Sistematicidade, universalizabilidade e distintividade na interpretação jurídica

Abstract

The paper aims at mapping a contemporary controversy in legal theory: the controversy between interpretivism (Dworkin) and its critics, coming from several currents of legal thought, such as the critical legal studies (Unger), analytical positivism (Schauer) and post-positivism (MacCormick). Specifically, the hypothesis of the article is that this trio of authors selectively recovers aspects classically associated with legal formalism – such as the distinction between legal judgments and moral judgments or the demand for the universalizability of legal decisions. Which degree of systematicity one should demand from legal judgments and how to universalize the evaluation of the reasons underlying rules (beyond particularism) are some of the points of controversy within this trio of authors, but all seem to converge in rejecting the remission of legal interpretation to comprehensive evaluations of political morality.