Discourse and democracy in Habermas and their implications on law from legal post-positivism

Abstract

This research brought approaches regarding habermasian democratic thought, taking into account the social critical theory aligned with the post-positivist current of interpretation and application of Law. Thus, from a dialectical perspective, the essay made brief digressions on language and communication present in the discourse of communicative action. A debate had been held on the impact of the discourse principle and its evaluative dimension in the busy and dynamic public sphere of communicative action. From the passage of the discourse principle to the democratic one, comments were made on the axiological burden of society, in its plural exegesis and detached from the normative construct of law as a unitary source to subsidize it. Theoretical distinctions were also made between legal positivism and post-positivism, especially regarding the autonomy of the latter. Afterwards, a correlation was made between the democratic principle, as a necessary discursive theory, and legal post-positivism and its implications for the construction and application of Law in accordance with the diversity and social expectations of communicative subjects.