From ought-to-be to ought-to-do: semantic investigation in Kelsen and Castañeda
| Autor | Gustavo Vieira Vilar Garcia |
| Ocupação do Autor | Post-graduation Program in Law, Law School, Federal University of Paraná |
| Páginas | 2623-2634 |
Working Group: Kelsen and law theory • 2623
From ought-to-be to ought-to-do
semantic investigation in Kelsen and Castañeda
Gustavo Vieira Vilar Garcia1
Abstract: Accordingly to the polish legal philosopher Jerzy Wróblewski, although
Kelsensnormativismwasoneoftherstlegaltheoriesabletobebuiltupover
solid philosophical foundations it still suers from an important theoretical
lack, which corresponds to the non-characterization of its peculiar semantics,
the ought-to-be. In fact, Kelsen assumes explicitly in his Pure Theory of Law
thatthedierencebetweentheIsandtheOughtcannotbeexplainedfurther
andthatweareimmediatelyawareofthedierence
It is so an unconcluded work, especially within philosophy of law, the
adequate description of the semantic basis of norms and normativity. For this
taskit seemsthat wecan resortto logicand morespecically tothe logicof
normsin order toachieve abeerunderstanding oftheposition occupiedby
norms in language, and its function in logical theory (despite Kelsen’s deep
distrusttowardsthelogicalapproachtonormativity
It seems that a valid and sharp analysis of this subject was undertaken
by Guatemalan philosopher Héctor-Néri Castañeda. Overcoming the long-term
discussion about the proper status of norms between prescriptions and proposi-
tions, Castañeda assume norms to be a species of the proposition gender and
proceed to a semantic correction: rather than belonging to the ought-to-be, as
maintained Kelsen and the deontic logic tradition, it seems that a most suitable
semantic basis for norms is the ought-to-do. This position has some roots in the
history of philosophy, that could be traced as far as to the autonomy of practical
reason in Aristotle, and as near as the recent development of the logic of action,
within which Castañeda’s proposal could be adjoined. As for the ought-to-do, it
1
Post-graduation Program in Law, Law School, Federal University of Paraná.
E-mail: gustavovvg@gmail.com.
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