O problema da fundamentação filosófica dos direitos humanos: uma abordagem a partir da teoria do discurso de Robert Alexy

Abstract

This research aims to analyze the theoretical-discursive foundation of human rights as proposed by Robert Alexy, adopting as base his book Teoría del Discurso y Derechos Humanos. Initially four subjects that will serve as theoretical support to understand the following parts of the work are discussed, namely: the conception of human rights as moral rights; some justification parameters of human rights already used historically; the challenge of the cultural relativism; and the problem of the foundation of ethical norms. In the second chapter, it is intended to ground the specific rules of discourse, and that, according to Alexy, represents the first task of the foundation of human rights. This part of the work is divided into three moments: first, conceptual clarifications on the discourse theory are made; second, the specific rules of discourse are studied; finally, one examines an argument – formed for three pillars – able to found such rules. The last chapter is dedicated to the foundation of the form, content and strucutre of human rights. In order to reach such an objective, two problems, one of form and another of content, need to be answered with the support of the discourse theory. With regard to the first one, the necessity of the positive law for the institutionalization of the human rights should be grounded. Concerning the second one, one must appoint which of these rights are necessary. The problem of content constitutes the central subject of this work, namely, the theoretical-discursive foundation of human rights, which can be reached through the verification of three arguments: the autonomy argument, the consensus argument and the democracy argument.