A terceira via de Jeremy Waldron

Abstract

The main objective of this research is to investigate Jeremy Waldron’s theoretical contributions on jurisprudence; from such an investigation, based on Waldron’s fundamental theoretical grounds and its main implications, I argue that his jurisprudential work is a third way between those theories that have directly influenced him: namely, legal positivism and Dworkin’s law as integrity. By way of a phenomenological methodology (the methodological grounds that underlie the tradition of Lenio Streck’s Crítica Hermenêutica do Direito, Hermeneutical Critique of Law), and based on a bibliographic research, this work is structured by three chapters. In the first chapter, I seek to clarify the origins of classical legal positivism — personified by Thomas Hobbes, Jeremy Bentham, and John Austin — in a context of classical common law theory. The second chapter turns to 20th legal positivism, Ronald Dworkin’s law as integrity, and, briefly, to post-Dworkin contemporary positivism. Finally, the third chapter is built directly upon Waldron’s theory: its conceptual grounds, its main elements and practical implications, and the prospects his jurisprudence’s insights inaugurate. My conclusion is that while it is indeed possible to maintain that Jeremy Waldron’s theory is a third way for jurisprudence, the fact is that, be that is it may, Waldron’s goal, it seems to me, is exactly to transcend (mere) analytical labelling, contributing in a more substantive way for the possibilities of a democratic jurisprudence that respects what the ideal of the rule of law fundamentally demands.