Um estudo sobre como Kelsen dialoga com a tradição Common Law: do normativismo à teoria dos sistemas sociais autopoiéticos

Abstract

This work has the objective to clarify how Kelsen dialogues with the Common Law tradition. Thus, we shared the observations of two authors: H.L.A. Hart and Michael king. The choice for Hart was due to, in first place, because many of the questions discussed by him were firstly raised by Kelsen. Besides, Hart, on the contrary of Kelsen, tend to complete the gap left by the Austrian Professor intending to establish th e Law Fundament in social rules, and not in a transcendental assumption performed by a hypothetical rule. Beside this traditional perspective of observing the Law, and that, somewhat, continues valid in today's English analytical tradition, Michael King, who was one of the first English Professors to work with the theory of the autopoietic social systems in the United Kingdom, proposes an alternative for the traditional approaches of the Legal System. Although such theory is still minority, we consider its immediate rejection as being a mistake. Thus, we also consider equally relevant observe the observations of King about the luhmanniana theory and about Kelsen’s normativism. This way, the work sees two ways of observing the dialogue of Kelsen’s normativism with the Common Law: one under Hart`s perspective; other by King`s perspective.