Legalidade como alternativa: o pós-positivismo como forma de concretização de um Estado democrático de direito

Abstract

According to Marcelo Neves, the alternative to Brazilian society is legality, as means of overcoming the conditions that determines the colonization of law by society. Although, it doesn’t means that it is necessary to adopt legal positivism as theoretical background for the understanding of law. Due to its problems in respect to its conformation to the factual aspects of state power and its lack of adequate instruments for solving hard cases, it’s not even recommendable. The so called post-positivism approach, due to its basic premises, which are the adoption of the participant point of view and the inclusion of morals in the concept of law, is more concerned in solving the two legal positivism problems, having a better reasoning structure to an effective application of legality inside the patterns established by Neves. Taking Alexy’s theory as an example, the double character of legality – which behaves like a rule whose exception emerges form a weighting of principles – and the way the argument of moral correctness can be applied to it are discussed. In the conclusion, the allegation that the post-positivism favors judges will, or that it is responsible for an excessive cognitive openness of law is faced. In fact, by not dodging the challenge of indicating how to solve hard cases, or of indicating situations in which a rule of law shall not be applied to prevent injustice, the post-positivism approach reinforces the rule of legality by delimitating its exceptions.