Uma reflexão do direito através do paradigma ontológico da pessoa humana e de sua personalidade

Abstract

This work aims to analyze the personality, while defending a legal perspective ethically committed to the human person, often despite of the current conformation of normative positivism, embodied in the inflationary mantle of the principle of human dignity, which has not solved many of the current legal serious problems, serving to everything and to nothing at the same time. The first main premise raised for the treatment of the presented theme is that the rational-modern experience - mainly based on the Kantian idea - to justify legally the principle of dignity has been shown to be insufficient in dealing with the material content of the protection and promotion of the human person. On the other hand, a Law that insists on being too hermetic, dogmatic, neutral and rational is inappropriate for the realization of the human person, because it is not efficient involving the factual heterogeneity on which the demand for a freely developed personality is based, as an ethic rhetorical in the foundation of legal discourse. To contextualize these two main hypotheses, the initial theoretical focus of this research is in order to understand the ontological being, not necessarily seeking the formalization of a semantic concept proper to the human person, but, rather, in order to verify its forms of construction and its today's importance, in order to establish the extent to which they sponsor or disprove the notion of human personality or its strength in contemporary time and space. At this mid-term stage, this thesis is tangentially based on a criticism of the completeness system with which the positivist legal phenomenon was adopted in many countries, thus proposing a dimensioning of the subjective right in favor of the realization of the human personality. The analytical material built within this work should allow, throughout this study, some philosophical, theoretical and legally structured criticisms to the false ideal of materiality with which the Law is currently justified around the overvaluation of the principle of the dignity, but that does not conducts to the emergence of a personality as an ontological substrate for the main purposes of the human person, understood as a category of realization, in the legal world, intended for human existence. As it affects human and social sciences, this research has an eminently descriptive, qualitative and critical treatment. The method selected to ensure the exact alignment with this research was the hermeneutic-phenomenological, that has the magnitude of delving into the intricacies of human history to the present day, in order to proceed with the reduction, transcendence, renegotiation and resignification of some of its standards, in favor of a very firm foundation for the human person and his personality, which gives support to the Law to face the idea worked in this research, based on the results of Modern era fate. By way of general conclusion, we tried to emphasize in this work the ethical commitment to instill in the social mentality in general and, in particular, to interact with the academic, scientific communities, and among jurists, about the relevance of defending and promoting what can be called as the essence and fundamentality irreducible of human being, which covers the human personality, so relevant to the directions in whom legal order is spreading today.