The Legitimacy of the Legal Order in the Model of the Contemporary State of Law

Abstract

The objective of this work is to analyze the fundamentals the foundations of the legitimacy of the legal order in the mold of the contemporary State of Law. This analysis is subsidized, a priori, from the weberian historicist notion, which comprises the appreciation of the main types of domination that have been exercised throughout human history, such as charismatic domination, traditional domination, and, finally, the object on which will rest the theories that outlined the present study, the legal / rational domination. Once the diagnosis of domination elucidated by Weber is presented, the theories of Hans Kelsen (Pure Theory of Law) and Jürgen Habermas (Theory of Communicative Action) are analyzed, with the intention of delineating the understanding of the fact that generates the legitimacy of Law. With the Kelsenian scientific positivism demonstrated by the Pure Theory of Law, we analyze the legitimacy that, for the author, is translated into the elaboration of a legal system backed by the static and dynamic principle, being the right legitimized by being under the sieve of a fundamental norm (Grundnorm). Subsequently, the analytical study is subsidized in the Habermas Theory of Communicative Action, by which it moves away from the scientific technicism, approaching the moral and the communication as a way of arriving at the consensus, in which, according to the author, the legitimacy of the legal system. As for the methodological approach, priority was given to qualitative research and, as a procedural technique, bibliographical research. The analysis of secondary data was carried out in a descriptive way. Finally, it can be concluded that the scientific-theoretical theoretical framework of Kelsen's pure theory can generate legitimacy for dictatorial and undemocratic governmental regimes, simply because the order is statically based under a fundamental norm (as in the case of the german national-socialist regime, that, after defeat in World War II, used Kelsen's theory as a defense during the Nuremberg Trial. Habermas takes a different approach, he understands that the legitimation of the norm does not come by pure and simple adaptation to another hierarchically superior norm, but it is through the practice of communicative action, where the interlocutors arrive democratically to a consensus, being thus, coauthors of the standard to which they are submitting. Habermas conceives the complexity of society and understands that law would be the tool for maintaining social order. However, law is established through competent bodies to do so, in this point, the need for politics is brought, which must be based on fundamental principles capable of perpetuating the possibility of discourse and communicative action, so that Thus establishing legitimacy. In this way, Habermas sees the importance of the structural conception of the law that Kelsen exposes in the static principle, making that conception become primordial even for the maintenance of the legitimacy based on communicative action.