Heterodox Logic and Law: Topics for a Report on Philosophy and Hermeneutics

AutorMaria Francisca Carneiro
CargoDoutora em Direito pela UFPR. Mestre em Educação pela PUCPR. Pós-doutora em Filosofia pela Universidade de Lisboa
Páginas22-30

Logics - more specifically the Het-erodox Logic - rises up in order to reveal, from its own fundament, significant conquests for law and science in general. To recapitu-late the classical question ofthe logic of law or to review its his-tory in reference to norms taken individually is not the purpose of this paper, but to start preliminary considerations about it with the philosophical approach for juridic sciences focusing on Heterodox Logic. It begins by considering how contradictory theories and incompatible questions in juridi-cal hermeneutics can be objec-tively treated by the philosophy of Heterodox Logic. To speak about the insertion of new logics in ju-ridical thought means to establish other criteria to guide the intuitive concept of truth and coherence in law, considering that what is most noteworthy are the pragmatic con-sequences of that truth. The central thesis of Heterodox Logic applied to law is that intuition resides in uncertainty, ambiguity, vagueness and inconsistency without trivial-ization, in the operation of contra-dictions and complementarities, as demonstrated by the theorems that validate them. This event can be profound for law, in the sense that it signifies a change of paradigm in the present juridical theory. Be-sides, the practicability of comple-mentariness between systems and subsystems may require the intro-duction ofa new field for the really scientific investigation of law, but the successful use of Heterodox Logic in law infers a change in the intellectual attitude in the sense of understanding based on intuition-ism, since the concept of comple-mentarity inherent in Heterodox Logic presupposes the non-neces-sity of mutual exclusion, so that incompatibility between systems does not mean that one must (but only may) exclude the other one. Thus, new questions are relevant to some problems referring to law structure, that is, to juridical orderings. Juridical norms can be analyzed separated, or in larger or smaller groups. They can also be analyzed by the way they organize themselves, as we intend to do. Such a task, however arduous and extensive, cannot be circumscribed within these pages. Yet nothing prevents us from examining some ofthe fundamental concepts ofthe question. Firstly, let us agree that in order to have a notion of structural matters of law there is no sense in speaking of a norm but rather of aplurality of norms, composing systematic groups termed "juridical orderings". Next, we shall look in short brush-strokes at some ofthe basic concepts and questions that affect them. In a quick incursion on the theories of ordering and of systems of law, it is possible to say that, although there is a remarkable methodological evolution, going from the most rigid forms tradi-tionally symmetrical and static, to the more fluid, plural, and flexible concepts, it is clear that contra-dictions can be found in some formulations. If these problems are inherent to law (by its very nature and objective), we need a way to deal with them. There lies the role of Heterodox Logic. The impor-tance of hermeneutics is unques-tionable in the theoretical construc-tion of law, particularly for feeding the human and social nature of that knowledge. Nevertheless, it is impossible to deny a certain "epis-temological crisis" at the moment in positive law, in regard to the complex social issues, for which the jurisdiction will have to be, as far as possible, scientific, precise and satisfactory

Page 23

1. Prolegomena to heterodox logic in law

To speak about the inser-tion of new logics in ju-ridical thought means to establish other criteria to guide the intuitive concept of truth and co-herence1 in law, considering that what is most notable are the prag-matic consequences of that truth. Of course, this assertion implies a fair amount of plausibility if we take into account the indispensabi-lity of analysis in regard to the pro-venance of a theory.

The central thesis of Heterodox Logic applied to law is that the intuition2 resides in uncertainty, ambiguity, vagueness and incon-sistency without trivialization3, in the operation of contradictions and complementarities, as demonstra-ted by the theorems that validate them, and implies adequate mo-difications in the notion of deduc-tion.

Now, this event can be pro-found for law, in the sense that it signifies a change of paradigm in the existing juridical theory, accor-ding to reasons we shall examine inthe following sections. Thus, the impasses that prevent the continui-ty of large and small debates and, therefore, the finding of adequate solutions to various present de-mands can be overcome.

Besides, the practicability of complementarity between systems and subsystems may provide the introduction of a new field for the scientific investigation of law.

There is also the facilitation of policies, if we so wish, in the com-position of some kinds of herme-neutics in lawsuits that now can be operated differently by Heterodox Logic.

However, the successful use of Heterodox Logic in law infers a change in the intellectual atti-tude in the sense of comprehen-sion based on intuitionism4, since the concept of complementarity5, fundamental in Heterodox Logic, presupposes the non-necessity of mutual exclusion so that incompa-tibility between systems does not mean that one must (but only may) exclude the other one.

That logic, besides its comple-mentariness, makes possible the interchange between different planes of language, which in terms of established deduction would bring up a breakdown of reasoning.

By making possible comple-mentary non-monotonic opera-tions, Heterodox Logic facilitates access to resources between different language s so as to contribute to the results of what is conventio-nally called "scientific truths", in-sofar as such "truths" can be enlar-ged by operations non-reciprocally excluded from among the models they originate.

In relation to law, the patterns are constituted by facts, values and norms. By composing a spectrum which encloses consuetudinary, pretorian, legal and sociological components on which the jurisdic-tional contribution lies, it is of the utmost importance to dispose of a logical, consentaneous and adequate instrument for the scientific handling of these elements and a decisum unhindered by vagueness and inconsistencies, contradictions or trivialities. Since each one of the planes of the spectrum may be considered as a different degree, it is necessary to synthesize it in one crucial process.

In such situations when an infe-rence of non-monotonic order con-tradicts the conclusion, instead of excluding one of the possibilities, both should be maintained, and it is then possible to operate them he-terodoxically.

However, some adjustments will have to be provided. One of them concerns the non-simultanei-ty condition in appreciating pheno-menons imposed by Heterodox Logic for an adequate description of the situation. In law, whose order is structured on the basis of the causal nexus of imputation, the supposi-tion of succession in time6 between the precedent and the consequent is fundamental. As we see, new po-etics of the intuition of time are a l 'ordre du jour7, since the traditio-nal characteristic of "atemporality" of logic as knowledge, accepted by the majority of scholars, is maintained in Heterodox Logic. Yet, it is antecipated that this situation of temporality as a prerequisite of one knowledge faced with the atemporality of another will not scientifi-cally involve serious consequences; except for philosophical ones.

Besides, juridical thinking has gathered volume in its histori-cal tradition by its argumentative and logical character that became the rationality of law such as it is nowadays; and according to Pe-relman8, temporality is a characteristic (and even a condition) of juridical argumentation.

The clamor about the atempo-ral character of logic, as opposed to the need for temporality in juridical argumentation and rheto-ric, constitutes an aporia or a va-riable vindication which does not alter the results of the theoretical course of these matters. Meanwhi-le, it is necessary to think about the connection time/knowledge as did, among others, Kant9, Bache-lard10 and Terré11.

The fact is that "la structure de la norme n 'est donc rien qui sepro-duirait dans la nature, mais un modèle scientifique d'interprétation des conditions d 'établissement et de fonctionnement des prescrip-tions juridiques", as Müller12 points out. Until now, norms in-cluded a univocal character in whi-

Page 24

ch contradictions were insolvable. Therefore, it is essential to consider the impact that the application of Heterodox Logic may exert in the structured sphere of law. The nor-mative properties more easily iso-lated, typified, and controlled may constitute a fair sample for the be-ginning of the experiment that serves law even as a reflection about the degree for which scientific practice acquires rational bases13.

Many questions would emerge from what we exposed, and everything points toward the threshold of a new moment in kno-wledge where "knowledge in itself consists of saying and doing what is revealed, in a pertinent listening, along with and according to what surges by itself”14. Besides, this re-markable apanage of logic, which consists in self-establishing con-cepts and evolves scientifically, starting from what it constitute s by itself, is a compelling methodolo-gical counterpoint in law which, in its analogical15 matrix of inductive nature, held axiomatically as the general principles, uses knowledge in order to legitimize others in composing different planes of rea-lity and languages related to them. Heterodox Logic may also...

Para continuar a ler

PEÇA SUA AVALIAÇÃO

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT