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Full-Text Articles in Jurisprudence
Institutional Conditions Of Contemporary Legal Thought, Paulo D. Barrozo
Institutional Conditions Of Contemporary Legal Thought, Paulo D. Barrozo
Paulo Barrozo
No abstract provided.
Cruelty In Criminal Law: Four Conceptions, Paulo Barrozo
Cruelty In Criminal Law: Four Conceptions, Paulo Barrozo
Paulo Barrozo
This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. No one should be neutral in relation to cruelty. Eminently, cruelty in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of …
The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo
The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo
Paulo Barrozo
This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of …
Reconstructing Constitutional Punishment, Paulo D. Barrozo
Reconstructing Constitutional Punishment, Paulo D. Barrozo
Paulo Barrozo
Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political …
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Por Um Law No Mundo: Fundamentos Jusfilosóficos Do Instituto Da Adoção Como Direito Humano, Paulo Barrozo
Paulo Barrozo
Este ensaio articula os fundamentos jusfilosóficos do direito humano e cosmopolita dos jovens privados de autêntica relação pais-filhos de serem adotados, tendo assim acesso à experiência de crescer como fihas ou filhos. Esta visão jusfilosófica da adoção como direito humano é contraposta à abordagem, até então predominante, consequencialista-filantrópica da adoção. Uma vez apresentados os fundamentos jusfilosóficos em questão, cinco principais distinções emergem entre a adoção como direito humano e a visão tradicional da adoção. Primeiro, a perspectiva da adoção como direito humano reconhece o fato de que negligência e abuso de jovens é proporcionalmente e em termos absolutos mais frequente …
Fact Therapy: Review Of William J. Stunz's The Collapse Of American Justice, Paulo Barrozo
Fact Therapy: Review Of William J. Stunz's The Collapse Of American Justice, Paulo Barrozo
Paulo Barrozo
Book review of "The Collapse of American Criminal Justice" by William J. Stuntz.
Punishing Cruelly: Punishment, Cruelty, And Mercy, Paulo Barrozo
Punishing Cruelly: Punishment, Cruelty, And Mercy, Paulo Barrozo
Paulo Barrozo
What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the …
The Idea Of Equality And Affirmative Actions, Paulo Barrozo
The Idea Of Equality And Affirmative Actions, Paulo Barrozo
Paulo Barrozo
The article starts out from a concise reconstruction of the republican and the democratic ideals in the context of the modern expansion on emancipatory ideals and programs so as to produce an understanding of the principle of equality in light of them. It then seeks to develop the rudiments of a constitutional theory of equality consistent with the emancipatory ideals from which it derives its most robust meaning. In its last segment the article examines the question of "affirmative action" in the access to higher education within the scope of the proposed basis for a theory of equality.