Linguagem, normas e práticas sociais: uma reconstrução crítico-racional dos comprometimentos metajurídicos da teoria do direito de H.L.A. Hart

Abstract

The explanation of the foundations of the normativity of law constitutes the primary focus of H. L. A. Hart's theory and philosophy of law. Consideration of the shortcomings of the legal-philosophical endeavors of his contemporaries led Hart to promote a legitimate methodological revolution in legal theory, arguing that it is necessary, for a theory that seeks to adequately explain the normative character of legal practices and propositions to refer to the internal point of view of the participants in the practice who conceive their own conduct and that of others as guided and evaluated by shared norms. Thus, by adopting the notion of internal point of view as the structuring axis of his conception of normativity, Hart adheres to a fundamentally hermeneutic approach to law. In this sense, the central objective of this dissertation is to rationally reconstruct the meta-legal commitments—including pragmatic, semantic, methodological, and metaphysical assumptions—that explicitly and implicitly guide and inform Hart's theory of law, notably in his treatment of the phenomenon of legal normativity. The first step in rational reconstruction is to evaluate some methodological implications of Hart's interpretive approach, demonstrating the relevance of the notion of internal point of view in his attempt to formulate a non-reductionist theory capable of satisfactorily explaining the existence and relative autonomy of the normative domain. Next, this paper analytically reconstructs the substantive notions that structure Hart's explanation of the normative pragmatic dimension, guided by the assumption that a plexus of normative attitudes among participants in the practice has the power to give rise to genuine normative positions and statuses. Finally, the dissertation maps and reconstructs the evolution of the commitments that inform Hart's views on the nature and functions of normative language throughout his career. Secondarily, based on the elements gathered in the analytical stages, the mobilization of contemporary interpretations and, above all, the use of Robert Brandom's refined conceptual apparatus, this work offers some critiques of Hart's conceptions: first, it questions the claim of methodological neutrality of Hartian methodology; secondly, it criticizes Hart's theory for endorsing a precarious model of normativity based on asymmetrical relations between normative subjects, which fatally compromises the ability to explain the emergence of genuine normative statuses; and, finally, it raises the question of the potentially destructive impact of Hart's semantic views on the justification of the rational and normative authority of legal judgments.