Contratualismo e disposições morais: uma crítica à tese da inseparabilidade do direito e da moral e à tese sobre a existência de leis naturais

Abstract

In this paper, I discuss two different interpretations about the thrust of a natural law theory. According to the first interpretation, a natural law theory is one which commits itself to the thesis that the concept of law is “inseparable” from the concept morality, while the second interpretation assumes that there are “natural laws”, that is laws the existence of which does not depend on the existence of human institutions. I try to show that both theses are false. I show that the confusion between the two theses stem from a failure to comprehend the distinction between propositions of the kind “to be forced to” and “having the obligation to”. Then, I show how moral contractualism enables us to solve some questions which are not satisfactorily solved within the conceptual framework of the two versions of a natural law theory which I present here.