Right Answer

El artículo aborda dos cuestiones de método jurídico. La primera es la de si en los casos convencionalmente no resueltos (los que en principio admiten más de una respuesta) los jueces deciden discrecionalmente o tienen el deber de hallar la mejor respuesta (la única correcta). La segunda cuestión es la de cómo deben debatir los magistrados cuando se enfrentan a un caso que, en principio, admite más de una respuesta. El desafío teórico para juristas prácticos radica en que, por lo general, tienden a dar respuestas incompatibles entre sí a estas dos cuestiones.

There are two competing views on what makes propositions of law true. The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts. These facts would be generated by legal rules which would operate autonomously, without need for human intervention. The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct the results of the autonomous rule application. The other view is legal constructivism, according to which propositions of law are true because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive: argumentation determines the contents of the law. This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified. Legal constructivism would be more plausible, in particular in the variant where t...

There are two competing views on what makes propositions of law
true. The one, legal realism, takes it that propositions of law are true
because they reflect an independently existing reality of legal facts.
These facts would be generated by legal rules which would operate
autonomously, without need for human intervention. The institutional
theory of law illustrates this view. On this view it is the function of legal
arguments to reconstruct the results of the autonomous rule application.
The other view is legal constructivism, according to which
propositions of law are true because they are the conclusion of the best
(possible) legal argument. On this view the function of legal
argumentation is constitutive: argumentation determines the contents of
the law.
This paper argues that legal realism is not very plausible because it is
based on metaphysical assumptions which cannot be verified or falsified.
Legal constructivism would be more plausible, in particular in the variant
where the law is determined by the best actual legal argument. This
position is defended by means of a brief exposition of the so-called
‘Erlanger-approach’ to legal justification.

There are two competing views on what makes propositions of law true. The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts. Thes e fac ts wo u ld be gen erat ed by l egal r ul es whi ch wo u ld o pera te autonomously, without need for human intervention. The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct the results of the autonomous rule application. T h e o t h e r v i e w i s l e g a l c o n s t r u c t i v i s m , a c c o r d i n g t o w h i c h propositions of law are true because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive: argumentation determines the contents of the law. This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified. Legal constructivism would ...

A theoretical comparison of Anglophone legal and English-education professions reveals a common commitment to respective fictional discourses that become bodies of expertise through the converging performances of individuals' professional personas. Furthermore, both professional discourses have been affected by an ideology of realism that overemphasises the empirical study of interpretive practices as a means of reductively defining the subject matter of each, thereby disregarding the fictionalising and idealising functions of socially constructed professional knowledge. This has marginalised the single right answer thesis in theories of literary and legal interpretation, resulting in a general acceptance of incompleteness and inconsistency in both professional fields of expertise. Even so, it is contended that English-education professionals can and should maintain the fiction of a single right interpretation of all texts as a means of promoting greater understanding between English users through the development of shared interpretive dispositions.

Resumo: O juspositivismo em suas 03 (três) principais vertentes e antíteses tem se mostrado relevante para a compreensão e aplicação do Direito na contemporaneidade? É com base nessa questão que pretende-se abordar os problemas que se fizeram presentes, ao longo da história, na Teoria do Direito, assim como expor a respeito da importância da adoção de uma Teoria da Decisão, que leve a uma resposta constitucionalmente correta. Para tanto, realizar-se a presente pesquisa sob a ótica de uma abordagem qualitativa, através de consultas na doutrina, destacando-se, ainda, a utilização do método fenomenológico-hermenêutico, com intuito de se realizar uma revisão crítica dos temas tratados através da linguagem, a qual não é analisada meramente em um sistema fechado, mas em um plano de historicidade.
Abstract: Has juspositivism in its 03 (three) main strands and antitheses been shown to be relevant to the understanding and application of Law in contemporary times? It is on the basis of this question that we intend to address the problems that have been present throughout history in the Law Theory, as well as to expose the importance of adopting a Decision Theory that leads to a constitutionally correct answer. In order to do so, the present research should be carried out from the point of view of a qualitative approach, through consultations in the doctrine, highlighting also the use of the phenomenological-hermeneutical method, with the purpose of performing a critical review of the subjects treated through language, which is not analyzed merely in a closed system, but in a plane of historicity.