“DEPENDE”

A facticidade como elemento co-constitutivo da norma jurídica

Abstract

The article analyzes the structure of legal norms and the ways in which they are applied. Drawing on philosophical hermeneutics and Ronald Dworkin’s interpretative theory, it proposes overcoming the positivist approach to legal phenomena, which traditionally separates law and morality, fact and norm, practice and theory. The argument is that such dichotomies are unsustainable, as the act of interpretation cannot be separated from the act of application. To interpret a norm, therefore, is to construct it in each concrete case. Thus, the legal norm is composed, inseparably, of linguistic elements that relate both to factuality and to law.