The Necessary Predication between State and Law

• Main Author: Daniel Nunes Pereira
• Format: Article
• Language: Portuguese
• Published: Conselho Nacional de Pesquisa e Pós-graduação em Direito (CONPEDI) 2017-02-01
• Series: Revista de Teorias e Filosofias do Estado
• Subjects: Estado; Direito; Teologia Política; Juspositivismo; Soberania
• Online Access: http://www.indexlaw.org/index.php/revistateoriasfilosofias/article/view/1336

This study aims to demonstrate that the central idea of "rule of law" is per se redundant since there is a necessary and reciprocal predication between terms. It is based on the "State-Law" historical and philosophically founded (Westphalia, Bodin and Hobbes), phenomenologically (Schmitt’s Political Theology) and normatively (Hans Kelsen’s Legal Positivism) based. The rationale on the Sstate leading role suggests that State power must be complete to achieve its goals, which is given by normativity. It is clear that both, State and Law, have the same substance, "Sovereignty", whose implementation coincides with the human agency of cognitive reconfiguration of Politics by religious thought.