Legal validity and moral correctness : the problem of unfair law in John Finnis's legal theory

Resumo

There is no doubt that the debate on the question of the essence of the law has not lost any use at all. In spite of the fact that Hans Kelsen’s rigorous positivist formalism was overcome in relation to the link between law and morality; in the current philosophical debate, it is possible to draw another great dividing line between conceptions of law, analogous to that formerly given between iuspositivism and iusnaturalism: positivism and non-positivism. This paper intends to make known the debate between two distinguished representatives of the latter: on the one hand the German philosopher and jurist Robert Alexy, who has constructed his juridical theory from the influence of the Kelsenian positivism and the legal naturalism of Gustav Radbruch, and the principal representative of the New School of Natural Law, John Finnis, who comes from the Analytical School, and has constructed his theory of law on the basis of postulates of the classic naturalus of Aristotle and Thomas Aquinas, sifted by the proposal Metathetics of Germain Grisez. The focus of the debate is on the concept and scope of legal validity, as a key concept to address the link between law and morality.