Direitos Humanos e Retóricas Canibais

If the universalization of human rights represents for some a glorious victory of the legal culture of the last century, for others, however, it mirrors failure and is linked to the last breaths of a type of legal rationality that had sought, albeit in a well-intentioned way, maximum expansion of the scope of these rights by the related search for ultimate and definitive foundations. The hypothesis that was raised here is that without realizing and allowing itself to be guided by supposedly universal and therefore arethorical moral criteria, it discredited intercultural dialogue and despised what is unique and endemic in minority cultures, legitimizing exclusion or subordinate inclusion. Cannibalizing, Thus, through rhetoric with apoditic pretensions (arhetorical rhetoric), the other countless grammars of dignity that still prevail in the plural world we inhabit. The objective here is, therefore, to denounce, using the method of rhetorical analysis, this process of cannibalization, subsumption and contempt for the understanding of a world that is extraneous to that kind of worldview that underlies the universal theories of human rights.

Secularist Humanism, Law and Religion in Ian McEwan’s The Children Act

Ian McEwan’s The Children Act focuses on a real-life conflict between religion and children’s rights in a pluralist society. By drawing on Charles Taylor’s work on religion in the “secular age”, I argue that McEwan’s narrative is ultimately built on secularist assumptions that devalue religious experience. McEwan’s approach aims to build a bridge between literary imagination and scientific rationality: religion is, from this perspective, reducible to a “fable” and an authority structure incongruous with legal rationality and the quest for meaning in the modern-secular society. In The Children Act, art substitutes religion and its aspiration to transcendence: music in particular is a universal idiom that can overcome barriers of communication and provides “ecstatic” experiences in a godless world.

The Narrowing of the European Court of Human Rights? Legal Diplomacy, Situational Self-Restraint, and the New Vision for the Court

In recent years, the European Court of Human Rights (ECtHR) has faced a growing number of challenges, stemming, among other reasons, from problems with the implementation of some of its judgments, an upsurge of sovereigntist sentiments in some member states, and the rise of de facto illiberal democracies within its jurisdiction. This article examines the effects that these changing contexts have had on the operation of the ECtHR. In very general terms, the article finds that the ECtHR has become increasingly more restrained, but that this restraint plays out in multiple different ways which reflect the structural differences among the member states with regard to the protection of human rights. The article argues that the ECtHR has developed a new and differentiated legal rationality that combines elements of its original legal diplomacy with new forms of self-restraint and a new, revised vision for its overarching role in the protection of European human rights. The overall result is a narrowing of the role of the Court.

Final Comment

The final chapter deals with the metaphor expressed in the book’s subtitle, in order to consider what type of judge is best prepared to face and overcome the paradox of the relation between principles and rules in each concrete case: Judge Hercules or Judge Hydra? The answer will ultimately be the following: neither of them, but instead Judge Iolaus. Based on this metaphor, the paradox of constitutional principles and constitutional rules is presented as a special case of the paradox of justice in terms of systems theory: the paradoxical relationship between closure and consistency of legal system and its openness and adequacy to society. Rules relate primarily to the closure and consistency of law and principles concern primarily its openness and adequacy to society. While the former are associated predominately to the formal argumentation, the latter are linked first and foremost to the substantive argumentation. In this way, the ideas of ‘a single right answer’ and of optimizing balancing are rejected head on, and the precariousness of legal rationality is affirmed.

Constitutionalism and the Paradox of Principles and Rules

The present book offers a critical counterpoint to Ronald Dworkin’s principle-based theory, and in particular to Robert Alexy’s idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least ‘satisficing’ balancing, considering the precariousness of legal rationality. The book also reverses Dworkin’s metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, but pointing out their relationship of complementarity and tension with rules. Finally, the author offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former are referred primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second are referred primarily to the closure and consistency of legal system and thus to formal argumentation.

Law and Rationality: A Historiographical Investigation of the Understanding of Motivation and Human Agency in Early Legal Anthropology

The purpose of this article is to examine how nineteenth-century legal science conceptualized and dealt with otherness in law, with examples of legal phenomena such as ordeal and blood revenge to illustrate how the concept of legal rationality evolved in the early legal anthropology and how it still influences our understanding of legal otherness. It provides new insights on how, in the treatment of specific legal institutions, the ideas of reason and rationality could change as scholars used European medieval history to aid in the understanding of indigenous cultures.

Border troubles. Some uncertainties of legal transfer

Issues of production, translation and transformation of texts are explored in the light of the differences between modern Western legal thought and Chinese views of legal rationality. Contemporary Chinese culture is often viewed with suspicion. On the one hand, Chinese thinking is mistrusted as influenced by the Confucian world view regarded as deeply irrational. On the other hand, China’s economical practises are often suspected of mere reproducing and copying. This paper is concerned neither with alleged or factual deficiencies of China’s legal rationality nor with violations of “intellectual property” or other rights or the governmental policies of the People’s Republic of China. My interest is the fact that accusation and concern for the Chinese practises of creation and transformation by copying and cloning seem to hit the nerve of Western modernity’s cult of authenticity. The very problem, the paper suggests, is our modern relation to the other and to the others. I will argue this in three steps: the first part starts from a discussion of ‘shanzhai’, the Chinese neologism pointing to alternative ways of production, before analysing the Western scandalization of plagiarism; drawing upon studies from various disciplines, specific aspects of writing and scripture, such as the the differentiation between real text and fiction, the idea of authentic speaking and the distinction between textual and functional equivalents, are explored. The second part is first about the role of truth and truthfulness in modern Western art and philosophy, then about the interpenetration of wisdom and cunning in ancient Greek and Chinese thought. The final part addresses the relation of reasonable knowledge and instrumental rationality in legal thinking. The Chinese notion of ‘quan’, law, is described as a jurisgenetic path of law. Against this background, open questions associated with legal “transplants” come to the fore.

Should Hunting as a Cultural Heritage Be Protected?

The paper focuses on hunting as cultural heritage from the semiotic and legal perspectives. The aim of the paper is to determine whether the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 allows recognizing the transmission and exercise of hunting skills within the Polish Hunting Association as a manifestation of intangible cultural heritage. The main research method applied in this research is the test of legal rationality encompassing five elements: (1) the generic coherence of hunting knowledge and skills in Poland; (2) the lack of conflict with the principles arising from universal human rights instruments; (3) the significance of hunting knowledge and skills for nature protection and conservation; (4) the significance of hunting knowledge and skills for economic balance and internal security; and (5) the hunting knowledge and skills versus the idea of nature-related cultural identity. The newspaper and political discourse is highly emotional loaded and frequently instead of merits is based on propaganda and half-truths. Nowadays hunting in general is perceived as the so-called blood sport not an element of ecology in the nature disturbed by humans. Therefore, the paper is intended to present the UNESCO Convention and facts about Polish hunting model as an element of sustainable nature and environment conservation and protection as well as a tool of biodiversity preservation.

ENTRE EL COMMON LAW Y EL CIVIL LAW DE FINALES DEL SIGLO XIX. RACIONALIDAD DEL DERECHO Y PREVISIBILIDAD EN WEBER

En las dos versiones del libro “La ética protestante y el espíritu del capitalismo”, Weber, pretende dejar en claro que, así como los valores del protestantismo dieron origen a un modo de vivir que se identificó en el «espíritu» del capitalismo y contribuyeron a su desarrollo, se puede afirmar que dichos valores favorecieron un modo de vida racional y la racionalización del derecho. Sin embargo, Weber no identificó dicha racionalidad jurídica formal con previsibilidad, sino que, por el contrario, vio en el stare decisis un mecanismo capaz de propiciar previsibilidad a un derecho formalmente irracional, de tal forma que el common law, fuera capaz de garantizar, mediante el sistema de los precedentes obligatorios, un grado de previsibilidad que permitió el nacimiento del capitalismo. Constituyendo así, la oportunidad que Weber ofrece para demostrar que el stare decisis es un instrumento para lograr la previsibilidad en el derecho. In the two versions of the book “The Protestant Ethics and the Spirit of Capitalism”, Weber intends to make it clear that, just as the values of Protestantism gave rise to a way of life that was identified in the «spirit» of capitalism and contributed to its development, it can be said that those values favoured a rational way of life and the rationalization of law. However, Weber did not identify such formal legal rationality with predictability, but, on the contrary, saw in stare decisis a mechanism capable of providing predictability to a formally irrational right, in such a way that common law, was able to guarantee, through the system of binding precedents, a degree of predictability that allowed the birth of capitalism. Thus constituting the opportunity offered by Weber to demonstrate that stare decisis is an instrument to achieve predictability in law.