A contradição funcional do princípio de relativismo na obra política e jurídica de Hans Kelsen

Abstract

The present article is dedicated to recovering and criticizing, starting from the context of the works of the author, a theoretical principle based on the descriptive method of Hans Kelsen. We point out, at first, how this same principle of relativism develops contradictory functions in informing both Kelsen's legal theory and political theory. The problem stems specifically from the manner this principle informs a scientific description of legal interpretation and an equally scientific description of democracy. Afterwards, we speculate about how Kelsen constructs this theoretical positioning, now divided in theoretical and ethical relativism, from a scientific position centered on the fundamental position of Kantian transcendental idealism. Subsequently, we describe how this principle relates to the concept of democracy and also to the theory of legal interpretation which Kelsen constructs at different times. Finally, we reaffirm the conclusion about the functional contradiction of the principle of relativism in Kelsen's work: simultaneously as a democratic disposition and an instrument of theoretical impotence in the face of a jurisdictional autocracy.