Os elementos entitativos do ius naturale em São Tomás de Aquino: a pessoa humana, a justiça e a existência do direito natural

Abstract

A perennial problem of the legal philosophy, the relations between natural law and positive law are often subject to disjunctive interpretations. Most contemporary academics subscribe to the legal positivist view of the law and morality separation. Even among some supporters of jusnaturalism, especially in universities in the English-speaking world, David Hume's meta- ethical thesis prevails as the founding theory of philosophical studies on the concept of law. Moreover, several studies on the theoretical status of law based on epistemology and philosophy of language have acquired ground. In post-modem times, the Critical Theory of Law questioned even the traditional structure of legal studies. Opposing this scenario of legal ideas, this research understands that there is a gap of studies: a renewed perspective on classical natural law. Defending the possibility of deducing prescriptive norms from descriptive norms, this dissertation examines the entitative elements of natural law based on the philosophy of Saint Thomas Aquinas. First, the studies inform the contributions of Thomistic logic necessary to the development of the theme. Then, they present the philosophical foundations of the research. Moreover, they review the state-of-the art of the interconnections between law, justice and legal reality as inherited by Aquinas. Then, they analyse the works of Aquinas in order to apprehend the quiddity of the ontological entity "natural law". Afterwards, they judge those abstracted elements according to their convenience in relation to ontological existence and essence. Finally, the dissertation argues on the conclusions of the research undertaken. This study provides two interpretative keys to significant legal philosophy topics. The first of them proofs the existence of natural law as provided by classical philosophy. The second one demonstrates that realisation of law must consider the human person and the idea of justice, because they compose the natural core of legal reality. The boundaries of this work allow for the studies to suggest that further research can expand upon the topics that have been examined from multiple angles of scientific investigation. An assessment of metaphysical and historical orders or their link to the Thomistic ius naturale concept in particular scenarios can also enhance the theoretical standing of legal studies