O positivismo jurídico foi superado no neoconstitucionalismo?
This paper indicates that there was no overcoming of legal positivism by post-positivism indicated as a philosophical framework of neo-constitutionalism. In order to demonstrate this, the evolution of legal positivism and its main theses (separability, deconventionality and sources) are exposed, in...
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| Main Authors: | , , |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2018
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6984055 |
| Source: | Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD), ISSN 2175-2168, Vol. 10, Nº. 3, 2018 (Ejemplar dedicado a: Setembro/Dezembro), pags. 348-361 |
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| Summary: |
This paper indicates that there was no overcoming of legal positivism by post-positivism indicated as a philosophical framework of neo-constitutionalism. In order to demonstrate this, the evolution of legal positivism and its main theses (separability, deconventionality and sources) are exposed, in order to demonstrate how they resist the current post-positivist critiques and conclude that only a version of formalistic and legalistic positivism is rejected. An effective alternative to positivism would require the complete incorporation of non-positivist theses (such as Dworkin’s interpretativism), which are incomplete in practice and law studies in Brazil. The research, therefore, is of bibliographic nature with the reading of the specialized doctrine on the subject, besides jurisprudential/documentary analysis.Keywords: positivismo, post-positivism, neo-constitutionalism, interpretativism. |
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