Kant and the problem of the legal formalism
The purpose of the article is to indicate some aspects of I. Kant's Legal-Political Philosophy that influenced the formulation of legal positivism and, at the same time, to point out that the solution of problems resulting from the so-called formalism is in the Doctrine of the Law of the author...
| Autor: | |
|---|---|
| Tipo de recurso: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2023 |
| País: | Brasil |
| Institución: | Universidade Federal de Santa Catarina (UFSC) |
| Repositorio: | Ethic@ - Revista Internacional de Filosofia da Moral |
| Idioma: | portugués |
| OAI Identifier: | oai:periodicos.ufsc.br:article/90541 |
| Acceso en línea: | https://periodicos.ufsc.br/index.php/ethic/article/view/90541 |
| Access Level: | acceso abierto |
| Palabra clave: | Justiça Positivismo jurídico Contrato social Direito de equidade Direito de necessidade Justice Legal positivism Social contract Equity right Right of necessity |
| Sumario: | The purpose of the article is to indicate some aspects of I. Kant's Legal-Political Philosophy that influenced the formulation of legal positivism and, at the same time, to point out that the solution of problems resulting from the so-called formalism is in the Doctrine of the Law of the author. The central core of the discussion revolves around the problem of justice. Pure and simple compliance with the formal conditions of legal relationships can have unfair consequences. Can one, then, resort to principles instead of applying laws? The study goes through a distinction between morality and legality, especially with regard to ethical laws and legal laws from their common foundation: moral laws. It also includes a discussion on the German philosopher's idea of social contract, highlighting autonomy as a legitimizing instance of the legal system. In order to characterize the legal formalism, the paper uses the constitutive elements of the concept of Law, discussed in the introduction to the Doctrine of Law. Finally, it seeks to show that the solution of some problems originating in the Kantian formalism can be found in Kant himself, although not solved by him, especially with regard to possible unfair consequences of the application of positive laws, whose validity can be considered dubious, as well as the rights of equity and necessity, the realization of which requires recourse to the principles of justice. |
|---|