A hermenêutica jurídica de Gustav Radbruch
This article intends to identify the premises of the hermeneutical treatment of the science of law as proposed by the most important German legal philosopher of the 20th century, Gustav Radbruch. The relevance of the clarification of these premises involves two levels. First, from the historical sta...
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2016
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=5523861 |
| Source: | Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD), ISSN 2175-2168, Vol. 8, Nº. 1, 2016 (Ejemplar dedicado a: Janeiro/Abril), pags. 18-27 |
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| Summary: |
This article intends to identify the premises of the hermeneutical treatment of the science of law as proposed by the most important German legal philosopher of the 20th century, Gustav Radbruch. The relevance of the clarification of these premises involves two levels. First, from the historical standpoint, understanding the juridical hermeneutics proposed by Radbruch enables a broader comprehension of the Freirechtsschule. It is claimed here that this school was crucial to the later law theory because of its critique of the traditional methods of juridical interpretation, thus enabling the emergence of the three most important streams of 20th century law theory: objectivism, subjectivism and normativism. Second, from a philosophical perspective, the study of Radbruch’s hermeneutics enables the comprehension of how the treatment of juridical knowledge as a cultural phenomenon is possible, without defending at the same time the complete abandonment of its scientific character. The juridical hermeneutics proposed by Radbruch has the virtue of conducting a productive dialogue with the study of legal dogmatics as the modern form of law science, which is an even harder task, as the adepts of philosophical hermeneutics tend to agree. Radbruch’s main theses on the phenomenon of interpretation in law are: (a) juridical interpretation consists in the mediation of the objective meaning of a legal system; (b) mediation means the scientific treatment of law as an essence of positive and general norms for social life; (c) the objective meaning is not determined by the legislator’s intention; (d) the objective meaning presupposes the construction of a whole as a juridical institute or legal system; (e) the construction of a juridical institute or legal system is realized by means of the true juridical concepts of the categorical and teleological type; and (f) law as a whole ultimately depends of a decision made by the one who applies the law for one of the potential objective ends.Keywords: Radbruch, legal hermeneutics, free law movement, Neo-Kantianism, interpretation. |
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