Revista da Faculdade de Direito, Universidade de São Paulo
type: channel
description: A Revista da Faculdade de Direito de São Paulo foi publicada entre os anos de 1893 e 1934. Com a criação da Universidade de São Paulo a Faculdade foi incorporada à USP juntamente com sua revista. A partir de então, passou a ser publicada com o título Revista da Faculdade de Direito da Universidade de São Paulo.
publisher: Universidade de São Paulo. Faculdade de Direito
language: en
publication name: Revista da Faculdade de Direito, Universidade de São Paulo
issn: 0303-9838
items: Tribute to Antonio Augusto Machado de Campos Neto
items: Violence, gender and criminal law: the role of the university for gender equity in law
items: Professor Celso Campilongo’s taking office speech as dean of the University of São Paulo Law School
items: Capitalism, law and derivation: a critical study on Max Weber
items: The impacts of 5G technology on privacy rights in Brazil
items: As sanções processuais do direito romano à litigância temerária
items: Natural law between superstition and enthusiasm: the “minimum content of natural law” in H.L.A. Hart and the influence of David Hume’s moral scepticism
items: The paradox of china’s alternative of development: lessons from professor Roberto Mangabeira Unger
items: The new social movements and the diatopic hermeneutics: a useful tool for the (re)construction of national legal culture
items: Setback in the fight against racial inequalities in health and management of COVID-19 pandemic in Brazil
items: Silenced voices: a brief history of indigenous peoples in Argentina and their current struggle for their rights
items: Le eccezioni preliminari nel caso Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)
items: Digital democracy and digital inclusion of indigenous peoples as strengthening of legal pluralism
items: Federalism, legislative competence and complementary reserve of law in tax matters: can municipalities establish species of extinction of tax credit not provided for in the National Tax Code?
items: Budgetary allocation: the clash of technique and politics
items: The bill of review in the Portuguese-Brazilian procedural history: from the impossibility of review to the mitigated list
items: Structural injunctions: origin, relevant leading cases in Latin America and reflections on Brazilian procedural system
items: The teaching of theory of the state to combat inequality from its purpose: the University of Sao Paulo Law School experience
items: The deparated state under the global regulation: considerations over crisis or technical adaption of the state from the case of distribution of ineffective medicines during the Covid-19 pandemic
items: https://revistas.usp.br/rfdusp/en/article/view/218297
items: For a material rationality of the rights of nature: a reflection from the Belo Monte plant and the papagaio Verdinho cases
items: Pandemia, tecnologia e seus reflexos nas relações familiares
items: Criteria for the classification of negative obligations
items: Limits to the cumulation of the penalty clause with other contractual liability doctrines
items: Analysis of the legal nature of the tithe from the contract law perspective
items: Human-machine interaction: the “significant human control” standard and its impacts on the civil liability imputation for damages arising from autonomous vehicles
items: Introductory notes about Servius Sulpicius Rufus
items: For a universal law of humankind
items: International law between voluntarism and jus cogens: bilateral immunity agreements and the jurisdiction of the International Criminal Court
items: Plato and the attorneys: a study on Gorgias

Tribute to Antonio Augusto Machado de Campos Neto
type: item
subject: Contribution to the Academic Memories
  topic: section
creator: Antonio Carlos Morato
creator: Eduardo Carlos Bianca Bittar
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 895
ending page: 896
doi: 10.11606/issn.2318-8235.v117p895-896

Violence, gender and criminal law: the role of the university for gender equity in law
type: item
subject: Speeches and Conferences
  topic: section
creator: Ana Elisa Liberatore Silva Bechara
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 879
ending page: 894
doi: 10.11606/issn.2318-8235.v117p879-894

Professor Celso Campilongo’s taking office speech as dean of the University of São Paulo Law School
type: item
subject: Speeches and Conferences
  topic: section
creator: Celso Fernandes Campilongo
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 871
ending page: 878
doi: 10.11606/issn.2318-8235.v117p871-878

Capitalism, law and derivation: a critical study on Max Weber
type: item
description: This paper aimed to discuss Max Weber’s Economy and Society, from a critical theoretical framework, here understood as Marxist sociology. More specifically, it was carried out the structural analysis of the chapters of the work that concern the sociology of Law and the relations of the legal phenomenon with the economic scope. The critical reference used, in turn, corresponded to Pachukanis’ work entitled General Theory of Law and Marxism, as well as some of his later readings. Throughout the text, the determination of Law through Economy is discussed, although legal interference in Economy is not ignored, as if legal institutions were only secondary developments of economic relations. On the contrary, both for Weber and for Pachukanis, the legal form (the latter’s expression) is essential for the constitution not only of the circulation of commodities, but also for the establishment of production relations themselves. For the German author, rational normativity allows, above all, the predictability of legal relations, which economic enterprises depend on. For the Soviet author, the constitution of individuals as subjects of law is the decisive moment for the exchange of commodities – among which labor power – to be carried out by contract.
subject: Papers of Graduates Students
  topic: section
subject: Max Weber
  topic: keywords
subject: Law and Economics
  topic: keywords
subject: Derivation
  topic: keywords
subject: Evguiéni Pachukanis
  topic: keywords
subject: Legal form
  topic: keywords
subject: Political form
  topic: keywords
subject: State Theory.
  topic: keywords
creator: Alexandre de Lima Castro Tranjan
creator: Brenda Barros Neves
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 831
ending page: 869
doi: 10.11606/issn.2318-8235.v117p831-869

The impacts of 5G technology on privacy rights in Brazil
type: item
description: The present paper has as its main objective to delineate the possible impacts to privacy rights brought upon by the arrival of 5G technology in Brazil. With such goal in mind, the method of comparative analysis was used, drawing parallels with the European Union, where the 5G is more available. As a following step, with such analysis as an underlying base, the way how certain institutes of the Brazilian law order (the Civilian Framework of the Internet, the General Data Protection Law, the Consumer Protection Code) will deal with aforementioned technology, was studied. Furthermore, in the sphere of the regulatory sector, the capacity of Anatel (a government agency which is responsible for dealing with such area) managing such impacts was also analysed. The conclusion of this paper is that 5G will bring new characteristics, such as the high speed of data transmission, which may represent big challenges to the national law order, that must be observed in the future.
subject: Papers of Graduates Students
  topic: section
subject: Privacy rights
  topic: keywords
subject: Impacts
  topic: keywords
subject: Brazilian law order
  topic: keywords
subject: 5G technology.
  topic: keywords
creator: Lucas Enriquez Rocha
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 801
ending page: 830
doi: 10.11606/issn.2318-8235.v117p801-830

As sanções processuais do direito romano à litigância temerária
type: item
description: Just as the Brazilian Code of Civil Procedure (“CPC/15”) currently punishes vexatious litigation, in its Articles 79 to 81, the Roman lawyers also dealt, in their own way, with the problem of the so-called reckless conduct in the context of a lawsuit. As Gaius (Gai. 4, 171) describes, the behavior of both parties in a procedural relation could be sanctioned: both the temerity (“temeritas”) of the defendant and the chicanery or calumny (“calumnia”) of the plaintiff were subject to punishment. This paper deals with the institutes that, according to Gaius’ exposition (Gai. 4, 174 et seq.), in his manual “Institutiones”, were aimed, in the Roman law of his time, to punish the authors of frivolous or reckless actions. The text thus ranges from solemn promises (“sponsio” and “restipulatio”), from which an obligation arose for the losing party to pay the other a pecuniary penalty, to a religious oath against chicanery (“iusiurandum calumniae”). The paper also includes the iudicium contrarium, a more severe form of sanction, which, when employed by the defendant, imposed on the defeated plaintiff, regardless of fault, the payment of a sum of money, and the iudicium calumniae, designed to punish the plaintiff who, even though knew had no rights, brought an action.
subject: Papers of Graduates Students
  topic: section
subject: Temeritas
  topic: keywords
subject: Calumnia
  topic: keywords
subject: Gaius
  topic: keywords
subject: Roman civil procedure.
  topic: keywords
creator: Sergio Lima Dias Junior
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 779
ending page: 800
doi: 10.11606/issn.2318-8235.v117p779-800

Natural law between superstition and enthusiasm: the “minimum content of natural law” in H.L.A. Hart and the influence of David Hume’s moral scepticism
type: item
description: David Hume is not always remembered as an important jus-positivism philosopher. Hume put forward a conventionalist notion of justice as an alternative to the “enthusiasm” of the Protestant natural law theorists. For them, law would be legitimate only if it respected individual rights discovered by reason. Therefore, Hume formulated a descriptive theory of justice, which relates to his political theory, his political science and, abstractly, his philosophy. The hypothesis of this paper is how H.L.A. Hart adhered to these presuppositions when formulating his conception of the “minimal content of Natural Law”, implicitly, which left ambiguous the meaning of important passages of his The Concept of Law. The aim of the paper is to expose these assumptions. Some interpretations in Hart’s statements on truisms is an admission of the connection between law and morality. However, once the influence of Hume evidenced, we can understand how truisms of Natural Law are not prescriptions, but generalizations or empirical maxims drawn from a kind of Natural History of the human species. After presenting central aspects of Hume’s philosophy, similarities and connections with Hart’s theory will be exposed. The confirmation of the hypothesis has important consequences for understanding what Hart understood as “Natural Law”. Although the minimal content does not imply the total abandonment of the separation thesis, the illumination of the Humean assumptions shows the fragility of a descriptivist and amoral Theory of Law, as Hume and Hart intended.
subject: Academic Papers of Post-Graduates
  topic: section
subject: H.L.A. Hart
  topic: keywords
subject: David Hume
  topic: keywords
subject: Natural Law
  topic: keywords
subject: Law and morals
  topic: keywords
subject: Scepticism
  topic: keywords
subject: Empiricism
  topic: keywords
subject: Minimum content of natural law
  topic: keywords
subject: Truisms of natural law
  topic: keywords
subject: Natural history
  topic: keywords
subject: Separation thesis.
  topic: keywords
creator: Martin Magnus Petiz
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 757
ending page: 777
doi: 10.11606/issn.2318-8235.v117p757-777

The paradox of china’s alternative of development: lessons from professor Roberto Mangabeira Unger
type: item
description: Professor Mangabeira Unger’s work covers different facets of human experience, analyzing and comparing different examples of political and economic national transformation. Among the cases studied, Unger’s writings on China deserve special attention; a country marked by a unique history of institutional experimentalism in a political regime characterized by the leadership of a communist state-party. This paper seeks to analyze Unger’s work on China, in particular, his examination of the paradoxical relationship between the Chinese State, market and society. Through a review of Unger’s writings over the last four decades, this paper examines his notes on the topic and draws parallels, when possible, with the current Chinese political-economic context. As a conclusion, this paper highlights how the paradox pointed out by Unger in the 1990s between institutional experimentalism and political contingencies remains unavoidably current, even though the apparent tension that could drive a democratization of the communist regime has not led to meaningful political transformations. Notwithstanding, the Chinese case, which previously constituted one of the alternative experiences of communist nature, now forms a modular axis of world politics and economy, capable of influencing global socioeconomic dynamics. Thus, it is worth reflecting on the opportunities and limits that the Chinese alternative presents from Professor Unger’s lessons, especially in the legal-economic field for developing countries.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Mangabeira Unger
  topic: keywords
subject: China
  topic: keywords
subject: Development
  topic: keywords
subject: Institutional experimentalism
  topic: keywords
subject: Communism.
  topic: keywords
creator: Marco André Germanò
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 737
ending page: 755
doi: 10.11606/issn.2318-8235.v117p737-755

The new social movements and the diatopic hermeneutics: a useful tool for the (re)construction of national legal culture
type: item
description: The construction of Brazilian society has never been easy and much less peaceful. So, being closely related to the social context, the national legal culture was and still is very influenced by the complex Brazilian social fabric. Based on the need to restructure the contents and practices of the national legal culture, critically and compromised, this work will be concerned with suggesting the use of the diatopic approach, a theoretical contribution from the legal anthropology, as a tool capable of helping new social movements to introject their postulates, contents and procedures in Brazilian law, in order to recognize them as effective and fully valid.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Diatopic hermeneutics
  topic: keywords
subject: New social movements
  topic: keywords
subject: Legal pluralism
  topic: keywords
subject: Legal sociology
  topic: keywords
subject: Legal anthropology.
  topic: keywords
creator: Manuela Andrade do Nascimento
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 721
ending page: 735
doi: 10.11606/issn.2318-8235.v117p721-735

Setback in the fight against racial inequalities in health and management of COVID-19 pandemic in Brazil
type: item
description: The health of people is not determined by natural aspects or destiny; it is impacted by the access to a health system and other socioeconomic conditions, such as income, education and housing. A social and racial gradation in health is evidenced by the fact that, in Brazil and in the world, the poorest and non-white have the worst health services. Those conditions, named “social determinants of health”, can be controlled, demonstrating the role of public policies and the Law in the populations` health. Law affects health and may perform a double role, perpetuating or impacting the social determinants of health. Brazilian Law, grounded on the 1988 Federal Constitution, determines the existence of a universal health system and provides for affirmative actions for combatting the structural racism in the health sector. Notwithstanding the importance of those rules, Brazil presents extreme social and racial inequality, including on health, what has been worsened by recent setback in certain policies and the COVID-19 pandemic. In order to promote health and the fight against health inequalities, beyond the existence of rules and institutions, it is necessary to preserve the Democratic Rule of Law and assure institutional representation for underprivileged groups. Assaults against democracy represent assaults against public health and social and racial inequalities reduction policies, what has been demonstrated during the COVID-19 pandemic in Brazil.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Social determinants of health
  topic: keywords
subject: Structural racism
  topic: keywords
subject: Setback in public policies
  topic: keywords
subject: COVID-19.
  topic: keywords
creator: Júlia Rodrigues Coimbra
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 703
ending page: 719
doi: 10.11606/issn.2318-8235.v117p703-719

Silenced voices: a brief history of indigenous peoples in Argentina and their current struggle for their rights
type: item
description: This paper aims to analyze the situation of indigenous people in Argentina and their continuous claim for the implementation of their rights, based on the leading case “Comunidades Indígenas miembros de la Asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina”. First of all, it is necessary to make a historical recount that will allow us to appreciate what was the role of indigenous people in society in the 16th Century. Secondly, we will analyze Argentina’s legislation that regulates this matter. Finally, we will concentrate on the arguments of the Inter-American Court of Human Rights, whose sentence is relevant for Argentina as it was the first claim to be brought before an international court that involves indigenous peoples. This paper proposes to use this sentence as a test case for the rest of the countries in the region.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Indigenous Peoples
  topic: keywords
subject: Argentine’s regulations
  topic: keywords
subject: International Law.
  topic: keywords
creator: Olivia Raquel Irala González
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 683
ending page: 702
doi: 10.11606/issn.2318-8235.v117p683-702

Le eccezioni preliminari nel caso Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)
type: item
description: Il lavoro costituisce una discussione dei principali problemi relativi alle «eccezioni preliminari» nell’ambito del processo davanti alla Corte internazionale di giustizia nel caso Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). Vengono innanzi tutto analizzate le tre questioni preliminari più problematiche del caso: quella dell’esatta definizione dell’oggetto della controversia; quella dell’esistenza di un «potere inerente» della Corte in grado di fondare la competenza della stessa a decidere una controversia relativa all’esecuzione di una sua precedente sentenza; quella, infine, dell’esistenza della controversia. Nell’affrontare l’analisi di questi problemi, è messo poi in evidenza che alcuni argomenti giuridici, non meno rigorosi né meno validi rispetto a quelli accolti dalla Corte, avrebbero potuto condurre a una decisione esattamente opposta a quella di cui al dispositivo della sentenza sulle eccezioni preliminari del 17 marzo 2016, con cui la Corte aveva dichiarato la propria «competenza» a decidere il caso. Un’argomentazione diversa, altrettanto valida dal punto di vista teorico, avrebbe condotto infatti alla declaratoria dell’«irricevibilità della domanda», con la conseguenza che non vi sarebbero state né la celebrazione del processo sul merito, né la condanna della Colombia con la sentenza del 21 aprile 2022. Si conclude così mostrando l’ineluttabile «non univocità» dell’applicazione del diritto come «tecnica pura», e sostenendo – anche sulla base di una valorizzazione, nel caso concreto, del concetto aristotelico di phronesis – che se la Corte ha infine sposato taluni argomenti e non altri, ciò è stato essenzialmente il risultato del calcolo degli effetti «pratici» della propria decisione, e quindi di «scelte» che in certa qual forma possono dirsi anche «politiche».
subject: Academic Papers of Post-Graduates
  topic: section
subject: Corte Internazionale di Giustizia
  topic: keywords
subject: Nicaragua c. Colombia
  topic: keywords
subject: Eccezioni preliminari
  topic: keywords
subject: Oggetto ed esistenza della controversia
  topic: keywords
subject: Esecuzione di una sentenza precedente della Corte
  topic: keywords
subject: Applicazioni teoriche del diritto e decisione «pratico-politica».
  topic: keywords
creator: Federico Travan
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 645
ending page: 682
doi: 10.11606/issn.2318-8235.v117p645-682

Digital democracy and digital inclusion of indigenous peoples as strengthening of legal pluralism
type: item
description: The paper analyzes the impacts of the digital indigenous peoples on their effective political participation, especially in the context of democratic and pluralist strengthening in Latin America. The study is divided into two parts: (i) the first, analyzing the existing digital gaps between indigenous and non-indigenous people, hindering the right to digital inclusion and the specific rights of indigenous peoples, resembling their right to territory and the self-determination and; (ii) the second, evaluating, based on practical cases, the digital inclusion of indigenous peoples as a strengthening of democratic rights, especially in the context of digital democracy and legal pluralism.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Digital inclusion
  topic: keywords
subject: Indigenous People
  topic: keywords
subject: Legal Pluralism
  topic: keywords
subject: Democracy.
  topic: keywords
creator: Denizom Moreira de Oliveira
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 627
ending page: 644
doi: 10.11606/issn.2318-8235.v117p627-644

Federalism, legislative competence and complementary reserve of law in tax matters: can municipalities establish species of extinction of tax credit not provided for in the National Tax Code?
type: item
description: The purpose of this paper is to reflect and answer the following question: can Municipalities create additional tax credit extinction hypotheses of those currently existing in the National Tax Code? For this purpose, the hypothetical-deductive method will be used in the search for the answer to the questions, in addition to the analysis of the Federal Constitution, the National Tax Code, the doctrine and the Federal Supreme Court case law. The answer to the question is positive, that is, the Municipalities have the competence to institute modalities of extinction of their tax credits not provided for in the CTN, because the Constitution only requires a national supplementary law to provide for prescription and decay in tax matters, the theory of implicit powers (the more can the less) can be used as a basis for the affirmative answer and, finally, the hypotheses of extinction of the tax credit provided for in the National Tax Code constitute an exemplary list. Therefore, as a conclusion, the answer is positive, that is, the Municipalities can, by simple ordinary law, establish new hypotheses for the extinction of the tax credit.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Federal Constitution
  topic: keywords
subject: Federalism
  topic: keywords
subject: Autonomy of federated entities
  topic: keywords
subject: Power to legislate on tax law
  topic: keywords
subject: National Tax Code as a general rule.
  topic: keywords
creator: Marcelo Cheli de Lima
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 607
ending page: 626
doi: 10.11606/issn.2318-8235.v117p607-626

Budgetary allocation: the clash of technique and politics
type: item
description: The main objective of this paper is to analyze the question of the legal contours of budgetary allocations, in the context of intense defense of a technobureaucratic allocation process that is intended to be impartial and impartial, and of severe criticism of political definitions. Arguments are presented to emphasize that, although quantifiable costs and benefits are fundamental for the allocative decision-making process, the choice of public expenditure takes place within the scope of selection between competing objectives and ends, being, fundamentally, political. Furthermore, it is intended to investigate the constitutional, legal and regimental requirements for the proposition of parliamentary amendments, comparing these minimum requirements with the recent Federal Supreme Court and the Federal Audit Court case laws. The most recent decisions by the TCU and the STF signal of the introduction of requirements not expressly provided for in the 1988 Political Charter, as well as in the legislation, with no trivial consequences for the allocation process within the National Congress. As research sources, in addition to the legislation that governs the proposal of parliamentary amendments, audit reports and TCU rulings that dealt with the subject are used, as well as STF decisions on parliamentary amendments, in addition to using research bibliographic and doctrinal basis for the reasoning of the arguments of this paper.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Parliamentary amendments
  topic: keywords
subject: Budgetary allocation
  topic: keywords
subject: Requirements
  topic: keywords
subject: Discretion
  topic: keywords
subject: Technique
  topic: keywords
subject: Politics.
  topic: keywords
creator: Rodrigo Oliveira de Faria
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 579
ending page: 605
doi: 10.11606/issn.2318-8235.v117p579-605

The bill of review in the Portuguese-Brazilian procedural history: from the impossibility of review to the mitigated list
type: item
description: This paper aims to analyze the genesis and development of the bill of review in the history of Portuguese-Brazilian civil procedural law to the present day, specifically regarding its suitability. The deductive method of approach is used, through a historical procedure and descriptive methodology, based on bibliographic and documental research in primary and secondary sources. It is noted that, throughout the Portuguese-Brazilian civil procedural law history, the same problems and the same “solutions” for the grievance regime are repeated, whether in the expansion of its scope, or in its restriction, in flagrant tension between the need to alleviate Courts and provide adequate judicial protection. Thus, the need for a new look at the subject is evident, abandoning the old conceptions rooted in Brazilian proceduralism, marked by its historical conditioning to Portuguese law.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Bill of review
  topic: keywords
subject: Intermediary decision
  topic: keywords
subject: Kingdom Ordinances
  topic: keywords
subject: Civil Procedure Code
  topic: keywords
subject: History of Law.
  topic: keywords
creator: Fernanda Rosa Coelho
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 551
ending page: 578
doi: 10.11606/issn.2318-8235.v117p551-578

Structural injunctions: origin, relevant leading cases in Latin America and reflections on Brazilian procedural system
type: item
description: This paper aims to study the stability of structural injunctions, with the initial purpose of identifying the concepts presented by the doctrine for the definition – not always precise – of this procedural model. Also included in this work is the analysis of structural decisions and its great repercussion in Latin American countries, followed by the complete demonstration that the Brazilian Civil Procedure Code contains instruments, techniques and rules that are perfectly adapted to the this procedural model. Finally, it is intended to examine the stability rules of structural decisions – here understood in a sense that encompasses judgements that partially analyze the merits or that approve the composition of part of the requests – in the light of the provision contemplated in art. 23, caput of LINDB and the theory of dynamic estoppels, as well as in accordance with the concept of res judicata governed by the Brazilian Civil Procedural Code.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Structural injunctions
  topic: keywords
subject: Leading cases
  topic: keywords
subject: United States
  topic: keywords
subject: Latin America
  topic: keywords
subject: Brazilian procedure system
  topic: keywords
subject: Stability.
  topic: keywords
creator: Paulo Guilherme Mazini
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 527
ending page: 550
doi: 10.11606/issn.2318-8235.v117p527-550

The teaching of theory of the state to combat inequality from its purpose: the University of Sao Paulo Law School experience
type: item
description: The present paper is situated in the field of Theory of the State and of the methodologies of the teaching of Law. On one hand, we aim to draw some considerations about the purpose as a formative element of the State, characterizing the struggle against inequalities as a purpose of the Brazilian State. On the other hand, it is intended to defend the importance of teaching General Theory of the State – a subject that is less and less present in undergraduate courses in Law – as a way of understanding the phenomenon of inequality and training for the handling of state instruments to face this problem in the context of globalization. To this end, two research methodologies were used, the first being theoretical, through a doctrinal review on the purpose of the State and on globalization, and the second empirical, from the exposition of some experiences of active methodologies in the teaching of Theory of State at the University of São Paulo Law School, demonstrating how legal education can be transformative from the point of view of purpose and equality.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Purpose
  topic: keywords
subject: Inequality
  topic: keywords
subject: Globalization
  topic: keywords
subject: Legal education
  topic: keywords
subject: Active methodologies.
  topic: keywords
creator: Michel Kurdoglian Lutaif
creator: Arthur Paku Ottolini Balbani
creator: Lucca Lopes Monteiro da Fonseca
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 513
ending page: 526
doi: 10.11606/issn.2318-8235.v117p513-526

The deparated state under the global regulation: considerations over crisis or technical adaption of the state from the case of distribution of ineffective medicines during the Covid-19 pandemic
type: item
description: Distribution of ineffective medicines for medical treatment of COVID-19 in Brazil has led to societal division over how standards of scientific safety shall anchor decision made by national agencies faced to a complex and globalized regulatory framework. In this paper, I argue that this circumstance has exposed a tension between a nuclear pattern of administrative discretion to conceive public policies and a peripheral reasoning of scientific safety proper of risk society. By doing so, I address State’s understanding to question if such tension means crisis of the State or its technical adaptation. For this purpose, I raise traditions of thought that regard the State as an expression of sovereign unit of will, as well as those which held the State as the monopoly of use of force, including symbolic force, so that it edifies the sense of official and legitimation. I conclude that regulation and the way by which States have led with risk compress administrative discretion and the sense of political representation. However, the perception of States’ crisis depends on the view of its concept and functioning.
subject: Academic Papers of Post-Graduates
  topic: section
subject: State
  topic: keywords
subject: Discretion
  topic: keywords
subject: Globalized Sanitary Regulation
  topic: keywords
subject: Scientific Safety.
  topic: keywords
creator: Emílio Mendonça Dias da Silva
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 493
ending page: 512
doi: 10.11606/issn.2318-8235.v117p493-512

https://revistas.usp.br/rfdusp/en/article/view/218297
type: item
title: The absence of dialogue between the amendments to 31 Regulatory Norm and the decisions of the labor judiciary on safety and health at work in agriculture, livestock, forestry, forest exploitation and aquaculture in empirical sampling
description: The paper analyzes whether the amendment of 31 NR issued in 2020, in force since October 27th, 2021, deals with the provisions of the ILO (International Labor Organization) and with the main discussions found in the Labor Judiciary case law in sampling in Brazil. The regulation was changed with the aim of simplifying and establishing the precepts to be observed in the rural work environment, making the planning and development of activities in the sector compatible with the prevention of accidents and diseases related to rural work. The empirical analysis located the decisions (judgments) of the 18th Circuit Labor Court based on the specific search criterion of the norm (31 NR) and with a temporal criterion cut of the year of the decisions of the year 2019. The conclusions of the empirical study show the lack of dialogue between the amendment of 31 NR with the themes of the judgments and the standardization provided for in the ILO ratified by Brazil, with the exclusion of provisions on the rights of rural workers, as well as on the subject of sanitary conditions that may pose a risk to decent work, degrading working conditions, absence of breaks and exposure to heat.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Labor
  topic: keywords
subject: Regulation
  topic: keywords
subject: Rural and empirical safety.
  topic: keywords
creator: Mariana dos Anjos Ramos Carvalho e Silva
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 467
ending page: 491
doi: 10.11606/issn.2318-8235.v117p467-491

For a material rationality of the rights of nature: a reflection from the Belo Monte plant and the papagaio Verdinho cases
type: item
description: This paper deals with the need to look at the field of the rights of nature from a methodological approach that favors a material view of its realization, in view of the concrete danger experienced by humanity and the threat to its own existence, not to mention the extinction of several species of fauna, flora and climate change, carrying out reflection based on selected doctrine and jurisprudence, extracting central points brought by them, proposing the adoption of a paradigm that privileges in the treatment of the rights of nature the search for the final increment of protection and preservation and, consequently, a practical result that can effectively impact for the benefit of life on the planet, taking this idea in a broad sense, not based on rationality, superiority and exclusivity of men’s interests, but on the notorious fact that we are beings inserted in a necessary and essential cosmopolitan interaction, since life and coexistence are undoubtedly one and embryonic, even relying on the visions and sensibilities of those so-called traditional peoples and the desired construction of a more harmonious way of the man/nature relationship, which certainly has repercussions on present and future generations.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Rights of nature
  topic: keywords
subject: Material rationality
  topic: keywords
subject: Paradigm and preservation of Life.
  topic: keywords
creator: Sandro Lúcio Barbosa Pitassi
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 455
ending page: 466
doi: 10.11606/issn.2318-8235.v117p455-466

Pandemia, tecnologia e seus reflexos nas relações familiares
type: item
description: The essay intended to analyze some impacts of the pandemic on family relationships through research that demonstrates how the immoderate use of technologies during this period significantly affected the mental health of people because of some symptoms of stress, anxiety, and the emergence of a lot of syndromes, such as burnout, caused mainly because of the social isolation. Furthermore, the essay also writes about some adverse effects on children and teenagers. Finally, it will develop solutions for the moderate use of technologies and how they can be used on our behalf, rather than the eventual harmfulness.
subject: Academic Papers of Post-Graduates
  topic: section
subject: COVID-19
  topic: keywords
subject: Family law
  topic: keywords
subject: Social impact
  topic: keywords
subject: New technologies
  topic: keywords
subject: Mental health.
  topic: keywords
creator: Bruna Vieira Esteves dos Santos
creator: Natasha Reis de Carvalho Cardoso
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 435
ending page: 453
doi: 10.11606/issn.2318-8235.v117p435-453

Criteria for the classification of negative obligations
type: item
description: Negative obligations are an important type of obligations in Brazilian private law. Despite their relevance, there has not been a profound inquiry of this category up to this moment. This study assumes that a first step towards this inquiry is the analysis of the variety of negative obligations and the proposition of criteria for their classification, in order to improve their scientific organization. We examine, therefore: (i) the division of negative obligations stricto sensu and to forbear; (ii) primary and ancillary negative obligations; (iii) instantaneous and long-lasting negative obligations; (iv) divisible and indivisible negative obligations. Finally, are the criteria that proved useful assembled, as well as possible criteria of classification that justify further studies.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Obligations
  topic: keywords
subject: Negative obligations
  topic: keywords
subject: Negative covenants
  topic: keywords
subject: Classification.
  topic: keywords
creator: Beatriz Uchôas Chagas
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 419
ending page: 433
doi: 10.11606/issn.2318-8235.v117p419-433

Limits to the cumulation of the penalty clause with other contractual liability doctrines
type: item
description: The study intends to explore the criteria for limiting the incidence and cumulation of the penalty clause with other types of agreements regarding contractual civil liability. To this end, we will first examine the specific rules about penalty clauses in the Civil Code, which foresees its modalities as substitutive or cumulative. Then we will analyze doctrinal and case law understandings, which mostly overlap such modalities with the potential functions that can be attributed to the penalty clause, that are compensatory and punitive. At this point, we intend to clarify the possibility of separately assessing the modality of the penalty clause and its function. Based on this idea, we will explore the incidence of general clauses on the limitation for joint implementation of penalty clauses and other penalties, compensation, and restitution remedies, clarifying its essential elements from the analysis of case law and doctrinal understandings that are considered imprecise. In conclusion, we intend to demonstrate, based on examples of practical cases, that penalty clauses that are cumulative with the execution of the obligation can have both punitive or compensatory nature, which influences the limits of their effectiveness due to the incidence of the general clauses that prohibits bis in idem and unjust enrichment.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Penalty clause
  topic: keywords
subject: Contractual liability
  topic: keywords
subject: Contracts
  topic: keywords
subject: Default of obligations.
  topic: keywords
creator: Barbara Veltri Filgueiras Teixeira
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 399
ending page: 417
doi: 10.11606/issn.2318-8235.v117p399-417

Analysis of the legal nature of the tithe from the contract law perspective
type: item
description: Tithe is a long-standing historical figure, present in the social, cultural and religious imagination of Brazilian society. However, in contemporary times, several cases of people who destined part of their patrimony to religious institutions and regretted after, are taken to the Judiciary, which in turn does not have a pacified understanding of the subject. Therefore, this paper seeks to analyze the nature of the tithe from the Contract Law perspective as a donation contract, exploring the requirements of article 538 of the Civil Code, the current case law, the scholar’s opinion and the social, economic and religious aspects on the subject. It is concluded, then, that the tithe can be considered not only a moral and religious duty but also, under the legal aspect, a donation contract.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Contract Law
  topic: keywords
subject: Donation
  topic: keywords
subject: Tithe
  topic: keywords
subject: Legal nature.
  topic: keywords
creator: Tiago Cação Vinhas
creator: Victor Conte André
creator: Thaís Silva Nunes
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 377
ending page: 397
doi: 10.11606/issn.2318-8235.v117p377-397

Human-machine interaction: the “significant human control” standard and its impacts on the civil liability imputation for damages arising from autonomous vehicles
type: item
description: This paper analyzes the results that advanced digital technologies cause to torts, notably aiming to outline the main legal challenges that such technologies represent for the legal-dogmatic categories related to it. Through the investigation of the diversity of roles of agents involved in the development and use of artificial intelligence, this paper discusses transparency, the unpredictability of the artificial intelligence system actions, and causal link. Furthermore, the research also aimed to investigate the potential of human-machine interaction in the decision-making process and how such dynamics can be relevant to investigation of liability for damages, emphasizing legal gaps and some approaches to solving them. Finally, it investigates how the “meaningful human control” criterion can help prevent damage resulting from autonomous artificial intelligence systems. It also evaluates conceptual distinctions that can facilitate dogmatic development involving artificial intelligence and Brazilian civil liability statutes. The theoretical research, conducted by dialectical and deductive methods, established associations between technology, innovation, and responsibility.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Artificial intelligence
  topic: keywords
subject: Human-machine interaction
  topic: keywords
subject: Damages
  topic: keywords
subject: Torts.
  topic: keywords
creator: Aline Klayse dos Santos Fonseca
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 357
ending page: 376
doi: 10.11606/issn.2318-8235.v117p357-376

Introductory notes about Servius Sulpicius Rufus
type: item
description: The present paper, taking into account the current stage of Roman law research, has the purpose of introducing the main elements necessary for the understanding of the late-Republican jurist Servius Sulpicius Rufus. To this purpose, a brief epitome on author’s biography and works is presented, elucidating how they should be interpreted in relation to their mode of presentation in the Roman sources, concluding with a summary on jurist’s method of interpretation.
subject: Academic Papers of Post-Graduates
  topic: section
subject: Servius Sulpicius Rufus
  topic: keywords
subject: Roman Law.
  topic: keywords
creator: Gustavo Costa Macedo
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 339
ending page: 356
doi: 10.11606/issn.2318-8235.v117p339-356

For a universal law of humankind
type: item
description: The article is a tribute to Antônio Cançado Trindade, a Brazilian jurist, professor and judge, as part of the reflection on the importance of his thought and legacy. By situating them in Latin American traditions and doctrines and in contemporary international law, we seek to establish differences and explain the international recognition of his work, considered original and innovative. Inspired by jusnaturalist conceptions, he dedicated his life to the humanization and universalization of International Law, inserting the human person in a place previously occupied only by the State. His criticism of positivism is even more justified in view of the repeated abuse of force in armed conflicts, such as the invasion of Iraq, in 2003, or the Russian war in Ukraine, in 2022, with the annexation of territories, in defiance of the law. Moscow’s recurrent threats to use weapons of mass destruction show the relevance of his dissenting opinion at the International Court of Justice and his brilliant defense of the Universal Obligation of Nuclear Disarmament. He was the only Latin American internationalist to be recognized by the prestigious Doctrine(s) collection, in 2012, with an edition on the importance of his thinking. What Cançado Trindade represents is eloquently recognized there: the defense of the idea that international law is not that based on the will of sovereign states, to which it was wanted to be reduced so many times and for so long, but what it is becoming irresistibly, in what it should always have been: a universal right of humanity, in which the human person should be the ultimate beneficiary (TRINDADE, 2012a).
subject: Academic Papers
  topic: section
subject: International law
  topic: keywords
subject: Jusnaturalism
  topic: keywords
subject: Universal values
  topic: keywords
subject: Principle of humanity
  topic: keywords
subject: International protection of human rights
  topic: keywords
subject: Moral contemporary dimension
  topic: keywords
subject: Positivism
  topic: keywords
subject: Might and right in international relations
  topic: keywords
subject: Latin American international legal traditions and thought
  topic: keywords
subject: International recognition of Brazilian jurist Antônio Cançado Trindade’s legacy
  topic: keywords
subject: Towards a universal law of humankind.
  topic: keywords
creator: Sérgio Eduardo Moreira Lima
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 327
ending page: 338
doi: 10.11606/issn.2318-8235.v117p327-338

International law between voluntarism and jus cogens: bilateral immunity agreements and the jurisdiction of the International Criminal Court
type: item
description: International Law is to be understood either as the expression of the will of the states – voluntarism – or as a body of binding rules and principles – jus cogens – and this is a crucial issue to determine its contents and reach. The Statute of Rome, which created the International Criminal Court (ICC), is a relevant step towards a higher level of institutional content; whereas the Bilateral Immunity Agreements, attempting to set aside the jurisdiction of the ICC are attempts to recover the obsolete vision of a voluntarist International Law, ruled by the main powers, as in the past – more of a political game of balance of power than a body of principles and general rules of International Law, binding the entire international society.
subject: Academic Papers
  topic: section
subject: International Criminal Law
  topic: keywords
subject: Jurisdiction
  topic: keywords
subject: Bilateral Immunity Agreements
  topic: keywords
subject: Voluntarism
  topic: keywords
subject: Jus cogens.
  topic: keywords
creator: Paulo Borba Casella
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 245
ending page: 326
doi: 10.11606/issn.2318-8235.v117p245-326

Plato and the attorneys: a study on Gorgias
type: item
description: This paper examines the forms of criticism of rhetoric and exhortation to philosophy in Plato’s Gorgias. It is based on a historiographical study, which aims to place the rhetorician in its institutional context, and on a hermeneutical study of the Platonic dialogue, which adopts the literary paradigm and its possibilities of interpretation.
subject: Academic Papers
  topic: section
subject: Rhetoric
  topic: keywords
subject: Philosophy
  topic: keywords
subject: Plato
  topic: keywords
subject: Rhetorician.
  topic: keywords
creator: Jonathas Ramos de Castro
rights: Copyright (c) 2022 Revista da Faculdade de Direito, Universidade de São Paulo https://creativecommons.org/licenses/by-nc-sa/4.0
date: 2022-02-15
publication date: 2022-02-15
starting page: 227
ending page: 244
doi: 10.11606/issn.2318-8235.v117p227-244