La huella del miedo en la filosofía del derecho. Itinerarios de Hobbes y Kelsen

Abstract

In this paper, the author, parting from an account of the idea of fear as a deconstructable object that helps to stablish an approach to Philosophy, points out that such a concept has been used by Hobbes, as well as by Kelsen, for the development of their theoritical and philosophical thought. In this context, the author points out that Hobbes, by fundamenting the emergence of the state in an agreement with the sovereign, fundaments the state parting from an idea of a concertated pact reached through the king’s fear of death. Such a pact expresses itself concretely through civil obedience, in which punishment plays a center role. On the other side, Kelsen arguments that legal communication takes place parting from the principle of retaliation, having vengeance as its origin. Kelsen points out that, through the pure science of Law the sovereign fiction takes a new meaning, which helps to approach a new interpretation of retribution, which implies an interpretation of punishment and retaliation.