Positivismo jurídico e os direitos da personalidade natural
This paper aims at analyzing the general framework of personality rights related to the natural person within the Brazilian norm and within the legal positivism (latu sensu) methodological option. Therefore, it briefly situates in time and history the origin and evolution of the so called personal r...
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| Main Authors: | , |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2018
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6786107 |
| Source: | Revista Brasileira de Direito, ISSN 2238-0604, Vol. 14, Nº. 2, 2018 (Ejemplar dedicado a: Revista Brasileira de Direito. Mai-Ago/2018.), pags. 236-254 |
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| Summary: |
This paper aims at analyzing the general framework of personality rights related to the natural person within the Brazilian norm and within the legal positivism (latu sensu) methodological option. Therefore, it briefly situates in time and history the origin and evolution of the so called personal rights. It also analyzes the concept of person in which it is grounded in a perspective both doctrinal and legal as well as philosophical and anthropological. It explains the two main philosophical tendencies (Unitary and reductionist - being the later sometimes considered expansionist) used in the definition of the concept of person. It permeated the implication/connection of ethical issues on the creation and interpretation of laws. It brings the constant controversial debates on topics such as abortion, tattooing, organ donation, blood transfusion, self-mutilation (when culturally accepted) or amputation of limbs (by medical recommendation), genetic manipulation, and also euthanasia. Finally, it highlights the situation experienced in the context of 'postpositivism', in which judicial discretion is paradoxically used as justification for confrontation and for the application of legal positivism methodology (especially in the juridical moralism and legal realism aspects). |
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