(Pós) Positivismo jurídico e a teoria do direito como integridade de Ronald Dworkin

Abstract

It is common in the Brazilian doctrine, a concern with what was decided in the courts, in other words, a concern with the own merit of the judgment. The underlying theories of what was decided are not taken into account by most books of law in Brazil. In this context, the proposal of this article and the study seeks to answer the following problem: Is there a theoretical inconsistency in the application of law by some Brazilian judges based on the assumptions of a democratic state? The answer necessarily involves the following secondary questions: What are the theoretical bases used by some Brazilian judges to apply the law? What is the role of the doctrine, jurisprudence and hermeneutics in this complex novel? Anyway, in that context, what is the Law? After using the deductive method, we concluded that legal positivism, even in a democratic state, is still rooted in the legal paradigm of some judges, and that is the reason why this outdated vision of the concept of Law needs to be renewed. It was proposed from Dworkin the use of law as integrity and the abandonment of ―not legal‖ standards used in the hard cases.Furthermore, it was proposed the opening of Law to the world of principles that turns to the past and to the future and is able to gain consistence with the current legal system and show the Law in a better light.