Novos planos, velhos problemas: o positivismo jurídico de Scott Shapiro [thesis]

Eric Ribeiro Piccelli
center of current jurisprudential debates. That theory is constructed around the claims that (1) laws are plans and that (2) legal activity is an activity of social planning. In this work I try to assess his oeuvre critically, using the idea of separation between law and morality, also known as separation thesis, as my conceptual lens. I explore the consequences of Shapiro's allegiance to that idea in two different theoretical levels. The first one is that of the foundations of law, while the
more » ... cond is that of legal practice. With regards to the first, I contend that Shapiro's reliance on the particular conception of rationality that goes along with planning, and that is defended by Michael Bratman, does not provide him with the philosophical tools he needs to give an adequate account of law's normativity. I point out that the puzzle he aims to solve is a moral one, and as such can only be solved through moral reasoning -reasoning of a kind that is not compatible with the notion that law and morality constitute two separate normative domains. That particular contention rules out conventionalism as a sound theory of law's normativity, even in its sophisticated Shapirian form. As for the second, I argue that a good theory of law must explain the phenomena dubbed by Ronald Dworkin as theoretical disagreements, and that Shapiro's positivism, in spite of its sophistication, cannot do that precisely because of its insistence on the separation thesis. I conclude that the only way to salvage Shapiro's theory is by amending its core commitments in order to transform it in an instance of normative positivism.
doi:10.11606/d.2.2018.tde-11092020-135854 fatcat:rzasdx5a65futhbd4fxqrtv4le