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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.
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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
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80
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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.
83
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
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
85
86
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
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
88
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
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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
93
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
54
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
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99
100
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101
83
102
103
104
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105
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
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107
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
109
Id. at 125.
Id. at 127.
108
Id. at 113.
109
Id.
107
110
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
111
112
113
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
121
115
123
116
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
117
131
Id. at 276.
Id. at 277
133
Id.
134
Id. at 278-79.
135
Id. at 279.
132
118
119
120
121
122
123
124
125
126
127
128
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).
129
130
131
132
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.
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135
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140
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.
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144
145
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148
201