Você me pergunta sobre se eu sou positivista ou naturalista, mas essa é uma divisão ultrapassada. Não é preciso ser uma coisa ou outra, visto que existem outras abordagens. Eu, pessoalmente, acredito que o direito natural é relevante, mas que somente alguns poucos princípios podem ser identificados com um direito válido independente de qualquer decisão política ou do costume. Portanto, eu não sou completamente naturalista, mas também não sou completamente positivista. De fato, eu me considero um realista, pois a minha postura é a de reconhecer no direito a sua real faceta, sem os dogmatismos inerentes aos radicalismos positivistas e naturalistas. (Paul Silbert)
Paul Silbert’s analysis allows several reflections about the naturalist, positivist and rationalist conceptions of law. Therefore, it is necessary to analyze in what sense the first two conceptions would meet in a dichotomy that results in one current division, and if this division was truly cured by legal realistic vision.
The Jusnaturalism is based on the Natural Law, assuming that there are alien dictates to the culture of individual societies. Therefore, these dictates are previously existing and subject to deduction. Such rules are often endorsed by religious factors. Thus, such standards demonstrate themselves valid for any situation, in other words, they are universal and timeless. This right is exemplified in Rousseau’s formulation:
O que é bem, e conforme a ordem, é tal pela natureza das coisas sem dependência das convenções humanas. Toda a justiça vem de Deus, única origem dela, e se nós a soubéssemos receber de alto não precisaríamos nem de leis nem de governo. Há sem dúvida uma justiça universal só provinda da razão, mas deve ser recíproca para que entre nós se introduza. (ROUSSEAU, 2000)
The positive law is founded on the notion of the legal field as a cultural product, alien to principles derived from nature. It can emerge from the people, from the power held by the monarch or from the representatives. Fundamentally, it arises by human activity.
The Legal Positivism is related to the rise of the bourgeoisie and democracy in a process whose beginning dates back to the late Middle Ages, with the gradual reduction of the religious factor in society, to which the natural law is associated.
In this way, the positivism inherits the ideal of rationality advocated by the Enlightenment movement and merges it to democracy one originated from the bourgeois revolutions against the absolutist regime, characteristic of the Old Regime. Consequently, it watches over politically standards established caused by the employment of reason and democratic interests. So, the representatives must act according to the interests of the population.
It is emphasized that ensuring and regulating a new social order and presenting itself as the result of a rational and democratic thought, the positivism went on to claim obedience to the content established without questioning, ideologies, or subjective interpretations, which could result in a loss of the security legal to which the model proposed. Thus, the uniform application of the content of standards made itself indispensable – supposedly impersonal -, which would ensure homogeneity in the treatment of legal proceedings. (COSTA, 2001).
Relation between the Natural and Positive Law, under the Jusnaturalism e Legal Positivism’s Opticals
According to the Jusnaturalism, the Natural and Positive Law do not relate in a purely and dichotomous way, one diametrically opposite from the other, refusing themselves as at a first glance it may seem. The first is founded on the union of principles present in nature, and the second must complement them. Rousseau argued that the people hold sovereignty to regulate themselves up and thus establish a social contract, which would make valid the positive law.
Considerando que as coisas humanamente, são vãs entre os homens as leis da justiça por falta de sanção natural; […] logo são necessárias as convenções e leis, para unir os direitos aos deveres e levar a justiça ao seu objeto. (ROUSSEAU, 2000.)
On the other hand, it has its extent confined to not to hurt the dictates of nature. Thus, natural law serves as the foundation and limit: “Ele ora está a serviço da consolidação do direito positivo, ora, exatamente o contrário, serve à luta contra esse mesmo direito” (RADBRUCH, 2004).
In that mode, the natural law sets a restriction on the juspositivismo. Stating that denies that this would imply that the first current fans do not admit the positive law as valid, not seeing the obligation to act in accordance with the culturally established rules, either by tradition, or by written rules.
According to the Legal Positivism, the existence of Natural Law is vehemently denied. This one is noted as an obstacle to the will of the people represented by elected officials and thus converted into legislation. So as to positive law, a strong belief was deposited in its superiority, due to its ability to promote rational and democratic laws.
Criticism to the Jusnaturalism and the Positive Law
The Jusnaturalism, starting from the premise that there are inalienable and deductible principles of nature, is criticized for the use of reason show itself subjective and able to support a vast amount of standards, claiming to be evident and necessary findings of a rational procedure. It is noteworthy also that, empirically, it proves that different cultures were organized differently, contrary to the ideal of universal validity of precepts to which alludes.
The Legal Positivism, by outlining the lack of intrinsic rights to nature, could not, however, provide them as they used to confer legitimacy to the politically instituted right, whose performance was expected from the population. Kelsen – positivist author – states that the fundamental norm, which makes valid the the positive right, is a necessary illusion for the maintenance and organization of society.
Moreover, as the Positive Law went to be seen in absolute terms as a result of rational and democratic application and summit of the legal expression, it became impassive of being reinterpreted and reconfigured, solving problems that eventually arise in land, which results in a strong loss of zetetic component of law.
Costa points out that the Legal Positivism, from this perspective of superiority, used to hide its ideological character concerning to its alignment with the capitalist system and bourgeois ideology, which does not mean, either, that it only represented materialistic interests of the ruling class.
The realistic design thus sought a way of overcoming the positive law. According to Costa (2001), the realism arises, then, suggesting a new perspective, in line with the sociological positivism, and opposed to the normative one. It advocates, therefore, the observation of efficiency/effectiveness of the rules, pointing out that positivism, focused exceedingly in the standard, adopted an idealistic conception of law, away from the legal reality.
It can not, however, as the positivist understanding, remedy the difficulties relating to the problem of legitimacy. Nevertheless, it dispenses this factor as a key element in his theory as its object of analysis becomes the standards that are recognized by the people or by the body of judges and therefore applicable in specific cases.
Thus, the state law is not perceived as something intrinsically required, however, as an institution of the possibility of coercion in front of contrary actions to the rules. So, more than a duty of obedience, an analysis of opportunity costs is figured between following or not what has been established.
It could be said, according to Costa (2001), that the realistic understanding, while focusing on the judge’s performance, garnish itself of strategic character because it press for an analysis of how to influence him in his decision in detriment of the standard itself, the legislation itself as the key to conflict resolution via judiciary. Moreover, if the positivism lost the zetetic content, building itself deep into the dogmatic, nor the realism managed to strike a balance; effectively, the proportion was reversed with the lack of this component. Thus, while alluding to the behavior of judges, it does not set parameters or a commitment to a just resolution of conflicts.
The Jusnaturalism and the Positive Law, in fact, find themselves in a conflict as the first restricts the autonomy of the second and the second denies the existence of Natural Laws which is the fist’s foundation.
The Legal Realism, while trying to overcome the difficulties of positivism, however, has not gone unscathed of critics, as described above. In this sense, it can be said that it has not obtained achievements while trying to establish a new theory that founded this division about the nature and the perception concerning the standards.
Finally, it should be noted that the clash remains current and with the contrast between the theories, each with its merits and intrinsic problems, a subjective choice of design that presents more appropriate according to Law perpetrates itself.
ALVES, Marcelo. Antígona e o Direito. Curitiba: Juruá Editora, 2008.
COSTA, Alexandre A. Introdução ao Direito: uma perspectiva zetética das ciências jurídicas. Porto Alegre: Fabris, 2001.
KELSEN, Hans. Teoria Pura do Direito. São Paulo: Martins Fontes: 2003.
RADBRUCH, Gustav. Filosofia do Direito. São Paulo: Martins Fontes, 2004.
ROUSSEAU, Jean-Jacques. Do Contrato Social. São Paulo: Martin Claret, 2000.
SAAVEDRA, Giovani Agostini. Os limites da atuação do juiz no Estado Democrático de Direito: Jürgen Habermas. In: TABORDA, Maren Guimarães. Programa de Hermenêutica Jurídica: estudos em homenagem a Sandro Jubtil da Silva. Porto Alegre: EDIPUCRS, 2011.