Legitimidade do Direito e Estado: duas perspectivas contemporâneas

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2011-05-07
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Habermas, in multiple aspects, refers critically to the liberal-contratualist paradigm, because, when inserting in the rights’ field the democracy element, Habermas rejects the privatist character of the production of rights and substitutes it for a procedural criterion that does not only is applied to the individuals separately, but to the proper society by the state action. So, the heading of his main book on the subject — in German, Faktizität und Geltung — marks the distinction between the factual dimension and the normative dimension of rights. One another critic to contratualism also emerged in the field of social sciences on twentieth century XX, which is the legal pluralism perspective, that has been tending to the assumption of the following premise: other legitimate sources of rights production exist that not necessarily are confused with the state law, neither are emanated of a state agency. In this line, legal pluralism assumes that non-state norms can intervene on the process of production of state norms, as well as it can- not have any relations with these. The divergences with Habermas about the legitimacy of law are evident. This article has as objective to argue the dimension of rights legitimacy from the theoretical perspective of Habermas and of legal pluralism. It is intended, therefore, to organize the analysis from two analytical axes: a) the relation between law and lifeworld; b) the State importance as defining rights and its contraposition to the idea of legal pluralism. One expects, with this, to reflect on the elements that possibly constitute the legitimacy of law, as well as demonstrating its limits and possibilities of application and reflection in the Brazilian society.


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