The ideological critique of Kelsen's normativism - especially of its method - is part of a broader context in which the postulate of scientific objectivity was under attack. This postulate can be presented with the aid of its most famous champion: Max Weber. Based on the general Kantian distinction between "is" (Sein) and "ought" (Sollen), Weber says that the empirical sciences are not authorized to tell people what they should want, but only what can be wanted, corresponding exactly to what is factually wanted.[1] Accordingly, the role played by values and value judgments in social sciences must be limited, despite the impossibility - acknowledged by Weber - of achieving a satisfactory degree of separation from the object (Voraussetzungslosigkeit). Instead of desiring the banishment of values from the empiric and scientific horizons, the Weberian method submits them to a severe methodological control, attributing "freedom from value judgments" (Wertfreiheit) to social scientists. Therefore, when dealing with values, social scientists can perfectly recommend means for accomplishing certain political/social ends, despite being meanwhile prevented from judging the righteousness of the claim.[2] In Weber's view, this method separates scientific knowledge from ideology, which jeopardizes his field of knowledge. Similarly, the consequences of adopting certain ends can be the object of socio-scientific research, since these ends are not judged on axiological grounds. This method allows the analysis of value judgments as isolated objects, and understanding the reasons of their constant pursuit and recognition by society, under the condition that the researcher must retain himself from recommending, imposing or discouraging these values.[3]
Having Weber's work as a starting point, the applied social sciences (especially Sociology) have debated intensely the problem of scientific neutrality. This debate is characterized by the early polarization of opinions and the sharpness of accusations. The nonaligned blamed partisans of putting science at the service of power. The latter labeled the aseptic attitude of the nonaligned as dangerous because sociopolitical neutrality means tacit connivance to the established power, since qui tacet consentit. [4] The debate was even more urgent in Germany, where it became clear, after the World War II, the fact that many sociologists had prostituted their science, intending to effectively legitimize the social and racial thesis of nazism.[5] But even before World War II, Carl Schmitt defended that an apolitical posture means a political decision,[6] criticizing social scientist who denied taking sides in front of a certain ideology. Moreover, as stated by Demo, taking sides is pretending clever or naive neutrality, since the instrumentalized and subservient use of science is the worst form of partisanship.[7] Nevertheless, the same author despises the "cheap activism" that has been desolating the applied social sciences, an attitude attributable to those who forsake logic and theory, dedicating themselves to the acritical fanaticism of a blind faith. These partisans dismiss any method and scientific formalism and, through a "devastating dilettantism", subdue theory to the desires of practical performances.[8] Thereby, a senseless discourse is introduced, cloaking creativity under methodological incompetence, ruining the commitment with the task of objectivation. Thus science is relegated to the field of subservient ideologies, despite being eventually, noble.[9]
In the context of the post-war, Radbruch urged jurists to ponder over the ethical component of law: justice, considered as its fundamental quality; and to reject in totum legal positivism on account of its axiological vacuity. The position defended by Radbruch was particularly influent not only due to the authority vested in him by other jurists, but particularly for a text published in 1932, in which the author advocated ideas strongly connected to legal positivism,[10] defending that the order and safety of positive norms would justify the mandatory character of any law, even if unjust and unfit to an end.[11] Justice, as a consequence, would display only a secondary value. After the war, he changed his mind, defending that jurists should refuse to attribute validity to unjust laws; and denounce them as simulacra of law. Following his logic, people should also be exempt of following iniquitous commands.[12] In reality, Radbruch admitted that the notion of legal safety and the idea of justice are continuously in a
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conflict that must always be settled in favor of the former, unless the contradiction reached such a level of intolerability that the "unfair law" should be overruled by the notion of justice. This would only happen, argues Radbruch, in the hypothesis of positive law blatantly disrespecting the concept of equality - a pillar of justice -, giving jurists the opportunity to ignore legalism and shift their interpretation towards the realization of justice. From Radbruch's text rose a certain general argument against legal positivism, called the reductio ad Hitlerum.[13]
In this general scenario, Radbruch formulated a critique of legal positivism - especially against Kelsen - affirming that his conception of law and validity would leave people and jurists defenseless against arbitrary laws. [14] Nevertheless, this point raised by Radbruch is deserving of our preliminary criticism, for Kelsen's objective theory is limited to describing the operation of norms, relegating the role of judging legal norms to ideology.
Against these arguments, it is usually held that the asepsis of legal positivism - i.e., its constant refusal of qualifying any legal system with an ideological bias - might redund to a tacit support of a perverse regime, thus revealing itself as cloaked ideology. Kelsen's legal positivism, with its deceptively neutral and unjudgmental posture, is even accused of leaving law and politics at the mercy of mere decisionism.[15] Carl Schmitt criticizes the inaptitude of attributing values of Kelsenian legal positivism, since a jurist -when following Kelsen - can criticize with ease even if attached to strict methodology.[16] Undoubtedly, lack of involvement is not a reproach attributable to Schmitt, who was intensely involved in historical events that his admirers would rather forget.
Regarding the aforementioned critique of Kelsenian legal positivism - tacit acquiescence to authoritarian political regimes, strengthening of decisionism, and refusal to involve with any material reality -, it must be noticed that it completely disregards Kelsen's epistemology, in a sense that it addresses the legal phenomenon in an autonomous way, i.e., ignoring ideology for the sake of methodology, and not because of the lack of importance of the former or convenience. In many occasions, the absence of ideological action works as an ideology, as it is known that silence can be more eloquent than words. Nevertheless, this admonishment cannot be directed against the legal positivism of Hans Kelsen, who would put ideology aside on account of methodological reasons, not convenience, cowardice, or superficiality. For this reason, accusing legal positivism of collaborationism due to its lack of ideological attitude is a serious methodological mistake, since - as states Recaséns Siches - a theory cannot be criticized for what it is not;[17] even less when concerning something that has always been absent of its pipeline of research.
This first epistemological argument would suffice to absolve legal positivism of the allegation of legitimizing authoritarian regimes:[18] its accentuated formalism does not allow such deeds, unlike the material thesis that justified nazism, fascism and stalinism. Aiming at the overcoming of the Rule of Law, in which the legal principles of anteriority, non-rectroactivity, tripartition of power and legality would be put aside by judges on behalf of "the ideals of the people", an attenuation of law can be implemented, amplifying the discretionary power of judges, exactly what legal moralists of the present days desire.
With the overcoming of this first aspect, that has an essentially methodological nature, it must be observed that even if Kelsen's legal positivism had legitimated authoritarian regimes - which never happened, as we intend to demonstrate -, that would not reduce its technical relevance. Plato and Aristotle not only justified, but also defended slavery as natural and necessary to Greek society. No scholar has refused to consider the works of philosophers on such grounds, no matter how absurd these opinions might appear to contemporary eyes. Accordingly, the defense of torture, considered by Thomism as instrument for the extraction of truth, does not deter defenders of human dignity to vastly quote the Summa Theologica. And what to say about Hegel and Nietzsche, whose texts were avidly read and paraphrased by the nazi intellectual elite? This fact does not disallow the continuous study of their works in the most sophisticated academic environments. Several constitutionalists that criticize Kelsen with ferocity, based on his alleged participation in the legitimation of nazism, show no indignation when praising his rival - the assumedly nazi Carl Schmitt. It is also noteworthy that Heidegger, despite his undeniable national-socialist filiation, is nevertheless read by contemporary philosophers of libertarian orientation.
These examples, that could be multiplied indefinitely, demonstrate that the political-ideological orientation of certain theory is not sufficient to evaluate its excellence or its pertinence. On the contrary, analysts must examine the internal logical structuration of the theory, its contributiveness to scientific culture and its ability of maintaining itself actual and interesting, remaining operative inside the contemporary debate and inspiring new intellectual creation - no matter how long ago it was originally formulated. The fact that the critics of Hans Kelsen's legal positivism do not judge his theory by the following criteria
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- scientific rigor, originality and permanence - demonstrates the bad will and irrational hostility of the dominant legal theory against him.
Even stronger than the two previous arguments is the observation that most legal positivistic theories are not adaptable to authoritarian political environments, since legal positivism has high regards for technical aspects of law that are not consistent with regimes of exception. These aspects are: values of order, formal equality and legal certainty.[19] Authoritarian regimes, instead, always present themselves as superior to the limited rationality of positivism, incarnating an almost divine sort of justification. Following this train of thought, let us recall that nazi legal ideology was against legal positivism, given the fact that, much before consulting the law, the national-socialist judge would decide on the grounds of the interest of people, i.e., the State. [20]
This position gains strength with Carl Schmitt, who has published in the 1930's a series of works criticizing the excessive technicism and formalism of legal positivism - called by him a "functional mode of State bureaucracy" -,[21] responsible for the disinterest of the legitimate rights of the people. Schmitt also blames legal positivism for the lack of interest in politics demonstrated by civil servants and for distorting the essence of the juridical phenomenon, that remains entangled with the dead letter of countless of statutes. Schmitt states that instead of theorizing on the pillars of a Natural law or Reason, legal positivism insists on linking itself to norms that are valid only from a factual standpoint, remaining blind to law when facing "real decisions".[22] Thereby, legal positivism is labeled as degenerate, since it is limited to analyzing law impersonally. What is wanted here is the creation of superpersonal institutions and configurations -able to wake the Being that lies within every massive political power[23] - in an operation that would solve the legal-constitutional problem in Germany. And yet, according to Schmitt, the fundaments of legal orientations should be pursued in the social values of people, thus initiating a new "concrete order" in which positivistic frivolities would be replaced by the "theory of the unitary direction",[24] that, when well understood, means the effective supremacy of the State as a totalitarian dictatorship that ignores legal checks.
To Schmitt, laws exist only to serve the State and, like common servants, it can be dismissed when considered inconvenient. In this context, the Kelsenian theory is still significant, despite the severeness of the critique performed by Schmitt,[25] to whom law and State are not a singular reality. Leaving aside this old dichotomy of Public Law, Kelsen affirms that the State only exists while being different from other social organizations, since it respects and gives effectiveness to the law from (and for) which it originated, regardless of the content of norms that constitute the legal system. From this derives the celebrated Kelsenian definition of State as a centralized legal system. This approach intensely frustrated Schmitt's onrush against the excessive formalism of Kelsenian positivism, inside which no one (fictional or real) possesses any power: there are only points of atribution.[26]
Besides not necessarily having a theory of obedience, legal positivism always defended the primacy of juridical norms over the political-legal subjectivism of authoritarian regimes, and with good reason against the totalitarian experience. In that way, legal positivism worked as an unsurmountable barrier blocking totalitarisms of the last century, overly illegitimate and hostile to any rationality extrinsic to the dominant political movement. According to the analysis performed by Bonnard, a national-socialist State cannot be understood as pertaining to the paradigm of the Rule of Law in its classical meaning, being more correctly qualified as Führerstaat. In the democratically established legal order, every situation is directed by law, which operates in the same way against rulers, a situation precluded in the Führerstaat, where the personal will of the ruler overpowers legislation, embodying it in himself and modifying it freely.[27] To Bonnard, it is clear that the Führerstaat acts without considering the principles of legality and anteriority and the due process of law creating a new sort of "anti-law". Therefore, the legislation dictated by the Führer in the morning could be modified in the evening, in case of detecting the slightest disconformity with "the vital law of people", a hermeneutic task designed only to the political supreme commander. Arendt understands that totalitarism is nothing but a modern form of despotism, or a government without laws, in which all power is vested in one person only.[28] Siches shares the same opinion, seeing totalitarism as a regime deprived of law, whose locus has been simply replaced by arbitrarity.[29] Following the same track, Dimoulis states that there was a visible legislative continuity during the period of national-socialism in Germany, with the edition of few and strikingly totalitarian laws. In reality, the German legal system was disarrayed by the power of unlimited interpretation (unbegrenzte Auslegung) of judges, that could invoke "values" proper to people, in a practice that intensely contradicts any legal theory of interpretation.[30]
Nevertheless, totalitarism is more than a legal system, constituting also a system of terror. The concepts of legality and illegality are not useful for describing it.[31] Within it, no law or legal theory survives, no
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matter if it is based on legal positivism or natural law, although the latter can, effectively, ideologically justify the terror, qualifying it as a demand of the superior natural order that, by eliminating the weak, separates them from the strong.
Theorists of the caliber of Calamandrei have developed positivistic arguments to fight totalitarism, particularly the notion that State and citizens must obey positive law. Such position collides with the basic idea that sustains every totalitarian movement: there is a historical reason that must be followed, even though the accomplishment of this desideratum might lead to the disregard of the legal apparatus of the State. Italian fascism, for instance, did not intend the instauration of a new regime, but simply to impose itself in the midst of continuous violence. Its motto, Siches reminds, was "the act precedes norm". Fascism was - in the words of Mussolini - not a doctrine, but "a faith that is worth dying for".[32]
Totalitarisms were aimed at the embodiment of a legality even superior to that bestowed to the State, giving its utmost expression to the maxim that the strong shall prevail over the weak[33]. Inspired by "superior ethical ideas", these regimes did not recognize any limit impinged by positive law. So, the legal positivism would be nothing more than a meaningless palliative measure, an inefficient appendix that must be eliminated by the natural order. Given their despising of all that legal positivism stood for, totalitarian movements did not accept being called "illegal": this classification was made by their opponents, uncapable of contemplating the rationality of the historical process in its whole; therefore, totalitarism should be ruled by the natural order, not law, due to its fallibility.[34] Totalitarism and positivism are systems derived from opposite premises, since the latter completely denies the existence of natural legal orders.
Totalitarian rationality judged itself superior to positivistic rationality, since it would emanate directly from the authority that validates positive law: nature itself. This understanding gave substance to the argument against positive laws - abstract, imperfect, and morose -, since they have never brought the justice to earth, a task that will be performed by totalitarism, through the overcoming of concepts such as right and wrong, particularized in countless and deceitful legal statutes. The other task was the fulfilling of the inevitable historical mission in which justice would encompass law, while the individual would be dissolved in the hazy amalgam of State organism. Karl Larenz - one of the former supporters of national-socialism, who afterwards repudiated it - well expresses how this movement disregarded subjective rights by arguing that this concept had lost its significance to modern legal theory and Private Law. In the place of the old-fashioned idea of subjective law, Larenz proposed a new one, based on the notion of "legal situation of the individual", concerning the location of the subject, the national comrade, in the socio-legal-communitarian system (Rechtsstellung des Volksgenossen).
On the other hand, totalitarism showed its most authoritarian side by not accepting restrictions and checks, ignoring the positive rules and obeying the "laws of nature", that do not favor a specific group of humans. For this reason, the extinction of inferior or historically decadent races is a "philosophical duty", since the acts performed on behalf of natural law are not being submitted to the technical-rational control. As a result, this dubious train of logic allowed totalitarism to rise above petty legalities and to impose itself as a "righteous order".[35]
It seems obvious that only with a great bad faith one can find some correspondence between the so-called "natural law" of totalitarism, and the works of real theorists of natural law, no matter how ancient, medieval or modern they are. There are considerable differences between these two conceptions. But, as we have seen, the search for traces of Kelsenian legal positivism on the premises and the origins of totalitarism is fruitless, while natural law - or perhaps its unconscious substratum - offers a good hint.
Legal positivism is marked by its relativistic ethical conception, as proved by Kelsen in his denial of the juridical supremacy of the State. He defends an ideology tinged with pacifism,[36] the superiority of international law over national jurisdiction[37] and the promotion of juridical-institutional practices that would lead to the settlement of long-lasting peace between all nations.[38] Inspired by Kant's ideal of perpetual peace, Kelsen proposed a model in which a federal super-State is informed by a "cosmopolitan law" (Weltbürgerrecht), applicable to every human being. In addition, this author elaborated in 1944 a project for a Permanent League of States wich object is perpetual peace on Earth.[39] Is this a suitable curriculum for a supporter of nazism?
Kelsen's respect for law was so elevated - what does not mean blind obedience -, that even his Jew origins did not keep him from rigidly criticizing the Court of Nuremberg, as the tribunal disregarded the criminal law principle of non-rectroactivity, since after the World War II the winners judged the losers.[40] Such politically delicate standpoint, far from promoting an alliance with the constituted power, kept the furnace of rebelion burning, feeding it with the outrage against the powerful. With the same spirit of revolt, Kelsen condemned the disproportionate political-military power granted by the United
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Nations to the Security Council, a monolithic and par excellence conservative organ.[41] Thence, we must once again raise the question: where is the supposed legitimation of totalitarism allegedly performed by this author and other theorists of legal positivism?
After teaching that legal positivism can be simultaneously considered a theory, a methodology and an ideology,[42] Bobbio presents two well defined groups of relevant authors that in some extent follow legal positivism in their works: the moderate supporters of ethical legal positivism, a group in which participated Kelsen, Calamandrei, Hart and others; and the radical supporters of legal positivism, who Bobbio identifies as the heirs of Hegel in the field of German legal thinking.[43] To legal positivism of moderate inclination, law has an instrumental value, while radicals defend that law is a finality.[44] The moderate group understands that law, despite being effectively able to present any content, is not a value in itself, reason by which there is no good motivation for following it always and under any circumstance, since law is only an instrument for the realization of certain social finalities. On the other hand, by fusing descriptive and prescriptive views, the radical positivists defend that the legislation should never be disobeyed: after being enacted, it becomes certain and indisputable, independently of their content. This view demonstrates that obedience to law should be imposed simply because it is the law, a structure that unmistakably retains a cogent moral force.
Associating legal positivism to the idea of absolute obedience to law is a common mistake, characteristic of the detractors of this theoretical movement. [45] Notwithstanding, none of the authors who made this accusation - normally followed by a more general one, referring to the supposed legitimation of political authoritarism - clearly indicate were and when the theorists of legal positivism defended the theory of obedience. Legal positivism is alluded vaguely, as if such movement was not composed by theories of authors widely separated in time and space. Furthermore, the central thesis of radical legal positivists - according to which current law (Sein) derives from an irrevocable duty of obedience (Sollen) - contradicts one of the central fundaments of Kelsenian normativism: the logical impossibility of deriving ought norms from the world of being, and vice-versa,[46] since values are not immanent to reality, as believed by the supporters of natural law.[47]
Kelsen's legal positivism cannot be linked with radical legal positivism,[48] a field much more closer to natural law. Displaying an intentionally distorted picture of legal positivism by invoking radical legal positivism, one can simplify the task of criticizing Kelsen, but only under the risk of being accused of lacking scientific arguments and seriousness. If in an initial analysis legal positivism can be described as a vision of law that reduces justice to validity, no legal positivist came to the point of defending such an extreme thesis. What its authors noticed, as Levi says,[49] is that law can be valid without being just: justice is an irrational ideal, thus unable to qualify any legal system. In other words, legal positivism works under the premise that the problem of justice belongs to the realm of ethics and not to the law science.[50]
The denial of the theory of absolute obedience is essential to the positivism, since legislation has only an instrumental value therein. The axiological relativism that pervades every genuine legal positivistic theory refuses to categorize law and legislation as values per se; they are mere mediums for the accomplishment of social ends.[51] This is particularly noticeable in Kelsen's theory, as noticed by Robert Walter, to whom no one should invoke legal positivism to justify ends, since to every man is given the moral decision of obeying the positive law or rebelling against it.[52]
Herbert Hart argues that thinkers like Austin, Gray and Kelsen were concerned with promoting honesty and clarity on the debate regarding unjust, but valid, legal norms.[53] To block the enforcement of these norms - according to these jurists -, it is not necessary to deny their legal character, as wanted by the school of natural law. Legal positivism recognizes the moral authority of man, able to confront unjust laws, unworthy of being applied and obeyed.[54] The reasons that lead people to obey the orders of competent authorities are many. Law does not need the appraisal of society to be valid. This is another realistic and extremely frank statement of legal positivism that has been misinterpreted during the last decades. It is not necessary to believe that law must always be correct, just, good or unquestionable. Following Kelsen's lead, Hart declares that men's obedience to a certain legal systems does not imply automatic acceptance of their contents.[55]
Legal positivism offers freedom to choose obedience or rebellion,[56] understanding man as an autonomous being, able to perform moral choices and single-handedly ponder on the legitimacy and justice of positive law.[57] No weaker opposition should have been expected from an intellectual movement that confronted every dogmatism, silenced the powerful metaphysics and eliminated the majestic and almost divine aura of natural law. It is important to overcome the commonplace of the previously mentioned superficial critique and read the works of authentic legal positivists, including the newest ones - Bix,
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Greenawalt, Lyons, Raz etc. - and the classics, like Hart, Kelsen and Ross. None of them conclude that a duty of obedience arises from law.
It is urgent, concerning Kelsen, that readers stop limitating themselves to the Pure Theory of Law. Many of them will be surprised with texts that in nothing resemble the technical and formal discourse of this chef-d'oeuvre. Some passages would leave legal moralists disconcerted,[58] if only they had the intellectual honesty of reading something besides the Pure Theory of Law, so easy to criticize in its conceptual clearness. In General Theory of Law and State, for example, far from the olimpically unconcerned attitude attributed to him by his opponents, Kelsen describes with good precision the forms of autocracy, giving special attention to single-party dictatorships, represented by bolshevism, fascism and nazism.[59] With great lucidity, Kelsen exposes the characteristics of single-party dictatorships, in which civil liberty is completely suppressed, the independence of courts is abolished and the Constitution becomes irrelevant. In a such regime, persons cannot have another opinion than the one accepted by the party, or they will hazard their property, liberty and life. The only reason for the existence of elections and referendums in single-party dictatorships is the dissimulation of the existence of dictatorship itself.[60] But there is still more. Despite the antagonistic opinions of the uninformed majority, Kelsen's ideas are filled with pacifism and political commitment to democratic and relative values, what precluded his adherence to any political totalitarism.
The reduction ad Hitlerum cannot be applied against the works of Hans Kelsen and legal positivists in general. That observation does not put legal positivism into a pedestal of purity, untouchable and immaculate. Like every cultural creation, legal positivistic theories are filled with imperfections, gaps and inconsistencies. However, the critique of legal positivism must be performed with clearness and honesty, as Hart well observed. No scientific theory can be held responsible for the noxious practices created by the misinterpretations of its contents. Legal positivism has been falsely, unjustly and deceitfully accused of legitimizing dictatorial legal systems. But legal positivism never placed itself alongside the constituted order, preferring to criticize it on a relativistic basis and following a methodology committed to the analysis of reality, and not to the Gorgons of power.
The use of the reductio ad Hitlerum as a conterargument to legal positivism derives from a certain immaturity - when not from manifest ignorance - that thrives in the academic legal field, nowadays frankly averse to legal positivism. Many of the enemies of legal positivism do not know what means to embrace its cause. It means eliminating the chimera of metaphysics and refusing validity to the argument of authority; it implies the non-acceptance of obvious and prearranged answers; it means questioning the unquestionable and opening the chest to the risks that knowledge brings about. In last instance, it means entering fearlessly through the doors of science, like in Marx's reinterpretation of Dante's famous verse. Perhaps when legal moralists pass through both doors - of "purity" of science and "impurity" of hell -, they will be able to discuss, in a frank and open way, what is legal positivism, and not what its critics and adversaries would like it to be.
Arendt, Hannah. Origens do totalitarismo: anti-semitismo, imperialismo, totalitarismo. Trad. Roberto Raposo. Sao Paulo: Companhia das Letras, 1989
Bobbio, Norberto. O positivismo jurídico: licoes de filosofia do direito. Trad. Márcio Pugliesi, Edson Bini e Carlos E. Rodrigues. Sao Paulo: Ícone, 1999
Bobbio, Norberto. Teoria geral do direito. Trad. Denise Agostinetti. Rev. Silvana Cobucci Leite. Sao Paulo: Martins Fontes, 2007
Bonnard, Roger. El derecho y el estado en la doctrina nacional-socialista. Barcelona: Bosch, 1950
Cathrein, Victor. Filosofía del derecho: el derecho natural y el positivo. Trad. Alberto Jardon. 7. ed. Madrid: Reus, 2002
Demo, Pedro. Metodologia científica em ciencias sociais. 3. ed. rev. e ampl. Sao Paulo: Atlas, 1995
Dimoulis, Dimitri. Positivismo jurídico: introducao a uma teoria do direito e defesa do pragmatismo jurídico-político. Sao Paulo: Método, 2006
Hart, Herbert L. A. O conceito de direito. Trad. A. Ribeiro Mendes. 2. ed. Lisboa: Calouste Gulbenkian, 1994
Kelsen, Hans. A justiga e o direito natural. Trad. e estudo introdutório de Joao Baptista Machado. Coimbra: Arménio Amado, 1963
Kelsen, Hans. Das Problem der Souveränität und die Theorie des Völkerrechts. Tubingen: Mohr, 1920
Kelsen, Hans. Peace through law. New York: Garland, 1973
Kelsen, Hans. Principles of international law. New York: Holt, Rinehart and Winston, 1952
Kelsen, Hans. Teoria geral das normas. Trad. e estudo introdutório de José Florentino Duarte. Porto Alegre: Sergio Antonio Fabris, 1986
Kelsen, Hans. Teoria geral do direito e do estado. Trad. Luís Carlos Borges. 3. ed. Sao Paulo: Martins Fontes, 2000
Kelsen, Hans. Teoria pura do direito (edicao de 1934). Estudo introdutório de Robert Walter. Trad. José Cretella Júnior e Agnes Cretella. 3. ed. Sao Paulo: Revista dos Tribunais, 2003
Levi, Alessandro. Teoria generale del diritto. 2. ed. Padova: Cedam, 1953
Maia, Antonio Cavalcanti; Souza Neto, Cláudio Pereira. Os princípios de direito e as perspectivas de Perelman, Dworkin e Alexy. In: Os princípios da constituicao de 1998. Rio de Janeiro: Lumen Juris, 2002
Martin, Raymond. Aller e retour de Kelsen à Aristote. In: Revue Trimestrielle de Droit Civil, n. 2. Paris: Dalloz, avril/juin 1997
Matos, Andityas Soares de Moura Costa. Filosofia do direito e justiga na obra de Hans Kelsen. Apresentacao de Danilo Zolo e prefácio de Eduardo C. B. Bittar. 2. ed. Belo Horizonte: Del Rey, 2006
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Radbruch, Gustav. Filosofia do direito. Vols. I e II. Trad. Cabral de Moncada. 4. ed. Coimbra: Arménio Amado, 1961
Schmitt, Carl. Teologia politica. Apresentacao de Eros Roberto Grau. Trad. Elisete Antoniuk. Belo Horizonte: Del Rey, 2006
Siches, Luis Recaséns. Tratado general de filosofia del derecho. 4. ed. Mexico: Porrúa, 1970
Silbermann, Alphons (Hrsg.). Militanter Humanismus. Frankfurt: Suhrkamp, 1966
Strauss, Leo. Natural right and history. Chicago: University of Chigago, 1953
Weber, Max. Soziologie, Weltgeschichtliche Analysen, Politik. Frankfurt: Kroener, 1964
Zolo, Danilo. O globalismo judicial de Hans Kelsen. Trad. Andityas Soares de Moura Costa Matos. In: Phronesis: Revista do Curso de Direito da FEAD, v. 1, n. 2. Belo Horizonte: Fead, julho/dezembro 2006 ■
NOTES
* Bachelor degree in Law awarded by Universidade Federal de Minas Gerais (UFMG, Brazil), Master of Legal Philosophy by UFMG and PhD in Law and Justice by UFMG. Associate Professor of Legal Philosophy at UFMG. Permanent member of the Postgraduate Program in Law of UFMG. Professor of Legal Philosophy at FEAD (Belo Horizonte/MG). Author of works in the field of Legal Philosophy.
[1] Weber, 1964, p. 190.
[2] Weber, 1964, P. 188.
[3] Weber, 1964, p. 189.
[4] Demo, 1995, p. 70.
[5] Silbermann, 1966, p. 13.
[6] Schmitt, 2006, p. 4.
[7] Demo, 1995, p. 83.
[8] Demo, 1995, pp. 83-84.
[9] Demo, 1995, p. 84.
[10] Radbruch, 1961, v. I, p. 202 et seq.
[11] Radbruch, 1961, v. I, p. 213.
[12] Radbruch, 1961, v. II, p. 213.
[13] This curious expression is found in Bobbio, 1999, p. 225, and was applied afterwards by Dimoulis, 2006, pp. 257-264 and MATOS, 2006, p. 135. Appears firstly at Leo Strauss Natural Law and History, 1950. See Strauss, 1953, p. 327.
[14] Radbruch, 1961, v. II, p. 211.
[15] Maia; Souza Neto, 2002, p. 60 et seq.
[16] Schmitt, 2006, p. 20.
[17] Siches, 1970, p. 408.
[18] Martin, 1997, p. 392.
[19] Bobbio, 1999, p. 236.
[20] Bobbio, 1999, p. 236.
[21] Schmitt, 2006, p. 4.
[22] Schmitt, 2006, pp. 4-5.
[23] Schmitt, 2006, p. 4.
[24] Apud Dimoulis, 2006, pp. 262-263.
[25] Schmitt, 2006, pp. 19-33.
[26] Schmitt, 2006, p. 18.
[27] Bonnard, 1950, passim.
[28] Arendt, 1989, p. 513.
[29] Siches, 1970, p. 506.
[30] Dimoulis, 2006, p. 261.
[31] Arendt, 1989, pp. 516-517.
[32] Siches, 1970, pp. 506-507.
[33] Arendt, 1989, pp. 518-519.
[34] Arendt, 1989, pp. 513-514.
[35] Arendt, 1989, pp. 513-514.
[36] Bobbio, 1999, p. 234.
[37] Kelsen, 1920, p. 290 et seq.
[38] Kelsen, 1973, passim.
[39] Zolo, 2007, passim.
[40] Kelsen, 1952, p. 215 et seq.
[41] Kelsen, 1952, pp. 47-50.
[42] Bobbio, 1999, p. 34.
[43] Bobbio, 1999, p. 229.
[44] Bobbio, 1999, p. 230.
[45] Kelsen inverts the accusation, directing it against the natural law school, that presupposes the existence of absolute values, thus legitimizing the theory of the absolute obedience to State and its governors (Kelsen, 1963, p. 155). Kelsen is right in his judgment, given that, paradoxically, the duty of obedience to legal-positive norms constitutes one of the fundamental demands of natural law. See, v.g., Cathrein, 2002, p. 248.
[46] Kelsen, 1995, p. 41 e 1986, p. 70.
[47] Kelsen, 2000, pp. 382-383.
[48] Dimoulis, 2006, pp. 267-268 understands that the radical-ideological legal positivism does not constitute a specific stance of the legal positivism.
[49] Levi, 1953.
[50] Bobbio, 2007, pp. 38-39.
[51] Bobbio, 1999, p. 232.
[52] Introduction in Kelsen, 2003, pp. 23-24.
[53] Hart, 1994, p. 223.
[54] Hart, 1994, p. 224.
[55] Hart, 1994, p. 202.
[56] Dimoulis, 2006, p. 268 and Matos, 2006, pp. 269-284.
[57] Kelsen, 1963, p. 168.
[58] Hart, 2000, p. 382.
[59] Hart, 2000, pp. 430-431.
[60] Hart, 2000, p. 432.
Lábjegyzetek:
[1] The Author is Professor of Legal Philosophy at FEAD.
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