Positivism and Constitutional Post- positivism : A Debate on Breast Theory of Fundamental Rights

• Main Authors: Matheus Felipe de Castro, Samyra Hay dêe Dal Farra Naspolini Sanches
• Format: Article
• Language: Spanish
• Published: Conselho Nacional de Pesquisa e Pós-Graduação em Direito 2016-05-01
• Series: Conpedi Law Review
• Subjects: Direitos Fundamentais; Poder; Justiça; Filosofia da Práxis; Interpretação; Aplicação do Direito.
• Online Access: http://portaltutor.com/index.php/conpedireview/article/view/88

This article, based on the theoretical framework of the philosophy of praxis, is to discuss the strained relations between power and justice in the enforcement of fundamental rights, making a comparison between the theoretical concepts of Hans Kelsen and Robert Alexy. In this sense, are compared the thoughts of these two authors, emphasizing the central role that power has the legal conception of the first as opposed to the theory of justice that animates the legal conceptions of the second. We discuss how this tension that appears in the theoretical confrontation of the two authors is actually a moment of real, but constitutes a dialectical interaction which must be observed and deciphered in the concrete application of the law. It concludes with the search of separation from what is real from what is in this ideological debate, seeking to deepen the debate on fundamental rights as the core of modern structural theory of law.