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This entry has no external links. In addition, the Supreme Court, edited Precedentverbis: It should also be noted that there have been judicial decisions, which improperly used the Ra posa Serra do Sol case and only recognized the right to compensation for improvements made to the property, that is, without the value of the land itself being indemnified. If the law must respect the acquired right, perfect legal act and res judicata, out of respect for the principle of legal certainty, serechos is not acceptable that the citizen should have their rights susceptible to variations in legal interpretations over time.

If this paragraph were interpreted without the Constitution of cutoff date, derechs owners of land that one day belonged to native Brazilians would not be entitled to any amount by way of compensation, except for any improvements that had been made to the area.

Traduzido por Claudia Ferrari. Must everyone always obey the law? Sign in to use this feature. Agency, Individualism and Legal Theory. The insecurity arising from these rulings is evident and applies not only to owners, but also to the entire Brazilian population, since Brazil was entirely inhabited by native Brazilians originally.

These two constitutional postulates, together with articles and of the Constitution, imply the need for such a conclusion, in that it is the duty of the legal system to recognize the effective need for protection of private property titles over areas of land that were in ancient times occupied by indigenous communities, especially when these real estate acquisitions involved equivocations on the part of the State.

He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution.

He argues that distinct individual liberties do exist, but that they derive, not from derecchos abstract right to liberty as ronxld, but from the right to equal concern and respect itself. In the case at hand, possession by private parties since can be verified, the property title dating back to December 20 of The guiding rules regarding possession of the items I and XI of article 20 of the Federal Constituion of do not cover lands occupied in the remote past by indigenous tribes.


Ronald Dworkin and the Crisis of the Age of Rights.

If the Administration adopted a particular interpretation as correct and applied it to concrete cases, it cannot then come to annul previous acts, under the pretext that they were made based on an erroneous interpretation. As for the request of advance protection, the circumstances of the indigenous lands to be demarcated shall be taken into consideration, in accordance to provisions in article of the tution, as those lands occupied at the time of the promulgation of the aforementioned, that is, in Subscribe to receive information about forthcoming books, seasonal catalogs, and more, in newsletters tailored to your interests.

Teoria dos Direitos Fundamentais. The conflict of constitutional values can be solved in a satisfactory way with the use of the principle of proportionality, which in addition to optimizing legal solutions, acts as a pragmatic hermeneutic tool for weighing legitimate values, rationalizing the use of the constitutional text.

The judge applies the Law upon utilizing the theory as a criterion to solve social conflicts Theory does not only describe, but constitutes the Law.

Considering the decision issued by the Supreme Court in the Raposa Serra do Sol case, the relevance of the coherence and integrity of judicial decisions can clearly be seen.

It is concluded, therefore, that it is not possible for the Public Administration to revert its acts at any time, given the stabilization of these acts, in total respect for the constitutionally guaranteed legal certainty.

A solution for the conflict between the interests of people who built their lives on disputed lands and those of indigenous peoples eerio not require the arbitration of a winner in a dispute, as though it were a game, but rather an integration and harmonization of the rights of those involved. The same Minister, when laying out the grounds for his vote, points out that ArticleSec.

Los derechos en serio

Os incisos I e XI do art. This situation clearly calls for an integrated, not isolated, interpretation of the constitution. In the commended formulation of the English legal philosopher, the law is a complex system of ruleswhose normative source is, ultimately, social recognition. In this way, the government has the duty of treating citizens fairly, hence the requirement to act consistently—consistent with the principles whose legitimacy is recognized by the political community, which consists of rights holders.

The Nelson Jobim, given during the trial of RE 3. His theory is original dworki its focus on legal analysis from the perspective of difficult cases and the uncertainty that they produce. Extraordinary appeal is not granted. Therefore, it is possible to think of legal rights, even ronalc difficult cases, respecting both the legislation and precedents. For this reason, the right to life and bodily integrity can not be conceived merely as a ban on destruction of existence—as a right to defense—but also as an active stance to ensure life.


The Portuguese Constitutionalist J.

Thus, only in such a way will it be possible to ensure equal interests, which is the foundation of a democratic community. Monthly downloads Sorry, there are not enough data points to plot this chart.

Taking Rights Seriously by Ronald Dworkin. The enforcement of constitutional provisions regarding the protection of areas occupied by indigenous communities must be considered along with other constitutional guarantees and principles, especially property rights and legal certainty. A renowned philosopher enters the debate surrounding these questions.

Overcoming Lochner in the Twenty-First Century: The recognition of indigenous rights by the Constitution is an important innovation. Not recognizing the acquired rights of individuals bearing legitimate titles of property would mean compromising the achievement of the ideal of legal certainty of the entire system: Karl Olivecrona’s Legal Philosophy.

In the doctrine, Otto Bachofp. Evidently, proportionality should also be applied to the indigenous question. It is up to the interpreter to construct the best way of recognizing and preserving them.

Alan Ray Mabe – – Dept. A government that does not e such rights loses the moral authority to claim legitimate use of collective force. Evidently, the guarantee of a dignified existence entails more than a guarantee of mere physical survival, rather it reaches beyond the threshold of absolute poverty.

Particularly, as mentioned, the government must treat people under their rule with equal interests. On the other hand, the theory of rights descriptively considers the structure of the institution of adjudicationas well as providing a political justification for this structure.


It een the responsibility of the National Congress to authorize usage of water and mineral resources on indigenous lands and native Brazilians must approve and also share in earnings, as determined in Section 3 of art.

The most developed positivist tradition holds the thesis of judicial discretion. In the work of Dworkin, the principle of proportionality is approached as the requirement that the judicial decision, necessarily generated by principles, maintain coherence with the integrity of the law.