Correntes/tendências contemporâneas da Filosofia do Direito

Summary

In this lecture, Professor Alisson Mascaro explores the contemporary currents in the philosophy of law, classifying them into three categories: jus positivism, non-jus positivism, and critical legal theories. He highlights how jus positivism ties law to the state, emphasizing authors like Kant and Austin. Non-jus positivism focuses on the relationship between law and power, with thinkers like Schmitt and Foucault. Critical theories, rooted in Marxism, critique legal systems as tools of power and inequality. Mascaro also critiques the Eurocentric nature of these classifications, suggesting the inclusion of non-Western legal philosophies as important alternatives.

Takeaways

• 😀 The video provides a quick revision of contemporary currents in the philosophy of law, according to professor Alisson Mascaro.
• 😀 Mascaro divides contemporary philosophical currents into three main categories: positivist, non-positivist, and critical philosophies of law.
• 😀 The classification presented by Mascaro is didactic, aimed at helping students understand the main concepts in the philosophy of law, rather than being a definitive or universally true system.
• 😀 The concept of 'contemporary' refers to the period from the 17th and 18th centuries onwards, marking the consolidation of the modern Western state.
• 😀 The rise of the modern state led to the dominance of legal positivism, with the state taking the monopoly of law creation, in contrast to earlier natural law traditions.
• 😀 Legal positivism identifies law and justice with the state, meaning that something is considered law if the state decrees it, which was a shift from earlier rational or divine foundations of law.
• 😀 Key philosophers of legal positivism include figures like John Austin, H.L.A. Hart, and Hans Kelsen, though Kant is also seen as an important precursor.
• 😀 Non-positivist philosophies, as highlighted by Mascaro, focus on the role of power in law, with notable thinkers including Carl Schmitt, Michel Foucault, and Martin Heidegger.
• 😀 Critical legal theories, often Marxist in nature, include philosophers like Karl Marx and the Frankfurt School, and they challenge the foundations and power structures of law.
• 😀 While the focus is on European philosophical traditions, Mascaro acknowledges the importance of non-Eurocentric perspectives in the philosophy of law, such as African and Indigenous legal traditions.
• 😀 A critique of Mascaro’s classification is its Eurocentric bias, ignoring other worldviews and legal philosophies that significantly influence modern legal systems.

Q & A

What are the three main categories of contemporary philosophy of law according to Alisson Mascaro?

The three main categories are Jus Positivists, Non-Jus Positivists, and Critical Theories.

What is Jus Positivism in legal philosophy?

Jus Positivism asserts that law is defined by the state's will, meaning the law is what the state declares it to be, without any external basis for legitimacy, such as reason, nature, or divinity.

What role does the state play in Jus Positivism?

In Jus Positivism, the state holds the monopoly on lawmaking. The law is not grounded in external sources like nature or divine reasoning but is based on the state's declared will.

Who are some key philosophers associated with Jus Positivism?

Key philosophers include Immanuel Kant, John Austin, H.L.A. Hart, and even figures in post-positivism such as Alexy, who modify aspects of Jus Positivism.

What is the primary focus of Non-Jus Positivists in legal philosophy?

Non-Jus Positivists focus on the power dynamics within society and how these influence the legal system. They emphasize the role of power relations in shaping laws.

Who are some of the key figures associated with Non-Jus Positivism?

Key figures include Carl Schmitt, Michel Foucault, and Martin Heidegger, all of whom examine how law is influenced by societal power structures.

What do Critical Theories in law emphasize?

Critical Theories, often influenced by Marxist thought, focus on how law is used as a tool for oppression, serving the interests of the powerful elite while marginalizing others.

How does Jürgen Habermas fit into the classification of Critical Theories?

Jürgen Habermas, while influenced by Marxism, is considered a Jus Positivist because he aligns law with the state, despite his critical stance on power structures and legal legitimacy.

What is the critique of the Eurocentric perspective in the classification of legal philosophies?

The critique is that the classification focuses too much on European perspectives and neglects non-Western philosophies, such as African and Indigenous traditions, which also contribute significantly to legal concepts like children's rights.

Can you give an example of a non-Eurocentric perspective in legal philosophy?

An example is the African concept of childhood, where cultures like the Yoruba had a well-established idea of childhood as a protected and important stage of life long before it was recognized in Western law.