OAB: Filosofia do Direito

Legal norms enforced by the state to regulate behavior. They are external and objective.

Internal principles of right and wrong that guide individual conduct.

The concept that legal rules are imprecise and open to interpretation.

Universal principles that exist independently of positive law. It emphasizes inherent rights and moral obligations.

The view that law is only valid if it is created by a recognized authority, like a legislature.

Yes, they can co-exist. Natural law principles can inform the creation and interpretation of positive laws.

Difficult legal cases where there's a clash between legal rules and principles.

Methods used to interpret legal texts. These include textual, historical, and sociological approaches.

The process of reasoning and presenting arguments to support a legal position.

A hierarchy of legal sources, with laws considered the highest, followed by judicial precedents and customary practices.

Applying a similar legal rule to a similar situation.

Ensure justice and fairness in society by protecting individual rights and resolving disputes.

Gaps in the law where specific legal rules are lacking, requiring legislative action.

Criteria to resolve conflicts between legal norms. This often involves considering hierarchy, time of enactment, or specificity.

A complex relationship, with moral principles influencing the content and application of law.

Types of justice include legal justice (following established laws), customary justice (based on tradition), and equitable justice (fair solutions considering individual circumstances).

The right to act according to one's will within the bounds of law and ethics. It entails both freedom from external constraints and the capacity for self-determination.

Equal access to resources and opportunities, ensuring fair treatment and non-discrimination.

A principle emphasizing mutual respect and support, encouraging peaceful coexistence and solidarity.

International treaties and declarations that aim to protect fundamental human rights. Examples include the Universal Declaration of Human Rights and the Inter-American Convention on Human Rights.

A method for interpreting legal texts by considering their legal, historical, and social context.

Locke argues that property ownership is justified by the individual's labor and possession. It is a natural right to be protected by society.

The law is binding regardless of individual desires. It is universal and applies to all.

Marx criticizes bourgeois law for being a tool to maintain the existing power structures and perpetuate the exploitation of the working class.

Aquinas distinguishes natural law (divine law) from positive law (human-made law). Natural law is inherent and unchanging, while positive law is created and can vary across societies.

Hobbes believed the natural state is chaotic and characterized by conflict. The social contract arises to provide security by relinquishing some individual freedom to a sovereign authority.

Plato, in 'The Republic', defines justice as a harmonious balance between reason, appetites, and spirit within the individual.

Hegel argues that true freedom only emerges within the framework of the state. It is not mere individual freedom, but a freedom realized in society.

Hart distinguishes primary rules (defining rights and obligations) from secondary rules (governing the creation, application, and alteration of primary rules).

Dworkin argues that rules are definite commands, while principles are guidelines that can be weighed and balanced in specific cases. Principles can justify exceptions to rules.

Rawls proposes a hypothetical social contract where individuals in a state of nature would agree to principles based on equal rights and opportunities to ensure a just society.

Nozick criticizes Rawls by arguing that his theory is incompatible with individual property rights and free-market principles. He advocates for a minimal state that protects individual liberty.

Foucault analyzes power and law as intertwined. Law becomes a mechanism of control and discipline, shaping individual behavior through social institutions.

Habermas proposes a theory of law grounded in communicative rationality. Legitimate laws emerge from public deliberation, where all affected parties can freely discuss and agree on norms.

Critical Legal Studies challenges the ideology and power structures embedded in law. It aims to dismantle legal structures that perpetuate inequality and oppression.

Liberalism emphasizes individual rights, freedom, and limited government intervention. This impacts legal theories by valuing individual liberty and autonomy.

Communitarianism stresses the value of community traditions and shared values over individual rights. It questions universal claims of liberal law and emphasizes the importance of local customs and social cohesion.