O debate Hart-Fuller e o caso da informante rancorosa frente à compreensão sobre a justiça de transição

Abstract

The present research aims to understand, through conceptual and philosophical analysis, the impasses faced in a transitional justice in the perspective delineated by the Hart-Fuller debate, especially with regard to the validity or not of unjust laws and its application in judgments performed after exception regimes. To that end, it revisits the main arguments drawn by Hart and Fuller in their articles published in the Harvard Law Review in 1958, focusing on the way they deal with the case of the Grudge Informant, since this treatment provides subsidies to better examine the impasse of to restore respect for law and justice after the collapse of a regime that did not respect them, as it happened in the Nazi regime. Transitional justice, according to Ruti Teitel, means a justice assumed in a context of political change characterized by legal responses to face the errors of repressive regimes predecessors. In response to these questions, Hart, because he understands that the separation of law and morals allows us to have a clearer view of the so-called immoral laws, advocates the creation of a new law that retroactively transforms the act that was previously illegal into legal, if it were to punish abuses perpetrated during a totalitarian regime. While Fuller argues that the validity of a legal system will depend on an internal morality, pointing out formal criteria to find out. The impasse will revolve, in addition, of the possibility of a morally bad law. In any case, Fuller's theory seems to face more appropriately the dilemmas of transitional justice, especially the development of bases for building what we now call the Rule of Law.