Direito e teorias ideal e não ideal da justiça

Abstract

The article discusses the importance of ideal and non-ideal theories of justice for the assessment of proposals of legal reform. Agreeing, on this respect, with Sen (2006; 2009), I argue that ideal theory (in the sense of “end-state” theory) is neither necessary nor sufficient for comparisons between imperfect societies. This, however, does not mean that ideal theory may not be useful to those comparisons and, by extension, to the analysis of proposals of change. But to the extent that an ideal theory proves to be a point of departure worth considering on evaluating proposals of law amendment, it is preferable that such theory encompasses the entire scope of justice (in the case of institutionalist theories like Rawls’s, this means the basic structure of society as a whole) instead of being circumscribed to just one of the several legal areas.