De la dialéctica entre los conceptos de legalidad y legitimidad. Un acercamiento a la idea de Derecho en los conocidos como Estados de Derecho

Abstract

The paper tries to emulate, according to the relationship between political philosophy and iusphilosophy, the well-known tension inherent in the Law, namely, the difficulties that it faces when forced to combine the postulates of positivity and foundation. In this way, the necessity of a conception of justice is revealed as an endorsement for the legality of a State that claims to be legitimate. The main intention of the text, according to the positions of the authors who have been an historical reference on this issue, is to show accurately the dialectic of the iusphilosophyc concepts. So regarding to the confrontation of the proposals of John Rawls, Carl Schmitt and Max Weber, it is intended to create a whole image about the dialectic between legality and legitimacy, in its political development and in its legal operability in the so-called “States of Law” which are only parliamentary legislative Democracies. The aim is to bring up this subject to the present in a way that allows us to discern issues such as the legitimacy of non-democratic states, as well as the difficulties that Law faces in post-capitalist democracies.