A razoabilidade como elemento de conexão entre o Jusnaturalismo e o Juspositivismo

Abstract

It is a research about reasonableness as an element capable of harmonizing conceptions of jusnaturalist and juspositivist doctrines. The dichotomous clash between natural law’s and legal positivism’s theoreticians, in these terms, strengthened mainly from the advent of codifications, assuming a new feature in the twentieth century, so that there is usually among the authors who deal with the subject a kind of rivalry or incompatibility between both. At that time, legal science went through the transformations of the Democratic State, enshrining issues such as the prominence of the Constitution and human rights, as well as the normalization of legal principles. In this context, the prefixes "post" and "neo" are often added to those doctrines to reaffirm that they have not become obsolete, otherwise they remain frequent in the discussions among legal theorists. Because of the plurality of strands titled as belonging to one or another group, the study cuts some eminent references of each one to systematize its identifying nuclei, in order to elucidate the current context of the discussion. It also analyzes the deficiencies and contributions of each position to the science of Law, as well as its repercussion on the human rights theme. A critical examination is carried out to clarify whether such positions are necessarily antagonistic or to what extent it is possible to see harmonization between them. It follows from this task that the stigma of the opposition can be overcome by a composition from an epistemological bias and the conceptualization of juridical principles as normative species, so that it exsurges reasonability as a key role in this discussion. It takes care of the value of the legal phenomenon, both in the theoretical scope and in the judicial praxis, which is evidenced in the basis of judicial decisions. The reasonableness is also used, in conjunction with the dilemma between legal certainty and justice in the jurisdictional function. It is examined, from the point of view of the mentioned dichotomy, the reasonableness as a rational justification of Law in both a theoretical and a practical aspect, evaluating in this work its applicability based on Brazilian jurisprudence.