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Full-Text Articles in Jurisprudence
The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho
The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho
Nevada Law Journal
The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity …
Deconstructing The Models Of Judges: Legal Hermeneutics And Beyond The Subject-Object Paradigm, Lenio Luiz Streck
Deconstructing The Models Of Judges: Legal Hermeneutics And Beyond The Subject-Object Paradigm, Lenio Luiz Streck
Nevada Law Journal
The linguistic-ontological turn has brought uncountable consequences to the interpretation of Law. However, dogmatic-legal knowledge remains hostage to a judicial protagonism, a philosophy of consciousness that, together with legal discretion, represent two sides of the same coin. The criticism of judicial discretion is a matter of democracy: decisions must be coherent, assuring the integrity of Law by reinforcing the normative power of the Constitution from which arises the need for correct answers in Law.
Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii
Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii
Scholarly Works
As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …
Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii
Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii
Scholarly Works
In this Article, I defend the Rule of Law from its detractors in the academy by uncovering and criticizing the unsound presuppositions driving their critiques. I acknowledge that these critiques raise two different problems for those who defend the plausibility of the Rule of Law: The problem of ensuring legal innovation and the problem of supplying effective constraint. In response to these problems, I locate our faith in the Rule of Law in the hermeneutical practice in which we are engaged as lawyers. Jurisprudential characterizations of the problems of constraint and innovation are misguided reactions to the narrow Enlightenment conception …