Functionalist Method Research Articles

Federalismo e combate à pandemia da covid-19: estudo constitucional comparativo entre o Brasil e os Estados Unidos da América, com especial ênfase no financiamento da vacinação

This article discussed federalism and combating the covid-19 pandemic, making a comparative study between Brazil and the United States, which were chosen because they are federalist, large and have the highest mortalities due to covid-19 in the world. A literature review was carried out using the functionalist method. It was found that there were similarities, such as: the lack of federal coordination, in cooperation with local governments and numerous federal disputes resolved in the judicial sphere. Among the differences, the role of the federal government in vaccination stood out, since, in the US, it played an important role in the distribution of vaccines and provided financial incentives for people to get vaccinated. In Brazil, it was more limited, with delays in the initial hiring and distribution to the States, insufficient incentive to produce vaccines locally, lack of an educational campaign to encourage vaccination. Another difference was the health system, which in Brazil is public (SUS) and private (supplementary health) and in the US is mostly private, not universal. It was concluded that federalism was greatly challenged during the pandemic, but it was strengthened, since the constitutional courts ensured the autonomy of the States and the powers of the Union, which should coordinate efforts against the disease, based on the principles of separation of powers, federalism and technical discretion. And it was found that the existence of so many federative conflicts and the lack of federal coordination and cooperation between governments may have contributed to the high mortality in both countries.

Reviewing the reviews: the Global Compacts' added value in access to asylum procedures and immigration detention

The Global Compact for Migration and the Global Compact on Refugees are based on binding international law instruments whose provisions they complement with “best practice” standards related to the treatment of refugees and other migrants. Although the Compacts are non-binding, they provide for review mechanisms to promote compliance with Compact standards. Such oversight is important to achieve progress in implementing the Compacts' commitments. Yet, the current top-down and State-led review process does not offer an efficient platform for identifying cases of non-adherence to Compact standards. This article uses a case study approach to highlight instances of non-compliance with Compact standards in Canada, South Africa, and the European Union. We use a functionalist method of comparison to analyze State practice in these three regions in relation to (i) use of immigration detention and (ii) access to the asylum procedure, with access to healthcare as a cross-cutting issue. The article discusses how the Compacts' review mechanisms could be improved and their added value in terms of their impact on domestic migration policies. It argues that both Compact review and implementation can be improved through increased civil society participation.

Political-legal-sanitary arrangements in Spain and in Brazil regarding the request for ICU beds during the pandemic: a comparative study

Objective: to carry out a comparative study between Spain and Brazil on the political-legal-sanitary arrangements for the requisition of ICU beds by the Spanish and Brazilian health systems during the COVID-19 pandemic. Methodology: a descriptive-comparative study was carried out based on pre-selected variants and analyzed using the functionalist method. Results: although the countries have many similarities in the organizational profile of the health system, there are legal possibilities in Spain that are not found in the Brazilian regulatory framework that allow centralizing decisions in health. Conclusion: in the event of a health emergency, under the declaration of a state of alarm, the Spanish constitutional framework enables the health authorities of the subnational entities (Autonomous Communities) to remain under the direct orders of the Minister of Health, which is not the case in the Brazilian federative system. Received: 14/08/23 | Accepted: 21/08/23

Contemporary Methodology Used in the Ethics of Security

The ethics of security, a sub-field of security studies, uses the same methods as the philosophy and logic of security, but emphasises its different aspects. Methods used in philosophy and logic are “a path to the truth”, whereas methods used in ethics are “a path to the good”. The aim of ethics is not cognition but actions that are proper and ethical. Nowadays, the ethics of security uses mainly three methods: the humanistic, inventive and intuitive method. The author discusses not only the above mentioned main methods, but also secondary methods used in the contemporary ethics of security: the heuristic, phenomenological, semantic, empirical, functionalist, actualistic, pragmatic, reductive, deductive and dialectic method. The contemporary methodology used in the ethics of security focuses on the attitude of man to man and directs the attention of general ethics to this aspect. However, the moral value of certain actions, as well as the methodology itself, are subject to change. Without noticing this phenomenon and being aware of it, it is impossible to face the contemporary challenges of the ethics of security nor to be an active security entity.

On the Acceleration of Time from the Perspective of Technological and Cognitive Innovativeness: A Structural-Semiologic Analysis of H. G. Wells’s The Time Machine

The paper provides an analysis of Herbert George Wells’s novel The Time Machine (1895), specifically, of those aspects of the novel that deal with the relationship between the phenomenon of technological and cognitive innovativeness, on the one hand, and the experience of time and its perception, on the other. The concept of the acceleration of time, which is key to this study, denotes the phenomenon manifesting itself through the prism of two types of non-synchronization of “internal” or “subjective” time and “external”, collectively shared “objective time”: in the first case, “external” time is accelerated relative to “internal” time, while in the second, conversely, “internal” time is accelerated relative to “external time”. The paper offers a contextual analysis of The Time Machine, also employing a structural-semiologic approach and method, which in this case also includes the traditional functionalist method of differentiating between manifest and latent functions. The first research question the paper seeks to answer is how the idea/invention of the fictitious novum of the time machine came about, i.e. what kind of cognitive-innovative process enabled it. The other question, related to the first, is whether it is possible to “peer into” the infrastructure of the imagination of creative people, into that part that usually remains confined to the unconscious. A structural-semiologic analysis of the nature of the creativity/innovation process, which, in this study, is related to the Victorian era as the social and economic context in which The Time Machine was written, as well as to the interconnected domains of technological and cognitive innovativeness, suggests the possibility of establishing an Anthropology of Innovativeness as a new anthropological subdiscipline.

The Chinese Experiment: Lessons from the Regulation of Ridesharing in China

Turning on an app, finding a driver nearby with the help of GPS, and quickly catching a ride to your desired destination is now a daily activity for many people around the world. This arrangement, known as “ridesharing” or “ridehailing,” has especially transformed the way many American and Chinese citizens travel. In the United States, ridesharing is roughly an $18 billion industry, and in China it is an incredible $30 billion. And while ridesharing for many Americans might be synonymous with Uber and Lyft, in China the leading ridesharing company is Didi-Chuxing, which facilitates more rides each day in China than Uber does across the entire world. The so-called “sharing economy,” of which ridesharing and similar services like homesharing are a part, has unlocked the excess capacity in cars, homes, and schedules, leading to lower prices for consumers, higher incomes for suppliers, and the reduction of wasted resources. Despite these benefits and advances, however, the sharing economy has created an array of problems for communities of all sizes — from tax evasion and pollution to price gouging, deplorable worker protections, and consumer safety. The impact of these problems is exacerbated because sharing economy platforms shape-shift, move fast, and fight to avoid or find loopholes within current regulatory frameworks. As a result, the world has witnessed a barrage of lawsuits, strikes, bans, and rules in opposition to this zeitgeist. With many differing approaches to regulating the sharing economy, some jurisdictions have more effectively mitigated the novel economy’s negative externalities than others. Thus, it is helpful to look at legal experiments occurring across the globe to identify and understand best practices as they emerge. This Article does just that by examining China’s ridesharing regulations. China’s approach provides a useful point of comparison to the U.S.’s, because of its national recognition of ridesharing platforms, its two-tiered regulatory structure, and forward-thinking plans to incorporate many of the sharing economy’s benefits into the country’s strategic planning. Furthermore, this Article contributes to our overall understanding of the Chinese economy and its legal system, which too often goes unexamined in U.S. legal scholarship, despite the fact that the Chinese economy is second only to the U.S.’s. This Article advances a two-pronged thesis. First, it argues that China’s approach to ridesharing regulation — while not flawless — nevertheless addresses certain policy concerns in a more rational and effective manner than have U.S. laws. Chinese law appears to balance the country’s goal of encouraging the positive attributes of ridesharing with other practical social goals such as consumer protection and fair competition. Second, this Article argues that U.S. regulators can selectively borrow from China’s approach to ridesharing regulation for the benefit of the relevant stakeholders in the U.S. In this way, U.S. law could absorb and encourage the beneficial innovations of sharing economy platforms generally and better address the policy concerns they provoke. To build these arguments, this Article proceeds as follows. Part I provides the context for understanding the broad similarities and differences between the U.S. and Chinese sharing economies, especially with regard to their incorporation into national economic and political goals. Part II provides a brief overview of ridesharing in both the U.S. and China. Part III evaluates the utility of comparative legal analysis and argues that the functionalist method of comparison is best suited for our purposes. Part IV provides a functional analysis of the two countries’ regulatory approaches vis-a-vis their respective systemic and substantive dimensions of interest. Finally, Part V provides key insights for regulators considering a national approach to ridesharing regulation in their own country.

Comparison, Law, and Culture: A Response to Pierre Legrand†

A common method in comparative law is functionalism. Legal doctrines and rules are compared in terms of the functions they serve. This method is sometimes in tension with another which explains differences in law by differences in culture. That tension can be reconciled by recognizing that these methods are complementary variants of a teleological approach to law and culture, one that is concerned with the goals, purposes, and ends that the members of a society are trying to achieve. This Article responds to Pierre Legrand’s claim that the functionalist method is “positivist,” and so blinds one to differences among cultures. He, and like-minded thinkers such as Jacques Derrida, regards each society or culture as a “singularity.” If it were utterly singular, however, it would be unintelligible. To understand the differences, as well as the similarities, one must be able to identify some features of a society and discuss them in abstraction from others. The features that chiefly define what we mean by differences in culture, and enable us to understand and appreciate them, are the purposes that the members of a society are pursuing and the ways in which they do so.

Fabrication Du Savon Kabakrou Et Ses Conséquences Sur Les Acteurs Principaux De Gbintou Dans La Commune De Bouaké (Côte d’Ivoire)

For the inhabitants of Gbintou (a district of the town of Bouaké), manufacture traditional soap, kabakrou, is the main economic activity of survival. In fact, this activity is a source of wealth, but a risky source of wealth. Indeed, the actors face many difficulties in the manufacturing process (raw material supply, health difficulties) the point of wanting to simply abandon the trade. The implementation of the socio-anthropological functionalist method and the study of this activity helped to understand that apart from raw material acquisition difficulties and illnesses it generates (contact urticaria, infections broncho lung), the company suffers from a lack of garish consequent functional organization and sanitary hygiene. Thus, it is desirable to set up an association or cooperative well equipped to train and organize stakeholders and better manage the entire manufacturing process.

“Trust” and “confidence” as socio-technical problems in the transformation of energy systems

For the development of a sustainable energy system, the public’s contribution to the sustainment of the system’s current operations will become vital. The public’s role is expected to change from that of passive service abiders to active service providers, as anticipated by visions of prosumers, smart grids, demand side management, virtual power plants, and electric vehicle management. Smart technology and new business models will increase system complexity and the experience of uncertainty and risk for all parties. Actionability of the public’s participation in the opportunities arising from the transformation of energy systems will become a problem. With a qualitative functionalist method, we analyze the prerequisites of the public’s participation: the capacity of social mechanisms, such as trust, for the solution of social problems. Functional problems affect the continuation of communication, i.e., the possibility of the sustainment of social reality. We isolate three case studies that illustrate concrete effects of trust, distrust, and confidence on three parties, respectively: consumers, investors, and those affected by grid extensions. We argue that the social mechanisms of trust and confidence are more vital for consumers, investors, and those affected than previous research has noticed. These mechanisms determine the achievement of sustainability in energy systems by sustaining actionability as a favorable expectation (trust, confidence), or an unfavorable expectation (lack of trust, distrust). Even lack of trust and distrust can be valuable contributors on the road to sustainability, since they uncover flaws and setbacks of a fledgling smart grid.

Métodos de Direito Comparado: desenvolvimento ao longo do século XX e perspectivas contemporâneas

Enquanto disciplina juridica, o Direito Comparado apresenta enorme potencial teorico e pratico para fazer progredir a Ciencia do Direito, especialmente atraves de sua vocacao para superar pontos de vista internos na analise de questoes apresentadas por ordenamentos juridicos ao lidar com problemas normativamente relevantes. Apesar de sua importância, ele e, por vezes, apressadamente compreendido como mera aproximacao fatica de casos, normas ou solucoes entre ordenamentos, cujos resultados sao, muito mais, um recurso a ilustrar, colorandi causa, determinado posicionamento do que a efetivamente fundamentar, com base cientifico-metodologica, uma argumentacao. Com o intuito de apresentar criticamente as bases metodologicas do Direito Comparado, possibilitando a reflexao acerca de seu papel dentro da teoria do Direito e das ferramentas hermeneuticas que este disponibiliza ao comparatista, e que este artigo e elaborado. Para tanto, percorre-se a trajetoria que vai da contestacao ao dogmatismo predominante no proceder comparatista ate o final do seculo XIX ate o surgimento de metodologias pos-modernas e neofuncionalistas na contemporaneidade. Nesse contexto, merecem especial destaque o metodo funcionalista de Direito Comparado, bem como as criticas a ele dirigidas e a formulacao de alternativas metodologicas, como a tese da dimensao cultural do Direito Comparado, de Erik Jayme, e as perspectivas contemporâneas de releitura do metodo funcionalista de Jaakko Husa e Ralf Michaels. Ao final, serao tecidas consideracoes acerca dos criterios orientadores da escolha do pesquisador pelo metodo mais adequado para conduzir suas investigacoes na area do Direito Comparado.Palavras-chave: Direito Comparado, metodo, funcionalismo, dimensao cultural do Direito, funcionalismo moderado.

Comparative Freedom of Assembly and the Fragmentation of International Human Rights Law

Assuming that the issue of fragmentation of international human rights law can also be usefully examined in the case-law on particular rights using a comparative method, this article examines the divergence and convergence of freedom of assembly guarantees and jurisprudence in international fora. It finds that some identified divergences in fact point to underlying common concerns and assumptions about assemblies. On this basis, the article argues that the fragmentation discourse is prone to structurally analogous, though “reverse”, fallacies as the methodology of comparative law. In particular, the functionalist method is much criticised for being apologetic or trapped within one's own conceptual and institutional system, a concern which might be present in the fragmentation debate as well. The article concludes on this basis by formulating some suggestions which might be applied to examining fragmentation in international human rights law and potentially beyond.

L'identité européenne selon Raymond Aron : entre mythe et réalité

L’identité européenne selon Raymond Aron : entre mythe et réalité Throughout his work, Raymond Aron denounces a European identity torn between a construction based on economy and a Europe based on myths. He is not convinced by the functionalist method, and he appeals for the constitution of a political Europe, the only one capable of developing a European sentiment. On the other hand, Aron rejects back to back the project of a federal Europe and the Europe imagined by De Gaulle as two Utopian myths where identity can not be revealed. Europe needs to again become the subject of its own history. Building the Europe of defence, promoting its own identity, and not one which is systematically against the two superpowers, and defending the Europe of freedom : it is about nourishing a community of destinies. Only in this way can European identity transform itself from potential to reality.

The Cognitive Psychology of Mens Rea

This Article provides a comprehensive-though admittedly speculative-explanation of how jurors use projection and prototyping, two simulation-based theories of mind-reading, to make mental-state attributions in criminal cases. The first two Parts explain why jurors are unlikely to use a functionalist method of mind-reading in a case that focuses on the defendant's mens rea. The next three Parts introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism-perceived similarity between juror and defendant-that determines which one a juror will use in a particular case. The final two Parts explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.

La Cour provinciale et l'art. 96 de l'A.A.N.B.

La Cour provinciale et l'art. 96 de l'A.A.N.B.

Questions about functionalism in Kant's philosophy of mind: lessons for cognitive science

It has been argued by Kitcher, Brook, Sellars and others that: (1) Kant's philosophy of mind has valuable contributions to make to contemporary cognitive science and artificial intelligence projects contra earlier positivist commentators like P. F. Strawson; and (2) Kant's theory of mind is an early version of functionalism. The author agrees with the first thesis and disagrees with the second. Kant's theory of mental processing has a superficial resemblance to functional theories, but it diverges on several important points: Kant employs a transcendental method that is distinct and more powerful than the functionalist method, Kant believes that there is a specific transcendental architecture in the mind that functionalism is not well equipped to identify, Kant's theory has much stronger ontological commitments than those of functionalism, on Kant's view causal relationships are the product of cognitive processing, functionalism presupposes them, and Kant describes a reflexive problem created by the attempts of the mind to analyse the mind that functionalism overlooks.

Is Criminal Justice Politically Feasible?

concepts. Compared to the visual, personalized fear of Horton, the American public vividly remembered that a convicted black man brutally raped a white female, and attacked her fiance while out on furlough, not that the circumstances were unusual, and specifically chosen. B. The Function of Heavier Sentencing If this line of reasoning is right, then the outrage dynamic ensures in the areas where it can get a grip that heavier sentencing is the only stable equilibrium. Let there be a departure from that level of sentencing and, sooner or later, it will tend to be reversed. Heavier sentencing will be like an attractor that drags sentencing policy in its direction—at least with crimes that attract 7. Amos Tversky & Daniel Kahneman, Judgments of and by Representativeness, in Judgment Under Uncertainty: Heuristics and Bias 84 (Daniel Kahneman et al. eds., 1982). 8. See 1988: The Issueless Wonder, available at http://www.kennesaw.edu/pols/3380/pres/1988.html (last visited May 24, 2002). This content downloaded from 157.55.39.235 on Fri, 07 Oct 2016 05:49:16 UTC All use subject to http://about.jstor.org/terms PETTITMACRO 6/4/2002 2:08 PM 2002] CRIMINAL JUSTICE FEASIBLE? 439 media attention—and that does so, even in face of an intention on the part of policy-makers to shape sentencing to a systematically justified rationale. The language of equilibria is common in economics and is naturally available here to characterize the explanatory power of the outrage dynamic. But it is worth mentioning that where the dynamic is at work, we can also describe what is happening in the language of functionalist sociology. This is worth mentioning, because of the tradition in sociology, probably initiated by Durkheim, of arguing that the punishment of crime serves an important social function in expressing the collective disapproval of the society and that its serving this function gives it a certain inertial, policy-resistant profile. Functionalist explanation invokes the fact that an institution has a certain effect—purportedly a certain socially functional effect—to explain why the institution is there: if not why it emerged, at least why it remains. But a standard criticism of the approach is that there is no mechanism to make sense of why the functionality of an institution in that sense should explain its presence. There is no designer in evidence, of course, but neither is there a plausible story about the selection of functional systems in a history that would parallel the history of natural selection. Arguably, however, this criticism rests on a mistake about the proper intent of functionalist explanation. For the work of functionalists like Durkheim, Malinowski, Parsons, and others suggests that what primarily interested them was the task of identifying those institutions that played a function which would make them more or less indispensable—and so difficult to dislodge— even if it did not play a role in their historical selection. The idea was to look for the core features of a society and to 9. See Steven Lukes, Emile Durkheim, His Life and Work: A Historical and Critical Study (1973). 10. See Jon Elster, Ulysses and the Sirens (1979). 11. Philip Pettit, Functional Explanation and Virtual Selection, 47 Brit. J. Phil. Sci. 291 (1996). This content downloaded from 157.55.39.235 on Fri, 07 Oct 2016 05:49:16 UTC All use subject to http://about.jstor.org/terms PETTITMACRO 6/4/2002 2:08 PM 440 BUFFALO CRIMINAL LAW REVIEW [Vol. 5:427 distinguish them from the marginal and the peripheral. Functionalist method is cast throughout the tradition as a means of providing “a basis—albeit an assumptive basis— for sorting out ‘important’ from unimportant social processes.” If we understand functionalist explanation on these lines, as an attempt to discern functional, relevantly resilient features in a society, then we can give our story about sentencing a functionalist gloss. What we have seen in our discussion of the outrage dynamic is that a more or less punitive criminal justice system—a system that supports heavier sentencing—has a function of a kind that makes it more or less indispensable, at least under current political arrangements. It has an effect, that of assuaging public outrage, which can broadly be described as functional or useful. And its having that effect ensures that it will survive a variety of hostile forces, in particular the forces of rationalizing policy-makers. Montesquieu famously described the pursuit of criminal justice as being in danger of representing a “tyranny of the avengers.” If what I have just argued is correct, then this is not just a danger; it connects, at least under current institutions, with a function served by heavier sentencing. The pursuit of criminal justice has an inbuilt resistance to policy-making reform, even reform of the kind that Montesquieu called for over two hundred years ago.

Notes on Dehousse's Discussion of Method: The Return of the European Federalism/Functionalism Debate

Notes on Dehousse's Discussion of Method: The Return of the European Federalism/Functionalism Debate