SOBRE FILOSOFIA DO DIREITO | PARTE 1

Summary

This video delves into the philosophy of law, focusing on three major theorists: Kant, Kelsen, and Dworkin. It explores the foundational differences between natural law, legal positivism, and post-positivism, highlighting how each theory addresses the nature of law and justice. The discussion touches upon key concepts such as the relationship between law and morality, the role of human reason, and the metaphysical foundations of legal principles. The video offers insights into the evolution of legal philosophy and encourages further exploration of these pivotal thinkers through additional resources and courses.

Takeaways

• 😀 The video discusses the philosophy of law, focusing on three major theorists: Kant, Kelsen, and Dworkin, and their perspectives on law and rights.
• 😀 The philosophy of law is divided into three main schools: Naturalism, Legal Positivism, and Post-Positivism, each with distinct views on the nature of law and rights.
• 😀 Naturalism is dualistic, with positive rights at the base and natural rights at the top, which are seen as eternal, immutable, and universal.
• 😀 The origins of natural law have evolved over time: in ancient philosophy, it was cosmological; in the medieval period, it was theological; and in modern times, it is based on human reason.
• 😀 Legal Positivism, emerging in the 19th century, rejects the connection between law and morality, proposing that laws are human creations and must not contradict positive rights.
• 😀 Post-Positivism, which emerged after the 1970s, asserts that certain principles underpin positive rights, but these principles are not metaphysical, unlike those in Naturalism.
• 😀 Kant's philosophy of law is grounded in his ideas of duty, autonomy, and the categorical imperative, where moral laws (laws of reason) form the basis of legal systems.
• 😀 According to Kant, ethical actions must be done out of duty, not based on personal inclinations or the pursuit of happiness, emphasizing moral actions done for their own sake.
• 😀 Kelsen is viewed as a key figure in Legal Positivism, rejecting any metaphysical basis for law, focusing instead on the norms and procedures within legal systems.
• 😀 The video also briefly covers the difference between ethical laws (internal, based on autonomy) and legal laws (external, based on heteronomy), as seen in Kant's work.

Q & A

What are the main philosophical schools of law discussed in the video?

The video discusses three main philosophical schools of law: naturalism, legal positivism, and post-positivism.

How does natural law philosophy relate to different historical periods?

Natural law philosophy varies across historical periods. In ancient times, it was cosmological, grounded in the universe. During the medieval period, it was theological, based on God's will. In the modern era, it shifted to rationalism, focusing on human reason.

What is the key difference between natural law and legal positivism?

Natural law is dualistic, with natural rights at the top and positive law at the bottom, while legal positivism is monistic, viewing positive laws as the sole source of legal authority without the need for natural law.

Who are the key figures associated with legal positivism?

The key figures associated with legal positivism are Hans Kelsen and H.L.A. Hart.

What is post-positivism, and how does it differ from positivism?

Post-positivism is a dualistic approach that acknowledges certain principles underpinning positive law but differs from legal positivism by incorporating the historical and cultural development of these principles. It also emphasizes the complementary relationship between law and morality.

What are the three central theses of classical natural law?

The three central theses of classical natural law are: 1) The ontological and epistemological existence of natural rights. 2) Positive law cannot contradict natural law. 3) Moral obligation to obey the law because it is grounded in natural rights.

What are the three central theses of 20th-century legal positivism?

The three central theses of 20th-century legal positivism are: 1) Law is a human creation based on social facts. 2) There is a separability between law and morality. 3) Discretion in judicial decision-making is possible.

How does Kant's philosophy of law relate to his broader ethical theory?

Kant’s philosophy of law is grounded in his moral philosophy, particularly his concept of the categorical imperative. The law, for Kant, is based on universal moral principles and focuses on freedom, autonomy, and duty rather than content-driven outcomes like happiness or utility.

What is the significance of the 'categorical imperative' in Kant’s legal philosophy?

The categorical imperative in Kant’s legal philosophy demands that actions be universalizable—that is, they should be capable of being adopted by all rational beings. This principle ensures that actions are morally justifiable and consistent with universal laws of reason.

What are the differences between ethical and legal laws in Kant's view?

In Kant's view, ethical laws are internal and guided by personal morality, while legal laws are external, involving relationships between individuals and governed by formal, public systems of justice. Ethical laws are driven by autonomy, while legal laws operate through heteronomy.