Kelsen e Nietzsche: aproximações do pensamento sobre a gênese do processo de formação do direito

Abstract

The work has the purpose to investigate the genesis of the process of formation of the law. Recognizing the right while a human creation, a product of the language, the proposal aims for a genealogical study of the law that returns to the origins of its obscure senses. This return is ruled from the examination of the relations in the primitive communities that indicates the true polemics on the process of formation of the law. This study makes possible a rescue on the legal forms and in the conceptions of law itself, promoting means for his best understanding, critics and applicability. For this, the proposal claims a radical joining between two thinkers who apparently are distanced philosophically, but, however, are shown at least in this field, similar and complementary. Kelsen in the work Vergeltung und Kauslatität presenting his etnological study on the principle of retribution and of the causality, from the primitive communities and Nietzsche in the Second Dissertation of Genealogy of moral presenting his theory on the (pre)history of the humanity, that initiates with the creation of the memory and occurs in a context completely determined by concepts and legal categories