The rule of law: contribution to a Theory of Legality

• Autor(a) principal: Barzotto, Luis Fernando
• Data de Publicação: 2007
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/35189
• topic: LAW; JUSTICE; RULE OF LAW; ARISTOTLE; THOMAS AQUINAS; LEI; JUSTIÇA; ESTADO DE DIREITO; ARISTÓTELES; TOMÁS DE AQUINO

THE ADEQUATE COMPREHENSION OF THE RULE OF LAW IN ROMAN-GERMANIC LEGAL SYSTEMS DEMANDS AN ENLIGHTENMENT OF THE CONCEPTUAL CORE OF THE SO-CALLED LEGALITY PRINCIPLE, THAT IS, THE CONCEPT OF LAW. THE MAIN TOPIC OF THE PRESENT PAPER IS THE ANALYSIS OF THE CONCEPT OF LAW IN THE ARISTOTELIAN TRADITION, MORE SPECIFICALLY, IN THOMAS AQUINAS. FOR THIS AUTHOR THE LAW IS COMPREHENDED IN ITS RATIONAL STRUCTURE (MEASURE) AND IN ITS POLITICAL FUNCTION (ORDER). THROUGH THE POINT OF VIEW OF PRACTICAL REASON, THE LAW IS AN ARTIFACT OF REASON THAT IS USED AS A MODEL FOR THE EVALUATION OF CONDUCTS. IN A POLITICAL APPROACH, THE LAW HAS THE PURPOSE OF ESTABLISHING ORDER INSIDE A CERTAIN COMMUNITY. BY EXTENDING THE LITERAL LIMITS OF THE THOMISTIC TRADITION, WE THINK THAT THE PERSONALIST ANTHROPOLOGY OF THOMAS AQUINAS ALLOWS US TO THINK THE LAW AS AN ALLIANCE BETWEEN PEOPLE. THE ETHICAL SENSE OF THE LAW IS TO FORM AN ALLIANCE, AND IN THIS ALLIANCE RESIDES THE OBLIGATORY TRAIT OF THE LAW, WHICH IS ONE OF THE MORE CLASSICAL PROBLEMS OF WESTERN PHILOSOPHY OF LAW.