A CRÍTICA AO POSITIVISMO JURÍDICO E O DIREITO ALTERNATIVO NO BRASIL

balanço, desafios, tensões e perspectivas

Abstract

The advent of the 1988 Constitution has highlighted a certain tension with regard to the relationship models between the roles occupied by the established powers. In the panorama of this tension we find as a backdrop a debate, not always put in its proper terms, involving criticism of Legal Positivism. In this context, the development of the Critical Theories of Law that have emerged in Brazil mainly since the 1980s plays a fundamental role. As a main argument, the association of an uncritical formalism with the authoritarian structures hegemonically established in Brazil at the time of the military regime preventing the realization of the promises brought by the 1988 Constitution. In Brazil, after a little more than three decades of constitutional experience, it is possible, on the basis of a critical assessment, to take a look at the Brazilian experience, rediscussing the place of legal thought in the shaping of the country's institutions. This largely implies revisiting the historical and social context in which criticism of positivism in Brazil is developed, offering a renewed interpretation based on the experience accumulated in recent years. It is a particularly elucidative task to analyze the displacements undergone by critical theories, from their reception in the 1980s to their most recent developments. It is possible to perceive in this context, a movement of progressive conservative capture of the critical agenda, initially focused on the affirmation of progressive and emancipatory values. The purpose of this article is thus to offer ways to reflect upon the presumed crisis of legal positivism in Brazil and the role of the Judiciary in this context, discussing the achievements and difficulties faced by critical theories of law since their reception among us and pointing out the possibilities for an emancipatory critique in the context of contemporary tensions.

Keywords: Alternative Law; Legal Positivism; Judicial Activism