The legal order, “in a context of norms with particular relations between themselves” (BOBBIO, 1995), is based, undoubted, by the dogmatic speech. Because of the decision meaning of the juridical practice, is necessary the existence of a group of unquestionable concepts, where the judges can build foundations to construct theories. Since the uncertainty is something unacceptable, in a perspective guide by the Law, is not possible to disagree whit any presupposes made by the legal order, so that, is necessary to create dogmas (COSTA, 2001).
These dogmas, knowing that, in this perspective, they are unquestionable, have an important part in the Law practice. However, are these elements enough for the resolution of any conflict? It is acceptable to say no. The legal order can create an intense search for the completeness, but it will not reach the final objective, truly precision and a big coverage. The norms, for themselves, are frequently not enough, in most case because of your ambiguity, possible chock with another law and for your imprecision in a normative text.
By these reasons, the judge is constantly challenged in a context that is necessary to implement in decisions a metalegal speech. Economics, sociological and philosophical aspects can be where the judges try to find solutions for the black spaces that the norms create, adjusting for a certain social context.
Nonetheless, this way can be really dangerous, since the existence of the dogmatic speech it is indispensable and decisions based just by extralegal should conduct to an unacceptable level of arbitrariness. So, how can be insert this element in the decision making process during social transformation? The graphic can illustrate, in a simple way, the circularity of the dogmatic speech, by their permeability in relation to the metalegal aspects.
In the graphic, it is possible to notice a simple idea of the standards in the evolution of the dogmatic speech. By adopting a restrict normative perspective, the dogmatic falls into the trap of thinking in the existence of the legal order as a panacea, where the norm have a clearly answer for every conflict, conducting to bring the permeability of the dogmatic to the level of the metalegal aspects, that comes to fill the black spaces of the law. However, the excessive permeability conducts the system to a trap: arbitrary. Not considering the norms creates a big crisis in the system, because the divergence between decisions breaks the legal order, bringing the system to a more intense normative characteristic.
This ordainment creates an environment that the norms do not exist for themselves; they are connected in a juridical system. By the existence of the legal order, that the juridical norms are present. Because of that, in a variety of norms in a certain legal order (especially the complex ones), we will have a lot of problems, like the unity (the knowledge of the legal order as united and valid, in a hierarchical perspective) and the coherency (process of attempt of ease the contradictions). In the end, it is obviously to say that the ordination that appeared to be united and valid brings the completeness (it will try to fill all the black spaces) (BOBBIO, 1995).
Considering what was said, it is noticeable that, in the legal order, the dogmatic speech will be always aiming the completeness, in your last level. So, it exists something near a organization method where the dogmatic speech will fight to seems complete
Besides, it is interesting to show the way dogmatic theology presents itself within the legal order:
The Dogmatic theology, according to Kelsen (2006), is the “way rules should be understood”. It helps, according to Costa (2001), in the decision-making process, ensuring some “stability and predictability” in juridical actions, which assures, at least, formal justice between people (equal handling). However, as shown in the diagram above, the dogmatic, despite penetrating the whole legal system, is not applied equally to all. The dogmatic used to assay a factual case in civil law is not the same used by the jurist 19when analyzing criminal law, for example. Nevertheless, there is nothing to stop the convergence to a common dogmatic (COSTA, 2001).
To certify the above distinction, it is possible to use the example of political revolutions defended by Kuhn (compared to scientific revolution): “Political revolutions begin with an increasing feeling (…) of failure of the institutions to respond adequately to the problems imposed by the surroundings” (KUHN, 2013 p.178). During political revolutions, a new legal order can or cannot be created (like the passage from monarchy to republic), which does not interpose in the Dogmatic theology’s existence. In other means, the legal order is changeable (may be even inexistent, as in communist system), but not the dogmatic: while there is a decisive phenomenon, there will be dogmatic. Once these definitions are enlightened, we will be able to discuss the dogmatic point of view of completeness in a complex legal order.
Assuming that there will be necessarily a decision and it will be based on a rule of law integral system (BOBBIO, 1997), there is the dogmatization of completeness (the reason of a system, as seen above), in other words, the pacification of demands. This way, the judge will not have space to select cases: once caused, then it will come to judgment¹.
Although there is not the demand of a perfect and complete legal order, casual antinomies may appear, being the judge up to solve them by the provided tools, like normative integration. If the rule itself or any other rule with the same hierarchy, which deals with similar cases, are not enough, there is a climbing through the normative pyramid looking for decision support (BOBBIO, 1995).
However, this search cannot be provided with inconsistency, once, when referring to normative unit, the intention is to abstract from it principles which harmonize everything, so that even with a possible gap, filling the spaces is consistent. We can’t mistake, nevertheless, filling with freedom to create some strange law to the system: a rule, while part of a unit, always looks for validity in some above (KELSEN, 2006), once innovating without considering that it is totally arbitrary.
This way, the dogma of completeness has the function to bring certainty of an answer. However, considering the legal phenomena which modify society ever faster and also that rules are incapable to follow it, it is noticeable, trying to fulfill the duty of judging, more occurrences of abstraction that extrapolate standard laws to factual cases. The resulting problem is, as said, the uncertainty of being installed on the legal system and the consequent change of roles of the person who create the rules and who apply it. When this occurs, normally, positive rules yield in its dogmas, aiming to avoid the appearance of antinomies e, in consequence, not restrict the role of legislator.
Therefore, it is possible to abstract that Law is presupposed to answer and avoid, in some way, excessive digression that does not bring certainty. This way, by saying “everything is relative” we do not create an absolute which any argumentative base can disappear in an eventual contradiction or non-acceptance otherwise than the intended meaning. The very enunciation, when widespread, is distorted: if everything is relative, the very sentence is suspended, concluding that not everything is relative and there will be no relatable situations.
¹There will always be a sentence, even when the judge decides, like in non liquet, that Law can’t answer the case, for example. However, it is possible to say that, even in this case, there will be a dogmatic.
BOBBIO, Norberto. Teoria do Ordenamento Jurídico. Brasília: Universidade de Brasília Publisher, 1995, 6th ed.
KELSEN, Hans. Teoria Pura do Direito. Chapter V: Dinâmica Jurídica.
COSTA, Alexandre. Introdução ao Direito. Chapter II: normas jurídicas