The object of legal dogmatics: What do juristics do? O Objeto Da Dogmática Jurídica: O Que Fazem Os Estudiosos Do Direito?

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Revista da Faculdade de Direito da Universidade Federal de Minas Gerais
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© 2020, Faculdade de Direito da Universidade Federal de Minas Gerais. All rights reserved.This article examines three different models of legal dogmatics: Descriptivist, realistic and argumentative. In order to do so, it confronts, firstly, the criticisms related to the use of the term “legal science”, pointing out the reasons why the term “legal dogmatics” would be more technical to designate the activity practiced by law scholars. Secondly, the paper addresses the critiques of the descriptivist model as a reductionist model of the object of legal dogmatic. As a counterpoint to this model, the characteristics of the realistic and argumentative models are examined. And, thirdly, it defends the adoption of the argumentative model, more specifically in its evolution to the semantic-argumentativist model. The hypothesis to be faced concerns defining what is the activity practiced by law scholars, to answer if this activity is descriptive, creative or argumentative. The method used is the analytical, through a critical doctrinal research on the subject. The conclusions reached include the preference for the conception of “legal dogmatics” (not legal science) as a method (referring to both the activity and its product). Moreover, it concludes by adopting a discursive objectivity, which presupposes the adoption of clear and safe criteria, without this leading to decisionism, which is exactly the criticism presented to the realistic model. This means that understanding law as a discursive practice, whose objectivity is in the argument, does not necessarily mean that law will be only what judges say it is. The interpreter actively participates in the construction and reconstruction of the law, but this participation activates part of the post Law.
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