Crítica da Norma Fundamental.

Abstract

Starting from the critical design in Kant, this work discusses the essential elements to the concept of basic norm, within the theory of the right of Hans Kelsen. To achieve these objectives, it is necessary to present a brief analysis of the concept of the right of science in the nineteenth century to, ex negative, the postulates of positivism of the twentieth century. Therefore, the concepts of the basic norm in the classical phase of the Pure Theory of Law (1920-1961) and in the last phase of his theoretical production (1961-1973 [1979]), need to be compared, in order to allow the correct understanding the latest design in Kelsen about this intricate subject. In addition, the summary explanations that the author of the Pure Theory of Law presented in his works, the philosophical roots of its two major theses, the basic norm as logical and transcendental hypothesis and fiction, have been thoroughly exposed in order to allow the building of critical more forceful and determined to finally elect which of the presented concepts is more consistent with the intellectual project of the legal normativism.