A construção teórica do conceito de legitimidade no direito internacional : a inaplicabilidade da Norma Fundamental da Teoria Pura do Direito de Hans Kelsen

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

This thesis focuses on the hypothesis of the inapplicability of the kelsenian basic norm as a single assumption of legitimacy concerned to international law and has as its purpose the study of the historical evolution of ideas concerning the international legal system, mainly established during the 20th century, taking as a point of reference the analysis of the kelsenian legal theory. The relevance of this research emerges out from the perspective of leading ideas in the construction of international political system or structure. The point of departure of the debate is the description of the historical development of the concept of legitimacy as understood by legal theories. The methodology to be applied is related to try to describe the factor of legitimacy of international law doing a comparison between the theoretical discourse and the historical circumstances. The study of Hans Kelsens legal theory and the academic debate about the role of this set of ideas in the development of the international law system in the second half of the 20th century appears to be the crucial point to realize the influence of ideas in the evolution of a huge and complex system of rules based on the hypothetical basic norm. The observation of the dynamic of international relations more and more shows that the answer for the questions as what are laws for? or what causes obedience? seems to be more complex than the set of explanatory arguments proposed by the positivist theory. Moreover, new phenomena emerged in the last decades more evident after the Cold War - as soft law and regime collisions erode the capability for explanation and understanding offered by part of legal literature. On the other hand, other theoretical approaches can explain or even understand - why subjects of international law observe systemic rules. In this context two concepts could be proposed to answer the questions: fragmentation and interdependence.

ASSUNTO(S)

relacoes i?internacionais, bilaterais e multilaterais international law basic norm legitimidade direito internacional norma fundamental legitimacy

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