Insufficiencies of legal epistemology: between interpreting the law and applying the norm in the theory of law and human rights

Abstract

The discussion proposed here is prompted by the notion that the study of Law is not limited solely to normative texts and the fundamental legal concepts that surround them. There is a plurality of objects that must emerge in the debate, with the purpose of questioning the (in)sufficiency of legal epistemology regarding the verbs it conjugates: to interpret and to apply normative texts exclusively. The bidirectional gaze of the adjudicating body must simultaneously reach both law and dispute. In this sense, it is recognized that the juris-construction of the interpreter is not applied directly to the conflict, but rather to the subjects in conflict, considering its bitransitivity at the syntactic level. That is to say, the verb “to apply” is initially conjugated with the law as its direct object, as expressed in the phrase “the judge applies the law.” Thus, the expression “the judge (subject) applies the law (direct object) in order to resolve the crisis of legal uncertainty (indirect object)” seems to reveal that one aspect of the interpreter-applicator’s activity is not contemplated within legal epistemology. From this follows the central research problem: does the complex social phenomenon of the dispute still lack a theoretical systematization capable of dedicating a specific verb (rectius: a specific act of the judge) that may be conjugated with the aim of offering the response expected from the State to resolve the conflict of interests embodied in the claim? The hypothesis under analysis is that the action verb “to comprehend” is missing from the observer-interpreter-applicator of law. The dialectical method will guide this theoretical study, based on the analysis of bibliographic references that lead the discussion on the objects of study of legal theory indicated here, as well as the contribution of other elements related to human rights theory, complexity theory, and conflict theory, in order to observe intersections between concepts present in each, especially in view of the inherent insufficiencies of any theory in the field of social sciences.