In the middle of the tempest: evaluation and description in Legal Theory

Author(s)

Daniel Peixoto Murata

• Document type: Master's Dissertation
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2018-07-04

Examining board members

Ronaldo Porto Macedo Júnior; Thomas da Rosa de Bustamante; Dimitri Dimoulis

• Advisor: Ronaldo Porto Macedo Júnior

Abstract

This dissertation is an investigation about the role of evaluative judgments in the legal theory of Joseph Raz. Following Julie Dickson\'s scheme, I divide the investigation in three topics. The first topic is about the need or not of moral evaluation in determining what the law is. The second topic is about the need or not of recognizing law as a morally justifiable phenomenon in order to properly explain it. The third topic is about the need or not of the moral consequences in figuring as criteria of success of a given legal theory. Raz answers negatively these three topics. His view about the role of legal theory, which is supposed to pick up the essential elements in the elaboration of a concept capable of explaining the nature of the legal phenomenon, does not postulate the need for moral arguments in the identification of law, nor a role for the moral consequences of adopting or not a given theory. His view about how legal directives work, through reasons that exclude other considerations from the agent\'s balance of reasons, allows him to maintain that the identification of law must exclude moral considerations. His theory of legitimate authority, focused on a normative ideal, allows that the authorities de facto fail in being what they claim to be. I argue that Raz is wrong in all three answers. The hypothesis against Raz that I will argue for can be summarized in three propositions: (1) law, as an argumentative practice in all of its extension, demands moral evaluations in order to be determined. (2) Raz\'s theory of authority is inconsistent with his theory of practical reason and insufficent to claim superiority over rival theories, which in practice allows for different answers regarding the moral justification question. (3) Law might not possess an essence or nature assessable through concepts, so that is possible for the moral consequences of adopting a theory to figure as criteria for the success of the theory itself. Behind the razian answers presented above, I argue that exist two philosophical vices that are in my view driven away in my three propositions inspired in Ronald Dworkin\'s thought: essentialism, consistent in the attribution of an essence to law, and archimedianism, consistent in the theorist\'s attempt to place himself externally to the object of investigation. (AU)

• FAPESP's process: 16/06243-0 - In the middle of the tempest: evaluation and description in legal theory
• Grantee: Daniel Peixoto Murata
• Support Opportunities: Scholarships in Brazil - Master