Teoria Pura do Direito [5] - Cap. III (Direito e Ciência) | Aula 94

Summary

In this video, the speaker, Ronaldo Bastos, delves into Kelsen's Pure Theory of Law, particularly focusing on the relationship between law and efficiency. He explains the scientific approach to law, emphasizing that legal propositions are prescriptive, not descriptive like natural laws. The lecture contrasts the scientific study of law with natural law, outlining key principles like causality and imputation. Bastos further clarifies the distinction between legal norms (which prescribe ideal behavior) and the science of law (which describes these norms), making complex legal concepts accessible and engaging for learners.

Takeaways

• 😀 Kelsen's Pure Theory of Law emphasizes a scientific approach to understanding legal systems, heavily influenced by logical positivism.
• 😀 The core of Kelsen’s theory is the distinction between **legal science** (descriptive) and **legal norms** (prescriptive).
• 😀 Kelsen argues that **scientific propositions** should be testable and verifiable, similar to laws in natural sciences.
• 😀 Legal propositions are **prescriptive**, meaning they outline what should be done, unlike natural laws, which are **descriptive** of reality.
• 😀 Kelsen challenges **natural law theory** by asserting that laws are not inherently tied to divine commands or human nature but are based on societal norms.
• 😀 The **principle of causality** applies to natural law, suggesting that causes lead to effects, regardless of human actions.
• 😀 The **principle of imputation** is unique to legal systems, where laws create responsibilities and consequences based on human actions and legal authority.
• 😀 Legal science focuses on the **description of legal norms**, whereas legal norms themselves focus on **prescribing ideal behavior** in society.
• 😀 Kelsen stresses that **legal norms** are not validated by their alignment with natural occurrences but by their adherence to legal processes and authority.
• 😀 The lecture emphasizes that **laws and legal norms** are **not facts** (like in natural science) but are **social constructs** established by legal authorities.

Q & A

What is the central focus of Kelsen's third chapter in the Pure Theory of Law?

The central focus of Kelsen's third chapter is the relationship between law and efficiency, specifically exploring how law can be analyzed scientifically and the role of legal norms in shaping social conduct.

What is the significance of positivism in Kelsen's legal theory?

Positivism, particularly logical positivism, plays a critical role in Kelsen's theory by suggesting that scientific propositions must be verifiable. This approach underpins Kelsen's argument that legal knowledge must be objective, based on norms that can be scientifically tested for their truth or falsity.

How does Kelsen differentiate between the 'science of law' and 'legal norms'?

Kelsen distinguishes the science of law as a study of legal norms through descriptive analysis, while legal norms themselves are prescriptive, aiming to define what should be the ideal conduct in society.

Why does Kelsen reject the natural law theory in his analysis of law?

Kelsen rejects natural law theory because it involves unverifiable concepts such as divine commands or inherent nature, which cannot be empirically tested. He argues that such views do not align with the scientific, verifiable approach required for understanding law.

What is the primary role of the science of law according to Kelsen?

The primary role of the science of law is to describe the legal system objectively, focusing on norms as established by legal authorities. It does not create law but seeks to explain and describe the law as it is, without making value judgments.

How do Kelsen's legal norms differ from natural laws?

Kelsen's legal norms are prescriptive, specifying what should be done in society, while natural laws are descriptive, aiming to explain how things occur in the natural world. Legal norms are not subject to empirical verification, but rather to validation through legal processes.

What is the principle of causality, and how does it relate to natural law?

The principle of causality in natural law states that certain conditions inevitably lead to specific effects. This principle governs the natural world and remains true regardless of human actions or beliefs.

What is the principle of imputation in Kelsen's theory?

The principle of imputation in Kelsen's theory refers to the idea that legal norms establish consequences (sanctions) for actions based on the authority of legal institutions, rather than natural causes. It ties legal outcomes to human agency and legislative authority.

How does Kelsen view the relationship between the behavior of individuals and legal consequences?

Kelsen believes that legal consequences are determined by the prescriptive norms established by legal authorities, not by the mere occurrence of certain behaviors in society. Even if many crimes go unpunished, the legal norm still exists, and its applicability is not dependent on factual occurrences.

What distinction does Kelsen make between the descriptive role of legal science and the prescriptive role of legal norms?

Kelsen emphasizes that legal science has a descriptive role, seeking to explain and understand the norms that exist in a legal system, whereas legal norms themselves are prescriptive, establishing what should happen in terms of behavior and legal obligations.