Juridicidade e justiça de transição

Abstract

This research aims to determine which conception of legality, amongst the different varieties available in contemporary legal theory, best suits the aims of Transitional Justice or the different sorts of Transitional Justices with a view to provide the legal basis for ensuring that their chief objectives are properly achieved. Meanwhile, the research is justified by blatant the need for legal justification for decisions concerning transitional justice and for its understanding as a legally and politically indispensable instrument for the consolidation of the democratic rule of law. This need may be exemplified, in fact, by the serious contradiction between the decision of the ADPF number 153 by the Supremo Tribunal Federal and the holding of the case Gomes Lund, by the Inter-American Court of Human Rights. To give substance to this work, this research initially turned its attention to a debate concerning the need to ground the premise of the existence of different conceptions of legality, rather than metaphysical concepts of law. Subsequently, on the basis of such understanding, this dissertation devoted itself to analyze and compare, from within this methodological perspective about the dominant conceptions of legality, the positivist and non-positivist contemporary theories of law. Finally, the research turns its attention to the theoretical context and the practice of contemporary Transitional Justice, delineating their main concerns and seeking to substantiate them in light of the conception of legality that has been considered the most appropriate.