O expressivismo de normas e os desacordos teóricos: uma análise da proposta de Kevin Toh

Abstract

The Hart-Dworkin debate has as one of its main themes the existence of theoretical disagreements in law and the alleged inability of legal positivism to explain this feature. The discussion was vigorously esumed at the beginning of the twenty-first century, and from then on, the debate developed strongly. Among the various authors who proposed responses to Dworkin´s challenge, Kevin Toh has elaborated the most complex of all by developing over a non-cognitive doctrine called normexpressivism, reconstructing the Hartian analysis of internal legal statements andlater the construction of a new method of identifying the rule of recognition, moving away from the conventionality thesis. After presenting an overview of the problem and the legal positivist theory, this dissertation delves into the study of several answers given over the last decades. In the second half of the work, all the attention is focused on the proposal of Kevin Toh, whose thesis, as the present dissertation argues, has failed to provide a model capable of explaining theoretical disagreements, at least if Hart's rule of recognition should be kept upright. In summary, I will argue that few examples of disagreements can be considered problematic for legal positivism, and yet the answer based on the idea of deep agreements is sufficiently plausible to resolve the challenge.