Para além da pessoa? Uma crítica da crítica ao conceito de pessoa de Hans Kelsen

Abstract

This thesis is the result of a research into the concept of person in the work of Hans Kelsen. Tracing its foundations from the work “Society and Nature” and analyzing the texts of “Pure Theory of Law” and “General Theory of Law and State”, the kelsenian concept of person – a unity of rights and duties – is presented in conjunction with the author’s refusal to conceive of non-human conduct as an object of legal norms. Due to this denial, which links the “person” to the human, František Weyr and Josef Slezák, representatives of Czech normativism, criticize the kelsenian concept. They accuse it of bringing is and ought closer together, since it would prescribe normative content. The Czech authors argue that Kelsen should maintain the descriptive character of his legal science. For the concept of person, they suggest ad hoc solutions that are equally permeated with a mechanistic vision that offers constraints and challenges to contemporary adaptation. The second part of the thesis confronts the kelsenian concept, under criticism, with current empirical studies that fray its limits and shake its foundations. The biggest challenges are found in militancy for non-human rights. The use of recent cases, as well as science fiction, helps the text to highlight the limits of the Kelsenian concept of person. After the “internal” criticisms, from Czech normativism, and the “external" ones, based on the insufficiency of the concept to encompass contemporary phenomena, the “General Theory of Norms” is presented, especially its chapter 22. In this chapter Kelsen replaces “human” conduct as the only one capable of being the object of a legal norm, with the conduct of a being endowed with reason and will. From there, a reinterpretation of Kelsen's concept of person is proposed, which relativizes his anthropocentrism. The removal of the human as a fundamental requirement of the person in a legal sense, with its replacement by the need for reason and will in an entity, whose conduct will be the object of legal norms, gives space to a logocentrism that is still exclusionary. The kelsenian concept of “person” survives “internal” critics, after being patched up by the “General Theory of Norms”, but it is insufficient to deal with the non-human phenomenal plurality of contemporary times.