The formalist escape goat: impure readings of Kelsen in Brazil

• Autor(a) principal: Leal, Fernando
• Data de Publicação: 2014
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/43570
• topic: KELSEN; FORMALISM; LEGAL POSITIVISM; DEDUCTIVISM; DESCRIPTIVISM; KELSEN; FORMALISMO; POSITIVISMO JURÍDICO; DEDUTIVISMO; DESCRITIVISMO

THE CHARACTERIZATION OF KELSEN AS FORMALIST OR LEGAL POSITIVIST IS VERY COMMON IN CONTEXTS OF RECEPTION OF HIS WORK, SUCH AS BRAZIL. IN THIS PAPER, I ARGUE THAT WHETHER OR NOT SUCH DEPICTION CAN BE CONSIDERED ACCEPTABLE DEPENDS ON THE SENSE IN WHICH THE TERMS “FORMALISM” AND “LEGAL POSITIVISM” ARE USED. ON THE ONE HAND, I HOPE TO SHOW WHY KELSEN WAS NOT A METHODOLOGICAL FORMALIST (I.E., SOMEONE WHO CONCEIVES LEGAL REASONING AS DEDUCTIVE REASONING) AND WHY THE LINKING BETWEEN LEGAL POSITIVISM AND THIS KIND OF FORMALISM IS PROBLEMATIC. ON THE OTHER HAND, I CLAIM THAT WHAT STANLEY PAULSON CALLS THE CHARGE OF FORMALISM QUA EMPTINESS – WHICH HAD ALREADY BEEN ADDRESSED AT KELSEN IN GERMANY IN THE BEGINNING OF THE XXTH CENTURY – SHOULD BE TAKEN SERIOUSLY IN ITS OWN TERMS, I.E., AS A METHODOLOGICAL APPROACH WHICH CAN ALSO BE FRUITFUL TO INVESTIGATE THE NATURE OF LAW. WITH THE HELP OF THESE ANALYSES, IT IS POSSIBLE TO DISPEL THE CARICATURE THAT STILL INSPIRES SOME VIEWS OF KELSEN’S WORK IN BRAZIL.