Criticas de Castanheira Neves à tese dos direitos de Ronald Dworkin: um debate sobre o conceito de direito como integridade

Abstract

Theory and practice are inseparables and complementaries elements. In this context, this is a theoretical work, but it aims to help with the construction of a law theory able to produce an accurate practical result. So, this is a theoretical work which has a practical objetive. For this purpose, it is analysed critically the contribution of Castanheira Neves and Ronald Dworkin. Specifically, it is discussed the critics produced by Castanheira Neves for Dworkin´s thesis. Castanheira Neves develops a dialectic thesis between the normative system and the practical problem. Consequently, the normative system (principles, norms, doctrine...) is a instrument for the resolution only of the practical problem. On the other hand, Ronald Dworkin develops a Right thesis against the positivism of Herbert Hart. Thus, the construction of a theory that fits with the juridical practice is the objective of Dworkin. The critics of Castanheira Neves about the Rights thesis is based on the ultimate reason for resolution of a practical problem. Dworkin defends that the integrity of the normative system is essential and Castanheira Neves says that only the problem is important. According to Raimundo Bezerra Falcão, this critics are incorrect because the separation of the system and the problem is a contradiction because the problem exist only inside a system.