A tensão entre faticidade e validade no direito segundo Habermas


  • Aylton Barbieri Durão Universidade Federal de Santa Catarina


 In Faktizität und Geltung, Habermas shows how modern right evolved functionally to perform the role of intermediary between social systems and the world of life, by making it possible for a reciprocal translation of communicative rationality into strategic rationality. For that purpose, the right adopted the juridical form, which Habermas explains by means of the reconstruction of the Kantian concept oflegality and which is manifested in the different levels of tension between facticity and validity. Such tension may be either internal or external; internal, since the juridical form may be obeyed as a fact that imposes sanctions or through the citizens’ consensus, the system of rights is divided intosubjective rights and rights concerning participation and communication; furthermore, the state of right oscillates between the normative pole (right) and the instrumental pole (politics); and external, due to the moments of inertia that make it difficult for the formation of deliberative politics as well as the transformation of international right into cosmopolitan right