Você está na página 1de 72

AUGUSTO CSAR MOREIRA LIMA*

A Brazilian Perspective on Jurisprudence:


Miguel Reales Tridimensional Theory of Law

ABSTRACT
It is surprising to see that next to nothing has been
published in English about Reales theory of law, even two
years after his passing. Reales last major work, the Civil
Code that went into effect in Brazil in 2003, will certainly
affect that countrys society for years to come, and so will
his legal theory. It has been argued that in order to study
comparative law, one must first understand the legal theory
underlying the law under analysis. In that sense, Reales
theory should be the point of start for whoever wants to
understand Brazilian law. Beyond that, Reales theory is
important enough to overcome country frontiers. His
Tridimensional Theory of Law provides a unique way to
combine three well-known legal theories: sociology of law,
legal positivism and natural law. The combination is
achieved through the concept of dialectics of
complementarity, which weaves the three dimensions of the
juridical experience into one dynamic theory of law. The
result is the best way to theorize about law and its
*

Associate, Skadden, Arps, Slate, Meagher & Flom LLP. I thank the
Law Foundation of British Columbia and the Deans Fund at The
University of British Columbia Faculty of Law for supporting my
research. I would like to thank Robert Senh, Katie Kunimoto, Mariah
Kennedy, Paul Tassin, and Andrew Cicerella for editing this piece;
Lzaro Lima for sending me most of the Brazilian materials; and Bruce
MacDougall, Karin Mickelson, and Michael Cody for commenting on
previous drafts.

77

78

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

development, as well as a theory that deserves attention


from the North American legal academy.

OUTLINE
INTRODUCTION
I. ONE-DIMENSIONAL THEORIES CONSIDERED BY
REALE
A. Sociology of Law
B. Legal Positivism
C. Natural Law
II. REALES TRIDIMENSIONAL THEORY OF LAW
A. The Theory
1. The Evolution of Reales Thoughts
2. Reales 1992 Explanation
3. The Two Key Concepts
a. Value
b. Dialectics of Complementarity
c. Analogies for the Dialectics of
Complementarity
4. Summary of Insights
B. Criticism
C. Abstract and Concrete Tridimensionalism
III. CONCLUSION

INTRODUCTION
The dominance of foreign theories in the Brazilian legal
academy does not mean that the country has not produced
its own local jurisprudential flavor, bold and rich.
Although it is hard to identify a truly original legal
philosopher or legal philosophy in Brazil (or anywhere else
for that matter), there are a handful of notable contributions
made by Brazilians. Here, I focus on what is quite

A Brazilian Perspective: Reales Tridimensional Theory

79

probably the single most important contribution from a


Brazilian theorist to legal philosophy; that of Miguel Reale
(1910-2006), who was a law professor at the University of
So Paulo and responsible for the current Brazilian Civil
Code.1
Reales most influential books, especially for the
purposes of this work, were published in 1940, 1953, and
1968.2 It is true that Josef Kunz, one of the few writers to
cover Latin American legal philosophy in English during
the 1950s, did not include Reales contributions in any
meaningful way.3 Because Reales ideas had their impact
1

Cdigo Civil do Brasil No. 10,406, de 10 de Janeiro de 2002,


D.O.U. de 11.01.2002. (Brazil). The name Reale is usually read in
Portuguese as Heh-ah-lee.
2
The books are FUNDAMENTOS DO DIREITO [FOUNDATIONS OF LAW]
(1st ed. 1940); TEORIA DO DIREITO E DO ESTADO [THEORY OF LAW AND
STATE] (1st ed. 1940); FILOSOFIA DO DIREITO [PHILOSOPHY OF LAW]
(1st ed. 1953); and TEORIA TRIDIMENSIONAL DO DIREITO
[TRIDIMENSIONAL THEORY OF LAW] (1st ed. 1968). For a discussion of
the main ideas in such books, see sections III.A.1 and III.A.2, below.
In this article, I use more recent editions of these books. See JORGE J.E.
GRACIA, LATIN AMERICAN PHILOSOPHY IN THE TWENTIETH CENTURY:
MAN, VALUES, AND THE SEARCH FOR PHILOSOPHICAL IDENTITY 195-96
(1986) (biographical sketch in English of Miguel Reale, describing also
his philosophical ideas on values).
3
The basic book on the matter is JOSEF LAURENZ KUNZ, LATINAMERICAN PHILOSOPHY OF LAW IN THE TWENTIETH CENTURY (1950)
[hereinafter KUNZ, LATIN-AMERICAN PHILOSOPHY], which combines
three previous articles on the matter: Josef Laurenz Kunz, LatinAmerican Philosophy of Law in the Twentieth Century, 24 N.Y.U. L.
Q. REV. 283, 473, 801 (1949). More recent works by Kunz also failed
to cover Reales ideas other than in passing. See e.g. Josef Laurenz
Kunz, Contemporary Latin-American Philosophy of Law - A Survey, 3
AM. J. COMP. L. 212 (1954), and Josef Laurenz Kunz, An Introduction
to Latin-American Philosophy of Law, 15 U. TORONTO L.J. 259 (1964).
Throughout his work, Kunz carefully distinguishes between the legal
philosophies from Spanish America and Brazil (in which Portuguese is
spoken), a distinction caused by language and other historical
differences.

80

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

after 1953, however, I believe Kunz would have written an


entirely different book had he conducted his research after
that.
The availability of Reales works in Spanish and Italian
translations has allowed his ideas to influence writers
throughout Latin America and Europe. However, likely
due to the lack of English translations of Reales works,4
his ideas seem to have had little or no influence in the
English-speaking world.
Miguel Reale provided a unique method to relate three
theories or dimensions of law: sociology of law, legal
positivism, and natural law; hence the name he chose for
his theory Tridimensional Theory of Law. For Reale, the
combination of these three dimensions provides the only
complete view of the law.
He accomplished this
combination through the use of his dialectics of
complementarity.
Northern legal philosophers have referred to
tridimensionalism
using
the
term
integrative
5
jurisprudence, but this approach fails to adequately relate
4

Three brief, but notable, exceptions can be found in Miguel Reale,


Law and Power and Their Correlation, in ESSAYS IN JURISPRUDENCE IN
HONOR OF ROSCOE POUND 238-70 (Ralph Abraham Newman & Am.
Socy Legal Hist. eds., 1962) (describing the seeds of Reales ideas on
power further discussed infra in pages 107-08 and to a smaller
extent the seeds of his tridimensional theory, object of the present
piece); Miguel Reale, Josef L. Kunz and the Search for an Integral
Philosophy of Law, 3 U. TOL. L. REV. 247 (F.G. Sturm trans. 1971)
(claiming that Kelsens work incompletely implied a trichotomy, but
focused on positivism; claiming also that Kunz developed Kelsens
ideas in a move towards an integral jurisprudence, involving legal
positivism, natural law, and legal sociology); and Miguel Reale,
Axiological Invariants, 29 J. VALUE INQUIRY 65 (1995) (describing the
type of values which remain unchanged through time). I do not believe
one can grasp even the contours of Reales tridimensional theory of law
from such English texts, read individually or collectively.
5
See Jerome Hall, Integrative Jurisprudence, 27 HASTINGS L.J. 779

A Brazilian Perspective: Reales Tridimensional Theory

81

and interweave the bundle of legal theories being


considered.
Integrative jurisprudence has not attracted much
attention, perhaps because most jurists already affiliate
themselves with one of the single dimensions or perhaps
because some are attempting to create an entirely new
theory. Quite possibly, however, the lack of attention may
in fact be due to the lack of a concept which relates the
bundled theories, something provided by Reale. Without a
dialectics of complementarity, integrative jurisprudence has
nothing but a methodological effect.
In treating Reales ideas, I provide first his account of
legal sociology, legal positivism, and natural law. I then
discuss how he integrated those three theories into a single
theory of law. Finally, I discuss some of the criticism his
ideas have received. My goal is to retrace what I believe to
be the most important steps taken by Reale in developing
tridimensionalism, and in doing so I try not to let my
explanation (and my translation of the Portuguese) get in
the way of Reales forceful prose.
I
ONE-DIMENSIONAL THEORIES CONSIDERED BY REALE
Reale considers three major legal theories in devising
his own: sociology of law, legal positivism, and natural
law, in that order.6 The three theories are described by
(1976), and Jerome Hall, From Legal Theory to Integrative
Jurisprudence, 33 U. CIN. L. REV. 153 (1964) (both boasting a Realean
structure, but failing to offer an adequate concept that weaves together
the three theories of law). See also Harold J. Berman, Toward an
Integrative Jurisprudence: Politics, Morality, History, 76 CAL. L. REV.
779 (1988) (combining legal positivism, natural-law theory, and what
Berman calls the historical school).
6
I commonly see authors engaging with natural law first for reasons
of either chronology or current strength. See, e.g., J. W. HARRIS,

82

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

Reale broadly, allowing a number of other theories to fall


under one of the three umbrellas. That is especially true in
Reales account of legal sociology.
A. Sociology of Law
Using the term sociology of law, Reale considers all
theories that view law from a predominantly or exclusively
factual perspective. He refers to legal sociologism,
(sociologismo jurdico) as an extreme fact-oriented version
of sociology of law. He prefers the term sociology of
law to legal realism and juridical empiricism because it is
broader. Therefore, using sociology of law, Reale
includes all theories that consider law as a mere component
of social phenomena and theories that view law as a subject
capable of being studied in accordance with the same set of
causes that affect facts in the physical world.7 Reale argues
that from the end of the nineteenth century through the
early part of the twentieth century, when the case for
sociology of law was made more explicit, jurists searched
for more humane and concrete ways to interpret the law.
That search resulted in legal sociology.8

LEGAL PHILOSOPHIES (2d ed. 1997) (dealing with natural law first,
before discussing over ten other theories of law). But Reale expounds
on natural law after sociology of law and legal positivism, and I believe
that succession did not occur by chance. The dimension of value,
inserted within natural law, was the last dimension added to Reales
theory, and Reales understanding of value as an independent concept
allowed him to create his dialectics of complementarity, a topic that
will be addressed in more detail below. Positioning natural law last
may also indicate something about Reales deeply held views and may
explain why some critics have considered him to be a natural law
philosopher.
7
See MIGUEL REALE, FILOSOFIA DO DIREITO [PHILOSOPHY OF LAW]
434 (20th ed. 2002) [hereinafter REALE, FILOSOFIA DO DIREITO].
8
Id. at 438.

A Brazilian Perspective: Reales Tridimensional Theory

83

Reale concedes that law is indeed strongly based on


facts, a concession easy to make when one considers that in
the definition of facts, Reale includes virtually all social
facts affecting law: facts relating to society, economics,
psychology, race, demographics, geography, etc.9 This
broad definition of facts also includes political facts,
juridical facts, and religion.
Writing about legal sociology mainly in the 1950s,10
Reale was not explicit in addressing or including most of
the more contemporary approaches to law that draw on
social facts or interdisciplinarianism. But it is not a far
stretch to conclude that Reale would include most if not all
such approaches within legal sociology, including the
economic analysis of the law, critical legal studies and its
offspring (feminist legal theory, critical race theory, queer
theory, etc.), law and literature, etc. To include those
theoretical approaches within legal sociology is to also say
that Reale would likely consider them to be as incomplete
as legal sociology.11 I believe that for Reale, those
theoretical approaches provided only a partial, but not
necessarily incorrect, account of the law.
For Reale, no one social fact should prevail over the
others. Hence, race cannot be the predominant fact; neither
can religious faith or economics.12 Accordingly, the focus
on the economic phenomenon is a problem not only with
9

Id. at 435.
The first edition of REALE, FILOSOFIA DO DIREITO, supra note 7,
was published in 1953. Even the most recent 2002 edition used for this
research fails to explicitly address more contemporary Northern trends
in legal thoughts, other than in passing.
11
I concede that many contemporary trends or theories may not
actually claim to be comprehensive or to explain the law in its entirety;
rather, they may be seen as trends or theories that attempt to improve
another legal theory, bring about inclusion, or seek the end of a
particular form of injustice.
12
REALE, FILOSOFIA DO DIREITO, supra note 7, at 435.
10

84

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

the theories developed by Marx and Engels, both cited by


Reale,13 but is also a problem within law and economics.14
For Reale, both Marx and Coase are incomplete in their
focus.
Reale acknowledges the existence of legal sociologists
in Brazil, some of whom are among the most-recognized
names in the Brazilian legal academy.15 He focuses,
however, on the legal sociology of French scholar Lon
Duguit (1859-1928); Duguits basic works cited by Reale
were published in 1912 and 1928.16 For Reale, Duguit is
the most representative author within legal sociologism (the
extreme version of legal sociology).
Duguit was primarily against metaphysics, a concern
which closely relates to the realist argument for pragmatism
13

Id. at 436.
Take affirmative action in legal education as an example of the
problem with having economic facts prevail over other important facts.
Some ascribing to the law and economics movement argue that
affirmative action is bad for legal education. For those, allowing less
qualified students into the classroom lowers the production of
scholarship and innovation, and results in less wealth overall. I
disagree with that assertion, even as an economic argument, because
minorities can bring a different perspective and approach to problems
that can turn out to be very conducive to scholarship (i.e., more
wealth). But the law and economics argument against affirmative
action in legal education can also be attacked within Reales
framework. Why should economic facts prevail when many other facts
can be taken into consideration? Focusing on the economic aspects of
issues usually leads us to overlook other social aspects, including race,
class, gender, sexuality, and how history has treated those differences.
15
Including Tobias Barreto, Pedro Lessa (whom Reale replaced at
the University of So Paulo), and Francisco Cavalcanti Pontes de
Miranda, three of the best-known scholars in Brazil. See REALE,
FILOSOFIA DO DIREITO, supra note 7, at 436.
16
Duguits views are available in English in a series of four short
articles translated by Margaret Grangent and Ralph W. Gifford: Lon
Duguit, Objective Law, 20 COLUM. L. REV. 817 (1920); Lon Duguit,
Objective Law II, 21 COLUM. L. REV. 17 (1921); Id. at 126; Id. at 242.
14

A Brazilian Perspective: Reales Tridimensional Theory

85

and against transcendental nonsense.17 He saw that society


has only individuals, who are all made of flesh and blood,
and all legal explanations must start with that wellestablished fact.18
Duguit, often considered a socialist, believed that
solidarity was the word of his day. In Reales words,
Duguit believed that in the fact of solidarity one can find
the explanation to all phenomena involving people living in
society, without exception19 and that the division of labor
is what constitutes society and what gives it structure.20
Reale explains, however, that like most authors affected
by sociologism, Duguit ultimately deferred to positive law.
For Duguit, an economic law, and even a moral law, would
turn into positive law if the underlying reasons for such
economic or moral law were strong enough.21 Reale claims
that many sociologists of law see the importance of facts in
law, but actually end up caring more about positive law.
What distinguishes the two theories (legal sociology and
legal positivism) is the fact that for legal sociologists,
positive law must be posited under the influence of facts.22
For Reale, the deference to positive law does not mean that
17

On the matter of pragmatism, see Felix S. Cohen, Transcendental


Nonsense and the Functional Approach, 35 COLUM. L. REV. 809
(1935) (arguing against the use of abstract concepts in law, and calling
for a thorough factual analysis for legal cases, involving economics and
other factual circumstances affecting a particular situation).
18
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 440.
American legal realists writing around the same time had a similar
concern, a concern that favored pragmatism and opposed
transcendental concepts. See also Cohen, supra note 17, at 809, 814.
Cohen calls our attention to absurd abstractions that should not concern
legal academia, like where or when is a corporation.
19
REALE, FILOSOFIA DO DIREITO, supra note 7, at 441.
20
Id. at 442.
21
Id. at 446.
22
Id. at 437.

86

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

legal sociologists are merely positivists with another name;


the focus on facts at the conception of law is a significant
distinction.23 Because of Duguits deference to, but not
focus on, legal positivism, Reale accuses him of engaging
in the very metaphysics game Duguit was so against.24
For Duguit, coercion is not paramount in a definition of
law; Duguit instead thinks that the most relevant element in
a definition of law is effectiveness or efficacy (eficcia),
meaning that the law, for Duguit, requires spontaneous
acceptance by a community. Before social application, a
particular law is only formally a law, not an actual law.25
Reale sees this as another weak point in Duguits ideas, and
finds a parallel weakness in Kelsens focus on the technical
or formal validity of law, as we will see below.
For Reale, the one-sided aspect of radical sociologism
is also implicit in Alf Ross ideas. According to Reale, the
Danish realist goes even further than Duguit, saying that
the validity of laws is subject to the actual application by a
judge, a point shared by many other realists.26 Until then,
the law is not valid.27 Reale sees that for legal sociologists
23

Id.
Id. at 447. In arriving at that conclusion, it is implicit in Reales
reasoning that positive law ultimately rests on a metaphysical concept,
like a Grundnorm, as discussed below.
25
Id. at 448-49.
26
Frank says that judicial decisions are at the core of the definition of
law for realists. JEROME FRANK, LAW AND THE MODERN MIND 50
(Anchor Books 1963) (1930) (claiming that [f]or any particular lay
person, the law, with respect to any particular set of facts, is a decision
of a court with respect to those facts so far as that decision affects that
particular person. Until a court has passed on those facts no law on that
subject is yet in existence.).
27
Unfortunately, Reale does not provide a citation to Alf Rosss
work in support of his statement. I wonder why Reale did not focus on
the ideas of an author he would deem to be a more radical proponent of
sociologism, given that Reales own accounts of Duguits ideas
indicate that he is not radical.
24

A Brazilian Perspective: Reales Tridimensional Theory

87

a judge must say what the law is; the judge must create the
law. Still, for legal sociologists, judges must use positive
law as a guide, but let facts bind.28 Reale on the other
hand, thinks judges must be free, but must act within
binding law (not facts).29 Duguits pragmatism is then
weaker than that of Alf Ross, as Duguit conditions only the
interpretation and evaluation of a law, but not necessarily
its validity, to its social acceptance.30
Even though the law, for Duguit, is created (Reale uses
the term nomognese) solely with facts, Reale believes
that Duguits theory requires the contribution of logical
factors (norms or positive law) and axiological factors
(solidarity and justice) at all times.31 For instance, Duguit
claims that there are only 3 or 4 actual legal rules in the
French Civil Code, and that most of its other sections are
but technical rules used solely to put those 3 or 4 rules into
effect. Reale says that is precisely what natural law
holds,32 except that for Duguit, those fundamental
principles are established by society, and do not result from
the very nature of man, a tenet of natural law for Reale.33
Seeing tridimensionalism everywhere, Reale finally
notes that Duguit himself started late in his career to sketch
a theory of values which is compatible with his sociological
legal theory.34 Reale believes that if we take the dimension
28

See REALE, FILOSOFIA DO DIREITO, supra note 7, at 438.


See id. at 439.
30
See id. at 450.
31
See id. at 451.
32
St. Thomas Aquinas addressed the issue using the term human
law, defined as a law that contains the technical rules setting out the
particular determinations of natural law. Human law, for Aquinas,
needs to be subject to natural law. ST. THOMAS AQUINAS, POLITICAL
WRITINGS 86-87 (R. W. Dyson ed. & trans., Cambridge Univ. Press
2002).
33
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 452.
34
See id. at 454.
29

88

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

of facts, which is the dimension Duguit began his theory


with, add Duguits arrested theory of values, and then
consider Duguits deference to legal positivism, one can
see tridimensionalism in Duguits theories. But even given
the above considerations, Reale still thinks that Duguit is
the poster child for legal sociologism, while recognizing
that current sociologists of law are focusing on structures
and functions of the juridical experience35, and are not
trying to reduce law to a mere chapter of Sociology.36
Through Reales explanation of legal sociology, we can
see that his criticism focuses on sociology of laws failure
to comprehensively explain the law it is only able to
explain part of it. Reales criticism of legal sociology is
also directed at the tendency of legal sociologists to focus
on one specific fact, when no one fact should prevail (for
instance, class should not prevail over gender or race).
Finally, Reales criticism of legal sociology is directed
toward a substantial number of legal sociologists who
purport to use sociology to explain the creation of law
(nomogenesis), but end up focusing on the need for positive
law to actually create law (which, in effect, relegates
sociology to a secondary plan and allows one to reclassify
those legal sociologists as legal positivists).37
35

For the meaning of the term of art juridical experience, see infra
note 77.
36
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 454.
37
In addition to Reales criticism of legal sociology, two other issues
can be raised to the dimension of facts. The first is the matter of
ascertaining facts, which to me is a question similar to, but easier than,
the question of who decides what exactly natural law is. Reale deals
with this classic issue of natural law, as we shall see below, but does
not raise the issue for legal sociology, perhaps because facts are
somewhat easier to determine. But are they? Even more self-evident
facts, like race and geography, can be interpreted to impact society in a
variety of ways that have varied through time. Here, I borrow from
Cohens push for a functional approach to law, according to which you
should ask not how you determine a fact, but rather, what impact that

A Brazilian Perspective: Reales Tridimensional Theory

89

Finally, in Reales account of legal sociology, one


notices the lack of reference to major names associated
with American legal realism. That is partly because Reale
sees a weaker version of tridimensionalism, which he calls
"abstract tridimensionalism" (discussed below), in some of
those authors ideas. For example, Reale expressly
includes Roscoe Pound in his defintion of abstract
tridimensionalist. He would probably also include Holmes,
popularly considered the creator of American legal realism,
in the same category. Abstract tridimensionalism is a
version of Reale's theory that is more clearly tridimensional
than Duguits theories, but does not yet approach Reales
actual or concrete tridimensionalism.
B. Legal Positivism
Reading Reale, I sometimes think he believes that his
greatest accomplishment was not his dialectics of
complementarity per se, which I will discuss below, but
rather how, through his concept of dialectics, he was able to
fact, religion for instance, has on society, human motivation, and social
structure. See Cohen, supra note 17, at 830. On the other hand, there
are less evident facts, such as the economy, for which theories abound
left and right. The issue of fact determination can be another weakness
for legal sociology as a comprehensive legal theory. The second issue
that can be raised against legal sociology, in addition to the issues
raised by Reale, is the issue of the expertise of lawyers, or the lack
thereof, in fields other than law. For a better legal understanding of a
fact like the economy or psychology, the legal interpreter is required to
be versed in those fields, as well as in law. Jerome Frank was a great
advocate of a more extensive use of language and psychology in law
and in his advocacy published extensive chapters involving the
application of those facts (language and psychology) to legal issues.
See FRANK, supra note 26, at 138ff. The use of language and
psychology in law is certainly a welcome move, but a risky one.
Theorists involved with the economic analysis of the law have also
been accused of a similar deficiency (not being thoroughly versed in
economics).

90

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

stand up against Kelsen, who for Reale was undoubtedly


the greatest jurist of our time.38 Reale calls Kelsen the
Greenwich Meridian of Jurisprudence: one occupies a
legal space in accordance with the distance, close or far, to
Kelsen.39
Reale situates Kelsen in 1920, before he published the
first edition of his famous Pure Theory of Law.40 Looking
at the state of law at that time, Reale compares law to a
citadel surrounded by psychologists, economists,
politicians and sociologists, all claiming the Law belonged
to them. Reale tells us that within that framework, Kelsen
sought to purify the law, freeing it from all those claims.41
38

MIGUEL REALE, TEORIA TRIDIMENSIONAL DO DIREITO


[TRIDIMENSIONAL THEORY OF LAW] 118 (5th ed. 1994) [hereinafter
REALE, TEORIA TRIDIMENSIONAL]. The scope of this piece prevents
me from examining why Kelsen is so influential in Latin America, but I
do believe one of the many reasons is that Kelsen delivered lectures in
Buenos Aires in 1949; through this visit he established a direct
dialogue that was unique to Latin America at the time. See also John
Linarelli, Anglo-American Jurisprudence and Latin America, 20
FORDHAM INT L L.J. 50, 78 (1996) (stating that Kelsen had a profound
significance in Latin America because legal culture in Latin America
is heavily influenced by nineteenth century rationalism and the
proposition that law can be reduced to science).
39
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118 (as
translated by author). Reale speaks of many other legal positivists,
especially neo-positivists like Norberto Bobbio and H.L.A. Hart, but
Kelsen is clearly the focus; it is his model of legal positivism that is
closely criticized. Reale indicates why the theories developed by both
Bobbio and Hart cannot withstand scrutiny in MIGUEL REALE, O
DIREITO COMO EXPERINCIA (INTRODUO EPISTEMOLOGIA
JURDICA) [THE LAW AS EXPERIENCE (INTRODUCTION TO JURIDICAL
EPISTEMOLOGY)] 98-101 (2d. ed. 1992) [hereinafter REALE, DIREITO
COMO EXPERINCIA].
40
The first edition of Kelsens Pure Theory of Law was published in
1934.
41
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 455. The basic
goal of Kelsens theory is expressed on the first page of his book.
HANS KELSEN, PURE THEORY OF LAW 1 (Univ. of Cal. Press 1967)

A Brazilian Perspective: Reales Tridimensional Theory

91

That is not to say that Kelsen did not see the value of the
various problems arising out of psychology, economics,
etc., but he believed those problems should be addressed
within their relative fields, not law.42 Those fields can be
of some help, but legal interpretation must come from
interpretive structures specific to the juridical experience.43
Kelsen is most famous for his concept of Grundnorm,
or basic norm, a fiction created to provide the foundation
and validity for all the law. Law, then, rests always upon
another, hierarchically-superior norm. The process of
trying to reach the origin of law has to stop at the fiction of
the basic norm.44 Reale states that Kelsens sole concern is
that this norm be issued correctly.45
Reale thinks that for Kelsen, sociological jurisprudence
is a science connected to is, because it studies facts and
legal behavior, all of which are, while the science of law
is involved with ought-to-be in the sense that the science
of law prescribes actions and a desired behavior for
(1934). Many writers emphasize that Kelsens theory was an attempt
to free the law from those non-legal concepts. See, e.g. Julius Cohen,
The Political Element in Legal Theory: A Look at Kelsens Pure
Theory, 88 YALE L.J. 1, 3 (1979); MARGARET DAVIES, A SKING THE
LAW QUESTION 81 (The Law Book Co. Ltd. 1994).
42
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 455.
43
Id. at 456.
44
See id. at 457, 466. Many critics believe that the concept of
Grundnorm is as abstract and metaphysical as the concepts behind
natural law, especially in natural laws more religious versions.
Viewed in that sense, I believe it would not be a far stretch to say that
legal positivists just replaced God with the Grundnorm. The two
positions (Kelsens positivism and natural law, especially as it may
relate to super-natural concepts) do rely on abstract ideas to provide for
the validity of and foundation for law, but between the two positions, I
believe it is preferable to accept a claim to something that is explicitly
abstract, like the Grundnorm, and explicitly created by society, than to
accept the law as being based on something that is supposed to exist,
created by a super-natural entity.
45
Id. at 463.

92

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

society.46 Early in Kelsens career, is and ought were


polar opposites of each other, but the two concepts moved
closer to each other as he developed his ideas. Kelsen
moved to the US in 1940, and was influenced by the social
experience (realism) prevailing therein. That influence led
him to move towards integrating validity and efficacy
(eficcia), thereby mitigating his previously purely
positivist ideas.47
Reale thinks that what is (facts) cannot become what
ought-to-be (the law). There is no point in an is
becoming an ought.48 I argue that claim can only be
understood in the sense that what is already is and for
an is to become an ought-to-be would be a step back;
the claim should not mean that facts cannot become law.
Reale continues, saying that, on the other hand, what
ought-to-be must become is or else ought-to-be will
46

See id. at 459. This version of is and ought, which Reale


adopts throughout his work, reflects the ideas of natural law theorists,
for whom the natural world is and positive law derives ought from
such world. This would reveal Reales natural law bent. Positivists, on
the other hand, try to comprehend the law as it is, not as it ought-tobe. For an interesting discussion on how the issue of is and ought
is more complex than it may appear, see DAVIES, supra note 41, at 8790 (claiming, among other things, that even facts, which are imply a
political evaluation, which is an ought, as in the invariable
description of people as either female or male presupposes that people
ought to be one thing or the other. Id. at 90.). A metaphor from Reale
offers a parallel: [I]s and ought-to-be are like the left eye and the
right eye, together, they let us see reality. REALE, FILOSOFIA DO
DIREITO, supra note 7, at 188. Reales version of the is and ought
debate is paramount to his criticism of Kelsen from a natural law
perspective, to be discussed ahead.
47
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 465. Having
mentioned efficacy within the discussion of Duguits ideas, and now
validity and effectiveness in Kelsens ideas, I should say that the issues
of the foundation, efficacy, and effectiveness of the law in an integral
theory of law are also important concepts, but I will not deal with those
issues here. For that matter, see id. at 586-617.
48
Id. at 469.

A Brazilian Perspective: Reales Tridimensional Theory

93

have been a dream, an illusion, meaningless. To Reale,


this is the real approximation between is and ought-tobe, and consequently, between validity (as only a formal
concept) and efficacy (which entails social acceptance).49
Ought-to-be, for Reale, has to convert to some extent into
social acceptance of norms, but in Reales approximation
of the two concepts, ought-to-be will not be totally
converted into is. They do continue to be polar
binaries,50 just closer. That is where Reales dialectic of
complementarity comes in to bridge the gap. Kelsen, on
the other hand, stops before any dialectics can take place
and before any real attempt at unification of legal
theories.51 In summary:
What is certain is that Kelsen ceases to consider law
as only a system of norms logically interwoven, and
starts to consider the practical application of law . . .
at least in terms of a possible pragmatic conversion
of the validity of legal rules into the effective
influence of those rules on the behavior of the
individuals subject to those legal rules.52
From this perspective, I can see two dimensions in Kelsens
legal positivism. But Reale sees natural law in Kelsen, and
that may be too bitter a pill to swallow. Reale claims that
even though Kelsen tried to keep himself free from natural
law considerations or anything related to metaphysics,
Kelsen did include natural law elements in his theory. He
claims that for Kelsen the axiological considerations are
implicit or absorbed in the normative moment.53 Reales
argument is ingenious: he claims that because law operates
in the realm of ought-to-be (what law hopes society to
49

Id.
See id. at 470.
51
See id.
52
Id. at 473 (as translated by author).
53
See id. (as translated by author).
50

94

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

be), from a logical standpoint it inherently carries a moral


connotation as well. Reale concedes, however, that oughtto-be can in fact be understood in either moral or logical
terms, and that Kelsen only embraced the logical term.54
Quoting Kelsens lecture in Buenos Aires, [i]t is important
to note that for the rule of law this term (sollen, ought, il
doit, dever ser) has no moral connotation. The legal
proposition that a human conduct ought to take place does
not mean that such conduct is morally good.55
Reale is not alone in seeing three dimensions in
Kelsens work. Josef Kunz, who according to Reale is one
of Kelsens greatest followers, also claims that Kelsens
work had an implicit trichotomy: a Pure Theory of Law, a
Theory of Justice, and Legal Sociology.56 Reale emphasizes that, although the three elements were very distinct
for Kelsen, they were still enough to provide a basis for
Reales reading of tridimensionality in Kelsen. As he puts
it, [e]ven though Kelsen considers himself a normativist . .
. he can never set himself free from the factual and
axiological perspectives.57
Reale concludes by saying that the normative approach
prevails in the Pure Theory, and because of that even an
implicit tridimensionalism in Kelsen has but an explanatory
or methodological value.58

54

See id. at 474.


LEGAZ Y LACAMBRA, FILOSOFA DEL DERECHO [PHILOSOPHY OF
LAW] 55 (2d ed. 1961) (1953) (as translated by author).
56
See id. at 479.
57
Id. (as translated by author).
58
Id.
55

A Brazilian Perspective: Reales Tridimensional Theory

95

C. Natural Law
As mentioned above, positioning natural law last may,
along with other evidence, reveal Reales natural law bent,
an accusation which he fights.59
Moralists, says Reale, understand the reasoning behind
normativism but believe that if the norm does not bind the
conscience, the norm is then pure form with no content or
meaning.60 Moralists, he continues, also understand the
reasoning behind social empiricism but cannot follow
empiricism when the latter claims that the norms are what
can normally be verified in society.61
For the moralist, ought-to-be (the law) cannot be
devoid of its content, because its content is key and has no
relation to time or place. The moralists ought-to-be is
capable of gaining the adhesion of conscience.62 Reales
account of morality reflects two of the few demands shared
by most natural law theorists: (i) universal principles that
are (ii) mandatory.63
Reale distances juridical morality from an old school
of Natural Law, rationalistic and abstract, which idealized a
complete and perfect legal order, and upon which judges
and legislators would base their legal creations or

59

Reale rejects Kunzs characterization of his ideas as those of a


natural law philosopher. Miguel Reale, Personalismo e Historicismo
Axiolgico [Personalism and Axiological Historicism], 20 REVISTA
BRASILEIRA DE FILOSOFIA 541 (1956), reprinted in REALE, TEORIA
TRIDIMENSIONAL, supra note 38, at 129.
60
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 481.
61
See id. at 482.
62
Id.
63
Id. The other commonly accepted natural law tenets include (i)
natural law is immutable, (ii) it is a higher form of law (not necessarily
in the religious sense, but higher in terms of better quality), (iii) it is
discoverable by reason, and (iv) it is created by God. See DAVIES,
supra note 41, at 61-62. See also HARRIS, supra note 6, at 7.

96

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

decisions.64 Reale links classic natural law to Aristotle


and St. Thomas Aquinas, and modern natural law to
Grotius, Hobbes, Locke, Pufendorf, and Rousseau.65 On
the other hand, in his account of natural law as an
incomplete theory, Reale refers to Viktor Cathrein, Georges
Ripert, and Giovanni Gentile.66
Cathreins natural law is based on Thomist notions,
meaning that for Cathrein, natural law is valid for all men,
times, and places, and is mandatory. For him, natural laws
two basic principles are to each his own and do no
harm. All positive law stems from those two principles
and is aimed at implementing them.67 Moreover, for
Cathrein, norm and fact cannot supersede the ethical
content of the law. Morality must prevail.68
While Kelsen sees formal validity as paramount (even
if ultimately a function of at least a minimum of efficacy),
Cathrein sees validity as a function of a minimum moral
content (and not of a legal formality or a hierarchically
superior norm). Reale believes that a minimum content
allows a vast field on which power can intervene and
pass laws. The minimum moral content would include
issues for which even a dubious immorality is accorded.
Reale believes that minimum content is what affords
plasticity to Thomism.69 However, the flexibility that can
64

REALE, FILOSOFIA DO DIREITO, supra note 7, at 482 (as translated


by author).
65
Id. at 482 n.1.
66
Id. at 482. Reale also included accounts of the natural law theory
for Julius Binder, a theory he saw as a less extreme version of Gentiles
theory. See also Morris R. Cohen, Italian Contributions to the
Philosophy of Law, 59 HARV. L. REV. 577 (1946) (providing a broader
view of jurisprudence in Italy and devoting attention to Vico. My
endeavor in the present piece is somewhat similar to that of Cohen).
67
AQUINAS, supra note 32.
68
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 484.
69
See id. at 485-86. I note that the minimum moral content of
positive law discussed by H.L.A. Hart is a matter of fact. Hart does not

A Brazilian Perspective: Reales Tridimensional Theory

97

be seen in Cathreins natural law does not address the


major problem with the theory: the criterion used to
determine what is moral. Not surprisingly, Reale concedes
that the criterion used to determine what is clearly ethical
is the enduring problem with natural law. In this sense, the
problem starts with to each his own,70 a tired phrase that
begs at least two other tired questions: what? and to whom?
I argue that those questions often lead to metaphysical or
supernatural answers.71
The second natural law theory considered by Reale
(that of Frenchman Georges Ripert) is not so different from
Cathreins account of natural law, but Ripert explicitly
offers a metaphysical answer, thereby going a step beyond
Cathrein.
Riperts metaphysics can be seen in his
acceptance of the reigning concept of Christian Morals in
Western culture.72 Riperts account of natural law is one
grounded on the unity between moral rule and legal rule.
Quoting Ripert, Reale states: There is no difference in
dominium, nature or purpose between the moral rule and
the legal rule. And there should not be, because Law must
accomplish justice, and the idea of fairness is a moral
idea.73
Finally, Reale analyzes the natural law theory of
Giovanni Gentile. For Cathrein and Ripert, legal rules are
seen as moral rules in their essence, but morality and law
see a mandatory relationship between morality and law. More on that
in my discussion of the criticism of Reales views below.
70
See id. at 486.
71
As mentioned before, supra note 44, those metaphysical or
supernatural answers are more of a conceptual problem for me than the
abstraction of the Grundnorm.
72
See id. at 487.
73
See id. at 487 (quoting GEORGES RIPERT, LA RGLE MORALE DANS
LES O BLIGATIONS CIVILES [THE MORAL RULES IN CIVIL OBLIGATIONS]
10 (1925)). I will also show below that Reales definition of law
includes concepts of justice, yet another reason why Reale may be
considered a natural law theorist.

98

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

are seen as two separate categories, with moral law serving


as the basis for legal rules. In Gentile, Reale sees a
Hegelian stance that translates into Gentiles uniting
morality and law in a single process. 74 For Gentile the
[l]aw arises out of Morals and represents moral activity
from beginning to end.75
Reale sees a tension between fact, value, and norm in
the discussion of morality in law. It is his claim that
morality unsuccessfully tries to set that tension aside,
dismissing the tension with ethics, by allowing ethics to
prevail over positive law or facts.76
As was the case with sociology of law and legal
positivism, Reale sees a move toward an integrative
perspective of law in natural law. He claims that more
recent natural law theories, starting in the 1930s, inject
more flexibility into natural laws basic tenets, and try to
embrace a more comprehensive account of the juridical
experience.77 This implies accounts of natural law that, for
example, admit a change in the universal, previously
74

See id. at 489.


Id. at 490.
76
Id. at 492.
77
The term juridical experience is a deeply philosophical concept
that occupies most of Reales later works. See, e.g., REALE, DIREITO
COMO EXPERINCIA, supra note 39 at 9; MIGUEL REALE, EXPERINCIA
E CULTURA (PARA A FUNDAO DE UMA TEORIA GERAL DA
EXPERINCIA) [EXPERIENCE AND CULTURE (FOR A FOUNDATION OF A
GENERAL THEORY OF EXPERIENCE)] (2d ed. 2000) (1977) [hereinafter
REALE, EXPERINCIA E CULTURA]. The concept can be described as
follows: If we talk of experience it is only because we find ourselves
in the face of something that has been given. . . . [Experience] is a
very complex collection, but very much whole, of diverse data, which
are reciprocally interwoven, such data have a double nature - they are
facts dealing with inter-human relations, full of references to valueations. REALE, DIREITO COMO EXPERINCIA, supra note 39, at 35,
citing Luis Recasns Siches, [unnamed article], 11 DIANOIA 34 (1965)
(as translated by author). Dialectical tension, a concept which will be
discussed below, can be seen in the concept of experience.
75

A Brazilian Perspective: Reales Tridimensional Theory

99

immutable principles in accordance with time and place,


and admit a greater deference to positive law.78 Reale is
not explicit in seeing tridimensionality in those
advancements in natural law theory; rather, the natural law
theorists move toward tridimensionalism is never complete
because of their insistence on the one-dimensional focus.
II
REALES TRIDIMENSIONAL THEORY OF LAW
A. The Theory
Reale says that [l]egal doctrines are not created by
chance or in accordance with personal inclinations of this
or that jurist. Rather, they reflect demands which are
deeply felt by the interpreters of economical and social
facts in a certain time and place.79 According to Reale,
today law has three dimensions, each of which are
incomplete when considered separately. But he also sees
the value that each dimension brings to law, and feels law
can then only be fully comprehended through a theory that
combines these three dimensions.80
78

REALE, FILOSOFIA DO D IREITO, supra note 7, at 492. Reale does


not address the theory developed by John Finnis, which represents what
is probably the most respected contemporary account of natural law.
Among other deviations from classical natural law theory, Finnis does
not believe an unjust law can be disregarded. JOHN FINNIS, NATURAL
LAW AND NATURAL RIGHTS 363-67 (Oxford Univ. Press 1980). See
also HARRIS, supra note 6, at 18-19 (stating that Finnis claims that the
slogan lex iniusta non est lex has been misrepresented by critics of
natural law doctrine. An unjust law is not a nullity [for Finnis].).
79
REALE, FILOSOFIA DO DIREITO, supra note 7, at 409 (as translated
by author).
80
Id. at 410. Reale is also emphatic elsewhere: [T]here can be no
law, nor a study about the law, which is not necessarily
tridimensional. REALE, DIREITO COMO EXPERINCIA, supra note 39,
at 76.

100

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

Reale sees tridimensionalism everywhere, even if in a


very weak form. Duguit moved towards it, Kelsen implied
it, and Cathrein, Ripert, and Gentile could not escape it.
Although Reale in his tridimensional theory is responding
to what he sees as shortcomings in all the three dimensions,
Reale is particularly set on showing why Kelsens
normativism cannot withstand scrutiny,81 why it cannot,
alone, account for what the law is. My feeling is that
countering legal positivism is one of the main goals of
Reales theory.
We have seen that for Reale, Kelsen was responding to
an attack on law coming from several disciplines, when
each discipline claimed law for itself and that each could
provide what was needed to experience law. I argue that it
is fair to assess Reales theory as a reaction to this effort to
purify the law, and in that sense, his is a conservative
theory. But the counter-purification of law in Reale is
much broader than that attempted by legal sociologists,
without, I think, losing the legal sociologists humane
stance in legal interpretation.
In order to give his tridimensional ideas the name of
theory, Reale relies on a definition of theory with three
requirements.82 A theory must provide a scheme of
systematic unification for previously disperse contents; it
must offer a conceptual and symbolical representation of
observed data; and it must offer a set of rules of inference

81

But cf. Trcio Sampaio Ferraz Jr., A Noo de Norma Jurdica na


Obra de Miguel Reale [The Notion of Juridical Norm in the Works of
Miguel Reale], 26 CINCIA E CULTURA 1011, 1012 (1974) (claiming
that Reales ideas about norms try to overcome the loss of confidence
in normative solutions).
82
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 152. Reale
bases his concept of theory on the definition of theory in NICOLA
ABBAGNANO, DIZIONARIO DI FILOSOFIA [DICTIONARY OF PHILOSOPHY]
(848 Unione Tipografico editrice torinese 1961).

A Brazilian Perspective: Reales Tridimensional Theory

101

which shall help in predicting the consequences of factual


data. All three elements are clear from Reales theory.
1. The Evolution of Reales Thoughts
There were three stages in the evolution of Reales
ideas about the law. His ideas began with his 1934 book, O
Estado Moderno, where Reale claims to have expressed a
vague idea of tridimensionalism.83 The second stage was
set in 1940 with the publication of two books:
Fundamentos do Direito, and Teoria do Direito e do
Estado.84 Both books carried a bidimensional theory of
law. These stages invite divergent readings of Reales
ideas: some say he is a legal sociologist,85 while others see
in Reale a natural law philosopher of neo-Thomist
predilection.86 In 1940, Reale posited that law cannot be

83

REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118. A vague


idea of tridimensionalism is not saying much, given that Reale saw
that same tridimensional vagueness in legal sociology, legal positivism,
and natural law. I believe Reale would not agree with my division of
his ideas into three stages, as my division entails actual
tridimensionality only after 1953, not after 1940, which is Reales
claim.
84
Id. at 118.
85
HERMES LIMA, INTRODUO CINCIA DO DIREITO 212 (8th ed.
1955); see also REALE, TEORIA TRIDIMENSIONAL, supra note 38, at
130.
86
See KUNZ, LATIN-A MERICAN PHILOSOPHY, supra note 3, at 30; see
also REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 130. Kunzs
characterization of Reale as a neo-Thomist can also be found in an
article by Josef Laurenz Kunz, Latin-American Philosophy of Law in
the Twentieth Century, 24 N.Y.U. L. Q. Rev. 283, 313-14 (1949).
Kunzs views might have changed by the time he wrote the article,
Contemporary Latin-American Philosophy of Law - A Survey, 3 A M. J.
COMP. L. 212, 218 (1954) (mentioning, very briefly, Reales
tridimensional theory of law, but without any explanation or change of
the authors account of Reale as a neo-Thomist).

102

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

restricted to Kelsens normativism. Reale then dared to


oppose the greatest jurist of our century87 in Kelsen.
Reale believes that Kelsen changed substantially during
his career. In 1940, Kelsen was at the height of the first
phase of his Pure Theory of Law, in which he focused on
norms and their hierarchy. Reale states that if we were to
ask Kelsen then what the law was, Kelsen would have
responded that the law is a legal norm and nothing more.
To that response, Reale would say that a legal norm is a
direction, and [i]n order to follow that direction [the legal
norm] you need to start somewhere and be guided through
a certain path: the starting point is the fact, and that will
take you to a certain value.88 That is how Reales
tridimensionalism started; as he explains:
Law is not all norm, as claimed by Kelsen, Law is not
all fact, as preached by the Marxists or the Law and
economics movement, because Law is not economics. Law
is not economic production, but it involves economic
production and with it interferes; Law is not mainly value,
as believed, for example, by the followers of Natural Laws
Thomism, because Law is at the same time norm, fact, and
value.89
2. Reales 1992 Explanation
It is only in the third stage of Reales ideas that
tridimensionality is fully presented. The third stage started
in 1953, with the publication of Reales massive Filosofia
do Direito.90 In Filosofia do Direito, Reale thinks about
87

Id. at 118 (as translated by author).


REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118-19.
Again, by pointing to value as the ending point, Reale invites the
characterization of his theory as a theory of natural law.
89
Id. at 119 (as translated by author).
90
REALE, FILOSOFIA DO DIREITO, supra note 7. For a short review of
such book in English, see Ilmar Tammelo, Book Review, 1 SYDNEY L.
88

A Brazilian Perspective: Reales Tridimensional Theory

103

the dialectics between his three dimensions of law and


expounds on how the three dimensions of law interact.91
For Reale, the three dimensions are not only related, they
constantly speak to each other; they are dynamic.92 His
1953 ideas matured into his Teoria Tridimensional do
Direito, published in 1968, with Reales further research
and conclusions regarding a tridimensional theory of law,
and it is on the last edition of Teoria Tridimensional do
Direito93 that I will base most of my explanation of Reales
theory. In this edition, Reale includes a supplement
containing the notes to a class he taught at the State
University of Rio de Janeiro on March 25, 1992, when he
was 80 years old. His terse explanation to that class
contains the beauty of all things that can be made simple by
experience (and by hindsight). In his words:
Law is not a piece of cheese or candy, if you wish,
with three different flavors, corresponding to three
distinct pieces, in the sense that the jurist can eat the
norm, the sociologist would be satisfied with the

REV. 444 (1955) (focusing on Reales differentiation between law and


morals, but indicating that the treatment of value as a concept in legal
philosophy is paramount in Reales book).
91
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 119.
92
Id. at 120.
93
Id. A few authors would likely have considered REALE, DIREITO
COMO EXPERINCIA, supra note 39, as Reales pivotal work. See, e.g.,
Sampaio Ferraz Jr., supra note 81, at 1015 (commenting on the
importance of the first edition of DIREITO COMO EXPERINCIA,
published in 1968). However, I believe that both FILOSOFIA DO
DIREITO, supra note 7, and TEORIA TRIDIMENSIONAL, supra note 38,
read in conjunction, provide a better and more straightforward account
of Reales tridimensional theory of law. Additionally, I use DIREITO
COMO EXPERINCIA, supra note 39, and EXPERINCIA E CULTURA,
supra note 77, to provide additional insight on Reales use of dialectics
of complementarity and value.

104

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

fact, and the natural law theorist would splurge on


the world of value.94
Law, then, has three flavors, but these flavors cannot be
separated. It is a tridimensional flavor. Law is always fact,
value, and norm.
In Reale, we can see the dynamics among the three
dimensions of law through the focus of each of the three
legal theories.95 For the science of law or legal positivism,
fact value norm. The goal in this dimension is to
interpret and apply the norm. This is what Reale calls the
Science of Law, or Positive Jurisprudence. With respect to
the science of law, Reale appears to reveal a legal positivist
bent, albeit a pragmatic one, since [w]e the jurists, the
attorneys, have to obey posited law, lest we lose our
case.96
For sociological jurisprudence, norm value fact.
Because sociology of law is preoccupied with the study of
facts, facts are the goal here.97 While the jurist aims to get
to the norm through facts and value, the sociologist of law
wants to get to the fact to experience law as a social fact.
But, Reale warns, a juridical fact (fato jurdico) cannot be
understood without reference to the norms and values that
are meant to be given effect by the facts.98

94

REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 120-21 (as


translated by author).
95
See id. at 121.
96
See id. at 120 (as translated by author). This is not much different
from Harts soft positivism, as we shall see below. The quote also
reveals an important point in Reales career: he never ceased to practice
law. He accorded great importance to the impact his legal practice (as
an attorney and in many state positions) had on his legal philosophy.
The trend of legal philosophers-practitioners seems to be in slow
decline in Brazil as more and more professors are teaching full time.
97
Id.
98
Id.

A Brazilian Perspective: Reales Tridimensional Theory

105

Finally, for the philosophy of law, norm fact


value. Reale calls this last dimension the dimension of
natural law.99 In this dimension, the dimension which
preoccupies the philosopher experiencing the law, the goal
is to reach values through norms and facts.
We see above that each legal theorist would focus on
one dimension in her comprehension of the law. I should
note that such focus, as suggested by Reale, does not result
in one-dimensionality. Consider that there are many areas
of law in which rules are broken because of considerations
of either values or facts. These rules are broken because of
a temporary focus on one of the dimensions. For instance,
it is a known fact that economic and other social
circumstances (two facts) in a few industrialized nations,
most notably the United States, call for the employment of
immigrants willing to work in low-wage industries. In the
application and enforcement of immigration laws then,
those two facts call for a focus on sociological concerns,
concerns which then test the elasticity of immigration laws
in those countries. The economy and society in this case
are pulling the application of the law in a different
direction, to a different focus, than that prescribed by the
normative dimension.
Reale created a figure designed to show the role of
tridimensionalism in the creation of law, a figure very
popular in Brazil:100
99

Id. at 121. I can see the sense in equating the science of law with
legal positivism, and sociological jurisprudence with facts, but once
again, one can sense that Kunz saw bias in Reales notion of equating
natural law with the philosophy of law. However, I can accept that the
term philosophy of law is equated with natural law. Natural law
for Reale involves ethics and morals, two issues which have been
paramount for philosophers.
100
REALE, FILOSOFIA DO DIREITO, supra note 7, at 553. The figure
appears in many other works from Reale. See, e.g., REALE, TEORIA
TRIDIMENSIONAL, supra note 38, at 123; REALE, DIREITO COMO

106

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

The figure shows us that there is a set of axiological


principles or values (complexo axiolgico), represented by
V1, V2, V3, and Vn, which correspond to natural law.
These principles affect a set of facts (complexo ftico),
which as we have seen, include social facts, economic
facts, etc., represented by F. When values affect facts, the
result is a set of potential norms or normative propositions
(proposies normativas). It is at this moment that power
and authority (poder e autoridade) select which of those
various normative propositions will become an actual
norm.101
Just a few paragraphs above I indicated how the focus
of the three different legal theorists (the legal positivist, the
legal sociologist, and the natural law philosopher) does not
result in one-dimensionality. The picture above, however,
may invite the accusation of a particular kind of onedimensionality, that of legal positivism. In Reales figure,
we see a set of values affecting facts and creating norms.
EXPERINCIA, supra note 39, at 194.
101
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 124.

A Brazilian Perspective: Reales Tridimensional Theory

107

In this sense, Reales famous figure would indicate that his


theory will always result in the norm. With that figure in
mind, it is hard not to think of Harts positivism. Hart
believed that there is more to positive law than black letter
law. But for Hart, the minimum moral content of positive
law was a matter of fact, not necessity. Hart also believed
that posited law, found through his rules of recognition, is
what ultimately must prevail. In that sense, one can see
Reale as an even softer positivist. I will return to that
below.
The interference of power is important in Reales
theory. While some sociologists claim that norms arise out
of values and facts, without the interference of authority,
Reale believes there must be an intervention from
authority. For a particular issue with several law projects
being considered by a legislative body, only one law
project will be selected, and the remaining law projects will
cease to exist once one of them is converted into law
through the intervention of power.102 For Reale, power lies
not only within governmental authority, but also within the
Judiciary by the issuance of repeated opinions and
smulas,103 and within people, who also have the power to
select norms by means of costumes. Power also lies within
the bargaining power of private parties, a power which
gives rise to agreements constructed from various
bargaining positions and possibilities, etc. Hence, the

102

Id. at 124.
The Brazilian Code of Civil Procedure has a mechanism to create
smulas, which are very powerful case headnotes (usually in the
form of short imperative sentences) that a superior court can use to
bring uniformity to its decisions in certain areas of law. In Brazil,
smulas are one of closest institutions to the stare decisis doctrine. For
more information regarding judicial decisions in Brazil, see AUGUSTO
CSAR MOREIRA LIMA, PRECEDENTES NO DIREITO 9.2 (2001).
103

108

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

definition of power is broad, and this, Reale claims, is


another of his contributions.104
Interpretation is one of the ways in which Reales
dialectics of complementarity (an important topic in
Reales theory, discussed below) is put into action, an
action which prevents the Realean formula to be reduced to
a single dimension, particularly the dimension of legal
positivism. In Reales tridimensionalism, norms change
through dialectics, and such change is often achieved in
practice by judicial interpretation, without the need for an
actual change in posited law. Reale believes norms have
elasticity, meaning that after a certain point after being
changed without being explicitly superseded, and after
more fundamental changes the norm might eventually
break-down and a new norm will be created.105 This
change of norms takes place when the values that influence
104

REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 124. Reales


views on power are not as broad as those of Foucault, who, in short,
through five propositions of power, viewed power as something
pervasive and arising out of all social structures. See MICHEL
FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER
WRITINGS, 1972-1977, at 96-102 (Colin Gordon ed., 1980). A brief
summary of Foucaults five propositions of power can be found in
many authors writing in a variety of fields. See, e.g., Hugh Baxter,
Bringing Foucault into Law and Law into Foucault, 48 STAN. L. REV.
449, 452-59 (1996) (reviewing ALAN H UNT & GARY WICKHAM,
FOUCAULT AND LAW: TOWARDS A SOCIOLOGY OF LAW AS
GOVERNANCE (1994)); REBECCA JOHNSON, TAXING CHOICES: THE
INTERSECTION OF CLASS, GENDER, PARENTHOOD, AND THE LAW 8
(2002) (summarizing the five propositions of power in the following
manner: [P]ower is not something that is held, but something that is
exercised in relations; relations of power are not exterior to other types
of relationships, but are immanent and productive of those
relationships; power comes from below and is rooted in the social
nexus; power relations are both intentional and non-subjective; and
where there is power, there is resistance.). Reale does not seem to go
that far. See Reale, Law and Power and Their Correlation, supra note
4.
105
Id. at 127.

A Brazilian Perspective: Reales Tridimensional Theory

109

the facts change,106 or because the facts of social life have


changed.107
There should be no norm without interpretation. Such a
notion conflicts with the Latin maxim interpretatio cessat
in claris [interpretation quits in the face of clarity], widely
used in Brazil to indicate that a clear legal rule needs no
interpretation.108 For Reale, the Latin expression should
only mean that when a norm is clear we should not force a
meaning upon it or deviate from its clear meaning.
Interpretation must always be used because in interpreting
the law, the interpreter retraces the path of the legislator,
investigating the facts and values present at the time the
norm was enacted, and also looking into the facts and
values that might have appeared subsequently.109 Such an
approach has a particular value because many new answers
may be found in the interpreters effort to retrace the
reasoning of the legislator. Asking different questions
about the same problem may very well result in different
answers, and a concept like interpretatio cessat in claris
should not get in the way of that possibility. The
possibility of arriving at new norms by asking new
questions and retracing the path of the legislator puts the
tridimensional theory into action.
3. The Two Key Concepts
In describing the workings of his dialectics of
complementarity, Reale summarizes:
[T]he term tridimensional can only be rigorously
understood as if it were translating a dialectic
process in which the normative element becomes
106

Id. at 125.
Id. at 127.
108
Id. at 113.
109
Id.
107

110

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

whole in itself and supersedes the factualaxiological correlation, the norm then has the ability
to convert itself into fact in an ulterior moment of
the process, but only with reference to and as a
function of a new normative integration determined
by new axiological demands and new factual
circumstances.110
Reale claims that his greatest and most original
contribution to legal philosophy was the dialectics between
the three dimensions of law. On the other hand, value as
an independent concept was paramount to Reales
dialectical insight: the polarity in the concept of value and
the objectivity of value (which arises out of the relationship
between value and history) provided the missing link for
the dialectics between the three dimensions of law.111 I
110

REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 77 (as


translated by author). Because it is perhaps the most important
summary of Reales theory, I provide the original:
Em suma, o termo tridimensional s pode ser
compreendido rigorosamente como traduzindo um processo
dialtico, no qual o elemento normativo integra em si e supera
a correlao ftico-axiolgica, podendo a norma, por sua vez,
converter-se em fato, em um ulterior momento do processo,
mas somente com referncia e em funo de uma nova
integrao normativa determinada por novas exigncias
axiolgicas e novas intercorrncias fticas.
I will discuss below how this description of dialectics has been seen as
stopping at the normative moment, which would result in a legal
positivist bent to Reales theory.
111
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 543. We will
see, especially in my discussion of value and my listing of the key
insights from Reales theory, that historicism plays an important role in
Reales theory, if anything, because it provides the objectification of
value. Reale also states in many of his writings that the tridimensional
theory is integrated within the broad terms of contemporary
historicism. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
111. The broad concept would not allow history to be converted into
the reason or measure of human activity; also, history is law, but not all

A Brazilian Perspective: Reales Tridimensional Theory

111

will separately discuss value and the dialectics of


complementarity as they are seen by Reale, and then
provide the relationship between the two concepts in
Reales theory.
a. Value
One might think that, for Reale, behind the
provocatively tautological definition of value there would
law, because law still has to account for the history yet to be made.
Id. at 219. See also ANGELES MATEOS GARCA, A TEORIA DOS
VALORES
DE
MIGUEL
REALE
(FUNDAMENTO
DE
SEU
TRIDIMENSIONALISMO JURDICO) [MIGUEL REALES THEORY OF
VALUES (FOUNDATION OF HIS JURIDICAL TRIDIMENSIONALISM)] 44
(Talia Bugel trans. from Spanish into Portuguese, 1999) (claiming that
Reales contributions to historical axiology are original), 46 (claiming
that, for Reale, axiology cannot be separated from history, hence the
term axiological historicism). But see KARL RAIMUND POPPER, THE
POVERTY OF HISTORICISM (2002) (claiming that it is now generally
recognized that the importance of historicism in social theory is overrated, but that the method is still being used; referring primarily to
Hegels historicism); Robert W. Gordon, Historicism in Legal
Scholarship, 90 YALE L.J. 1017 (1981) (discussing the ways in which
legal scholars can deal with criticism based on historicism); and
Morton J. Horwitz, Commentary, The Historical Contingency of the
Role of History, 90 YALE L.J. 1057, 1057 (1981) (claiming that [b]y
and large, the dominant tradition in Anglo-American legal scholarship
today is unhistorical.). I believe a few other concepts, from varied
perspectives and fields of inquiry may be related to historicism,
particularly traditionalism, integrity, genealogy, and path dependence.
Given the purposes of the present work, I will not address those issues,
but an analysis linking the scholarship from Luban, Dworkin, Foucault,
and Hathaway in a Realean light would be in order. See generally
David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035 (1991);
David Luban, Integrity: Its Causes and Cures, 72 FORDHAM L. REV.
279 (2004); RONALD M. DWORKIN, LAWS EMPIRE 225-75 (Harv.
Univ. Press 1986) (discussing integrity in law); FOUCAULT, supra note
104, at 117 (discussing the meaning of genealogy); Oona A. Hathaway,
Path Dependence in the Law: The Course and Pattern of Legal Change
in a Common Law System, 86 IOWA L. REV. 601 (2001).

112

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

not be much substance: valor o que vale (value is that


which has value).112 But it is precisely with a thorough
analysis of value that Reale arrived at his dialectics of
complementarity, which provides the cement (a fluid and
movement-inducing cement) for his theory. By seeing
dynamics in the concept of value, Reale is able to see the
dynamics within a theory of law.
Reale sees values within the philosophical theory of
objects. Within the theory of objects we find natural
objects, which must be dependent on time and space in
order to be understood and studied, and ideal objects,
which are abstract entities studied in ontology and which
are independent of time and space. Ideal objects are
studied, for instance, in mathematics and logic.113
Most philosophers would classify values as a mere
species of ideal objects.114 While Reale agrees that there
are values which are timeless (atemporal) and spaceless (aespacial) (which Reale calls axiological invariants,
discussed below), he does not believe values are ideal
objects. For Reale, values cannot be quantified and cannot
be compared, whereas ideal objects can. The fact that
values depend on natural objects for people to experience
them (a characteristic of ideal objects) does not reduce
values to ideal objects.115
Natural objects (which can be physical or psychic) and
ideal objects belong to the realm of is, while values, and
only values, belong to the realm of ought-to-be. For
Reale, is and ought-to-be are like the right and left eye,
together, they let us see reality.116 Is and ought-to-be
112

REALE, FILOSOFIA DO DIREITO, supra note 7, at 187.


Id. at 183.
114
Id. at 186; see also REALE, EXPERINCIA E CULTURA, supra note
77, at 85.
115
REALE, FILOSOFIA DO DIREITO, supra note 7, at 187.
116
Id. at 188.
113

A Brazilian Perspective: Reales Tridimensional Theory

113

are integrated into cultural objects, which are complex and


derivative objects because they include both realms. There
exists, then, dialectics between is and ought-to-be. The
two are related and interdependent as ones left and right
eye. A "counter-value" is assigned to each value, as in:
good and evil, noble and vile, beautiful and ugly. In order
to understand one we need the other, dialectically.
Dialectics is pervasive to law because law includes values.
It is, then, as a consequence of that mechanism that we see
legal and illegal, plaintiff and defendant.117
Because values are within the realm of ought-to-be,
they can only have meaning to human beings if they can be
turned into is. That transformation into is is what
Reale means by realizability.118 Values, then, must be
realizable.
Furthermore, values are historically objective in that
they are something humans realize in their own existence
and which proceed to acquire varied expressions, which
serve as examples, through time.119
Reale believes that there are axiological invariants,
which are universal and unchanging values guiding human
beings, or being used as reference in their daily labor.120
Axiological invariants are a guarantee against drastic
ruptures, such as the ones experienced with the two world
wars. What prevailed [in the post-war period] was the
understanding that the axiological invariants were needed
as the guarantors of dialogue and mutual understanding
117

Id. at 188-89.
Id. at 192.
119
Id. at 208. However, such objective existence is relative. The
relativism refers to the fact that values do not exist in and of
themselves, but they exist in relation to humans [all humans in a certain
time, not particular individuals], with reference to a subject. Id. (as
translated by author) (emphasis in original).
120
Reale, Axiological Invariants, supra note 4, at 65.
118

114

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

among human beings, a condition sine qua non of civic


freedom and peace.121
The basic axiological invariant is the value of the
human being, which is also the most fundamental value
for Reale (a value that for other philosophers would be life,
or love, etc.).122 Other values (including other axiological
invariants) stem from the human being as a value, such as
the value of ecology, which is an axiological invariant
because it is a condition to human life.
With such fundamental values in mind, Reale offers the
following classification for values:
(i) Truth: a value studied under (a) ontognoseology, or
transcendental logic, and under (b) logics and sciences;
(ii) Beauty: a value which includes arts and aesthetics;
(iii)Usefulness (Utility): a value which includes
economics and economical philosophy;
(iv) Holiness or Religiousness: a value studied under
religion and religious philosophy;

121

Id. at 71-72. Cf. Lon L. Fuller, Positivism and Fidelity to Law: A


Reply to Professor Hart, 71 HARV. L. REV. 630, 648-57 (1957)
(discussing how morality, not legal positivism, would be more apt at
addressing the consequences of Nazism). The overall positive tone for
morality in Fullers article parallels Reales indication of a need for
axiological invariants, for the same reasons indicated in the above
quote from Reale.
122
REALE, FILOSOFIA DO DIREITO, supra note 7, at 228. Reale rejects
life as a value because he sees life as a material condition for the
realization of all values. Id. at 239. In this sense, one could argue that
for Reale, life is as fundamental a value as the value of the human
being. The value of the human being is the source-value for all other
values because only it [the value of the human being] is originally
capable of being aware of its own value, of the value of its subjectivity,
not by virtue of a revelation or of a sudden enlightenment of an
intuitive character, but by means of and through the historical
experience in communion with all human beings. Reale, Axiological
Invariants, supra note 4, at 73.

A Brazilian Perspective: Reales Tridimensional Theory

115

(v) Good: a value which can be subdivided in (a)


individual good, studied under morality, and (b) social
good, studied within (b.1) law and (b.2) custom. The value
of good is studied by ethics.123
In Reales views, those five fundamental values are
themselves subordinated to the core fundamental value of
the human being. The five values will form a constellation
of values, a subset of values which are all related, and all of
which gravitate around the fundamental value of the human
being as a person (homem como pessoa).124
Truth125 for Reale is truth in its spiritual dimension; it
is the axiological expression of truth. Truth serves as the
basis for studies about knowledge, including the (i)
structure of knowledge (Logic) and the (ii) function of
knowledge (covering both (a) gnoseology or, being more
comprehensive, ontognoseology, and, in the positive sense,
(b) sciences).126
Beauty may be seen as a dependent value for some
(Socrates and Plato see beauty within truth). But, Reale
argues, with that dependent concept, art would not be an
autonomous discipline. In that sense, Reale concedes that

123

REALE, FILOSOFIA DO D IREITO, supra note 7, at 237. Reale says


that his classification is more exemplificative than necessarily
classificatory, an indication that it is open to challenge (which I will not
undertake). Also, Reale is not clear as to whether the values in his
classification would be axiological invariants. The values in his
classification are not necessary to the human being in the same sense
that ecology is; thus, I do not believe Reale considers those values to be
axiological invariants.
124
Id. at 237.
125
Some authors use different terms in their translations of values.
See e.g. GRACIA, supra note 2, at 201 (using the term true, instead of
"truth").
126
REALE, FILOSOFIA DO DIREITO, supra note 7, at 238.

116

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

beauty may be a value which is closely related to other


values (particularly truth), but it is still independent.127
Usefulness is a value related to utility, a value which
aims at fulfilling desires and requirements of human
beings, a value which aims towards exchange and
consumption. This is the value that economists want to
convert into the main value (above ethics and religion).128
Holiness (or religiousness) is a transcendental value
that occupies itself with the destiny of human beings
beyond their existence.
This is the value that is
foundational for the religions.129
Finally, the discussion of Reales last fundamental
value (the value of good) is a discussion more closely
relevant to his legal philosophy. It entails the discussion of
justice.
For Reale, the value of good can be individual or social.
The individual good is the basis of and is studied by
morality, while the social good is the basis of fairness (of
what is just (justo)). For Reale, the law should not concern
itself primarily with the individual good. Rather, the law
should focus on the social good, and consequently with
justice or the common good: Justice is the basis of the
entire juridical order.130
Reale uses justice in an objective sense. Justice in
this case is the result of the social order created by people
who act with subjective justice. Those subjective actions
127

Id.
Id. Although Reales text implies strong criticism of the economists move with respect to utility (or wealth) as the main value, his
criticism is certainly not as strong as Dworkins. Cf. Ronald M.
Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191, 196-201 (1980)
(explaining, albeit for purposes which are quite different from Reales
purposes, why he believes wealth is not a value).
129
REALE, FILOSOFIA DO DIREITO, supra note 7, at 238.
130
Id. at 272, 274.
128

A Brazilian Perspective: Reales Tridimensional Theory

117

(of justice) will form the just social order, which is


objective.131
Reales views on the matter imply
cooperative personalism, setting aside individualism and
transpersonalism. The three ideas underlying a concept of
justice can be summarized in the following manner:
(i) Individualism/personalism: [I]f each man takes care
of his interest and his good, he will be taking care, ipso
facto, of the collective interest and collective good. Each
man realizing his good would be realizing, through the
automatic equilibrium of selfishness, the social good or the
common good;132
(ii) Transpersonalism: an idea that holds that the good
of all is a sine qua non condition for individual
happiness;133
(iii) Cooperative personalism: This is the idea which
Reale favors. In this concept, dialectics is at play (although
Reale does not expressly mention dialectics here). In this
third idea, dialectics occurs between individualism and
transpersonalism. This version of justice sees a constant
tension between the values of the individual and those of
society134 and those two tensions must be resolved
individually in a manner to harmonize both forces. This
requires a case-by-case application of justice. This third
version, then, does not offer an a priori thesis in which
either the individual or the collective should prevail.135
For Reale, value has seven characteristics. Some of
these characteristics give us insights as to the impact that
the concept of value has on the concept of dialectics in
Reale (as mentioned above, the two concepts are

131

Id. at 276.
Id. at 277
133
Id.
134
Id. at 278-79.
135
Id. at 279.
132

118

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

paramount to Reale's theory); the presence of dialectics can


be felt in many of the characteristics of value for Reale.136
The first such characteristic is bipolarity. For Reale,
every value has an opposing value, such as good and
evil, beautiful and ugly, or noble and vile.
Dialectics is present in each bipolarity.
The second characteristic of value is reciprocal
implication, a characteristic that also carries dialectics.
This characteristic is closely related to the first. If values
are bipolar, the realization of one value will necessarily
affect another value, or will at least affect its opposite
value. When someone does good, the very definition of
good and the actions involved in doing good, imply its
opposite value: evil. It is in that bipolarity that good can
be realized.137 Therefore, in order for a value to be realized
and obtained, it must necessarily touch upon at least one
other value in its conversion from ought-to-be into is in
a process which is inherently dialectical.
The third characteristic of value is the need for a sense
of direction, called referability. A value needs to point in a
direction and needs to be realized in reference to someone
(this is another instance in which a value will impact other
values in the process of realization). Because they point to
an end, Reale calls values vectorial entities. And because
they point to an end, values determine human conduct.
The fourth characteristic is preferability. A set of
values in society indicate a preference for that set of values
for that society. The set of values reflects a certain period
of time and a certain place. Because this characteristic
136

My discussion of the characteristics of value are based on Reales


FILOSOFIA DO DIREITO. Id. at 187-92, 207-09. See also GARCA, supra
note 111, at 21-24.
137
But cf. P.T. Geach, Good and Evil, 17 ANALYSIS 33 (1956)
(implying that good and evil may depend more on context and
intention than on each other).

A Brazilian Perspective: Reales Tridimensional Theory

119

implies time and place, it relates to history. It also relates


to the manner in which history helps construe values and
make them objective.
The fifth characteristic of value is objectivity, a relative
objectivity reached through history, as indicated above.
Historicity is itself another (the sixth) characteristic of
values. Values then, need to be seen within their historical
context, never in an absolute manner or in a manner
independent from history.
The seventh characteristic is inexorability, which means
that even when a value is realized it never ceases to exist
within the world of ought-to-be. Were a value to fully
convert itself into is in the process of realization, it would
no longer be a value. This last characteristic also entails
dialectics and dynamism. Because the value continues to
exist, it continues to be a generating force of human
conduct, but a conduct that may change through time as a
result of the process through which human conduct puts a
particular value into movement.
The ever-changing
interpretation applied by the human being in realizing a
value (a process which involves considering the
polar/opposing value, the historicity of the value, its
referability, etc.) has the power to effectively change the
very value through time. Hence the presence of dialectics
and dynamism.
All of the above characteristics of value are related, but
a few of them were paramount in providing Reale with the
key insight into the dialectics of complementarity. By
viewing values as bipolar, reciprocally implicated, and
realizable, Reale eventually saw that those characteristics
were pervasive to law as well. Because law contains
values, law is necessarily, and profoundly, affected by the
dynamics underlying the concept of value. The dynamic in
Reales concept of value contributed to a dynamic in the
two other dimensions of Reales theory. This is how Reale

120

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

acquired the insights necessary for his dialectics of


complementarity. When value is viewed through those
dynamic lenses, fact cannot stand still; fact cannot be seen
as a static and neutral concept.138 Fact is then valued; it
receives an axiological qualification, but it is never
converted into value itself.139 Finally, this factualaxiological process creates the norm in a concrete manner,
not in an abstract manner. This differs from Kelsens
proposition that the norm is only a logical consequence of
the factual-axiological process. For Reale, nomogenesis
(the law creation process described by the figure supra) is
where the norm comes from, and he cannot agree with
Kelsen that the norm is where it all starts. Reale cannot
put
the
factual-axiological
tension
in-between
parentheses, as something outside the norm, outside the
law.140 This brings us to Realean dialectics.
b. Dialectics of Complementarity
Reales views on dialectics are thoroughly developed in
Experincia e Cultura, a book first published in 1977. His
view is a broad account of the concept of dialectics.141
138

REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 95.


Id. (claiming that juridical empiricism errs in thinking that value
converts into fact).
140
Id. at 96.
141
REALE, EXPERINCIA E CULTURA, supra note 77. My discussion
of Realean dialectics will be substantially based on the current edition
of such book (2d ed. 2000). In Reales writings, he usually refers
readers to this book for his views on dialectics. See, e.g., REALE,
DIREITO COMO EXPERINCIA, supra note 39, at XXI. A comprehensive
contemporary account of dialectics can be found in English in SCOTT
WARREN, THE EMERGENCE OF DIALECTICAL THEORY: PHILOSOPHY
AND POLITICAL INQUIRY (1984) (providing a broad discussion of the
many philosophers making use of dialectics in order to apply the
concept to political science; focusing on Kant, Hegel, and Marx, as the
precursors of the contemporary discussion on dialectics, and on
philosophers like Husserl, Sartre, and Merleau-Ponty, as developers of
139

A Brazilian Perspective: Reales Tridimensional Theory

121

Reales dialectics is not a Hegelian dialectics, which


constantly progresses from inferior forms into superior
forms,142 but is rather based on Husserls Lebenswelt or
Lifeworld.143 Whereas Hegelian dialectics is based on the
transformation of two concepts into a third concept a
solution Husserls Lebenswelt is stoked with incessant
dynamism, in which opposing concepts continue to co-exist
and a solution is not necessarily reached. Reale defines
Lebenswelt (world of everyday life [mundo da vida
comum]) in the following manner:
I understand Lebenswelt, with inspiration in
Husserl, to be the complex forms of being, thinking
and acting that are non-categorized (that is, not put
into state forms or turned into objective forms, like
arts or sciences) which conditions, like a historicalthe concept).
But cf. KARL R. POPPER, CONJECTURES AND
REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE 312-35 (5th
ed. 1989) [hereinafter CONJECTURES AND REFUTATIONS] (criticizing
Hegelian and Marxist dialectics because both would allow for
contradictions to go unchallenged). In his criticism, Popper provides a
concise and lucid explanation of what dialectics is for those two
philosophers. Poppers ideas are shared by Reale, but the criticism lead
Reale to focus on different dialectics, rather than to discard the concept
altogether, something advocated by Popper. Poppers text cited above
is an adaptation from Karl R. Popper, What is Dialectic?, 49 MIND,
NEW SERIES 403 (1940).
142
Hegelian dialectics can be described as the way in which human
thought is developed. That development would involve the dialectic
triad: thesis, antithesis, and synthesis. POPPER, CONJECTURES AND
REFUTATIONS, supra note 142, at 313-14. The thesis is expected to
cause opposition. The opposition is seen as an idea called antithesis,
and [t]he struggle between the thesis and the antithesis goes on until
some solution is reached which, in a certain sense, goes beyond both
thesis and antithesis by recognizing their respective values and by
trying to preserve the merits and to avoid the limitations of both. This
solution, which is the third step, is called synthesis. Once attained, the
synthesis in its turn may become the first step of a new dialectic triad.
Id. at 314.
143
Cf. REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 102.

122

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

transcendental conscience, life in community and


the effectiveness of its valuations, many of them
due to the reflux or reflex of the objective forms in
the plainfield of collective living. Lebenswelt is
not, however, an initial or preliminary stage
destined to evolve to superior categorized forms,
but it is a constant existential condition, the content
of which varies incessantly, but never ceases to
exist as the great social container, in which we can
find the individuals with their works and
institutions.144
Like the concept of value discussed above, Husserls
Lebenswelt is filled with dynamism and avoids objective,
absolute truths.
Dialectics for Reale does not focus on identifying
polar and contradictory terms.145 The focus, as far as
terms are concerned, is on contrary terms, not contradictory
terms, as we will see below.
144

REALE, DIREITO COMO EXPERINCIA, supra note 39, at XXVII (as


translated by author).
See also DAN ZAHAVI, HUSSERL S
PHENOMENOLOGY 125-26 (2003) (providing an equally contemporary
and concise account of Husserls Lebenswelt). For our purposes, it is
important to note from Zahavis text that Husserls Lebenswelt is a
reaction against the objectivism reigning in the sciences since the
Renaissance. Such objectivism was so successful that science became
overly focused on technical issues. Husserl presents more fundamental
questions for scientific inquiry, including, What is reality? and What
is a good and meaningful life? Husserl notes that the focus on
technical issues by science results in a necessity of reaching solutions
to problems, albeit one-dimensional solutions to problems. But in
Husserls Lebenswelt, what we find are relative truths: When I
experience the water as cold, my friend may experience it as warm.
See also Hugh Baxter, System and Lifeworld in Habermass Theory of
Law, 23 CARDOZO L. REV. 473, 510 (2002) (providing a similar
account of Husserls lifeworld, but stating that lifeworld was a concept
not fully developed by Husserl, even though it has been applied in
social theory something with which Reale would agree).
145
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 104.

A Brazilian Perspective: Reales Tridimensional Theory

123

Reale places the discussion of dialectics within a broad


ranging theory of knowledge: ontognoseology. Such concept entails both a subjective and an objective aspect to
knowledge. While gnoseology studies issues of knowledge
from the perspective of the subject, ontology studies the
conditions under which something can be known. It deals
then with the theory of objects, which we have seen above
to include natural objects, ideal objects, and values.146 As
such, ontognoseology studies both subject and object
(thought and reality).147 Seeing the broad ranging theory of
knowledge in that sense, one cannot help but start to see the
necessary relationship between both subject and object, and
the related dialectical relationship between both thought
(subject) and reality (object). Particularly, thought is
essentially dialectic in that it involves subject and object,
two distinct but related concepts.148 The ontognoseological
process is one of complementarity between subject and
object.149
The ideas of three philosophers are important in Reales
conclusions: Kant, Hegel and Husserl. Kants theory of
knowledge is centered on the subject (gnoseology), while
Hegels theory of knowledge is centered on the object
(ontology). Hegel proves that Kants subjectivism and
gnoseology are incomplete and static. For Kant, the subject
is at the center, but not moving. Hegel then pushes for a
concrete logic, which requires dialectics. But Hegels
views are also incomplete for Reale, because Hegels
dialectics reflect the fact that for Hegel the past is
pregnant, waiting to deliver the future, rather than being
146

See generally Thomas Hofweber, A Puzzle about Ontology, 39


NOS 256 (2005) (discussing the broad range and relevance of
ontology). For the author, ontological questions are questions about
what kinds of things make up reality. Id. at 258.
147
REALE, EXPERINCIA E CULTURA, supra note 77, at 83-85.
148
Id. at 90.
149
Id. at 108.

124

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

what is for Reale an actual dialectics. Hegels is a


dialectics in which each polar element is then superseded in
the dialectical process; there is always a solution to a
problem.150 Reale then turns to Husserls phenomenology
and its Lebenswelt. Husserls phenomenology created a
new ontology.
In his perception, ontology is not
metaphysical, it is the analysis of the objective structures
of reality and thought.151 In this sense, what is ontology
for Husserl is, for Reale, closer to ontognoseology. We can
link ontognoseology and dialectics, concepts which are
then related rather than mutually exclusive.152
Reale then moves toward ontognoseological criticism, a
development over Husserls phenomenology. For Reale,
subject and object are implicated within each other,
dialectically.153 The two concepts in Reale are closer than
ever before. The Husserlian concept of the intentionality
of the conscience means that to know is always to know
something.154 To know entails the existence of a subject
(someone who wants to know), while something entails
an object (an object which is being known by someone).
Such framework displays a departure from both Kants
150

Id. at 112-14. See also POPPER, CONJECTURES AND REFUTATIONS,


supra note 142 (accompanying text provides a description of Hegelian
dialectics).
151
REALE, EXPERINCIA E CULTURA, supra note 77, at 85. But see
Hofweber, supra note 147, at 256 (claiming ontology is a part of
metaphysics).
152
REALE, EXPERINCIA E CULTURA, supra note 77, at 91. A further
connection between Husserls Lebenswelt and Reales dialectics lies in
the fact that law is but one of the dimensions of human life, and legal
models are always subjected to the changes within the Lebenswelt. See
REALE, D IREITO COMO EXPERINCIA, supra note 39, at XVIII. Yet
another connection between Lebenswelt and Reales ideas is that the
evolution described in Reales tridimensional theory of law is similar,
or parallel, to the changes within the Lebenswelt. Furthermore,
Husserls ontology reflects his later move against objective science.
153
REALE, EXPERINCIA E CULTURA, supra note 77, at 117.
154
Id. at 118.

A Brazilian Perspective: Reales Tridimensional Theory

125

focus on the subject and Hegels focus on the object, and an


important step forward from Husserls new ontology: it is a
Husserlian ontology with dialectics. For Reale, then,
knowledge is always subjective-objective, a dual concept
hyphenated by concrete dialectics.155
Reale acknowledges that, in reading another author, one
inevitably interprets that author through the readers own
lenses, and a possibility for distortion may emerge. With
that in mind, he sees in Husserl two fundamental theses: (i)
there is a transcendental correlation between subject-object
in the area of knowledge (an explicit thesis in Husserl); and
(ii) there is dialectics in the nature of knowledge, a
dialectics occurring in terms of polarity (not explicit in
Husserl).156
In Reales phenomenological purification, nothing is
lost; everything is just transformed.157 In this argument, he
is not only saying that knowledge is indeed subjectiveobjective, but also that the relationship between subjectobject is dialectical and his use of dialectics as the hyphen
between subject-object is a way to transform through
Husserlian purification.
The discussion, thus far, leaves us with two important
concepts to discuss: what are the types of dialectics (or
what exactly does Reale mean by dialectics)? And what
are the terms connected through dialectics? Both issues are
further introduced into the discussion in the following
quote:
In the realm of the dialectics of complementarity,
the dialectification of opposites, of the Marxist or
Hegelian kind, is situated as one of its possible
expressions, but with modifications introduced
155

See id. at 119.


Id. at 123.
157
Id. at 124. Even though for Reale, Husserl is never able to
completely rid his ideas of Kantian subjectivism. Id. at 131.
156

126

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

through the phenomenological purification to which


it is subjected, notably in order to shed light on the
usual
confusion
between
contrary
and
contradictory, terms which are often employed
without due rigor, and even as synonymous, which
is unacceptable. In the realm of the dialectics of
complementarity opposites are implicated into each
other to the extent necessary to reveal that the
contradiction was only apparent, but such
revelation will not prevent the opposites from
continuing to be contraries, each of such opposites
are identical to themselves and involved in mutual
and necessary correlation.158
Hence, in the process of knowledge, the contradictions are
overcome (because they were but apparent),159 but not the
contrary nature of opposite terms that cannot be
overcome.
A debate related to part and totality within
Hegelian thought further illuminates Reales conclusions
on dialectics. For Hegel, totality equals unity: in the move
from part to totality, unity is reached, at which point
Hegels dialectical process ends. Reale, on the other hand,
moves beyond that problem by saying that totality must be
seen as the global expression of the elements that relate to
each other, but each of the elements remains distinct.160
It can be said that within the dialectics of
complementarity, there is a permanent and ever
progressing relationship between two or more
factors, which cannot be understood separately from
each other. One of such factors cannot be reduced
to another, in such a fashion that the elements in the
relationship can only reach fullness of meaning in
158

Id. at 120 (as translated by author).


Id.
160
Id. at 155.
159

A Brazilian Perspective: Reales Tridimensional Theory

127

the concrete unity of relationship of which they are


a part of, while they relate to each other and while
they participate in such unity.161
The quote above reflects the direction of more
contemporary approaches to dialectics.162
These
contemporary approaches include thinkers with a diverse
orientation and fields of inquiry. But they all agree on two
important points: (i) dialectics does not cease once unity is
reached (this closely relates to the principle of
complementarity which will be discussed below); and (ii)
dialectics cannot resolve contradictory elements but can
only comprehend and relate terms which are either contrary
to each other or merely distinct.163
Hegel and Marx employ the terms contradictory and
contrary interchangeably,164 something that, as I have
pointed above, is unacceptable for Reale. For Reale, in a
dialectical process between contrary terms (termos
contrrios), each term maintains its position. The terms do
not invade each others space, even though they relate to
and affect each other. On the other hand, dialectics cannot
occur in terms which are contradictory (termos
contraditrios). In contradiction, we see that one term is
at once both itself and part of another term. The opposition
between the terms is, in the end, stronger in contradiction
stronger to the point of not allowing the terms to co-exist.
In terms that contradict each other, the negative
proposition is the pure negation of the affirmative
proposition.165
161

Id. at 188 (as translated by author).


In such approaches Reale includes Italian legal philosopher Luigi
Bagolini, Danish physicist Niels Bohr, French physicist Louis de
Broglie, and other Europeans, as well as Brazilians Vicente Ferreira da
Silva and Almir de Andrade. Id. at 155.
163
Id. at 156.
164
Id. at 170-71.
165
Id. at 172 (citing Thomist Jacques Maritain).
162

128

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

Dialectics, for Reale, can only occur between opposite


elements which are contrary to each other. That concept of
dialectics can be stretched as far back as Aristotle.166
Aristotle provides a basic framework for opposing terms.
Contrary terms are at the essence of reality for Aristotle, for
whom terms can be opposites in four manners: terms can be
(i) related (as in double | half); (ii) contraries (as in
good | evil); (iii) related in terms of privation and
possession (as in blindness | the gift of sight); and (iv)
related in terms of affirmation and negation (as in to be
seated | not to be seated). Contradiction takes place
within the concept of opposition in the fourth category
discussed by Aristotle. Perceiving the terms in that manner
allows us to clearly see the difference between
contradiction and contrariety. Aristotle can, then, be
seen to provide a basis for Reales thoughts on dialectics by
saying that terms which are contrary to each other can be
reconciled (through dialectical type processes), but terms
which contradict each other will not. In contradiction, if
one term is true, the other is necessarily false. It is in this
sense that to be seated and not to be seated cannot be
reconciled; there can be no dialectical relation between
such two terms. But that is not the case for terms that are
contrary. A contradictory term can only exist without its
opposing term (for example, the term to be seated not
only does not require the term not to be seated in order to
166

Id. at 178. Reale claims that one of the two parts of Aristotles
dialectics served as the basis for Hegels dialectics. Id. at 179. But cf.
D.W. Hamlyn, Aristotle on Dialectic, 65 PHIL. 465, 476 (1990)
(claiming that dialectics for Aristotle is a form of argument starting
from whatever agreement is available and seeking to produce some
insight (nos, intuition) as to the truths from which demonstration can
possibly start, so-called first principles, thereby furnishing an
understanding of why things are necessarily as they are. In that sense,
the concept of dialectics for Aristotle is subject to debate, and
Hamlyns account of dialectics for Aristotle would not provide a basis
for Reales use of the concept, as it solely lends to Hegelian dialectics).

A Brazilian Perspective: Reales Tridimensional Theory

129

be experienced, it needs for that second term to be set


aside).167 This understanding paves the way for the
application of dialectics to the three dimensions of law
considered by Reale. This understanding also implies that
the three dimensions of law are not seen as pure negations
of each other, but rather that they need each other in order
for law to be experienced.
Having addressed the terms that can be related in a
dialectical process (opposing/contrary terms, but not
contradictory terms), I will discuss how the dialectical
process occurs for Reale.
The principle of
complementarity provides the answer.
The principle of complementarity, initially only
applicable to exact sciences,168 can be applied to law if the
167

Cf. REALE, EXPERINCIA E CULTURA, supra note 77, at 180-81.


From such explanation, a more difficult problem may arise. According
to Aristotle, seconded by Reale, two contradictory terms that cannot be
put through dialectics could be, again, to be seated and not to be
seated. But a similar, and more specific situation, could be analyzed
in a dialectical process, instead of the simple negation. For example,
the two terms could be made contrary (they would cease to be
contradictory) by specificity, as in to be seated and to stand up or
to lie down (either term instead of not to be seated). Hence,
specificity could be one way to convert contradictory terms into
contrary terms. This constitutes a problem because the difference
between contradiction and contrariety is an attempt to address the
criticism dialectics face. Popper attacks dialectics exactly on the
grounds that the concept allows philosophers to put up with
contradictions when they should be focused on never accepting them.
POPPER, CONJECTURES AND REFUTATIONS, supra note 142, at 316, 323
(preferring to use the term trial and error instead of dialectics in
most cases).
168
Many authors claim that complementarity is not broadly
applicable to all sciences, with some, like Andr Marc, arguing that the
concept is only applicable to philosophy. See REALE, EXPERINCIA E
CULTURA, supra note 77, at 157, 164, 169-170, 183. Reale credits the
expansion of the use of complementarity to areas outside science to
Niels Bohr. Niels Bohr, Causality and Complementarity, 4 PHIL. SCI.
289, 294-295 (1937) (claiming, from a physicists standpoint, that in

130

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

term is considered in its broader sense. As argued by


Gaston Bachelard (for whom complementarity has many of
the characteristics that dialectics has for Reale),
complementarity is the process through which the
appearance of mutual exclusion in contrary terms is
revealed; a revelation carried out through dialectical
analysis, an analysis which reveals the terms as twin
brothers, as pairs that affirm each other, or at least belong
to the same group.169
The dialectics of complementarity can be applied to law
because of its usage in the world of culture (considered as
everything that enters the human mind and conscience).
Such world is intrinsically dialectical. Dialectics can be
seen through the objectifications and subjectifications of
human experience.
Because historical and social
experiences
are
dialectical,
the
dialectics
of
complementarity is fully extensible to the human sciences.
The broadness of the concept of complementarity
allows Reale to gain the insight that the concept is one
which encompasses various kinds of dialectics, such as
those listed by Georges Gurvitch: dialectics of
complementarity, mutual dialectical implication, dialectical
ambiguity, dialectical polarization, and reciprocity of
perspectives. 170 We could also add Benedetto Croces
dialectics of the distinct to that list. Such dialectics involve
other regions of human knowledge we meet apparent contradictions
which might seem to be avoidable only from the point of view of
complementarity.).
Note that Bohr is speaking of apparent
contradictions, which are actually contrary terms, not contradictory
terms.
169
REALE, EXPERINCIA E CULTURA, supra note 77, at 184 (as
translated by author). See Richard Harvey Brown, Georges Gurvitch
and the Dialectic of Sociological Knowledge, 1 QUALITATIVE SOC. 3,
23 (1979) (containing a similar translation).
170
REALE, EXPERINCIA E CULTURA, supra note 77, at 184-85. See
also Brown, supra note 169, at 4-5 (discussing the five perspectives of
dialectics in Gurvitchs work).

A Brazilian Perspective: Reales Tridimensional Theory

131

terms like equality and freedom, value and freedom,


beautiful and good, self and other, individual and
community.171
These are all approaches within the
dialectics of complementarity and can be used to put the
legal experience through dialectics (although polarity and
implication will be prevalent, as I will point out below).
For Reale, the dialectics of complementarity is all of those
perspectives (indicated by Gurvitch and Croce) at once, not
one at a time.172 The dialectical force or forces which will
be more prevalent in a given circumstance will depend on
actual particularities of a certain analysis (something
similar occurs with the focus on a particular dimension of
law, as discussed above):
It all depends on the nature of the observed reality.
There are cases in which the [dialectical]
implication occurs between opposite [contrary]
terms, which is what happens in the legal field,
where fact and value act on one another, having the
norm as a result of that tension, the norm supersedes
such contrariety, as I have demonstrated in my
Tridimensional Theory of Law. In such cases, we
are specifically dealing with the dialectics of
implication-polarity.173
We can see that the two major dialectical forces within
the juridical field are the mutual dialectical implication
and dialectical polarization. Both these forces are within
the dialectics of complementarity, which is, then, the
dialectics that rules the juridical field.174
171

REALE, EXPERINCIA E CULTURA, supra note 77, at 189.


Id. at 185.
173
Id. at 189. Reale uses the term opposite in the first part of the
quote, but the remaining text in the paragraph indicates that he means a
particular kind of opposite: contrary.
174
REALE, DIREITO COMO EXPERINCIA, supra note 39, at XXI,
XXXII. Reale also claims that [i]f the juridical experience was not in
itself dialectical, it would not be possible to interpret it dialectically.
172

132

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

For Reale, in a plural and diversified dialectics we


cannot speak of synthesis reduced from theses or of
antitheses reduced to unity. What we have are open
syntheses, related in a multiplicity of force fields,
orderings, regional structures, models, etc.175 Dialectics is,
then, an act of integration, and that is the structural nature
of all of the dialectical process. The process penetrates
into the inexorable richness of the parts [particulares]
with no loss in value for the whole.176 In a certain sense,
dialectics, especially as presented by Reale, is a way to
weave different points of view (which often have to be
presented as opposing concepts). As much as one can
dislike generalizations, I will dare to say that Brazilians
share a propensity towards the center: we try to please the
greatest number of people at once. In that context, the
dialectical effort of the Realean kind is a concept that
should be dearer to Brazilians: it allows differing but not
contradictory points of view to not only co-exist, but to
need each other and to be dependent on each other. The
diversity of views is, through the dialectical lenses, not
only enriching; it is as necessary as it is unavoidable.

Id. at 72. Renato Cirell Czerna, a student of Reale who now occupies
Reales chair in legal philosophy at the University of So Paulo, claims
that Reales dialectics of implication-polarity (as a subset within the
dialectics of complementarity) is quite original; it differs even from
current versions of the dialectics of implication-polarity.
The
distinguishing factor would be that in Reales version the
consciousness of the permanent and open tension between the two
terms [subject and object], instates an infinite possibility for ulterior
knowledge, in which the future is assumed in the present, precisely
because of such openness. RENATO CIRELL CZERNA, O PENSAMENTO
FILOSFICO E JURDICO DE MIGUEL REALE [THE PHILOSOPHICAL AND
JURIDICAL THOUGHT OF MIGUEL REALE] 55 (1999). Interestingly
enough, Czerna adopts a Hegelian view on dialectics, even though he
acknowledges the originality of Reales dialectics.
175
REALE, EXPERINCIA E CULTURA, supra note 77, at 191.
176
Id. at 193.

A Brazilian Perspective: Reales Tridimensional Theory

133

I have shed some light on the concept of dialectics as


seen by Reale. It is through that concept that one must
view the juridical experience, particularly its three
dimensions represented by the sociology of law, legal
positivism, and natural law.
c. Analogies for the Dialectics of Complementarity
Given the complexity of the philosophical endeavor
attempted above, I believe it may be helpful to clarify (or
simplify) what Reale means by dialectics of
complementarity. Not that he is unclear, but a few
analogies may help. I believe Reale would have been keen
on a few parallels to his theory, given his inclination for
figures (especially the geometrical ones such as that for
nomogenesis pasted above) and analogies from popular
culture, such as the following:
I got into a fight with a macho man,
but I dont know the result of it;
I got through to the inside of him,
He got through to the inside of me
and with all the sweat
I dont know if I was him,
or if he was me.177
177

Id. at 177 (as translated by author) (quoting lyrics by Z Limeira,


a singer from the Northeastern part of Brazil). The original lyrics in
Portuguese read:
Eu briguei com um cabra macho,
Mas no sei o que se deu:
Eu entrei pru dentro dele
Ele entrou pru dentro deu
E num zuado daquele
No sei se eu era ele,
Nem sei se ele era eu.
Id. The verses above are meant to show what dialectics cannot do,

134

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

I will first expand on Reales cheese analogy (see my


discussion above). Reale admits that it is hard to see
dialectics within three flavors of cheese even if they are
all different flavors of the same cheese. The image comes
off as rather static. To provide a better analogy: Reales
tridimensionalism can be understood as though each
dimension of the law were a state/province in one country,
a country in which only those three states exist and that can
only exist with those three states. But still, as much as
there can be cultural, economical, and technical exchanges
among those three provinces, affecting and changing them
through a dialectical process yet allowing them to remain
distinct political bodies, it is still hard to see dialectics
within this three-province model country.
I propose, then, another figure I believe can help better
illustrate Reales theory and its dialectics. The figure is
that of a perfect, contemporary marriage. The two parties
to the marriage are two dimensions and love is the third
dimension. Without one of the dimensions, the marriage
likely will not survive. In one traditional concept of
marriage, the man had legal power to decide matters
involving the relationship and the wife. This could be seen
as the phase in which one dimension, say legal positivism,
prevailed. Love had little to do with marriage, as it was
arranged by family or class or other circumstances. So, if
we think of love as either natural law or sociology of law,
one of them was left out. Still, in this primitive form of
marriage, one could think of the man as being within the
realm of legal positivism, and the woman as within either
natural law or sociology of law; both dimensions were
dominated by the will of the positivist man. Not too long
ago, around the time in which Reales tridimensionalism
first appeared, marriage started to change.
which is to reduce the dialectical terms to one.
maintain their separate identity. Cf. id.

The terms must

A Brazilian Perspective: Reales Tridimensional Theory

135

Today, in progressive societies, neither party to the


marriage has legal control over the relationship. I argue
that my analogy requires a perfect marriage in order to
circumvent the fact that in reality a substantial number of
marriages do have one party controlling the relationship
(because of the de facto domination of the male over the
female). My analogy requires the marriage of two true
equals. The parties need to be truly equal in law and in fact
for my image to work, and I also require love to be present.
In the contemporary marriage, tridimensionalism literally
comes to life. We can see that either party to the marriage
can be either sociology of law or natural law or legal
positivism, or the parties can all carry the three dimensions
at certain points, depending on the circumstances. The
parties are each different, but have equal standing and
influence in the marriage (i.e. the law). They are
intertwined in a way that one cannot survive without the
other. It is true that many of the decisions within marriage
will result out of the tension between love and the two
other parties, and at times one of the dimensions of
marriage will prevail in the decision-making process. But
the formative influence from the three dimensions will have
been present, and the decisions will keep on changing,
dialectically. Marriage also requires a dynamic between
each party and love, a delicate and complex dynamic that
takes work, and is less stable at certain times than in others.
I argue, then, that it is in the instability brought by
dialectics that Reales arguments for tridimensionalism
thrive, not in stability (although I certainly concede that
stability is and should be desired). Therefore, rather than
relying on Reales views of law as a horizon of stability,
a stability which Reale thinks is afforded by
tridimensionalism,178 I would rather see instability in
178

Reale claims that [m]utation is inherent to juridical life, which


nonetheless, cannot go without stability, of a certain horizon marked by

136

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

tridimensionalism. But I am not talking about the nihilistic


instability some critics see in theories like
deconstruction;179 I am talking about the instability you
would see in a marriage, to go back to my parallel. There
will always be the risk of divorce, a risk even for the
perfect contemporary marriage I suggest as an analogy.
Divorce for tridimensionalism would mean a radical
revolution destroying a legal system, and re-marriage (to
someone else, most likely) would mean the implementation
of a new legal system, again with the three dimensions
necessary for its success. Without the dialectics, one
dimension will invariably turn out to be the controlling
dimension.180
4. Summary of Insights
Having discussed the tenets of Reales theory, and
before moving on to the criticism such theory has
encountered, let me summarize the key insights it entails:181
(i) In Reales conception of the law, fact, value and
norm will always be present whether the law is studied by
order and certainty. Viewed through such lenses, the juridical order in
effect corresponds to the horizon of stability reached on a certain
historical moment. REALE, TEORIA TRIDIMENSIONAL, supra note 38,
at 99 (as translated by author). Many other passages point to Reales
desire for stability. See id. at 106 (claiming that the legal Science
would not be possible . . . if social life had not presented certain stable
and predictable relations) (as translated by author).
179
Pierre Schlag, A Brief Survey of Deconstruction, 27 CARDOZO L.
REV. 741 (2006) (providing a recent account of such criticism).
180
Another analogy could be that of a piece of music written for a
trio of different instruments. Each instrument would be doing
something different but of equal importance. The piece would not exist
without any one of them. I thank Bruce MacDougall for this additional
analogy.
181
I offer my summary of Reales fourteen insights that arise out of
his theory. See REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 5765.

A Brazilian Perspective: Reales Tridimensional Theory

137

the philosopher, the sociologist, or the jurist. Theorists


who see the three dimensions in law but believe that each
dimension should be the subject of study of a particular
theorist (i.e., the philosopher should occupy herself with
value, the jurist with the norm, and the sociologist with the
fact) engage in generic or abstract tridimensionalism, a
theory which cannot explain the law comprehensively or
adequately.
(ii) The relationship among the three dimensions is
functional and complementarily dialectic; the normative
moment arises out of the tension between the polar
dimensions of fact and value; and that moment both
supersedes and integrates fact and value at a certain place
and time. The dynamic does not stop at the normative
moment; the cycle of the law never stops, aided by
interpretation and the dialectics of complementarity. It
follows that the traditional logical forms in which legal
rules are understood must entail the consideration of the
facts and values which gave rise to such rules. But
dialectics and interpretation require not only the
consideration of historical facts and values; they also
require the consideration of the facts and values that arose
after the initial normative moment. As one of the many
forms of interpretation, the issuance of a judicial opinion
must be equated to a normative moment (something that is
not clear in a Civil Law system). A judicial opinion must,
then, follow the same pattern used in reaching the
normative moment, in the sense that it must reflect an
actual factual and axiological experience, rather than the
mere logical consequence of legal rules.
(iii) The three areas of study under analysis should be
distinguished not by their object or dimensional focus
(whether the object or dimension is fact, value, or norm)
but by the relationship among such dimensions. This
relationship is formed dialectically. Although it is true that
one of the three dimensions may at one point be prevalent

138

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

(and even if one dimension may seem to prevail more often


than the others), one dimension will always be a function of
the other two dimensions (for instance, the normative
dimension will always be a function of fact and value).
(iv) Reale concedes that jurisprudence is a normative
science, but argues that such concept entails much more
than a simple litmus test the sole purpose of which would
be to put to rest the tension between fact and value. The
norm, as the result of that normative moment, is very much
a cultural reality in which, and through which, conflicts of
interests are resolved. The normative moment also gives
rise to a new set of tensions between fact and value.
(v) It is power that posits the norm. Rules require
power to be enacted. They are not, then, a mere and
objective result of the tension between fact and value. But
power for Reale is vested with quasi-Foucaultian
characteristics. The power of which Reale talks about is
not solely the power of a particular state institution, like a
judiciary or a legislature. The concept of power in Reale
includes the anonymous power diffused in the social
body.182 Power itself is therefore conditioned by a
complex of facts and values.183
(vi) As a result of the diversified rules which can result
from the process in which power intervenes, there are many
types and degrees of norms, from more elementary forms
of norms (among which Reale includes customary norms)
to the law posited by the state. The juridical experience
must then be seen as the process in which those varied
norms are codified, made objective, and organized.
(vii) The independence of the concept of value relies on
history and the human being. Value becomes independent
though the relationship between history and the human
182
183

Id. at 61 (as translated by author).


Id. (as translated by author).

A Brazilian Perspective: Reales Tridimensional Theory

139

being. That independence is realized through repetition


and effectiveness and acceptance of values into the world
of is (from the world of ought-to-be). It is in that sense
that value is an independent concept. Because value is an
independent object, the two dimensions alone must no
longer bound the juridical experience: value is a third
dimension claiming its place at the center of the formative
moment of the legal experience. Because value results
from the historical and cultural experiences, and because
value is paramount to law, the juridical experience must
also be interpreted as part of the historical and cultural
experiences as well. The central position that value
occupies in the juridical experience entails three important
functions for the concept of value in that very juridical
experience. Value is (a) responsible for creating the law
(through the nomogenesis discussed above); (b) responsible
for ones understanding of the law (in the sense that the
interpreter of the law should retrace the trail of the
legislator, or the body responsible for the enactment of the
law, and analyze the law from a factual and also axiological
perspective); and (c) a determining factor in human
behavior (it is the repetition of human behavior through
history that provides value with its independent status;
hence, value determines human behavior). In view of the
treble function of value in the juridical experience and
because of the way in which those functions affect law and
the human being in a dynamic manner, law can be seen as a
reflection of human history.184
B. Criticism
In the separate analysis of each of the three dimensions
considered by Reale, one can almost feel a preference for
184

The insight that law can be seen as reflection of human history


resonates with the chain novel example expounded by Dworkin. See
infra note 194 (providing a brief explanation and accompanying text).

140

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

each of them.
While reading Reales depiction of
sociology of law, one can see a sociological bent to Reales
theory. The feeling is only stronger in Reales account of
both legal positivism and natural law. That could be due to
the clarity with which Reale explains those theories
separately, or because those theories cannot be easily
dismissed they are all well established theories that attract
followers and critics to this day.
Most critics try to include Reale within one of the three
dimensions he considers. I must admit that while reading
Reale for a second time, with more mature eyes, I myself
wanted at several points to categorize Reales ideas either
within natural law185 or legal positivism (that can perhaps
be detected throughout the reading of my text). I could
never really see Reale within the sociology of law, although
that is the view of former Brazilian Federal Supreme Court
Justice Hermes Lima, who saw Reale as a legal
sociologist.186 I believe Reales critique of the dimension
of legal sociology is the fiercest and most successful
critique of the one-dimensional approaches considered.
The criticism that deems Reale a natural law
philosopher can have sense when you consider a few
factors in Reales account of natural law and values. Reale
says that there are certain norms that, because they reflect
supreme values, become permanent. These norms would
derive from the axiological invariants discussed supra. If
these norms were erased, they would be reborn from the
ashes187 a statement with echoes throughout the natural
law academy. Another factor contributing to this criticism
can be seen in Reales recent definition of law. To
celebrate his 80th birthday, Reale published Nova Fase do
185

This has been the criticism of Kunz, who saw Reale as a natural
law theorist. See supra note 86.
186
See LIMA, supra note 85, at 212.
187
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 99.

A Brazilian Perspective: Reales Tridimensional Theory

141

Direito Moderno188 in which he deals with justice. After


addressing justice, Reale is able to create his definition of
law, first enunciated in 1992: The Law is the
concretization of the idea of justice in the multi-diversity of
its historical ought-to-be, having the individual as the
source of all values.189
The inclusion of justice in a concept of law begs the
characterization of such concept as one stemming from
natural law theory. Additionally, Reales tridimensional
theory owes its maturity to the concept of value, as
discussed above. The connection between the ethical
discourse and the natural law discourse provides yet
another invitation for criticism of Reales theory as being
one to be included within natural law. Despite the evidence
towards natural law in Reales ideas (both past and recent),
he cannot be seen as a natural law philosopher, as I will
discuss below.
On the other hand, one can see Reale as a legal
positivist with statements like: We the jurists, the
attorneys, have to obey posited law, lest we lose our
case.190
Reales dialectics of complementarity and its dynamic
force can also be seen as ending or ceasing once the norm
is issued.191 This criticism would have Reale be a legal
positivist.
188

MIGUEL REALE, NOVA FASE DO DIREITO MODENO [THE NEW


PHASE OF MODERN LAW] (1990).
189
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 128 (as
translated by author). The original in Portuguese reads: O Direito
uma concretizao da idia de justia na pluridiversidade de seu deverser histrico, tendo a pessoa como fonte de todos os valores. Id.
190
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 120.
191
Argentine critic Jos Villanova viewed Reales theories this way.
See REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 100. However,
Reale maintains that such criticism represents only a partial reading of
his work. To say that his dialectics of complementarity stops at the

142

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

Additionally, Reales figure depicting the creation of


law can also be seen to display a theory remarkably similar
to that of H.L.A. Hart. As noted above, one of Reales
main goals was to criticize legal positivism, especially
Kelsens positivism.
Harts positivism differs from
Kelsens on many points, chiefly in that Harts accepts a set
of circumstances which affect law, while for Kelsen legal
positivism excludes all influences from law. Particularly,
Hart recognized the influence of morality in law.192 But for
Hart, such influence is not necessary or mandatory. For
Reale, not only is the influence of morality necessary, but
also that of legal sociology and its facts. Even considering
such major theoretical differences, I do believe a stronger
criticism of Reales theory comes from a comparison
between Reales theory and the legal positivism developed
by H.L.A. Hart even if Hart still has the problem, on a
Realean perspective, of focusing on the norm, whereas
Reales focus is on the law as a comprehensive
phenomenon.
Therefore, to say that Reale is either a legal positivist,
or a natural law theorist, or a legal sociologist, or anything
norm is to say that facts and values do not change; only the norm
changes. Id.
192
See H.L.A. HART, THE CONCEPT OF LAW 185 (Penelope A.
Bulloch & Joseph Raz eds., 2d ed. 1994) (claiming that it cannot
seriously be disputed that the development of law, at all times and
places, has in fact been profoundly influenced both by the conventional
morality and ideals of particular social groups, and also by forms of
enlightened moral criticism urged by individuals, whose moral horizons
has transcended the morality currently accepted, but distancing that
statement from a proposition under which a legal system must exhibit
some specific conformity with morality or justice). Reale criticized
Harts positivism in many points, but chiefly in Harts claim that the
law does not have a Grundnorm, a statement that, when coming from a
legal positivist, Reale equates with having a nephew who does not
have an uncle. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
101.

A Brazilian Perspective: Reales Tridimensional Theory

143

other than a concrete tridimensionalist, is to either fail to


understand Reales theory and its dialectics of
complementarity (which is perhaps understandable, given
the complexity of the concept), or to deny the effects said
dialectics has on law (which in turn results from a lack of
understanding of the concept of dialectics of
complementarity in the first place).
Reales tridimensionalism could also be seen solely as a
mechanism by which the law develops, rather than a theory
that allows one to comprehend the law. But is that not an
account of law in itself? In describing the development of
law, I believe Reale is precisely talking about law itself.193
Most of the criticism arises from a reading of Reale by
chapters, in bits and pieces. To read an author like Reale
by reading paragraphs out of context is more than not doing
him justice; it is not reading him at all. One either
embraces his full theory and his writings or else the reading
will tend to lead to one of the dimensions, and erase
Reales contributions.
C. Abstract and Concrete Tridimensionalism
We have seen that Reale sees tridimensionalism
everywhere. There is tridimensionalism even in the authors
he uses to describe what he means by one-dimensional
193

Reale discusses how time affects tridimensionalism, conceding


that one could even think of time as a fourth dimension in his theory,
but he goes on to reject that notion of time as a fourth dimension
because, basically, time necessarily affects all three dimensions
equally. Cf. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
218. Note also that an important part of Dworkins legal theory
involves precisely the development of law. See DWORKIN, supra note
111, at 228 (developing The Chain of Law novel analogy, whereby law
is compared to a novel written by many different writers throughout
history, all of whom need to be aware of the aesthetics of the entire
novel in order to add their own development to the story).

144

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

perspectives of law. But in certain authors he sees more


than just a superficial or methodological tridimensionalism;
he sees what he calls abstract or general
tridimensionalism.194 This type of tridimensionalism uses
three dimensions for methodological purposes, but goes
further than that though not far enough to arrive where
Reale arrived, a place Reale calls specific or concrete
tridimensionalism, the kind of tridimensionalism mostly
achieved through dialectics. It is quite possible that
abstract or generic tridimensionalism is the umbrella Reale
chooses to place over authors without a clear preference for
either natural law or legal positivism, and would be the
home of most involved with sociological jurisprudence.
Concrete or specific tridimensionalism is a term Reale
uses to describe theories like his own. The theory
developed by Jerome Hall, called Integrative Jurisprudence,
is a kind of specific tridimensionalism, but without Reales
dialectics of complementarity.195 Outside the common law,
Mexican Luis Recasns Siches seemed to have adopted the
194

Reale cites Roscoe Pound, Gustav Radbruch, Emil Lask, and


other European names as abstract tridimensionalists.
REALE,
FILOSOFIA DO DIREITO, supra note 7, at 535. Reale saw Roscoe Pound
as a source of abstract tridimensionalism in the common law area. Id.
Pound can be considered a legal sociologist. It is not clear to me
whether Reales assessment is a result of a lack of English sources in
Brazil at the time of publication of Reales book in 1968 or whether
Reales understanding of Pound just reflects his different point of view.
Reale concedes that the various circumstances and conditions affecting
each country would inevitably lead to different experiences and
nuances of a tridimensional theory. Id.
195
Even if Halls ideas were published before 1953, the date when
Reales tridimensionalism was made explicit, Reale claims to have
been the first to expound tridimensionalism in 1940. See REALE,
TEORIA TRIDIMENSIONAL DO DIREITO, supra note 38, at 48 n.47.
Jerome Halls initial ideas on Integrative Jurisprudence were published
in INTERPRETATIONS OF MODERN LEGAL PHILOSOPHIES: ESSAYS IN
HONOR OF ROSCOE POUND (Paul Lombard Sayre & Roscoe Pound eds.,
1947).

A Brazilian Perspective: Reales Tridimensional Theory

145

kind of specific tridimensionalism that is most similar to


that of Reale.196
III
CONCLUSION
If forced to give a birds eye view for the context in
which tridimensionalism is inserted, one could say that it is
a Brazilian attempt at weaving together theories that alone
face solid criticism. Tridimensionalism is a patchwork of
the main legal theories from Europe and the United States,
two places Brazilians (and the rest of the world at that)
have been going for theoretical concepts for quite some
time. In that sense the debate between legal positivism and
natural law in Europe, and the fact-based and
interdisciplinary approaches from the United States197 were
merged into a tridimensional theory of law, in a best of all
worlds approach for which Brazilians display much
propensity.
But I prefer to fly much lower, low enough to be able to
see that with his Tridimensional Theory of Law, Reale
provides a unique way in which to combine three wellknown legal theories quite an original endeavor. He
achieves that through his dialectics of complementarity, a
concept which weaves the three dimensions of the legal
experience into one theory of law. To this day, the role of
196

REALE, TEORIA TRIDIMENSIONAL DO DIREITO, supra note 38, at


48. The views of Recasns Siches can be found in English in LATINAMERICAN LEGAL PHILOSOPHY 1-342 (Luis Recasns Siches & Gordon
Ireland eds., Harv. Univ. Press 1948) (the book offers translations of
the basic work of four important legal philosophers in Spanish speaking
Latin America: Luis Recasns Siches, Carlos Cossio, Juan Llambias de
Azevedo, and Eduardo Garcia Maynez).
197
Cf. Jerome Hall, Integrative Jurisprudence, 27 HASTINGS L. J.
779, 780-783 (1976) (claiming, for different purposes, that legal
positivism and natural law were taken from Europe and sociology of
law taken from the United States).

146

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

dialectics in law, especially the dialectics discussed by


Reale, has been mostly ignored.198 Next in importance to
Reales ideas is the concept of value as a separate
dimension. Reales concept of value provides him with the
insight necessary to reach the dialectics of
complementarity. These two related concepts are then the
two most important elements in Reales theory, and they
mark his contributions to legal philosophy.
The study of Reales ideas can have an impact on the
study of Brazilian law in a comparative perspective as well.
It has been claimed that in order to know the law of another
country one must first understand the legal philosophy
behind such law.199 Under that premise, I would suggest
Reales theory as the starting point for anyone wishing to
grasp Brazilian law. Reales theory continues to attract
attention and an ever-increasing number of followers in the
Brazilian legal academy. In studying the theory, you are
likely to think of it not only as one pertaining to Brazilian
law, but one that can also be applied to any other legal
system, as is intended by Reale.
In an effort to present Reales theory, I offered only a
brief contrast with theories and names commonly seen in
North America. I also chose not to address a few issues
which can prove to be quite important for the
understanding of Reale today and perhaps even offer
198

The exception in the legal literature expound a classical concept


of dialectics. See Reed Dickerson, Toward a Legal Dialectic, 61 IND.
L.J. 315, 318 (1986) (discussing the impact that the classical concept of
dialectics, as the art of objectively ascertaining truth, can have on
law).
199
Such statement, in part, relates to the call for greater attention to
legal philosophy in the study of comparative law. For the chief
contemporary text on the matter, see William Ewald, Comparative
Jurisprudence (I): What Was it Like to Try a Rat?, 143 U. PA. L. REV.
1889 passim (1995) (arguing that comparative lawyers must focus on
the philosophies underlying foreign laws, and that such lawyers should
not focus solely on the minutiae of foreign legal rules).

A Brazilian Perspective: Reales Tridimensional Theory

147

developments over his theory. The issues include the


impact that deconstruction can have on Reales theory
(especially, whether deconstruction can replace the
dialectics of complementarity as the connector among the
three theories of law), and the relationship between the
tridimensional theory of law and the new Brazilian Civil
Code, the drafting of which Reale supervised. Both these
issues indicate how Reales theory is both relevant and
current (in the sense that the many uses of tridimensionality
as a theory of law are still both understudied and prone to
yielding many scholarly fruits, and are therefore deserving
of attention). I will briefly introduce one of such issues in
this conclusion.
Deconstruction may not only help understand Reales
tridimensionalism and his dialectics of complementarity,
but also perhaps create a new way to think about integrative
theories of law. Reales contribution might be better
analyzed through Derridean lenses, an analysis that can be
made more successfully in light of the attention that
Derridas ideas (especially deconstruction) have garnered
in the recent past (the availability of research on Derridas
ideas might also allow more scholars to engage with
integrative
jurisprudence
through
Derridean
deconstruction). Both Reale and Derrida were heavily
influenced by Husserl.200 In Derrida it might be claimed
that such influence translated into the creation of
200

Husserls influence on Derrida is well documented. See generally


LEONARD LAWLOR, D ERRIDA AND HUSSERL: THE BASIC PROBLEM OF
PHENOMENOLOGY (2002). Reale cites Husserl on various occasions,
mostly in explaining his concept of value and dialectics and their
relation to Husserls phenomenology and Lebenswelt (Lifeworld). See
REALE, FILOSOFIA DO DIREITO, supra note 7, at 361-367; see also
Irineu Strenger, Fenomenologia e Criticismo Ontognoseolgico
[Phenomenology and Ontognoseological Criticism], 61 REVISTA DA
FACULDADE DE DIREITO DA UNIVERSIDADE DE SO PAULO 198, 199
(1966) (claiming Husserlian phenomenology had profound impact in
Reales legal ideas).

148

OREGON REVIEW OF INTL LAW [Vol. 10, 2008]

deconstruction; in Reale, the influence may be deemed to


carry an equally important impact, as it translated into what
I believe to be one of the most important uses of
deconstruction: breaking the boundaries of previously wellestablished and opposing concepts.201 In Reales case, the
concepts were three legal theories.
Reale never uses the term deconstruction, if only
because Derrida was developing deconstruction almost at
the same time Reale was writing about the relationship
between natural law, legal positivism, and sociology of
law. Deconstruction may allow me to show that terms
which we hold to be opposites may not be that opposite
after all.
In a sense, Reale deconstructed, without
knowingly doing so, the terms legal positivism, natural law,
and sociology of law. In doing so, Reale was able to
uncover a closer relationship among those terms. This
argument demonstrates that when we lift the rigid
boundaries established by academia around those three
concepts, they turn out to be closer and more
interdependent, and must be closer and more
interdependent, than the one-dimensionalist might want to
admit.

201

Jack Balkin sees similar uses for deconstruction. See Jack M.


Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743
(1987); Jack M. Balkin, Deconstructions Legal Career, 27 CARDOZO
L. REV. 719, 723 (2005) (claiming that deconstruction can be a way to
rethink the relationship between conceptual opposites and observe
previously hidden or submerged similarities and conceptual
dependencies).

Você também pode gostar