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RESEARCH ACADEMY

RESEARCH

Theory and Philosophy of Law

Analytical Theory of Law

projetos
Responsible Researchers:
Pedro Moniz Lopes
Financing:
UIDB/04310/2020
Project Status:
Ongoing
projetos

Summary

The traditional view of the analytical theory of law is currently based on several mistakes, of which two can be highlighted. On the one hand, contrary to the reductionism that is traditionally associated with it, the realisation of legal science, when viewed from the perspective of the analytical method, constitutes a privileged stage for interdisciplinarity, bringing about the confluence of the most varied scientific branches. Just think about the relevance of (i) semiotics and linguistics (in the variants of semantics, syntax and pragmatics) for interpretation, of (ii) logic (propositional and predicative) for the determination of normative conflicts, of (iii) epistemology for knowledge of law and (iv) neuroscience to understand the decision-making process. The project's contribution fits precisely into the deepening of general legal science with the contribution of all adjacent sciences called together. On the other hand, the theoretical dimension inherent to the analytical method, although cut at a tangent for philosophical reasons, is always oriented towards the practical resolution of legal problems: it aims, ultimately, at the concrete realisation of the law. On this last level, the development of the analytical method culminates, with an identical degree of importance, both in the explanation and justification of legal conclusions considered correct, and in the critical identification of unscientific achievements of law. At the current level of legal science – namely constitutional science, where the discourse of law is often mixed with discourse about law, rhetoric is abused and conclusions conditioned on world views and other non-universal assumptions are generalised – it is considered to be of all relevance to the fundamental purposes of the project: the isolation of the law that is from the law that should be.

Objectives

Definition and critical analysis of the main postulates of analytical theory within the scope of general science, in particular: (i) the consensually established conditions for carrying out scientific activity; (ii) the falsifiability of theories; (iii) the various conceptions of truth; (iv) the definition and overcoming of scientific paradigms; and (v) the delimitation of the space for metaphysical discussions and the possibility of evidence in the demonstrative process of theories (the explanandum and the explanans). Discussion on the issue of the contingency of the law and its consequences; the definiendum and definiens of law and the separation (or separability) between law and morals; relevance in current legal science and its main theories: (i) the contrast between positivism (in multiple theoretical, ideological and methodological definitions), jusnaturalism (and ethical cognitivism), post-positivism, realism, pragmatism and argumentativism, among others; (ii) analysis of hard concepts involved in each of the theories: the central concepts of validity (in its systemic, ethical and sociological variants), applicability, efficacy and effectiveness. Contribution to the description of the analytical phaseology of the process of concrete realization of the law: (i) description of the «rules of the game»: the rule-based reasoning and the primer of arguments that can be adduced as grounds for a legal conclusion; the legality, deducibility and validity of argumentative maxims and respective conditions: arguments a fortiori, amaiore ad minus, a contrario sensu, etc.; (ii) the contributions of neuroscience to the legal decision-making process: epistemological and psychological issues involved. Definition of the foundations, methods and conditions of interpretative activity, in its multiple theoretical variants: (i) analysis of the main interpretative schools – in particular, cognitivism, law as integrity and skepticism (“ascriptivism”); (ii) definition of permissible interpretative methods, conditioned to a given legal system (Portuguese), together with the list of relevant interpretative arguments, including conflicts between them; (iii) understanding of theoretical disagreements and their impact on the various interpretative results, with emphasis on the (in)admissibility of so-called error-free disagreements. Approach to theories of sources of law: (i) formal theory and material theory of sources in contrast between positivist, jusnaturalist and realist theoretical schools; (ii) analysis of formal and volitional law creation processes, as well as so-called informal (and involuntary) processes. Analysis of the completeness, near-completeness or incompleteness of legal systems (and subsystems) and the operability of closure rules: (i) the definition of gaps (normative, recognition, knowledge, axiological and technical) and the conditions for their existence; (ii) definition and critical analysis of conceivable alternatives: (a) the necessary completeness, (b) the necessary incompleteness and (c) the contingent completeness of the systems. Analysis of the consistency or inconsistency of legal systems (and subsystems): (i) definition and critical analysis of conceivable alternatives: (a) the necessary consistency («coherence»), (b) the necessary inconsistency and (c) contingent inconsistency systems; (ii) the conditions for normative conflicts and the grounds for the defeasibility of norms; (iii) the use of logic in detecting normative conflicts in the context of the possibility of a logic of norms (Jørgensen's dilemma and the possibility of a Normenlogik); (iv) the conditions for the use of conflict resolution rules (lex superior inferiori derogat, lex posterior anterior derogat and lex specialis generali derogat) and the interaction between them. Understanding of weighting, in its variants of a (i) discretionary activity, specifically in the context of (ia) subjectivism and (ib) moral intuitionism, and of a (ii) activity endowed with a minimum of rational control, specifically in the context of (iia) particularism and (iib) universalism. Given the consensually assumed importance in the analytical scientific community, natural importance is given to the analysis of the Alexyana weight formula in the context of the so-called principlist theory, applied to cases of fundamental rights, namely contained in constitutional, national and foreign jurisprudence.

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