Direito e teoria social: Três problemas

Abstract

Three theory disasters are the reason why legal doctrine which, particularly in Germany in the early 20th century, had developed a close symbiosis of law and social theory, has immunized itself against the influence of social theory. The alternative to this self-immunization is a distanced approach, whereby the law does not take social theories at their nominal value, but in a complex process of translation generates added value to legal doctrine. The article deals with three problems in the relation between law and social theory. First, competition between theories: how is the law supposed to make a selection if competing social theories give rise to mutually incompatible analyses of social phenomena? Then, knowledge transfer: can the results of social theories be directly applied within the law? Can social theories guide the selection of legal rules and sanctions? Finally, there is the extremely difficult question of the normativity of social theories: can normative criteria for legal practice be derived from social theories? The article uses as an example the problem of horizontal effects of constitutional rights in semi-private networks of medical research.