The transformations of the contemporary Law theory in the context of the trinomial: moral-principles-discretion - an approach within the boundary of “The Concept of Law” from Hebert Hart

Abstract

The concept of Law produced by the modernity was sitting on what has been theoretically developed by the juridical positivism. With the transformations occurred in society and also on the Law theory the juridical contemporary paradigm is characterized by the trinomial moral-principles-discretion, that is, a) for the predominance of using of principles, b) for the incorporation of morality to the Law, and c) for the recognition of the judges’ discretion power. Because of that, the query for the concept of Law seems to gain a new answer forged from what has been academically denominated of postpositivism. In this context, the goal of this article is to analyze the juridical positivism of Hebert Hart with regards to the question of Law conceived as a system of rules and the criterion of choice in the Law interpretation, establishing at last a parallel between its proposal and the current transformations through which the theory of Law goes through.