Teoria Pura do Direito [4] - Cap. 2. Direito e Moral | Aula 80

Summary

In this video, the speaker delves into Hans Kelsen's 'Pure Theory of Law,' exploring the relationship between law and morality. The discussion covers how Kelsen builds on liberal and Kantian views, highlighting the distinctions between law and morality in terms of autonomy, coercion, and structure. Kelsen argues that the law is a prescriptive system that doesn't necessarily align with moral values, but rather, it operates independently. The speaker critiques the 'minimum ethical theory' and discusses Kelsen’s relativistic view on moral values, concluding that legal norms can be valid even if they contradict moral systems.

Takeaways

• 😀 Kelsen's 'Pure Theory of Law' emphasizes the distinction between law and morality.
• 😀 Kelsen asserts that legal norms prescribe behavior through coercion, unlike moral norms which rely on internal conviction.
• 😀 Kelsen's view challenges the idea that all legal norms must align with moral norms, allowing for legal pluralism.
• 😀 The lecture builds on previous sessions that discussed the historical and philosophical contexts of Kelsen's work.
• 😀 Kelsen emphasizes the autonomy of law, meaning it does not need to be justified by moral systems.
• 😀 According to Kelsen, legal norms are prescriptive, dealing with 'what ought to be' rather than 'what is'.
• 😀 Kelsen critiques the 'minimum ethical theory', which argues that law should only enforce minimal moral standards.
• 😀 He suggests that legal systems can accommodate multiple, competing moral systems within society.
• 😀 Kelsen explains that coercion is a fundamental difference between legal and moral norms, with the law having the power to enforce its prescriptions through force.
• 😀 The legal system should recognize the coexistence of diverse moral values, as opposed to subordinating to any single moral code.

Q & A

What is the main focus of the video script?

The main focus of the video is the continuation of a series on the 'Pure Theory of Law' by Hans Kelsen. It covers topics such as the relationship between law and morality, Kelsen's interpretation of law, and key concepts like legal norms, coercibility, and autonomy.

How does the script explain the difference between law and morality?

The script explains that law and morality differ in the form of their prescriptions, not their content. Law prescribes actions through coercion and external enforcement, while morality only approves or disapproves of actions based on internal conscience and social norms.

What philosophical perspectives does Kelsen draw from in his work?

Kelsen draws from liberal and Kantian perspectives. His approach emphasizes that the law, as an external and prescriptive force, is distinct from the internal, personal nature of morality. This is in line with Kant's view on autonomy and moral duty.

What does Kelsen mean by the 'normative structure' of law?

Kelsen views the structure of legal norms as logical in nature, framed in 'if-then' propositions. These propositions prescribe what should happen in certain circumstances, independent of whether the reality aligns with them. For instance, laws about succession or punishment follow this pattern of prescriptive logic.

How does Kelsen differentiate between natural law and legal law?

Kelsen differentiates between natural law, which describes reality (e.g., the law of gravity), and legal law, which prescribes what should be the case, irrespective of the current reality. Legal laws continue to hold even if society does not follow them.

What is the role of coercion in Kelsen's theory of law?

Coercion is central to Kelsen's concept of law. Unlike moral norms, which rely on internal approval or disapproval, legal norms have the power to enforce compliance through external sanctions, including physical force if necessary.

What is the 'theory of the minimum ethical' proposed by Kelsen?

Kelsen critiques the 'theory of the minimum ethical,' which suggests that law is a minimal subset of moral norms required for peaceful coexistence. He argues that this theory assumes there is a single, absolute moral system, which is not the case in practice due to moral relativism.

Why does Kelsen criticize the 'minimum ethical' theory?

Kelsen criticizes the 'minimum ethical' theory because it assumes the existence of a universal and absolute moral system, which ignores the diversity of moral beliefs across societies. He believes that law should not be subordinated to any particular moral system.

What does Kelsen say about the relationship between law and moral values?

Kelsen argues that the legal system can accommodate different moral values without being subordinated to any single moral perspective. The law may recognize opposing moral systems, as seen in the legal recognition of both traditional family and same-sex marriage, despite them being based on different moral values.

How does Kelsen view the relationship between law and justice?

Kelsen believes that law does not need to align with any particular conception of justice. He separates the validity of legal norms from their moral or just content. Legal norms may be valid even if they contradict certain moral values, as long as they are established through the legal system.