O convencionalismo jurídico no raciocínio prático social: elementos pragmatistas-inferencialistas na teoria do direito de Gerald J. Postema

Abstract

The aim of this dissertation is a critical reconstruction of the legal conventionalism in Gerald J. Postema’s jurisprudence. This work seeks to present the author’s major contributions regarding two fundamental aspects: (1) in what sense law’s framework is constituted by conventional norms and (2) how Postema understands conventionalism as describing the social dynamics of legal reasoning at the same time it guides subjects’ action. It is proposed a survey of Postema’s conventionalist approach over the years, beginning with its innovative interpretation of Hart’s rule of recognition as a coordination convention that solves cooperation problems from an integrated practical reasoning point of view. It is noticed that the theory remained attached to Hume’s and Lewis's philosophical conventionalism that motivated it in the first place, but as long as Postema took the task of defending this notion of convention from the positivist’s and Dworkin’s criticism his conception of convention has changed significantly. The main change was the attempt to elaborate a discursive material conventionalism, and for that Postema appealed to two major theoretical marks: common law’s conception of integrated public practice and Robert Brandom’s fundamental pragmatism and semantic inferentialism. The last step in this dissertation is to evaluate the compatibility between Brandom’s theory and Postema’s attempt to reconcile conventionalism with legal practice’s argumentative and discursive character. It will be argued that the use of Brandom’s concepts is justified by the general theory of social normativity that Postema tries to construct. However, it is claimed that the conventionalist thesis losesits grip in virtue of the commitments derived from inferentialism and pragmatism situated in the core of Postema’s jurisprudence.