FILOSOFIA JURÍDICA: CONSIDERAÇÕES SOBRE A COEXISTÊNCIA DO DIREITO NATURAL E O DIREITO POSITIVO

Abstract

Juspositivists refute the existence, legitimacy and validity of the Natural Right by esteeming it as an evaluative ideal of justice to be achieved.

This study aims at demonstrating the coexistence of Natural Law and Positive Law, despite the antagonism of the philosophical theories of which are objects, namely, Natural Law and juspositivism, which, although surpassed, still support the interpretation and application of norms.

By means of the hypothetical-deductive method, it was observed that in the contemporary juridical action, we seek beyond the written norm, evaluative conjectures, of a principiological, ethical, and moral character, so as not to reduce the Law to positive norms, which would be a or to limit the Law to axiological content, operating in an essentially naturalistic way, since this is not limited to values, nor to positive norms. Positive - legally valid - or presupposed - Natural, deriving from human nature itself - Law is the result of a cultural and ideological construction, a mixture of theories that coexist and guide nomogenesis and subsumption.

It is concluded that Positive Law does not exclude Natural Law, since it is covered by it, either in the elaboration of the norm or in its application.