Post-positivist Philosophy of Law and a Theory of Judgment of Justice: Kant, Arendt and the contemporary debate
| Autor | Maria Lucia de Paula Oliveira |
| Páginas | 3076-3089 |
3076 • XXVI World Congress of Philosophy of Law and Social Philosophy
Post-positivist Philosophy of Law and
a Theory of Judgment of Justice
Kant, Arendt and the contemporary debate
Maria Lucia de Paula Oliveira
Abstract: The post-positivist theory of law contains a moral concept of law,
founded on an argumentative dimension. An interesting way to found a theory
of just law in a pluralistic world, in constant change, is that which is based
onthe theoryof reectingjudgmentApoliticaltheoryfoundedonjudgment
is based on Kantian philosophy; it was developed by Hannah Arendt and has
widelyinuencedthecurrentdebateasanalternativetheoryinwhichthemor-
al basis of law can be more sensible to human contexts; a universalistic theory
more adequate in dealing with the tragic dimension of human life. A theory
of justice as judgment uses the concept of reecting judgment and enlarged
thought as the main concepts. A theory like this considers as a starting point
the singular judgments of justice that each person makes. The background,
therefore, isn´t a rational foundation of principles, but the capacity of judg-
ment of rational beings. A post-positivist theory of law, based on judgment, is a
critique of the positivist legal theory, but presents itself as an alternative to an
idealistic theory of law.
Keywords: Immanuel Kant. Judgment. Justice.
Historical texts on philosophy of law have, for a long while,
shown an important dichotomy of natural law and legal positivism. For
the greater part of western history, since Greek philosophy, thoughts
concerninglawhavetriedtondsuprapositivegroundworkabovethe
lawin practice establishedby men inaspecic historical moment
that could somehow subordinate it, thereof originating the categories of
“natural right” or “natural law”. The fundamental thesis of natural law
theory was the supra-positive legal existence and the subordination one
way or another of positive law to natural law. Nevertheless, the relation
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