• An empirical foundation for legal positivism? The naturalized jurisprudence’s way

  Brito Júnior, Valdenor Monteiro (Universidade Federal de Santa Catarina, 2023-03-16)

  The aim of this paper is a discussion of the naturalized jurisprudence’ route for legal positivism. Brian Leiter proposes that the naturalization of the legal theory provides an empirical foundation for the legal positivism. This naturalization is achieved by the resource to the best social science hypotheses about Law as a social phenomenon. Leiter argues that the best social science hypothesis about Law – for him, the attitudinal model for legal decision-making – vindicates an exclusive positivistic concept/theory about Law. Here I discusses his argument in the framework of naturalized jurisprudence: I endorse the general aim of a naturalized jurisprudence, however, I argue that the naturalized jurisprudence’s route for positivism (or for any substantive theoretical point about the nature of Law) is longer that Leiter seems to think. His empirical argument is insufficient to vindicate exclusive positivism, because the choose social science model is subject to different theoretical interpretations itself. If naturalized jurisprudence is to vindicate exclusive legal positivism, it is necessary to actively engage with theoretical criteria, not only empirical ones.
• Can there be a plural acceptance of the rule of recognition? Notes on Kevin Toh’s expressivist analysis of Hart’s internal legal statements

  Dornas de Oliveira, Rodrigo; da Rosa de Bustamante, Thomas (Universidade Federal de Santa Catarina, 2023-03-16)

  One of the most intriguing answers to Dworkin’s argument from theoretical disagreements is Kevin Toh’s expressivist analysis of Hartian internal legal statements. Nonetheless, the rule of recognition’s conventional character and the existence of a unique, though complex, social rule accepted by the officials are crucial for Hart’s jurisprudence. This new reading comes with too high a price, since in the end it requires one to depart from the Hartian account which is the base of Toh’s argument. Without that theoretical framework, legal positivism cannot account for theoretical disagreements in law.
• Normative positivism and the debate that matters

  Faggion, Andrea Luisa Bucchile (Universidade Federal de Santa Catarina, 2023-03-16)

  I argue that the conceptual debate around the positivist thesis of the separability of law and morality is of no practical or theoretical relevance, insofar as, first, the beneficial moral consequences that some positivists have judged to follow from the adoption of the separability thesis may plausibly follow in the same way of its rejection and, second, the data available for the analysis of the legal theorist are in line with both the positivist concept of law and rival concepts, not least because the decision for the data that count is already dependent on the theory we adopt. In other words, I treat the concept of law as an artifact and offer some evidence that nothing of importance depends on exactly how we shape that artifact. After having argued in this sense, I conclude the paper by suggesting that the debate that matters within the scope of analytic theory of law concerns normative positivism as a model of decision prescribed to authorities.
• Habermas and legal positivism

  Dutra, Delamar José Volpato; de Oliveira, Cláudio Ladeira; Brennand, Edna Gusmão de Góes (Universidade Federal de Santa Catarina, 2023-03-16)

  This article analyzes Habermas' critique of legal positivism based on the relationship between law and morality, focusing on the three demands that are made to morality, namely: cognitive, motivational and organizational demands. Proponents of a strong relationship between law and morality, like Dworkin, argue that morality should be called upon to solve difficult cases of law. Habermas seems to claim just the opposite, namely, that it is the law that is called upon to fill the cognitive deficit in morals. The text explores the consequences of this statement for Habermas's discursive theory of law, in relation to one of the fundamental theses of legal positivism, that morality cannot be a foundation for law precisely because of its cognitive indeterminacy. The text compares how much the discursive theory of Habermasian law approaches or departs from this fundamental thesis of legal positivism.
• Justice as artifice, symbolic field and open system: Hume reader of Hobbes

  Limongi, Maria Isabel (Universidade Federal de Santa Catarina, 2023-03-16)

  One of the reasons why Hobbes can be considered the precursor of legal positivism is his way of thinking of the justice system as the monopoly of the state, and as a coherent and complete normative system, autonomous in relation to its material base, that is, to the opinions and interests that motivate and sustain its institution. The Hobbesian theory of the state thus paves the way for the closure of the legal order claimed by positive law theorists. However, following the way Hume dialogues with Hobbes and develops his theory of the State, I will try to show that this closure is not the only path opened by this theory. Hume explores and tenses it in the opposite direction, trying to think about the openness of legal normativity to the social opinions and practices that produce and sustain it.
• Roberto J. Vernengo (1926-2021) and Eugenio Bulygin (1931-2021): a biographical testimony

  Serbena, César Antônio (Universidade Federal de Santa Catarina, 2023-03-16)

  The international community of Legal philosophy lost two of its greatest exponents in the year 2021: Roberto José Vernengo and Eugenio Bulygin. The article deals with the intellectual biography and some of the main original contributions of the two professors of the Faculty of Law of the University of Buenos Aires, who exerted influence and impact in several countries in South America and Europe, and mainly in a personal way on the ideas and intellectual formation of the author of this article.
• Carl Schmitt's false trilemma and the compatibility between legal positivism and the ideal of constitutional democracy

  Lisboa, Wladimir Barreto; Baptista Caruso Macdonald, Paulo (Universidade Federal de Santa Catarina, 2023-03-16)

  In his work On the three types of juristic thought, Carl Schmitt presents legal positivism as normativistic in its structure but decisionist in its practical consequences. The way he suggested to avoid decisionism was to think of law not as an abstract system of rules but primarily as a concrete order. In this paper, we intend first to show that the three alternatives of legal theory described by Schmitt — namely, normativism, decisionism and his proposed theory based on the concrete order — are incompatible with the institutional realization of the ideal of a constitutional democracy as conceived by John Rawls. Then, with this problem in view, we construct a fourth alternative of legal theory from the work of H. L. A. Hart and Neil MacCormick, which is a kind of non-normativistic legal positivism that is free both from the decisionist implications of theories like Kelsen’s and from the dependence on anything like Schmitt’s concrete order. Our last step is to check the compatibility of this fourth alternative with the realization of the rawlsian ideal of constitutional democracy as well as the latter’s institutional viability.
• The limits of the concept of law: reflections on Kantian legal positivism in relation to Kelsen’s and Hart’s positivism:

  Klein, Joel Thiago (Universidade Federal de Santa Catarina, 2023-03-16)

  In this paper I argue that the model of legal positivism supported by Kant's philosophy of law is able to justify the establishment of limits to the concept of validity of law in a way that Kelsen's and Hart's positivism cannot. This limitation allows to distinguish between barbaric states, in which there is no law, and despotic states, which despite not being just states, there is still law. Based on this distinction, one can argue for a positivist theory of law that establishes non-moral normative criteria for the validity of a legal system. In this sense, it is argued that the positivist models of Kelsen and Hart are inferior from the standpoint of their ability to capture legal normativity.
• Kant and the problem of the legal formalism

  Weber, Thadeu (Universidade Federal de Santa Catarina, 2023-03-16)

  The purpose of the article is to indicate some aspects of I. Kant's Legal-Political Philosophy that influenced the formulation of legal positivism and, at the same time, to point out that the solution of problems resulting from the so-called formalism is in the Doctrine of the Law of the author. The central core of the discussion revolves around the problem of justice. Pure and simple compliance with the formal conditions of legal relationships can have unfair consequences. Can one, then, resort to principles instead of applying laws? The study goes through a distinction between morality and legality, especially with regard to ethical laws and legal laws from their common foundation: moral laws. It also includes a discussion on the German philosopher's idea of social contract, highlighting autonomy as a legitimizing instance of the legal system. In order to characterize the legal formalism, the paper uses the constitutive elements of the concept of Law, discussed in the introduction to the Doctrine of Law. Finally, it seeks to show that the solution of some problems originating in the Kantian formalism can be found in Kant himself, although not solved by him, especially with regard to possible unfair consequences of the application of positive laws, whose validity can be considered dubious, as well as the rights of equity and necessity, the realization of which requires recourse to the principles of justice.
• The limits of legal positivism and the political function of the idea of natural law in the critique of Alessandro P. D’Entrèves

  Suarez Pardo, Maisa Martorano (Universidade Federal de Santa Catarina, 2023-03-16)

  This article investigates the approach to natural law and the critique of legal positivism made by the Italian philosopher of law and politics Alessandro Passerin d’Entrèves (1902-1985). The author resorts to a historicized approach to the idea of natural law and identifies a political function in them. Far from wanting to rescue an archaic idea of natural law, or trying to convince of the advantage of one or another superior value, the philosopher seems to affirm the need to include value clauses in the legal-political system. On the one hand, limiting the field of action of legal and political science; on the other, giving movement to the system of values by directing it to the perennial questions that the doctrines of natural law intended to answer, thus indicating the political function they have always exercised. By turning to Political Philosophy as the heir of the debate about authority, it tries to overcome both the limitations of positivism and jusnaturalism.
• Apresentação

  Klein, Joel Thiago; Foroni Consani, Cristina (Universidade Federal de Santa Catarina, 2023-03-16)

  Apresentação do volume 21, número 3, da Ethic@ - An International Journal for Moral Philosophy
• Political realism and legal positivism in Jeremy Waldron's theory

  Consani, Cristina Foroni (Universidade Federal de Santa Catarina, 2023-03-16)

  The purpose of this article is to investigate the relationship between political realism and legal positivism in Jeremy Waldron's theory. In both cases, there is a refusal of any kind of moral foundation, either of politics or of law. This article aims not only to analyze how the grounding of politics and law takes place in Waldron's work, but also to identify to what extent a realist and positivist theory can maintain as a touchstone of politics and law a value, such as that of reasonable disagreement, which seems to be indispensable to Waldron's theory.
• A dialogue between Hans Kelsen and Henrique Cláudio de Lima Vaz

  Reis, Patrícia (Universidade Federal de Santa Catarina, 2023-03-16)

  In this article, we would like to confront certain ideas defended by Hans Kelsen and by Henrique Cláudio de Lima Vaz. We realize that, in his theory, Kelsen defends a separation between Ethics and Law. Lima Vaz, on the other hand, proposes a junction between these fields of knowledge. Given these positions, our aim is to investigate whether the thinking of these two authors is completely antagonistic or if, in some perspective, their conceptions about the Law can converge.
• The inclusive positivists' criticisms to Joseph Raz's argument and how he answered (or could have answered) them

  Coelho, André (Universidade Federal de Santa Catarina, 2023-03-16)

  The recently deceased Joseph Raz elaborated one of the most famous and influential arguments against the incorporation thesis and in favor of Exclusive Positivism. We will explain Raz's argument in detail, how he articulates his theses of authority, instantiation, preemption, normal justification, and sources to reach his conclusion. Then we will confront Raz's argument with two different blocks of criticisms against it, made by two of the most important inclusive positivists, namely, Jules Coleman and Wilfrid J. Waluchow, followed by the answers Raz gave, or could have given, to these criticisms.
• Interpretation and authority of law in the work of Joseph Raz

  Neiva, Horácio (Universidade Federal de Santa Catarina, 2023-03-16)

  The aim of this article is to present an analytical reconstruction of the theory of interpretation articulated by Joseph Raz in several of his works. From the distinction between reasoning about law and reasoning from the law, the article articulates the role of interpretation in law, and the reasons that lead lawyers to interpret it. From this, it develops the idea that authority, key to the positivist explanation of the nature of law, also explains, for Raz, the reason why interpretation plays a central role in legal practice. Next, the article explains the idea of ​​innovative interpretation, distinguishing it from conservative interpretations, and shows how it explains how judges modify the law – a conceptual necessity derived from the source thesis – without, for that, exercising pure legislative powers. In the end, the paper explains how the authority of law plays a central role in legal interpretation, even when it makes room for other considerations that lead to the modification of law.
• Perpetual Peace in Kant and Marianne or history versus nature in Fichte's Closed Commercial State

  Utteich, Luciano Carlos (Universidade Federal de Santa Catarina, 2022-11-04)

  Fichte's reception of Kant's booklet Perpetual Peace (Zum ewigen Frieden) both confirmed the elements he was preparing for his theory of Natural Law and motivated him to deepen the theme of Perpetual Peace from the perspective of a Commercial State internally regulated by laws to make it self-sufficient and independent. By identifying, as a difference in the planning of Perpetual Peace, the appeal to nature in Kant and to practical reason in Fichte, the present text exposes the peculiar in the thematization of history from the Kantian theoretical-hypothetical function as a condition to unveil the impulse for historical progress, contrasted to the practical teleology in the rational concept of history in the Fichtean perspective, which elucidates the achievement of self-sufficiency and independence of the existing State as the shortest path in favor of the ends of humanity before the supreme practical end. In the critique of the history underlying existing States, Fichte unveils the point of passage to the ideal State, the closed Commercial State, pointing out the passivity to which they adhere as a mere natural consequence that must be replaced in order for the State to take rational measures to implement a Policy favorable to the internal autonomy of each country. From the contrast between the two authors we extract the reasons why the state represents, within its natural borders, according to Fichte, the only authentic and worthy conquests of any state.
• Republicanism and global justice in Philip Pettit

  Paulo Neto, Alberto (Universidade Federal de Santa Catarina, 2022-11-04)

  The republican perspective of global justice proposes the concept of “Globalized sovereignty” as the expansion of freedom as non-domination to the international context. Pettit's republican political theory observes that current economic and political crises have placed democratic states under the dilemma of meeting the demands of their population and the dictates of financial institutions. Financial and banking institutions established investment and curtailment measures in relation to state budget policy. According to Pettit, the logic of action of financial corporations has become transgressive to the sovereignty and autonomy of States. The republican concept of “globalized sovereignty” establishes the form of regulatory principles that should govern political decisions and is established as an impediment to any arbitrariness or interference by a political, financial, or any other group that aims to impose the will on the will of the citizens. citizens and on the political autonomy of countries. The ideal of “Globalized sovereignty” has the capacity to lead to the improvement of relations between citizens and the State because it institutes the political form of contestation and protection against any dependence that the political agent may have in relation to the dictates of financial corporations and the interference by another state in state sovereignty. Furthermore, this idea of international policy requires States to act cooperatively with citizens of other States who suffer from extreme poverty or are in degrading conditions.
• The conflict between morals and politics and the weakness of the will in Kant

  Pavão, Aguinaldo (Universidade Federal de Santa Catarina, 2022-11-04)

  Kant argues that the steps taken by politics must first pay homage to morals. In Toward Perpetual Peace, he maintains that a possible claim based on the weaknesses of human nature cannot be accepted to neglect the sacred character of the rights of humankind. From this point of view, the article examines, based on the first part of Religion Within the Boundaries of Simple Reason, the treatment given by Kant's moral philosophy to what is generally understood as weakness of the will. At large, the idea of a weakness of the will goes like this: I have the belief or judgment that the right action to do is x, but instead of x, I do y. This idea can also be presented in terms of the famous biblical statement: "For the good that I would I do not: but the evil which I would not, that I do". The expression weakness of will commonly means a concept whose discussion goes back to Socrates, Plato and Aristotle. The discussion concerned the meaning of akrasia, commonly translated as incontinence, moral weakness or lack of self-control. I will defend the thesis that the weakness of the will, understood as an attenuation of the Incorporation Thesis, does not receive acceptance in Kant's practical philosophy, and must be understood as a moral vice. Thus, my conclusion will be that the defense in Toward Perpetual Peace that there is no way to objectively sustain any conflict between morals and politics, which must always be subordinated to the former, is in line with the thesis that fragility of human nature must be understood as a degree of evil.
• On the Hermeneuticus I as a Presupposition of Ethical Hermeneutics

  Rohden, Luiz (Universidade Federal de Santa Catarina, 2022-11-04)

  Não fiz
• On the paradigm of recognition and global peace

  Feldhaus, Charles (Universidade Federal de Santa Catarina, 2022-11-04)

  This study intends to reconstruct the main moments of the expansion of Axel Honneth's model of recognition to the international sphere in order to show what would be the main contributions of the model to this field of philosophy of law already extensively explored by other exponents of critical theory of society and political philosophers, but still very little explored by Axel Honneth. The model of recognition in the national sphere points to the reductionism of the political realist model and the same can be said of the expansion of the model to the international sphere. Thus, starting from Hegel, but at least beyond Hegel, Honneth understands that the moral dimension of the struggle for recognition is a necessary component for a more adequate interpretation of international relations and international conflicts. Therefore, the conception of international law based on the recognition paradigm shows that failing to consider this component of the behavior of supranational entities is to run the risk of carrying out an inadequate description of the reasons for conflicts and the motivations of supranational entities, which can lead to responses and normative conceptions that are also inadequate. However, since Honneth starts from principles consolidated in institutions in the domestic sphere and is concerned with the conciliation between the realistic and utopian perspective in the international sphere, he could have adopted principles consolidated in the international sphere as standards of recognition in place of the domestic spheres of the recognition as Rawls did.

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