The constitutional principles between deontology and axiology: theoretical assumptions towards a democratic hermeneutic theory

• Autor(a) principal: Almeida, Fábio Portela Lopes de
• Data de Publicação: 2008
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/35161
• topic: DEONTOLOGY; AXIOLOGY; LIBERALISM; THEORY OF VALUES; DEONTOLOGIA; AXIOLOGIA; LIBERALISMO; TEORIA DOS VALORES

THE ARTICLE DISCUSSES THE NATURE OF THE CONSTITUTIONAL PRINCIPLES BY OPPOSING TWO DISTINCT HERMENEUTIC THEORIES: AXIOLOGY AND DEONTOLOGY. THE THEORY OF PRINCIPLES PROPOSED BY ROBERT ALEXY IS ASSUMED AS AN IDEAL EXAMPLE OF AXIOLOGICAL THEORY, AND CRITICIZED FOR BEING UNABLE TO DEAL DEMOCRATICALLY WITH THE FACT OF PLURALISM, I. E., THE FACT THAT THE CONTEMPORARY SOCIETIES ARE NOT STRUCTURED ON ETHICAL VALUES SHARED BY ALL THE CITIZENS. AS AN ALTERNATIVE TO THE AXIOLOGICAL MODEL, I SUGGEST, BASED ON A PARTICULAR READING OF THE THEORIES OF JOHN RAWLS, RONALD DWORKIN AND JÜRGEN HABERMAS, THAT THE ADOPTION OF A DEONTOLOGICAL PERSPECTIVE, WHICH ASSUMES A STRICT DISTINCTION BETWEEN PRINCIPLES AND VALUES, OVERCOMES THE DIFFICULTIES OF THE AXIOLOGICAL THEORY. ASSUMING AS A CENTRAL PREMISE THAT LAW IS LEGITIMIZED BECAUSE THE CITIZENS OF A CONSTITUTIONAL DEMOCRACY ACCEPT PRINCIPLES THAT ARE JUSTIFIED FROM WIDELLY RECOGNIZED CRITERIA, A DEONTOLOGICAL THEORY OF THE CONSTITUTIONAL PRINCIPLES TURNS TO BE ABLE TO DEAL WITH THE PLURALITY OF CONCEPTIONS OF THE GOOD PRESENT IN THE CONTEMPORARY SOCIETIES. IN THIS SENSE, THE ARTICLE DISCUSSES QUESTIONS RELATED TO THE CONSTITUTIONAL THEORY.