Por uma teoria pura e paradoxal dos direitos humanos : comunicação e sentido em Kelsen e Luhmann

Abstract

The development of a theory of human rights in the complexity of modern society involves an observation of the management of its constitutive paradoxes. Thus, a pure and paradoxical theory is justified by the need to analyze human rights as a self-referential system and product of paradoxical communication. The problem is: is it possible to have a theory of human rights that includes paradoxes as a form of observation? The hypothesis is supposed to result in a reaffirmation of trust and the meaning of human rights in modern society by presupposing them as supra-fundamental norms. The general objective is to understand and verify that human rights can be observed as the foundation of national and international legal orders. As specific objectives, the proposal is to understand the meaning of fundamental norm (Grundnorm) and self-reproduction (autopoiesis) when dealing with the relationship between communication and meaning in law and modern society. The consequences of judicial decisions, the construction of an innovative scientific language in the legal and social fields, but also the approach of political sociology when observing fundamental rights as an institution. Demonstrate the possibility of dialogue between the deontogenesis of human rights and their learning as a result of violations of rights essential for coexistence in society. The influence of the State and religion, the issue of purity and, therefore, the paradox generated in human rights. The expectation of a civilization of the civilization of human rights and the hermeneutic construction of the discourse on human rights in the syllogistic hypothesis of affirmation, denial or continuity of natural rights. In the thought of a process of learning human rights, point out the fatal problems that affect human rights in modern society, when trying to explain the formal and material normative force of the generalization of human rights with their binding inclusion in national legal systems and at the international level. But also, the way in which the legitimization of human rights occurs in modern society and how repetitive actions can be the object of a scientific-legal analysis, in the observation of the paradoxes that define them. The starting point is a methodology that uses the inductive method, with a qualitative approach and having as a technical procedure the bibliographic examination of the philosophical-legal-social literature. The theoretical framework for the study of human rights is based on Hans Kelsen's Pure Theory of Law, in a semantic and discursive interaction with the Theory of Social Systems, developed by Niklas Luhmann. Thus, it is observed that the genesis of human rights is an unfinished product of the interdependence between the content and validity of legal norms, that is, of the (re)construction of the paradoxical operation that transforms the subjective meaning of norms into an objective meaning. Therefore, a pure and paradoxical theory of human rights aims to describe human rights through the process of differentiation and construction of their paradoxes in the space-time of the communication operations of the legal and social systems.