A dignidade da pessoa humana entre o pós-positivismo e o realismo jurídico clássico: fundamentação dogmática e fundamentação ontológica em diálogo

Abstract

The dignity of the human person was enshrined as a foundation of the Republic by article 1, section III, of the 1988 Constitution, yet its practical use follows a troubling pattern: it justifies opposite conclusions on issues such as the criminalization of homophobia, abortion, euthanasia and the existential minimum. Daniel Sarmento called this phenomenon "pan-principialism". The article takes it as a starting point to state its research problem: is there a foundation capable of giving dignity a stable material content, one that separates legitimate invocations from mere rhetorical devices? The answer unfolds in two movements. The first reconstructs the Brazilian post-positivist path through Fábio Konder Comparato, Ingo Wolfgang Sarlet, Daniel Sarmento, Luís Roberto Barroso, Ana Paula de Barcellos and Maria Celina Bodin de Moraes, indicating what each author adds to the dogmatics and where the foundation remains incomplete. The second sets against this picture the ontological foundation of Javier Hervada's classical legal realism, for whom dignity is the ontological eminence of the person — an individual substance of rational nature, endowed with incommunicability, freedom and sociality — rather than a product of principled balancing. The research is qualitative, bibliographic and deductive. It concludes that the two traditions do not compete for the same ground: post-positivism supplies the dogmatic instruments to operationalize dignity within positive law, while classical realism gives those instruments the material anchor that shields them from rhetorical manipulation.