A questão da justiça de Kelsen a Luhmann: do abandono à recuperação

Abstract

This doctoral thesis, eminently bibliographical, proposes to investigate Law in the works of two great twentieth century philosophers of law: Austrian jurist Hans Kelsen and German sociologist Niklas Luhmann. The research justifies itself by the up- to-dateness that the question of justice has as one of the central subjects of jurisprudence, from ancient times to nowadays. The choice of the two authors is due to the theoretical positions of both of them related to the autonomy of law towards moral which situates them in a same field inside legal thinking. On one hand, Kelsen disputed, with his Pure Theory of Law - still captive of the paradigm of action theory -, the traditional contributions of Natural Law theories, empting the meanings of justice to the point of denuncing it as an irracional ideal serving ideological motivations, producing an abandonement of any attempt to rationaly fundament the idea of justice. On the other hand, Luhmann brings back the discussion of justice in a different paradigm, that of Systems Theory, which moves the observation focus from the precedent theories, concentrated on individual action or methodological individualism, towards the observation of communication that operates internaly and between themselves the diverse social subsystems. The conclusions of Luhmann about justice as a contingency formula of the legal subsystem, as the contributions that appeared in the dialogue between his work and thinkers as Gunther Teubner, Jacques Derrida and Michael Walzer, indicate the possibility of a fundamentation of justice understood within a systemical rationality, adequate to the understanding of the phenomena that surround the fragmented and global society of our time.