Direito, força e anomia: deslegitimação do estado e liberdade em Hans Kelsen

Abstract

The traditional reading of Reine Rechtslehre teach us that Hans Kelsen, inspired by Kants philosophy, develops a pure law science, aiming a description of the statutory law based in a cognitive functionality and not evaluative. Thus, the Pure Theory of Law does not intend to legitimize any form or type of State, because, based on the axiological relativism, Kelsen keeps away the values of the field of law science, such a fact configures as a epistemological presupposition. The given research aims to demonstrate that the Pure Theory of Law, although does not make a legitimate, provides the ways and possibilities for individuals to promote the delegitimation of the juridical order and, consequentially, of the State. This is possible thanks to the phenomenon of the progress of anomy situations which consecrates the relativist philosophy present in Kelsens works and express itself as the true exercise of freedom understood by Kelsen as moral autonomy -, which takes to a deconstruction of the authority symbol and consequentially the non-presupposition of the hypothetical fundamental norm, removing the validity of the juridical planning. This way, it is possible to articulate the rereading of the philosophical bases of the knowledge theory assumed by Reine Rechtslehre, incorporating elements of Ernest Cassirer epistemology, mainly the consideration of a functional thought determining over a substantial reasoning, which allows us to establish a bond between political philosophy, law science and the Viennas Scholl masters democracy theory and takes us to affirm that there is not another Kelsen, but instead, Kelsen himself present in all the fields of his wide works.