MORALITY, LEGALITY AND INSTITUTIONALIZATION: THE HART-FULLER DEBATE

• Autor(a) principal: Amato, Lucas Fucci
• Data de Publicação: 2019
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Direito
• Texto Completo: https://periodicos.ufv.br/revistadir/article/view/6368
• topic: Legal positivism. Morality of law. Legality.; Positivismo jurídico. Moralidade do direito. Legalidade.

The paper approaches the debate on the conceptual linkage between law and morals that has taken place since 1958 between two great exponents of jurisprudence in the 20th century: H.L.A. Hart and Lon Fuller. Two controversies are here focused. On the one hand, Fuller defended the thesis that some principles of legality compose a morality inherent to the law, with a formal and procedural nature. Hart argued that these were only technical rules, without moral character. On the other hand, the Hartian theory of the rule of recognition as a social rule has been put into play. If, for Hart, it was a form of self-definition of the legal system as a union of primary and secondary rules, for Fuller there is no legal character, of a rule, involved, for example, in the political fact of the (revolutionary) transition from one legal system to another.