Skepticism about value and the value of skepticism in legal interpretation

Abstract

The modern process of social complexity and the emergence of law as an autonomous social system change the terms of the long controversy about the relation conbetween law and morality because the plurality of views removes the notion of an ideal justice valid in itself. This marked the generalization of skepticism about values. In contrast, the current legal theory called “post-positivism” defends the morality of principles as an adequate response to the legal system. Vis-à-vis this scenario, this article seeks to identify the role of skepticism about values in theories about legal interpretation, considering, on the one hand, the description of the positivist theories of Hans Kelsen and Herbert Hart about legal interpretation and, on the other hand, Ronald Dworkin’s critique of skepticism and his defense of moral objectivity. This paper aims to answer the question whether the truth about morality can be objective in complex societies so as to limit legal interpretation. After clarifying some conceptual confusion, the work defends that skepticism must be considered a value of the interpretive practice of law in Brazil.

Keywords: legal theory, hermeneutics, legal interpretation, skepticism, value.