A teoria estruturante e a crítica hermenêutica do direito: (des)encontros entre Lenio Streck e Friedrich Müller

Abstract

From the “Hermeneutical Critique of law” (Lenio Streck), this study sought to address in a comparative perspective, elementary aspects of the regulatory structure in Theory and Methodical Structuring Law (Friedrich Müller). In this sense, the fundamental point in the proposed discussion is how to give the normative conceptions of each theory. Both Hermeneutical Critique of Law as the Structuring Theory of Law distinguished from many other theories (of positivists meanings) originally presented by different treatment to that question turns out to be an essential starting point: the norm. From this evidence, to bring the debate to the interior of the philosophical paradigms (with insertion of a fundamental theorem of Hermeneutics Philosophy: the ontological difference) it was possible to discuss the scope of how this fundamental distinction is able to reveal, under another, the distinction between text and standard. Within a "commonground" among “Hermeneutical Critique” and “Structuring Theory”, due to the influential presence of the "Philosophical Hermeneutics", some points were raised (un) meetings between authors observing a fundamental criterion for a theory designating of "Post -positivism ": the confrontation of discretion.