UMA TERCEIRA VIA ENTRE OBJETIVISMO E SUBJETIVISMO: A “HERMENÊUTICA DA FUNÇÃO” COMO DIMENSÃO PRAGMÁTICO-NORMATIVA DO DIREITO

Abstract

This paper questions the traditional classifica­tion of legal schools according to the objectiv­ism/subjectivism dualism, especially the thesis that analytical positivism is objectivist and American legal realism is subjectivist. Based on a historical and philosophical reconstruc­tion of the paradigms that guide jurisprudence, the text demonstrates that this dichotomy is unstable and often crossed by “foundational intersections,” in which elements of the phi­losophy of consciousness and classical objec­tivism combine in a paradoxical way. It shows that positivism, far from sustaining “strong” methodological objectivity by its conceptual intentionality, admits discretion and interpre­tive fragmentation; on the other hand, realism is not reduced to judicial voluntarism, retain­ing links with a search for community values and a certain intersubjective intelligibility of legal practice. 

As an alternative to the impasse, “function hermeneutics” is proposed, inspired by Rob­ert Brandom’s normative pragmatism and inferentialism alongside Fuller’s “morality that makes law possible”. From this perspec­tive, the content of law does not derive from 

a prior essential datum or from the subjective will of the interpreter, but from inferential articulations and commitments made within normatively structured discursive practices. Legal objectivity is understood as a functional and intersubjective requirement of law as a ra­tionally organized social practice. By shifting the focus from the metaphysical foundation to the normative function of practices, the article argues for a third way capable of overcoming the dualism between objectivism and subjec­tivism and offering a new reading key for the Hermeneutic Critique of Law (CHD).

KEYWORDS: Function hermeneutics. Bran­dom. Fuller. Jurisprudence.