2012. évi 2. szám - Jura - Pécsi Tudományegyetem

Andityas Soares de Moura Costa Matos: An alternative approach to the basic norm …137Andityas Soares de Moura Costa Matos*Professor at Minas Gerais Federal UniversityBelo Horizonte, BrazilAn alternative approachto the basic norm:logical-transcendentalhypothesis, fiction or scientificpostulate?1. IntroductionBy focusing on the practical meaning of legal positivismin the contemporary debates, we are tempted torevisit Kant, for whom, on the one hand the practicewithout theory is blind and, on the other hand,theory divorced from practice is useless. However,this would be a way to end the discussion, ratherthan to start it. It seems obvious to anyone that thefunction of scientific theories, at least nowadays, isnot limited to a disinterested contemplation of reality,as the Greeks wanted, but rather serves to solvehuman problems, albeit facing the inevitable riskof turning itself into ideology, a risk that, to paraphraseKelsen, is part of the honour of science Kelsen(1998b, 25). It does not seem possible to understandscience – especially legal science – as a set of neutral(“uninterested”) descriptions of the reality. If there issomething justifies scientific knowledge, it is beyondany doubt its ability to help us understand the worldin order to try to change it at a later stage.From this perspective, we are able to understandthat legal positivism does not intend to be neutral,but rather non-evaluative. Unlike what is claimedby its critics, there is an ideology which sustains anyform of legal positivistic thinking, as I will attemptto demonstrate throughout this essay. Nevertheless,to admit the ideological nature of legal positivism’sform of knowledge – which is a feature that pervadeseach and every type of human knowledge – shouldnot lead one to give up the values of academic rigourand methodological control; in fact, what it does meanis merely to reinforce them. Therefore, to look at one’sobject of inquiry as closely as possible is not, as the* Ms.C. and Ph.D. in Law Philosophy by the Minas GeraisFederal University (Belo Horizonte, Brazil). Law PhilosophyProfessor at Minas Gerais Federal University (Belo Horizonte,Brazil) and FEAD’s Law Graduation Course (Belo Horizonte,Brazil). Director of Brazilian Journal of Political Studies (ISSN0034-7191)post-modernists would claim, heresy or nonsense. Itis rather a gnoseological attitude which choses to describethe reality through judgments of fact, repellingthe pseudo-scientific theories based on judgments ofvalue. It is this kind of attitude that constitutes thestarting point of the ideology of legal positivist.Although one can criticize this proposition byclaiming that a description of the reality throughjudgments of value is more convincing or politicallyprofitable – or even quarrel with the definitions of“fact” and “value” –, it does not seem permissibleto sustain that there is simply no difference betweenthese ontological concepts, which are the fundamentaldistinctions from which any form of legalpositivism must start.For developing methodologically controlled narrativesof the juridical reality, thus failing to give anopinion on the social or axiological adequacy of theobjects of inquiry, legal positivism was attacked bypractically all other schools of legal thinking, fromthe realists to the self-proclaimed post-positivists.The major objection raised against legal positivistsasserts that a type of science which is incapable ofproviding criteria for action, that is, which is limitedto describing things as they are, is, in a few words,an useless science. Thus, it seems urgent and necessaryto deepen the debate on the role that a positivistunderstanding can perform in legal practice. Insimpler terms, we wonder how the conceptual apparatusdeveloped by legal positivism since the latenineteenth century can help lawyers in their dailywork. It is not simply to offer simplistic answers,such as the ones formulated by Kant, who statedthat theories are necessary to well informed practice.This is truism. To be useful, the debate needs to beverticalised and to discuss to what extent certainconcepts and structures of legal positivist thoughtare, despite their theoretical nature, necessary for thedaily practice of law. Well, among the various legalpositivist constructions without which legal practiceseems unthinkable, we selected what is perhaps themost problematic of all and is considered by manyauthors as the “Achilles heel” of the most consistentlegal positivist system ever proposed. We refer toKelsen’s basic norm.According to the enemies of legal positivism,who classify it as a flawed theory and unworkablefor the practice of law in hyper-complex societies,the basic norm is equivalent to nec plus ultra of theoreticaldelusions, it doesn’t play any effective rolein the juridical work. So it deserves to be forgottenor, at best, preserved in the footnotes of Philosophyof Law books, where it would be exposed as an idleand intriguing museum piece, a symbol of ancienttimes, when legal scientists were all fools.JURA 2012/2.