Análise crítica do positivismo jurídico em face dos direitos humanos na perspectiva do filme? o julgamento de Nuremberg

• Autor(a) principal: Silva, Tatiana Mareto
• Data de Publicação: 2016
• Outros Autores: Moreira, Nelson Camatta
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Repositório da Faculdade de Direito de Vitória
• Texto Completo: http://191.252.194.60:8080/handle/fdv/980
• topic: Positivismo jurídico; Direitos humanos; Autoritarismo; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Positivism, as a science, influenced practically all western states, including Brazil and motto put on the national flag. Hans Kelsen, a member of the Vienna Circle, composed of the most significant positivist thinkers, is the main name of Legal Positivism, which for decades has represented legal certainty against the arbitrariness of despots and the excesses of governments. But, in the same way that Legal Positivism gained prominence by its rules of validity that excluded the moral of the Law, allowing objectivity to surpass subjectivity in its application, it did not prevent authoritarian systems, perfectly valid within its rules, from installing themselves. and if they were guided by exaggeratedly unfair norms to justify acts that were later recognized as crimes against humanity. It is in this context that "The Nuremberg Trial" depicts the installation of the Criminal Court that tried Nazi officers for heinous crimes committed during the Nazi regime and how those officers justified themselves by complying with valid and mandatory laws and orders. The present article has as its problematic the confrontation between Legal Positivism and Human Rights, which passed to the status of legal norms with greater emphasis in the post World War II, and the difficult relationship between Law and Morals. Using the premise raised in “The Nuremberg Trials”, we will analyze how much Legal Positivism can be held responsible for removing Law and Morals and how much Human Rights affirmed in the legal systems of the most diverse nations can be considered moral standards. Still, we will analyze if the mixture between Law and Morals would be enough to remove legal certainty and produce unjust decisions, or if the impossible distance from man from his previously established values ​​does not prejudice the application of Law.