Teorias dos círculos do direito e da moral - Prof. Fran - Descomplicando o Direito

Summary

The transcript discusses three theories of law and morality, focusing on the ideas of Miguel Reale. The first theory is that of concentric circles, where law is seen as a minimal set of rules compared to the broader scope of morality. The second theory, the theory of secant circles, proposes that law and morality overlap in certain areas but are mostly separate. The third theory, the theory of independent circles, emphasizes a strict separation between law and morality, as seen in Hans Kelsen's 'Pure Theory of Law.' The transcript explores the complexities and real-world applications of these theories, especially in modern legal contexts.

Takeaways

• 😀 The theory of concentric circles suggests that morality is broader than law, with the law only addressing the minimum necessary to maintain order in society.
• 😀 In the concentric circles theory, law deals with essential matters, while morality encompasses a much wider range of behaviors.
• 😀 The second theory, the theory of secant circles, posits that law and morality are separate but intersect in certain areas, with both influencing each other at times.
• 😀 According to the secant circles theory, law may regulate specific actions (e.g., legal deadlines), but morality may not be involved in some of those matters.
• 😀 A classic example of the theory of secant circles is the situation of a child support case where the law enforces payment but morality might influence public opinion on its fairness.
• 😀 The theory of independent circles, as proposed by Hans Kelsen, argues that law and morality should be completely separate systems, each with its own norms.
• 😀 Kelsen's independent circles theory emphasizes that law must function autonomously, independent of individuals' moral beliefs or influences.
• 😀 The independent circles theory seeks to maintain the purity of the legal system by preventing moral considerations from influencing legal reasoning.
• 😀 The relationship between law and morality can sometimes be complicated, with legal systems intervening in moral issues or vice versa, depending on the context.
• 😀 In modern societies, moral values evolve, leading to potential shifts in how law addresses issues, as societal norms change over time.

Q & A

What are the three theories discussed in the transcript regarding the relationship between law and morality?

The three theories discussed are: the Theory of Concentric Circles, the Theory of Secant Circles, and the Theory of Independent Circles.

What does the Theory of Concentric Circles suggest about the relationship between law and morality?

The Theory of Concentric Circles suggests that morality is larger than law, and law only addresses the minimum necessary to maintain social order. Moral norms cover a wider range of issues, while legal norms only handle the essentials.

Who is credited with the development of the Theory of Concentric Circles?

The Theory of Concentric Circles was initially discussed by the English utilitarian philosopher Jeremy Bentham, and later developed further by other authors.

How does the Theory of Secant Circles differ from the Theory of Concentric Circles?

The Theory of Secant Circles posits that law and morality have areas of overlap but are not fully intertwined. There are issues that belong solely to law, and others that are strictly moral, with certain points where both intersect.

What example illustrates the concept of moral issues that do not fall under legal regulation in the Theory of Secant Circles?

An example is a child who behaves disrespectfully towards their parents. While this is a moral issue, it is not something that the law directly regulates unless it involves violence or other legal violations.

What case does the speaker mention where the law and morality converge in the Theory of Secant Circles?

The case where a child kills their parent is an example where both the law and morality agree. The act is both morally wrong and legally punishable, as it is considered homicide.

What does the Theory of Independent Circles (as associated with Hans Kelsen) assert about the relationship between law and morality?

The Theory of Independent Circles, associated with Hans Kelsen, maintains that law and morality are completely separate and independent from one another. Law should be studied and created without reference to moral thought.

What is a common misconception about Hans Kelsen's view on the relationship between law and morality?

A common misconception is that Kelsen wanted to isolate law from all other fields of knowledge. In reality, his theory aimed to establish a 'pure' science of law, focusing only on legal norms, without mixing them with moral or other societal norms.

How does the transcript illustrate a real-life example where the law and moral sentiments conflict?

A real-life example is the case of grandparents being forced to pay child support for their grandchildren, where the law might send them to prison for non-payment. Many people disagree with this, feeling it is morally wrong to imprison elderly people who are not directly responsible for the child.

Why does the speaker argue that the Theory of Secant Circles is the most applicable to real-life scenarios?

The Theory of Secant Circles is considered most applicable because it reflects the complexity of reality, where law and morality overlap but also remain distinct in many cases. It recognizes that both legal and moral systems regulate different aspects of human behavior while sharing certain concerns.