A distinção ser/dever-ser na teoria pura do direito: uma proposta metodológica.

Abstract

The present work aims to investigate the nature of the dualism between is and ought be in Hans Kelsen's pure theory of law. The notions of is and ought appear already in Greek thought, acquiring a more or less definite form in the works of Plato and Aristotle. For them, they originate from the dynamic nature of finite beings, whose perfection is the end to which they must tend. The being of man finds its ultimate end, which is the content of the duty-being, in its own nature. Medieval philosophy has also dealt with the question of is/ought. Starting from the Aristotelian conception of God as the perfect being by antonomasia, Saint Thomas Aquinas affirms that only God possesses the fullness of being; the other creatures only participate to a greater or lesser extent in him, and must therefore be good, since they have a being derived from God, which is the supreme good. Thus, the idea of a radical separation between is and ought is almost totally alien to the authors who preceded the modern era. Historically, it is only from David Hume that such a conception appears as a true presupposition of ethico-philosophical reasoning. However, although it is already embryonic – according to most scholars – in David Hume's philosophy, the separation thesis only came to a well-finished form in the modern theory of knowledge constructed in Immanuel Kant's Critique of Pure Reason. In the field of juridical theory, however, it was Hans Kelsen's most consequential elaboration of the Kantian version of the distinction is/ought.