A narração como fundamento necessário na compreensão dos deveres fundamentais: uma análise da descrição em Kelsen e da narração em Dworkin como base necessária para construção de um contexto comunitarista de valores morais

Abstract

This thesis intends to demonstrate the necessity of narrative composition in the postpositivist understanding of law. It is argued that narration is a necessary, rhetorically constructed composition in the comprehension of law, considering the fundamental norms, principles, rights and duties. There is a difference between Legal Positivism and Positivism based on the composition of the texts produced, starting point to evaluate the best way to understand the Law from a viewpoint of Fundamental Duties. The scientific pretension of Positivism, more precisely of Logical Neopositivism, brings consequences and demands in textual production. It is characteristic of the positivist text greater incidence of the descriptive composition, in its search for objectivity, dissociation with the moral and justice and neutrality of the interpreter. Only within the narrative conception is there the possibility, through traditions and a communitarian conception, to seek an understanding of Justice, in a discourse that does not depend on Formal Logic. Representing Legal Positivism, Hans Kelsen's thought proves capable of demonstrating a predominantly descriptive, neutral discourse, dissociated from the historical context of the object studied, in this case legal norms. For the study of Positivism, we will analyze the thinking of Ronald Dworkin, critic of Positivism, whose production indicates the presence of narrative composition as an indelible mark. The narrative allows the discourse historically contextualized, rhetorically constructed, guided by the value of Justice, which, in turn, is built in a communitarian perspective, in which the narrated life of people composes the political sense of Solidarity. It is sought, then, to prove that a post-positivist approach, which seeks to understand the Fundamental Duties, is only possible in a text with a predominant, contextualized narrative approach that allows the discussion of Justice under a narrative approach. The narrative approach is not a stylistic option of the author, as demonstrated in the analysis of the production of Kelsen and Dworkin, respectively, being inevitable its adoption.