The Rescue of Validity as Structural Element of State Actions: The Post-Positivism and Discursive Law in Habermas

Abstract

Admitting the juridical postpositivism as the theory that aims to reconcile the law, morality and politics in a complex and plural society it was identified that the legality alone could no longer sustain the legitimacy of state actions, it is necessary to investigate what the element structural grants validity to State acts. Using the hypothetical-deductive method, started with the following hypotheses: the law does not cover by itself the structural element of the validity of the acts; and the participation of the rule of recipients in its formation is the structuring element of State decisions. The hypotheses were confirmed.

Keywords

• Elemento de validade
• Pós-positivismo jurídico
• Participação popular