Uma defesa do positivismo jurídico pós-hartiano: refrutações das caricaturas e das incompreensões no debate jurídico nacional.

Abstract

The aim of this work was to present a defense of post-Hartian legal positivism, in order to demonstrate that this philosophical tradition is the one capable of offering the best understanding and explanation of legal phenomena. The numerous criticisms and attacks, especially those from interpretivism, were unable to lead to the overcoming of this theoretical framework. In fact, they paved the way for the improvement and emergence of various positivist versions, revealing that positivist theorists went beyond merely refuting objections, but also developed positivist versions compatible with contemporary post-war constitutions. It can be said that legal positivism shares a common foundation, with different and independent central theses, which are not always well understood by those who seek to criticize it. The direct consequence of these misunderstandings are misconceptions, prejudices, and hasty conclusions that are not embraced by any serious positivist. Hence, it is possible to conclude, based on bibliographic research and essentially qualitative analysis, that the straw man created around the central ideas and theses of legal positivism, in Brazil, significantly contributed to the emergence of the concept of a judge as a guardian of fundamental rights and the perspective of moral correction of law, involving the use of moral and political values in identifying, interpreting, and applying legal phenomena and legal norms, necessitating a crucial link between law and morality. Even in the aspect where legal positivism did not seek to develop a theory of interpretation, and did not do so for methodological coherence, it can be concluded with a certain degree of certainty that the interpretive practices and theories developed by post-positivist legal thought were not capable of constructing a theoretical framework capable of preventing the use of personal morality in reasonable moral disagreements, much less for solidifying the concrete meanings of open clauses. What is observed in the Brazilian jurisdictional reality is the undue superimposition of common law over statute law.