A teoria reconstrutiva do direito. Notas sobre a gênese lógica do sistema dos direitos fundamentais em Habermas

In this article I seek to show that Habermas’ reconstruction of the logic genesis of system of rights is an attempt to clarify the meaning of constitutional practice, reducing it to two factors, the principle of discourse and the concept of legal form. The principle of discourse can be the subject of an internal reconstruction, by which the participants of deliberative practice can recognize it as inherent in the praxis, because the principle of discourse rests on presuppositions of language socialization in general. On the other hand the legal form can not be derived from the conditions pragmatic of language and needs a reconstruction of another type, just a theory of social evolution.