Entre direito e justiça: elementos do positivismo e do pós-positivismo jurídico

Abstract

This work deals with the interrelations between Law and Justice under the focus of two outstanding streams of jusphilosophical thinking: the Kelsenian positivism and the Habermasian post-positivism. For this purpose, it analyzes the relationship between Law and Justice in antiquity, choosing the Greek tragedy Antigone as a reference for such an attempt, in order to demonstrate that the considerations about the relations between Law and Justice are not only of contemporary times. Next, the general aspects of legal Positivism are discussed in order to identify its main currents and to place, in a didactic way, the Kelsenian normativist positivism, and especially the relation between Law and Justice, in Kelsenian positivism. Afterwards, we discuss the general aspects of post-positivism, also with the aim of situating, in a didactic way, Habermasian post-positivism, and especially the relationship between Law and Justice, within the Habermasian approach. Finally, the relations between Law and Justice under Kelsenian and Habermasian thinking are contrasted. From a methodological point of view, this is a research of a theoretical nature, using an exploratory research as the method of procedure, based on a literature review to verify the relations between Law and Justice in Kelsenian and Habermasian thought, in addition to a comparison between these two outstanding currents of thought. As a result, it was identified that the Habermasian and Kelsenian views on the relation between Law and Justice promoted intense changes in the conceptions of Law and Justice, disseminating great and relevant influence in the contemporary jusphilosophical thought.