Legal realism against the oppressor

Kazimir Malevich, Head of a Peasant.
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By ARI MARCELO SOLON*

Commentary on books by Tommaso Gazzolo

What is the best legal method to defeat the oppressor? Last week, Thursday night, in class jewish law, I presented the book by Tommaso Gazzolo.

Moses asks God: “I want to know how my children interpret the mystical crowns together with the revelation of the Torah”. With this, it is clear that Moses does not understand anything about the law as an interpretation.

Based on this, Tommaso Gazzolo articulates the mystical roots and halachic of the thought of commercialist Tullio Ascarelli. If we could summarize Ascarelli's thought in one line, it would be: “the law is the interpretation”. I hoped that the jusphilosophical genesis of the legal case would prolong the fusion between hermeneutics and legal realism, after all, jewish law is an example of legal realism: “by the majority you decide”.

Interested in this reading of Gazzolo, I realized that the author, like me, has common interests: Kelsen, Heidegger and the working-class world. And, from the mystical crowns, the author based this law as hermeneutics with Gershom Scholem, the Hebrew law and its interpretation with Benjamin, with Levinas, and several passages from the Talmud that inspired Ascarelli, such as the famous case of the oven of Achnai, in which if it says that the law is not in heaven, the law is on earth.

Then I moved on to reading the second book. What was my initial disappointment?

No Ascarelli, no mystical crowns, just the most radical realism of the Genoa school.

Even jurisprudential interpretation/law is separate from hermeneutics. That is, in the clash between analytical philosophy and legal hermeneutics, the former wins.

Where is Gadamer? Where is Heidegger? Anything.

This made me remember the violent clash I had with the great jurist of the school of Genoa, Guastini. I am also in favor of legal realism. And also, albeit heretically, I am in favor of Kelsen, but I separate realism from positivism. In this sense: “Professor Solon's point of view is clearly normative. Ethical non-cognitivism does not raise any theory of legal interpretation, neither descriptive nor normative. It is a position that deals with the status logic of moral judgments and, as such, has no normative implications. It refers to ethics, not to law, much less to legal interpretation. Legal realism is intended to be a simple framework for describing current legal practice. There is no place in legal realism to state what judges or legal interpreters should do” (GUASTINI, 2014, p. 53-54).

Precisely, I love Kelsen's cognitivist "slips" of the author, because he defends, without wanting to, legal revolutionary socialism.

This book from the Genoese school fights oppression no less than I do, but the strategy is different: it is to emphasize the non-cognitivism of our heroes, Kelsen, Ross and other realists.

How to defend the working world with this ethical silence? How to reach the end of revolutionary history without seeking alternative ways of creating Law? If the Genoese discovered America, they also have a good method for combating conservative Catholic natural law.

Leaving the evaluative field and staying only in the strictly methodological field. Undermining the swampy soil of Catholic natural law without explicitly fighting it head-on. I think an error.

As Wittgenstein said, positivists do not see that law is magic. But, after all, who does not believe in the mystique of crowns, of the law? Who does not believe that there are white letters of the law hidden under the black letters, and only these hidden letters serve to defend the oppressed?

Staying in the universal terrain of positivism, hiding ethics, defeating the reactionary and conservative enemy in terms of methodology.

*Ari Marcelo Solon is a professor at the Faculty of Law at USP. Author, among others, of books, Paths of philosophy and science of law: German connection in the development of justice (Prisms).

References


GAZZOLO, Tommaso. the legal case: una ricotruzione giufilosofica. Torino: Giappichelli, 2018.

GAZZOLO, Tommaso. A doppia appartenenza. Tullio Ascarelli and the legge come interpretazione. Pisa: Pacini Giuridica, 2019.

GUASTINI, Riccardo. A (Short) Commentary to the Commentary. RBF, year 62, v. 240, Jan./Jun. 2013.

GUASTINI, Riccardo. LA SEMANTICA DEL DISSENSO EI DIRITTI COSTITUZIONALI. Italian Rivista di Diritto e Procedura Penale, Milano: Giuffrè Editore, year LIX, fasc. 2, 2016. p. 859-866.

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