Jusnaturalismo e positivismo jurídico: moralidade, método e caminho do meio

Abstract

This research aims to investigate the relationship between law and morality, one of the most traditional questions in jurisprudence, with the purpose of thinking it beyond the dichotomy between natural law and legal positivism. Due to the longevity of the problem, the analysis of its theoretical foundations and its implications involves surveying its various manifestations in the history of human thought, from the classics to the authors of this day. To make this possible, the bibliographic research must be conducted under a phenomenological approach, revealing what escapes common sense in the main texts and theories. The work is structured in five chapters, which involve the following: (i) in the first one, classical natural law, in the particular conceptions of Plato, Aristotle, Cicero, Thomas Aquinas, and William of Ockham; (ii) in the second one, the more modern versions of natural law by Hugo Grotius and Samuel Pufendorf, as well as two perspectives of legal positivism, namely the School of Exegesis and the Jurisprudence of Concepts; (iii) in the third one, three positivist formulations of the 20th century, concerning the works of Hans Kelsen, H. L. A. Hart, and Joseph Raz; (iv) in the fourth one, the grounds of philosophical hermeneutics together with Hilary Putnam's arguments about the relationship between is and ought; and (v) in the fifth and last chapter, three theoretical positions that support a relationship between law and morality without falling back into an essentialist metaphysics or an empiricism devoid of practical rationality. In the end, it is possible to conclude that the recovery of practice — or of the practical world — in law allows for a truly intersubjective conception, rejecting both objectivism and subjectivism.