O PARADOXO DA LIBERDADE JURÍDICA NA METAFÍSICA DOS COSTUMES

Abstract

The article has as its object the reflection developed by Immanuel Kant on legal freedom in his Metaphysics of Morals. The problem identified consists of understanding how freedom, although understood as a way of non-submission to the will of others, can only be conceived through acts of coercion that ensure submission to the will, as long as this expresses the preservation of the former. The supported hypothesis points to a kind of paradox in the Kantian concept, which can only be deciphered to the extent that it is admitted that free action is thought of as inherently limited. To this end, we resort, as theoretical support, to the thoughts of Hans Kelsen, developed in his Pure Theory of Law. Thus, unlike the absence of limits (which would apparently lead to the concept of freedom, but, deep down, would only result in a kind of anomie or anarchy) this (freedom) can only be thought of as a limitation in itself, that is , as an intrinsically limited scope of action. The conclusions reveal that Kant's concept of legal freedom is far from its vulgar formulation in the sense that the subject is authorized to do whatever he desires or is, from a material point of view, able to do. The method used is hypothetical-deductive, as formulated by Karl Popper.