A metodologia na teoria da lei natural de John Finnis: propósito prático, caso central do direito e crítica à tese da neutralidade

Abstract

Our purpose in this study is to analyze John Finnis' methodological claims about the nature of jurisprudence. According to Finnis, a legal theory is successful when it relates description and evaluation considering the normative principles of natural law. The Finnissian argument was developed in the first chapter of his great work, "Natural Law and Natural Rights" (1980). However, it is necessary to clarify the argument using other references. Thus, we presented it without forgetting some central aspects of his natural law theory and the challenges of neutrality thesis, which is the most relevant theory against Finnis' natural law methodology. In the first chapter, we brought up some basic premises that structure Finnis' natural law conception. They are the natural law as a ground of human action, the four domains of reality and the law‘s practical point. In the second chapter, we analyzed the instruments used by Finnis in his main book. They are the interdependence between description and evaluation, central case and focal meaning, the relation between focal meaning and Max Weber's ideal type, the necessity of a practical viewpoint and the role of spoudaios in a general theory of human affairs. Finally, the third chapter is dialectical, which means that after an exposition of the development of analytical jurisprudence, we aimed to criticize, from Finnis‘ point of view, the ―neutrality thesis‖ that characterizes the methodological project of legal positivism. Finnis argues that H. L. A. Hart‘s theory suggests a natural law interpretation. In short, our purpose is to analyze John Finnis' natural law theory in the methodological debate‘s context related to the task of legal theory.