Meritum, Law Journal of FUMEC University

Editorial

Sérgio Henriques Zandona Freitas — 2025-12-05

EDITORIAL

Nesta edição 3, volume 19, de 2024, considerada comemorativa, constam 20 (vinte) artigos submetidos à Revista Meritum, que foram mais acessados, visualizados e lidos, conforme estatística da OJS, no período de 2006 a 2024, com significativa repercussão no âmbito das pesquisas jurídicas.

De maneira crítica, autônoma e plural, a Revista Meritum divulga o conhecimento gerado de investigações jurídicas que contribuam para a formação de profissionais com consciência jurídica crítica, habilitados não somente para o exercício da técnica-jurídica, como para pensar o Direito em seus aspectos científico, filosófico, histórico, sociológico e político.

Na oportunidade, os Editores prestam homenagem e agradecimento a todos que contribuíram para esta louvável iniciativa da Universidade FUMEC e, em especial, a todos os autores que participaram da presente publicação, com destaque pelo comprometimento e seriedade demonstrados nas pesquisas realizadas e na elaboração dos textos de excelência.

Boa leitura a todos!

Prof. Dr. Sérgio Henriques Zandona Freitas

Prof. Dr. Adriano da Silva Ribeiro

Coordenação Editorial

Expediente - Sumário

Editor Revista — 2025-12-05

GLOBALIZAÇÃO POLÍTICA OS DESAFIOS DA FORMULAÇÃO DE POLÍTICAS ECONÔMICAS NO MUNDO GLOBALIZADO

Vinicius Gonçalves Porto Nascimento — 2025-12-05

The State-Nation of the contemporary world became too much big for the facing of the small problems and too much small for the solution of the big problems of transnational order. The solution of such problems demands a “world government” which has nothing to do with a superState or a global scale State, but which consists on a strenghtening of the cooperation between the countries aiming the stabilishment of the global politics for, in this way, face the challenge of the modern world. One of the solutions presented so far is the formation of economic blocks, following the example of the European Union and the Mercosul, which have as their main focus, economic policies measures. However, we are still far away from the democratic ideal of popular participation in the formularization of economic policies in national, regional or even global field, as exteriorization of the principle of the popular sovereignty, juristic institution which presupposes the direct intervention of the people from a nation in the ruling to the State’s behaviour at the working out and enforcement of its basic politics and its commitment with the fundamental rights. In the globalized world, not only the economic policies, but the Economic Law institutes are conceived to attend to the human person’s dignity.All of these challenges are faced by this section of jural science that, for in such a way, makes use of the flexibility inherent to its rules for adaptation to different situations faced. This flexibility is granted by the principle of economicity, which conducts to the options that brings to a greater advantage line.

DIREITO E RELIGIÃO

Marcelo Maciel Ramos — 2025-12-05

The secularity of the law is undoubtedly one of the most important cultural achievements of Western civilization. The dissociation between law and religion was the key step for developing an unprecedented legal culture, a tradition to which we are the heirs and successors. The separation between the temporal and the divine has allowed the emergence of a way to organize social life that is no longer founded on the sacred or the supernatural, but rather on the human capacity to establish the rules of conduct and decide on disputes according to their own criteria. Nevertheless, religion has never ceased to be an important source of content in the Western legal tradition. While the authority of legal norms is now grounded in human will itself, the values provided by the predominant religious beliefs have not stopped making up the substance of the law.
It is about the relationship between law and religion upon which we propose to reflect in this work, examining the tension that has developed between the sacred and the profane, based on the Greek invention of rational discourse. For this purpose, we show the Roman law’s viewpoint on the old religion and the setbacks caused by medieval Christianity to the legal experience, as well as their important axiological contributions to modern law. Finally, the foremost cultural and ethical feature of the law and its role in reconciling the different regulatory aspects of culture through its formal instruments is addressed.

LOS PRINCIPIOS DEL PROCESO LABORAL Y LOS PRINCIPIOS QUE RIGEN LOS NUEVOS PROCESOS LABORALES EN URUGUAY

Dr. Gustavo Gauthier — 2025-12-05

I. Introduccion. II. Los principios del proceso laboral. 1. El principio de desigualdad compensatoria. 2. El principio de la búsqueda de la verdad real. 3 El principio de indisponibilidad de las normas de fondo. III. Los principios enunciados en el Capitulo I de la Ley 18.572. IV. Las soluciones de la Ley N 18.572 y los principios del proceso laboral. 1. Proceso laboral ordinario y proceso laboral de menor cuantía. 2. Carácter perentorio e improrrogable de los plazos procesales. 3. Insuficiencia e inexistencia de determinados plazos. V. Conclusiones.

THE RESEARCH PROJECT AND SCIENTIFIC INITIATION IN LAW

Rafhael Frattari — 2025-12-05

The purpose of this essay is to present suggestions to students as to the first steps in developing research in Law. Therefore, it is important to make an initial distinction between scientific investigation and superficial inventories or the description of doctrinal or jurisprudential propositions. Next, based on its authors’ experience, it seeks to identify common doubts and misconceptions that often emerge at the beginning of legal research. Afterwards, issues related to the research project are discussed, starting with the construction of the main issue, proceeding through the theoretical framework, by hypothesis, justification, and objectives, up to the final elements: the research timeline, financial chart, preliminary bibliography, and bibliographic references.

L’ACCESSO DEGLI AMMINISTRATORI “NON ESECUTIVI” ALLE INFORMAZIONI SOCIALI NELL’ORDINAMENTO ITALIANO

Gianluca Perone — 2025-12-05

– Cenni introduttivi. – 2. Informazione ed attività dell’organo amministrativo. – 3. Contenuto ed esercizio dei poteri di informazione dell’amministratore nella disciplina previgente. – 4. Il nuovo regime dell’informazione consiliare. – 5. Segue: collegialità e poteri ispettivi dei componenti del consiglio di amministrazione. – 6. Conclusioni

THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

Adolfo Mamoru Nishiyama — 2025-12-05

The aim of this paper is to review constitutional interpretation by studying the main characteristics and principles that guide it. The supremacy of constitutional rule is fundamental to understanding the principles of interpretation of a country’s Constitution. Two very important principles are also reviewed – reasonableness and proportionality – which serve as vectors for guiding a constitutional interpretation. Other interpretive principles are also analyzed to complement the idea of a constitutional interpretation.

GENDER AND PRISON

Antonio Eduardo Ramires Santoro — 2025-12-05

The absolute population of women incarcerated in the penitentiary system grew vertiginously, and this incarceration movement was irrefutable and increasingly consistent. There is, however, an omission from the State regarding the increase in these figures. The entry of women into criminal activities is described as subordinate to the participation of men in these same activities. This emphasis takes the lead and reinforces female invisibility in the practice of violent crime and illicit activities. The social context in which female prisoners are found, as well as the gender discrimination they face within the prison, are fundamental to understanding the relationship of women to prison. Regarding the imprisoned woman, it is corroborated the idea that it is part of the statistics of marginalization and exclusion, being the majority black, with children, minimum level of schooling and poor. Nevertheless, more than half of these women account for the crime of drug trafficking. The impetus in the convictions of women for drug trafficking has caused a significant worrying increase in the number of women incarcerated, and this has been considered the crime responsible for placing more and more women behind bars. The objective of the study will be to understand how the gender oppression experienced by women in the Brazilian prison system and drug trafficking influence female crime and increase the percentage of women incarceration.

REMARKS ON THE EFFICACY OF “LEI ÁUREA”, THE BRAZILIAN SLAVERY ABOLITION ACT

Patrícia Fontes Cavalieri Monteiro — 2025-12-05

This paper discusses the efficacy of the Brazilian Slavery Abolition Act, “Lei Áurea”, contending that the former slaves, albeit free, did not enjoy the social rights that should have accompanied their freedom. The discussion starts with a brief history of slavery in Brazil before positing the following research question: If the objective of Lei Áurea was to abolish slavery in Brazil, why did it represent no actual freedom for black people? The abolition will be discussed drawing on ethical values of freedom, human dignity, and equality, as well as in light of Keynesian positivism and justice. This discussion serves as a background to the actual objective of this paper, that of demonstrating that regulation would have been the only instrument for the social efficacy of Lei Áurea – the ought to be issue that the absentee Liberal State of the 19th century refrains from including in the norm. As a result of the Lei Áurea, the conclusion advocates for the application of the Compensatory Justice Theory to put forward affirmative policies aiming to compensate the African slaves’ descendants for damages caused in the colonial times, especially the offence to the fundamental principle of dignity and other fundamental principles enacted in the 1998 Federal Constitution.

THE HISTORIC CONSTRUCTION OF MODERN STATES IN THE WESTERN WORLD (ABSOLUTISTS)

Bruno Albergaria — 2025-12-05

This work aims to illuminate – with due apologies to the inevitable pun – via historical outline, the social and political construction of modern society, considered modern from the temporal perspective of the signing of the Treaty of Westphalia in 1648, i.e., from the initial steps of the MiddleAges, with its fiefs and the power of the Roman Catholic Church, until the emergence of the absolutist states. Toward this end, the transition from the medieval theocentric society – in which the Inquisition, in name of divine values, operated one of the most painful and intolerant periods in Europe – to the modern homocentric cosmos structured around the modern skeptical philosophical discourse of rationality. As denoted in the narration of various stories, the incipient churches – in defense of their faith of one God – sponsored numerous wars and the much desired peace could not be established until the return of man to his rightful place and command. Finally, to the detriment of God’s power (despite never wanting to forget Him or even trying to kill Him, as did Nietzsche), peace arrived in Europe, after the end of the Religious Wars and the establishment of secular and sovereign states, and on the international stage, formal equality.

ANTHROPOLOGY, LAW AND MEDIATION IN BRAZIL

Ana Lúcia Pastore Schritzmeyer — 2025-12-05

In this study, I initially highlight some aspects related to cultural mediation, especially in the context of the development of anthropology of law as a field in Brazil. Then, I briefly present two emblematic cases of attempted cultural mediation in the country. I also include other examples from recent work carried out by researchers in São Paulo, which enable us to consider the present limits and potentialities of the relationship between anthropology and the Judicial Branch in its acceptance and increased use in mediation, conciliation, and negotiation. Lastly, I go back and more thoroughly address some considerations on anthropology in the field of consensual conflict resolution.

NO-BODIES

Denise Ferreira da Silva — 2025-12-05

When has it become trivial – more than evidence, yet not an obvious “truth” – to have a substantial (albeit immeasurable) number of boys and girls succumbing as subjects of violence infringed to preserve the law? This article addresses this question by reflecting on a dimension of the contemporary global existence that should become a subject within the political science. It describes a political scenario in which the police and the army use total violence as a means of regulation. More specifically, it reviews the State’s occupations of economically unprivileged regions – where drug dealers compete to implement the “local law” – as representations of a different type of founding contract, as signifiers of racial violence. In this (ethical-juridical) political scenario, the dead bodies of mulatto and black adolescents do not count as urban war casualties, but rather as signifiers of the death horizon, as the existence of subordinate racial subjects derived from the raciality tools (racial and cultural difference) becomes evident in territories where the State is active only in behalf of its own preservation.

CLASH OF FUNDAMENTAL RIGHTS AND EQUILIBRIUM

Nadia Castro Alves — 2025-12-05

Doctrine has pointed out fundamental rights such as those considered essential to the dignified existence of the human being. However, scholars on the subject point out that one of the characteristics of fundamental rights is precisely their limitability, i.e., no fundamental right can be considered absolute. Therefore, these limits will be found when opposing other rights that are also considered fundamental. In this article, the equilibrium technique is discussed as a means of conflict resolution in the clash of fundamental rights and demonstrates the erroneous way it often used by Brazilian jurisprudence.

"I WOULD RATHER BE A CYBORG THAN A GODDESS"

Jasbir Puar — 2025-12-05

Intersectionality is thought by many feminists to be the primary rubric for theorizing difference for the past two decades, and is now a prevalent approach in some strands of queer theory (increasingly known as “queer of colour critique”). Intersectionality emerged from the struggles of second wave feminism as a crucial black feminist intervention challenging the hegemonic rubrics of race, class, and gender within predominantly white feminist frames. But, in precisely in the act of performing this intervention, it also produces an ironic reification of sexual difference as a/the foundational one that needs to be disrupted – that is to say, sexual and gender difference is understood as the constant from which there are variants. Intersectionality and assemblage are not analogous in terms of content, intent, nor utility, but they have at times been produced as somehow incompatible or even oppositional. In what follows, I offer some preliminary thoughts on the limits and possibilities of each of these and what might be gained by thinking them through and with each other. What are the strengths of each in the realms of theory, politics, organizing, legal structures, and method? Through the mapping of these two bifurcated genealogies, I offer some thoughts on the politics of feminist knowledge production – which has been driven, sometimes single-mindedly, by the mandate of intersectional analysis – to see what kinds of futures are possible for feminist theorizing.

THE INCLUSION OF FORTUITOUS CASE AND FORCE MAJEURE AS CIVIL LIABILITY-EXCLUDING INSTANCES IN THE CONSUMER RELATION LAW

Alneir Fernando Santos Maia — 2025-12-05

Act n. 8078 of 1990, which established the Consumer Protection Code in Brazil, set forth norms of public order and social interest to protect and defend consumers. These norms mostly aim at balancing the parties participating in the consumer relation and holding suppliers liable for damages derived from defective products or poor services. However, the Code posits instances that free the supplier from liability, such as the fortuitous case and force majeure, which break the causal connection between fact and damage. The institution of liability as assessed under the Consumer Protection Code is of paramount importance for the realization of the rights of Brazilians and to achievement of a Democratic Rule of Law.

THE DOMINATION CONTRACT

Charles W. Mills — 2025-12-05

In order to discuss the history of racial and gender subordination, one needs to rethink how we do political theory. So the purpose is to conduct a review of the contract’s revisionist tradition and turn it to the theorization of gender and racialjustice. My claim will be that the concept of a “domination contract” can be fruitfully employed to overturn the misleading framework of assumptions of mainstream social contract theory, thereby better positioning us to tackle the pressing issues of “nonideal theory” that, far from being marginal, in fact determine the fate of the majority of the population. The understanding that the most significant claim of social contract theory is that political society is a human construct and not an organic growth is indeed revolutionary. I argue that indeed its full revolutionary significance has yet to be fully appreciated and exploited. For once we understand how far the “construction” extends, we will recognize that it can be shown to apply to gender and race also. Once one recognizes how protean the contract has historically been, and how politically pivotal is its insight of the human creation of society and of ourselves as social beings, one should be able to appreciate that its conservative deployment is a result not of its intrinsic features, but of its use by a privileged white male group hegemonic in political theory who have had no motivation to extrapolate its logic.

ACCESS TO JUSTICE

José Cláudio Rocha — 2025-12-05

Access to justice has been understood by our legal tradition as one of the informing principles in the judicial process. Under the Constitution, access to justice is not done only by a subjective public right when proposing an action, but by the legislature in redacting a law that excludes any injury or threat to the law from the consideration of the judiciary. In addition to these two aspects, this paper seeks to understand access to justice, moving away from the classic concept of access to the judiciary to one of “access to a just legal order.” Thus, some rights constitute the ultimate groundwork for building a just legal order. The municipality, as an entity autonomous from the federation, has material and legislative powers that enable the realization of these rights and access to justice, which constitute the scope of this paper. Understanding how the municipality may, through its legislative body, contribute to reducing the traditional barriers to access to justice (economic, social, and informational) and for the prediction of rights that give access to fundamental rights is the primary goal of this paper.

GRASSROOTS PARTICIPATION IN THE LEGISLATIVE PROCESS

Eduardo Martins de Lima — 2025-12-05

There is a vital theme for the functioning of the Legislature in the context of a democratic state and that is participatory democracy. From the point of view of the legislative proposal, the 1988 Constitution provides that popular sovereignty is exercised by universal suffrage and the direct and secret ballot, with equal value for all, and, under the law, by plebiscite, referendum, and grassroots initiatives. As the Constitution treated grassroots participation in a generic manner, it was necessary to enact Act No. 9709/1998. The Internal Rules of the House of Representatives specifically addresses social participation in law-making, which consists of: grassroots legislative initiatives, submitting petitions, representations, opinions, and public hearings. In addition, the House established the Permanent Commission of Participative Legislation, whose main goal is to get legislative initiative input from social organizations. This important experience in participatory legislation by the House of Representatives can be seen in various units of the federation, and the Legislative Assembly of Minas Gerais is considered a forerunner of grassroots participatory initiatives. This paper seeks to review the main forms of grassroots participation in the Brazilian lawmaking process.

KANT’S CONCEPTION OF KNOWLEDGE (PART I)

Karine Salgado — 2025-12-05

This paper is the first part of a study aimed at investigating how the knowledge process unfolds in Kant’s theoretical philosophy, especially in his Critique of pure reason. This part approaches the Introduction and the Transcendental Aesthetic chapter of Critique of pure reason aiming at shedding a light on such topics as: critique of reason, subject and object, synthetic a priori judgments, sensible knowledge, pure intuition, space and time.

ETHICS AS THE SOURCE AND AIM OF LAW

Humberto Gomes Macedo — 2025-12-05

The study and discussion of Ethics in Law is nothing less than the reinforcement of the idea that it is the sun around which all legal professionals ought to revolve under the penalty of losing their most vital scope and foundation: Justice. Pondering human actions is the object of Ethics. Ethical problems include the meaning of life, human freedom, whether there is a manner of living that leads to a good life, the basis of duty, desire, the nature of good and evil, along with other questions intimately connected with human action. The static juridical dogma that was in force during the modern age no longer serves contemporary society, which demands a new challenge to Law, which is: to apply justice to concrete cases thinking of law with principles and values, as well as create mechanisms by which legal precepts may be adapted to new situations as they arise. Therefore, Law is to be praised in the socialization, promotion, and operation by which it effectively aids in the concretization of social and personal objectives, adapted to a political-constitutional philosophy and consolidating normative and theoretical advances that, if understood and applied by legal practitioners, will transform the aforementioned goals into reality.

THE TECHNOLOGICAL REVOLUTION IN THE COMMUNICATION MEDIA AND CHALLENGES TOLAW AND DEMOCRACY

Aníbal Sierralta Ríos — 2025-12-05

This paper approaches the impact of technological transformation and new telematic devices on mass communication media. It particularly focuses on how transnational communication companies have been structured with the support of such resources as Internet, software programs, and podcasting, and on the potential risks that abuses associated with the use of this technology can have for democracy when the transnational corporations’ economic and cultural interests supersede individual interests, public interest, privacy, and the principles of dignity. This scenario identifies new challenges to law and the protection of individual rights.