Vontade e representação: Um diálogo entre a soberania e a legitimidade jurídica na sociedade contemporânea

Abstract

The aim of this study was to understand how sovereignty relates to legitimacy developed from a legal point of view and what implications arise from this arrangement. In this sense, the vision of legitimacy was discussed considering the bourgeois liberal Law, embodied in the theoretical axis by Kelsenian normativism, which, according to the perspective of the study, appropriates the constitutive elements of the sovereign sign, replacing the idea of politics underlying this sign with that of the legal system, thus demanding the differentiation of the legal and political fields, for the reallocation of legitimacy as a matrix of representation justifying the social body. Kelsenian normativism in this study is based both on Das Problem Der Souveränität Und Die Theorie Des Völkerrechts, 1920, and on the condensation of the Austrian author Hans Kelsen's thinking, expressed in his seminal text The Pure Theory of Law, 1934. In addition, two other main authors were used in the construction of the thesis, firstly Jean Bodin, because the concept of sovereignty comes from his work The Six Books of the Republic, 1576, and to this end all the chapters of Book One were analysed and commented on as a conceptual framework capable of allowing the insertion of such a concept in the centralization of power later assumed by legal liberalism. Secondly, Carl Schmitt, whose work Political Theology, 1922, made it possible to analyze the dimensions of the sovereign within the larger framework of a critique of Kelsenian normativism. The study of Carl Schmitt's text refers only to the first Political Theology written in 1922 and not to the second theology published in 1969. The ideas brought up in the analysis of Schmitt's writing made it possible to discuss the role of the sovereign as the instaurator of order through the suspension of law by means of the exception. The theoretical keys of these authors made it possible to perceive the interface between political and legal elements in a constitutive dialogue of will and representation in the face of legitimacy and, in answering the questions proposed by the thesis, it was possible to demonstrate that the attribution of legitimacy to the Law cannot derive solely from its own set of normative production techniques, which it provides for in exclusive legislating processes, and even less from idealistic categories drawn from a conceptual basis that claims to be justified only by the probable and attributable universality of a hypothetical norm.