Hegel and Contemporary Legal Thought: Debates with Positivism: Discussões com o positivismo

Abstract

Hegel’s bicentennial philosophy of law still contains important contributions to the contemporary jusphilosophical debate. These contributions arise, for example, by drawing up contrapositions to legal positivism, one of philosophy of law’s main contemporary schools of thought, especially concerning Kelsen. While legal positivism advocates for an objective view of law, as close as possible to a science, choosing the norm as its object and removing law from other spheres of social life, especially morals and politics, Hegel argues for a systematic view, where law is, alongside the morality and the ethical order, part of the objective spirit, of the entire rational practical universe. Based on this understanding, Hegel is able to explain positive law as a result of a conceptual evolution that aims at the universalization of abstract law, which, in turn, begins with the personality as the most basic expression of freedom, with its effectiveness achieved through property. This universalization can only be achieved in the sphere of ethical relations, when law becomes positive law. Nonetheless, Hegel points out that positive law is not always compatible with rational law, because positive law in a given context does not necessarily correspond to the evolution of the self-conscience of freedom. Based on the conceptual system behind law, Hegel manages to overcome some of the difficulties