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Authors: Libero Penello de Carvalho Filho
Keywords: philosophy of law, law theory, law and morality, positivism and non positivism
Abstract: Recently, we have developed a paper questioning Robert Alexy's concept of law, but we understand that the subject has not been properly exhausted, reason why it is necessary to go deeper in the subject, especially about the claim of correction and the obligatory connection between Law and Moral. We intend to discuss the claim of correction and the “reminiscence of the fair” (term coined by me) as different views of the same intellectual moment, as well as the practical implication of this conceptual divergence, reaching the conclusion that Alexy let sensory perception dominate reflection. What Alexy calls “claim to correction” is nothing but a “reminiscence of the fair”, eventually remembered in the critical reflection phase on the concept of Law, but whose phase of existence is only the perception phase. While Kant understands that appreciating a work of art involves perception (sensory-pleasure-pleasing) and reflection (criticism - complacency in the beautiful), we understand that analyzing Law comprises perception (moral, value judgments, good, bad, fair , unfair, correct, incorrect - claim of correction - ideal Law - must-be; ought - sollen) and reflection (criticism, scientificity, reminiscence of the fair - right that "is" - being - sein).