Relação entre direitos humanos e soberania do povo na tarefa de legitimação do direito em habermas

Abstract

Convinced of the important role of the persons in the formation of a legitimate right, the philosopher Jürgen Habermas finds the splitting in two historic trends in sense of legal autonomy in the tradition of rational law, separation which is reflected in the controversy between subjective and objective rights, Liberalism and Republicanism. The first trend focuses on the priority of human rights in the figure of rights to equal individual liberties that limit the political legislator. The second trend emphasizes the sovereignty of the people, whose legislation establishes and limits the so-called human rights in accordance with the understanding of the community. The author wants a project that unites the two normative principles in an equal and mutually determining way. Taking as its point of view this particular controversy, this work examines the possibility, for Habermas, of legitimacy of the law according to the status of its members, especially in the book “Between Facts and Norms”. Initially, we address the crisis that the idea of the legitimacy of law is now passing because of the complexity of modern society and the crisis of moral-practical rationality. Also research the possibility of a rational consideration of the legitimate law and the problem of division of the paradigms of human rights and sovereignty of the people. Finally, we address the Habermasian solution to the problem called into question. The whole work should examine the discursive presuppositions on which, for Habermas, the problem of legitimacy of law from the position of citizens as recipients and authors of law should be considered epistemically possible and normatively necessary.