽  
Spanish Film ◽  
The Social ◽  
The Right ◽  
Relations Of Power ◽  
Forms Of Violence ◽  
The Relationship ◽  
The City

Drawing on the works of Henri Lefebvre and Chris Butler, chapter four explores the relationship between justice, aesthetics, and (the right to) the city through the 2012 Spanish film Grupo 7 directed by Alberto Rodríguez. Based on real events, the film follows a police unit tasked with cleansing the touristy downtown of Seville of prostitution and drug trafficking in order to convey an image of modernity for the Universal Exposition of 1992.  By inviting viewers to experience the violent transformation of Seville, the film makes visible pervasive forms of violence (crime, police brutality, and corruption) concealed behind the promises of modernity. It exposes the ways in which the state and the law shape the social body, organize relations of power, and distribute the sensory order—meaning who and what are included or excluded and who and what are visible or invisible—in a way that erases difference and diversity. The chapter argues that rather than offering a solution, the film constructs a haptic aesthetic where the city’s suburbs and outskirts, its messiness and noise, generally all brushed off by the logic of progress and modernization, cannot be left out from the viewer’s sensory experience of the city.

THE BOUNDARIES PROBLEM OF THE 1950 EUROPEAN CONVENTION DYNAMIC INTERPRETATION ON HUMAN RIGHTS ON THE EXAMPLE OF ENSURING THE SOCIAL RIGHTS OF CONVICTS

2021 ◽  
Vol 7 (1) ◽  
pp. 112-125
Author(s):  
Andrew Yu. KLYUCHNIKOV
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Current Approach ◽  
European Convention ◽  
Social Rights ◽  
Dynamic Interpretation ◽  
European Court ◽  
The Social ◽  
The Right ◽  
The Impact

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.

Sign in / Sign up

Export Citation Format

Share Document