INTRODUÇÃO: Diferenças do Jusnaturalismo e Juspositivismo

Summary

In this introductory lecture, Professor Leandro Cordioli explores the two main currents of legal theory: jusnaturalism and juspositivism. He traces their historical roots from Sophocles' Antigone and Aristotle to Saint Augustine, Thomas Aquinas, and modern thinkers like John Finnis, Lon Fuller, Hans Kelsen, and H.L.A. Hart. The video highlights the key distinctions: jusnaturalism emphasizes moral justice and natural law, while juspositivism focuses on the formal validity of laws as established by the State. Through historical examples and ethical dilemmas, viewers are encouraged to reflect on whether seriously unjust laws can truly be considered law and how morality interacts with legal authority.

Takeaways

• 😀 Jusnaturalism (natural law) asserts that laws must align with moral or justice norms that transcend the State; unjust laws are not true laws.
• 😀 Juspositivism (legal positivism) holds that law is a set of norms established by the State, and its validity depends on formal criteria, not morality.
• 😀 The Greek tragedy of Antigone illustrates the conflict between divine/unwritten law (natural law) and state-imposed law (positivism).
• 😀 Aristotle distinguished between laws dependent on the legislator's will and natural justice inherent in human nature.
• 😀 Saint Augustine introduced the idea of eternal law (divine measure) versus temporal law (human-made law), emphasizing that seriously unjust laws are not binding.
• 😀 Thomas Aquinas classified law into eternal, divine, natural, and human law, asserting that human law must conform to natural law to be valid.
• 😀 Modern natural law theorists, such as John Finnis, Lon Fuller, and Michel Villey, follow the tradition of reason-based moral evaluation of law.
• 😀 Hans Kelsen's legal positivism frames law as a hierarchical system (normative pyramid), independent of morality, with validity determined by procedural recognition.
• 😀 H.L.A. Hart distinguished primary rules (regulating behavior) and secondary rules (regulating law creation), separating legal validity from morality but acknowledging minimal moral influence.
• 😀 Real-world dilemmas, such as the Nazi laws or ethical crises like the cave explorers scenario, highlight the importance of understanding both jusnaturalism and juspositivism in legal practice.
• 😀 A competent jurist should be able to analyze laws both for formal validity and moral justice, understanding when seriously unjust laws may not truly be law.
• 😀 The key distinction between the two currents is that jusnaturalism evaluates laws by intrinsic justice, while juspositivism evaluates laws by formal adherence to state authority and procedural norms.

Q & A

What is the main difference between jusnaturalism and juspositivism?

Jusnaturalism holds that laws should align with moral or justice norms that transcend state law, while juspositivism argues that law is a set of norms created by the state, regardless of their moral value. Jusnaturalists believe that unjust laws aren't true laws, whereas positivists consider laws valid if they are enacted by the state, even if unjust.

What historical example does the script use to illustrate jusnaturalism?

The script uses the story of Antigone from Sophocles' play 'Antigone' to illustrate jusnaturalism. In the play, Antigone defies the law of her uncle Creon, the king, to bury her brother, claiming that the unwritten divine laws of the gods are superior to the laws of the state.

How does Aristotle contribute to the discussion of jusnaturalism and juspositivism?

Aristotle distinguishes between laws of human creation (like those regulating behavior) and natural laws (like those based on reason and fairness). He suggests that while laws created by humans can be fair or unfair depending on the legislator's will, natural laws, such as the concept that good deeds should be rewarded and bad deeds punished, exist independently of human will.

What is Saint Augustine's view on unjust laws?

Saint Augustine argued that a seriously unjust law is not a true law. He believed that such laws, like the ones in the play 'Antigone,' are orders from a criminal rather than legitimate laws and should not be followed. He made a distinction between eternal law, divine law, and temporal law, with the eternal law serving as the measure of all justice.

What role does Thomas Aquinas play in the development of jusnaturalism?

Thomas Aquinas built on Augustine's ideas by distinguishing between eternal law, divine law, natural law, and human law. He emphasized that natural law is derived from human reason and must align with the eternal law. He also stated that unjust laws are not truly laws and should not be followed if they contradict natural law.

What is the central idea behind Hans Kelsen's theory of juspositivism?

Hans Kelsen developed the Pure Theory of Law, which argues that law is a system of norms that exists independently of moral values. Law’s validity is determined by whether it adheres to a higher norm within the legal system, not by its moral content. Kelsen's theory emphasizes the separation of law and morality.

How does Herbert Hart contribute to the understanding of juspositivism?

Herbert Hart introduced the concept of primary rules (which regulate behavior) and secondary rules (which govern the creation and modification of laws). While Hart distinguishes law from morality, he acknowledges that law can be influenced by morality, particularly through secondary rules such as rules of recognition.

What is the challenge of applying a seriously unjust law, as posed by the professor?

The challenge posed is whether a judge should apply a seriously unjust law, such as those in Nazi Germany. The dilemma questions whether laws that violate human dignity or justice should be obeyed simply because they have been enacted by the state, or whether they should be disregarded based on moral grounds.

What is the key philosophical dilemma that jusnaturalism and juspositivism address?

The key dilemma is whether law is defined solely by the state's will, as argued by juspositivism, or whether laws must align with universal moral principles or justice, as defended by jusnaturalism. This dilemma raises the question of whether a seriously unjust law can still be considered a valid law.

What does the professor mean by 'a seriously unjust law is no law'?

The professor refers to the idea, advocated by thinkers like Saint Augustine and Thomas Aquinas, that a law which is deeply unjust (such as one that violates human dignity) cannot be considered a true law. In such cases, the law is merely an unjust order backed by coercive power, not a legitimate expression of justice.