The myths of legal positivism
Legal positivism, as a set of theses necessarily defended or assumed by all of those who flaunt its colors, has being commonly criticized based on errors or myths, building up a “straw man” of what this philosophical tradition actually is. In this paper, we proport to recuperate the central theses o...
| Autores: | , |
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| Tipo de recurso: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2023 |
| País: | Brasil |
| Institución: | Universidade Nove de Julho (UNINOVE) |
| Repositorio: | Revista Thesis Juris |
| Idioma: | portugués |
| OAI Identifier: | oai:ojs.periodicos.uninove.br:article/22522 |
| Acceso en línea: | https://periodicos.uninove.br/thesisjuris/article/view/22522 |
| Access Level: | acceso abierto |
| Palabra clave: | legal positivism myths principles positivismo jurídico mitos princípios |
| Sumario: | Legal positivism, as a set of theses necessarily defended or assumed by all of those who flaunt its colors, has being commonly criticized based on errors or myths, building up a “straw man” of what this philosophical tradition actually is. In this paper, we proport to recuperate the central theses of legal positivism, through literature review, defining them by the artifact thesis and the separability thesis, with contingent presence of the source thesis and/or the conventionality thesis. With that settled, we go on to demonstrate that the idea of a “outdated” positivism, unable to account for legal principles, is false, as well as the picture of a legal positivism that implies some specific interpretative methodology, such as textualism or originalism. Through this article, we expect to clear or even recover the debate about legal positivism, specially in Brazil, reviving the theses that are really defended by this century-old philosophical tradition, distancing ourselves from the “straw man” created. |
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