RATIONALITY IN THE INTERPRETATION AND APPLICATION OF LAW: FROM KELSEN´S CHALLENGE TO THE CHALLENGE OF GOOD ARGUMENTS

Abstract

Objective: We seek to demonstrate the need to overcome the "Kelsenian challenge" regarding the alleged impossibility of rationality in the interpretation and application of law. We pretend to question the Kelsenian model of science for the legal area and investigate whether there is an objectivity in the use of "good arguments" capable of imposing a greater standard of rationality on Brazilian legal operators at the time of decision making.

Methodology: We start from a more traditional (although not dogmatic) legal research, based on a critical bibliographic review of national and foreign doctrine. We understand legal science as a science of action that must offer viable theoretical paths for decision-making and concrete problem solving.

Results: We conclude that Kelsen's idea of the interpretation of law is the result of his positivist concept of science, based on empirical proof of the exact sciences. His rigid distinction between judgments of facts and of values (inaccessible to scientific knowledge) and his affirmation of the prevalence of will over rationality in the act of interpreting/applying the law conflicts with the constitutional obligation of rational reasoning of judicial decisions.

Contributions: We raise arguments against a relativistic view of the interpretation of law, which contributes to the unpredictability of judicial decisions. We clarify different aspects of Kelsen's theory that deal with the interpretation and application of the law that are little discussed in the Brazilian academy of law.