Professional Documents
Culture Documents
ABSTRACT
It is surprising to see that next to nothing has been
published in English about Reales theory of law, even two
years after his passing. Reales last major work, the Civil
Code that went into effect in Brazil in 2003, will certainly
affect that countrys society for years to come, and so will
his legal theory. It has been argued that in order to study
comparative law, one must first understand the legal theory
underlying the law under analysis. In that sense, Reales
theory should be the point of start for whoever wants to
understand Brazilian law. Beyond that, Reales theory is
important enough to overcome country frontiers. His
Tridimensional Theory of Law provides a unique way to
combine three well-known legal theories: sociology of law,
legal positivism and natural law. The combination is
achieved through the concept of dialectics of
complementarity, which weaves the three dimensions of the
juridical experience into one dynamic theory of law. The
result is the best way to theorize about law and its
*
Associate, Skadden, Arps, Slate, Meagher & Flom LLP. I thank the
Law Foundation of British Columbia and the Deans Fund at The
University of British Columbia Faculty of Law for supporting my
research. I would like to thank Robert Senh, Katie Kunimoto, Mariah
Kennedy, Paul Tassin, and Andrew Cicerella for editing this piece;
Lzaro Lima for sending me most of the Brazilian materials; and Bruce
MacDougall, Karin Mickelson, and Michael Cody for commenting on
previous drafts.
77
78 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
OUTLINE
INTRODUCTION
I. ONE-DIMENSIONAL THEORIES CONSIDERED BY
REALE
A. Sociology of Law
B. Legal Positivism
C. Natural Law
II. REALES TRIDIMENSIONAL THEORY OF LAW
A. The Theory
1. The Evolution of Reales Thoughts
2. Reales 1992 Explanation
3. The Two Key Concepts
a. Value
b. Dialectics of Complementarity
c. Analogies for the Dialectics of
Complementarity
4. Summary of Insights
B. Criticism
C. Abstract and Concrete Tridimensionalism
III. CONCLUSION
INTRODUCTION
The dominance of foreign theories in the Brazilian legal
academy does not mean that the country has not produced
its own local jurisprudential flavor, bold and rich.
Although it is hard to identify a truly original legal
philosopher or legal philosophy in Brazil (or anywhere else
for that matter), there are a handful of notable contributions
made by Brazilians. Here, I focus on what is quite
A Brazilian Perspective: Reales Tridimensional Theory 79
1
Cdigo Civil do Brasil No. 10,406, de 10 de Janeiro de 2002,
D.O.U. de 11.01.2002. (Brazil). The name Reale is usually read in
Portuguese as Heh-ah-lee.
2
The books are FUNDAMENTOS DO DIREITO [FOUNDATIONS OF LAW]
(1st ed. 1940); TEORIA DO DIREITO E DO ESTADO [THEORY OF LAW AND
STATE] (1st ed. 1940); FILOSOFIA DO DIREITO [PHILOSOPHY OF LAW]
(1st ed. 1953); and TEORIA TRIDIMENSIONAL DO DIREITO
[TRIDIMENSIONAL THEORY OF LAW] (1st ed. 1968). For a discussion of
the main ideas in such books, see sections III.A.1 and III.A.2, below.
In this article, I use more recent editions of these books. See JORGE J.E.
GRACIA, LATIN AMERICAN PHILOSOPHY IN THE TWENTIETH CENTURY:
MAN, VALUES, AND THE SEARCH FOR PHILOSOPHICAL IDENTITY 195-96
(1986) (biographical sketch in English of Miguel Reale, describing also
his philosophical ideas on values).
3
The basic book on the matter is JOSEF LAURENZ KUNZ, LATIN-
AMERICAN PHILOSOPHY OF LAW IN THE TWENTIETH CENTURY (1950)
[hereinafter KUNZ, LATIN-AMERICAN PHILOSOPHY], which combines
three previous articles on the matter: Josef Laurenz Kunz, Latin-
American Philosophy of Law in the Twentieth Century, 24 N.Y.U. L.
Q. REV. 283, 473, 801 (1949). More recent works by Kunz also failed
to cover Reales ideas other than in passing. See e.g. Josef Laurenz
Kunz, Contemporary Latin-American Philosophy of Law - A Survey, 3
AM. J. COMP. L. 212 (1954), and Josef Laurenz Kunz, An Introduction
to Latin-American Philosophy of Law, 15 U. TORONTO L.J. 259 (1964).
Throughout his work, Kunz carefully distinguishes between the legal
philosophies from Spanish America and Brazil (in which Portuguese is
spoken), a distinction caused by language and other historical
differences.
80 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
4
Three brief, but notable, exceptions can be found in Miguel Reale,
Law and Power and Their Correlation, in ESSAYS IN JURISPRUDENCE IN
HONOR OF ROSCOE POUND 238-70 (Ralph Abraham Newman & Am.
Socy Legal Hist. eds., 1962) (describing the seeds of Reales ideas on
power further discussed infra in pages 107-08 and to a smaller
extent the seeds of his tridimensional theory, object of the present
piece); Miguel Reale, Josef L. Kunz and the Search for an Integral
Philosophy of Law, 3 U. TOL. L. REV. 247 (F.G. Sturm trans. 1971)
(claiming that Kelsens work incompletely implied a trichotomy, but
focused on positivism; claiming also that Kunz developed Kelsens
ideas in a move towards an integral jurisprudence, involving legal
positivism, natural law, and legal sociology); and Miguel Reale,
Axiological Invariants, 29 J. VALUE INQUIRY 65 (1995) (describing the
type of values which remain unchanged through time). I do not believe
one can grasp even the contours of Reales tridimensional theory of law
from such English texts, read individually or collectively.
5
See Jerome Hall, Integrative Jurisprudence, 27 HASTINGS L.J. 779
A Brazilian Perspective: Reales Tridimensional Theory 81
I
ONE-DIMENSIONAL THEORIES CONSIDERED BY REALE
Reale considers three major legal theories in devising
his own: sociology of law, legal positivism, and natural
law, in that order.6 The three theories are described by
A. Sociology of Law
Using the term sociology of law, Reale considers all
theories that view law from a predominantly or exclusively
factual perspective. He refers to legal sociologism,
(sociologismo jurdico) as an extreme fact-oriented version
of sociology of law. He prefers the term sociology of
law to legal realism and juridical empiricism because it is
broader. Therefore, using sociology of law, Reale
includes all theories that consider law as a mere component
of social phenomena and theories that view law as a subject
capable of being studied in accordance with the same set of
causes that affect facts in the physical world.7 Reale argues
that from the end of the nineteenth century through the
early part of the twentieth century, when the case for
sociology of law was made more explicit, jurists searched
for more humane and concrete ways to interpret the law.
That search resulted in legal sociology.8
LEGAL PHILOSOPHIES (2d ed. 1997) (dealing with natural law first,
before discussing over ten other theories of law). But Reale expounds
on natural law after sociology of law and legal positivism, and I believe
that succession did not occur by chance. The dimension of value,
inserted within natural law, was the last dimension added to Reales
theory, and Reales understanding of value as an independent concept
allowed him to create his dialectics of complementarity, a topic that
will be addressed in more detail below. Positioning natural law last
may also indicate something about Reales deeply held views and may
explain why some critics have considered him to be a natural law
philosopher.
7
See MIGUEL REALE, FILOSOFIA DO DIREITO [PHILOSOPHY OF LAW]
434 (20th ed. 2002) [hereinafter REALE, FILOSOFIA DO DIREITO].
8
Id. at 438.
A Brazilian Perspective: Reales Tridimensional Theory 83
9
Id. at 435.
10
The first edition of REALE, FILOSOFIA DO DIREITO, supra note 7,
was published in 1953. Even the most recent 2002 edition used for this
research fails to explicitly address more contemporary Northern trends
in legal thoughts, other than in passing.
11
I concede that many contemporary trends or theories may not
actually claim to be comprehensive or to explain the law in its entirety;
rather, they may be seen as trends or theories that attempt to improve
another legal theory, bring about inclusion, or seek the end of a
particular form of injustice.
12
REALE, FILOSOFIA DO DIREITO, supra note 7, at 435.
84 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
13
Id. at 436.
14
Take affirmative action in legal education as an example of the
problem with having economic facts prevail over other important facts.
Some ascribing to the law and economics movement argue that
affirmative action is bad for legal education. For those, allowing less
qualified students into the classroom lowers the production of
scholarship and innovation, and results in less wealth overall. I
disagree with that assertion, even as an economic argument, because
minorities can bring a different perspective and approach to problems
that can turn out to be very conducive to scholarship (i.e., more
wealth). But the law and economics argument against affirmative
action in legal education can also be attacked within Reales
framework. Why should economic facts prevail when many other facts
can be taken into consideration? Focusing on the economic aspects of
issues usually leads us to overlook other social aspects, including race,
class, gender, sexuality, and how history has treated those differences.
15
Including Tobias Barreto, Pedro Lessa (whom Reale replaced at
the University of So Paulo), and Francisco Cavalcanti Pontes de
Miranda, three of the best-known scholars in Brazil. See REALE,
FILOSOFIA DO DIREITO, supra note 7, at 436.
16
Duguits views are available in English in a series of four short
articles translated by Margaret Grangent and Ralph W. Gifford: Lon
Duguit, Objective Law, 20 COLUM. L. REV. 817 (1920); Lon Duguit,
Objective Law II, 21 COLUM. L. REV. 17 (1921); Id. at 126; Id. at 242.
A Brazilian Perspective: Reales Tridimensional Theory 85
17
On the matter of pragmatism, see Felix S. Cohen, Transcendental
Nonsense and the Functional Approach, 35 COLUM. L. REV. 809
(1935) (arguing against the use of abstract concepts in law, and calling
for a thorough factual analysis for legal cases, involving economics and
other factual circumstances affecting a particular situation).
18
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 440.
American legal realists writing around the same time had a similar
concern, a concern that favored pragmatism and opposed
transcendental concepts. See also Cohen, supra note 17, at 809, 814.
Cohen calls our attention to absurd abstractions that should not concern
legal academia, like where or when is a corporation.
19
REALE, FILOSOFIA DO DIREITO, supra note 7, at 441.
20
Id. at 442.
21
Id. at 446.
22
Id. at 437.
86 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
23
Id.
24
Id. at 447. In arriving at that conclusion, it is implicit in Reales
reasoning that positive law ultimately rests on a metaphysical concept,
like a Grundnorm, as discussed below.
25
Id. at 448-49.
26
Frank says that judicial decisions are at the core of the definition of
law for realists. JEROME FRANK, LAW AND THE MODERN MIND 50
(Anchor Books 1963) (1930) (claiming that [f]or any particular lay
person, the law, with respect to any particular set of facts, is a decision
of a court with respect to those facts so far as that decision affects that
particular person. Until a court has passed on those facts no law on that
subject is yet in existence.).
27
Unfortunately, Reale does not provide a citation to Alf Rosss
work in support of his statement. I wonder why Reale did not focus on
the ideas of an author he would deem to be a more radical proponent of
sociologism, given that Reales own accounts of Duguits ideas
indicate that he is not radical.
A Brazilian Perspective: Reales Tridimensional Theory 87
a judge must say what the law is; the judge must create the
law. Still, for legal sociologists, judges must use positive
law as a guide, but let facts bind.28 Reale on the other
hand, thinks judges must be free, but must act within
binding law (not facts).29 Duguits pragmatism is then
weaker than that of Alf Ross, as Duguit conditions only the
interpretation and evaluation of a law, but not necessarily
its validity, to its social acceptance.30
Even though the law, for Duguit, is created (Reale uses
the term nomognese) solely with facts, Reale believes
that Duguits theory requires the contribution of logical
factors (norms or positive law) and axiological factors
(solidarity and justice) at all times.31 For instance, Duguit
claims that there are only 3 or 4 actual legal rules in the
French Civil Code, and that most of its other sections are
but technical rules used solely to put those 3 or 4 rules into
effect. Reale says that is precisely what natural law
holds,32 except that for Duguit, those fundamental
principles are established by society, and do not result from
the very nature of man, a tenet of natural law for Reale.33
Seeing tridimensionalism everywhere, Reale finally
notes that Duguit himself started late in his career to sketch
a theory of values which is compatible with his sociological
legal theory.34 Reale believes that if we take the dimension
28
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 438.
29
See id. at 439.
30
See id. at 450.
31
See id. at 451.
32
St. Thomas Aquinas addressed the issue using the term human
law, defined as a law that contains the technical rules setting out the
particular determinations of natural law. Human law, for Aquinas,
needs to be subject to natural law. ST. THOMAS AQUINAS, POLITICAL
WRITINGS 86-87 (R. W. Dyson ed. & trans., Cambridge Univ. Press
2002).
33
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 452.
34
See id. at 454.
88 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
35
For the meaning of the term of art juridical experience, see infra
note 77.
36
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 454.
37
In addition to Reales criticism of legal sociology, two other issues
can be raised to the dimension of facts. The first is the matter of
ascertaining facts, which to me is a question similar to, but easier than,
the question of who decides what exactly natural law is. Reale deals
with this classic issue of natural law, as we shall see below, but does
not raise the issue for legal sociology, perhaps because facts are
somewhat easier to determine. But are they? Even more self-evident
facts, like race and geography, can be interpreted to impact society in a
variety of ways that have varied through time. Here, I borrow from
Cohens push for a functional approach to law, according to which you
should ask not how you determine a fact, but rather, what impact that
A Brazilian Perspective: Reales Tridimensional Theory 89
B. Legal Positivism
Reading Reale, I sometimes think he believes that his
greatest accomplishment was not his dialectics of
complementarity per se, which I will discuss below, but
rather how, through his concept of dialectics, he was able to
fact, religion for instance, has on society, human motivation, and social
structure. See Cohen, supra note 17, at 830. On the other hand, there
are less evident facts, such as the economy, for which theories abound
left and right. The issue of fact determination can be another weakness
for legal sociology as a comprehensive legal theory. The second issue
that can be raised against legal sociology, in addition to the issues
raised by Reale, is the issue of the expertise of lawyers, or the lack
thereof, in fields other than law. For a better legal understanding of a
fact like the economy or psychology, the legal interpreter is required to
be versed in those fields, as well as in law. Jerome Frank was a great
advocate of a more extensive use of language and psychology in law
and in his advocacy published extensive chapters involving the
application of those facts (language and psychology) to legal issues.
See FRANK, supra note 26, at 138ff. The use of language and
psychology in law is certainly a welcome move, but a risky one.
Theorists involved with the economic analysis of the law have also
been accused of a similar deficiency (not being thoroughly versed in
economics).
90 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
38
MIGUEL REALE, TEORIA TRIDIMENSIONAL DO DIREITO
[TRIDIMENSIONAL THEORY OF LAW] 118 (5th ed. 1994) [hereinafter
REALE, TEORIA TRIDIMENSIONAL]. The scope of this piece prevents
me from examining why Kelsen is so influential in Latin America, but I
do believe one of the many reasons is that Kelsen delivered lectures in
Buenos Aires in 1949; through this visit he established a direct
dialogue that was unique to Latin America at the time. See also John
Linarelli, Anglo-American Jurisprudence and Latin America, 20
FORDHAM INT L L.J. 50, 78 (1996) (stating that Kelsen had a profound
significance in Latin America because legal culture in Latin America
is heavily influenced by nineteenth century rationalism and the
proposition that law can be reduced to science).
39
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118 (as
translated by author). Reale speaks of many other legal positivists,
especially neo-positivists like Norberto Bobbio and H.L.A. Hart, but
Kelsen is clearly the focus; it is his model of legal positivism that is
closely criticized. Reale indicates why the theories developed by both
Bobbio and Hart cannot withstand scrutiny in MIGUEL REALE, O
DIREITO COMO EXPERINCIA (INTRODUO EPISTEMOLOGIA
JURDICA) [THE LAW AS EXPERIENCE (INTRODUCTION TO JURIDICAL
EPISTEMOLOGY)] 98-101 (2d. ed. 1992) [hereinafter REALE, DIREITO
COMO EXPERINCIA].
40
The first edition of Kelsens Pure Theory of Law was published in
1934.
41
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 455. The basic
goal of Kelsens theory is expressed on the first page of his book.
HANS KELSEN, PURE THEORY OF LAW 1 (Univ. of Cal. Press 1967)
A Brazilian Perspective: Reales Tridimensional Theory 91
That is not to say that Kelsen did not see the value of the
various problems arising out of psychology, economics,
etc., but he believed those problems should be addressed
within their relative fields, not law.42 Those fields can be
of some help, but legal interpretation must come from
interpretive structures specific to the juridical experience.43
Kelsen is most famous for his concept of Grundnorm,
or basic norm, a fiction created to provide the foundation
and validity for all the law. Law, then, rests always upon
another, hierarchically-superior norm. The process of
trying to reach the origin of law has to stop at the fiction of
the basic norm.44 Reale states that Kelsens sole concern is
that this norm be issued correctly.45
Reale thinks that for Kelsen, sociological jurisprudence
is a science connected to is, because it studies facts and
legal behavior, all of which are, while the science of law
is involved with ought-to-be in the sense that the science
of law prescribes actions and a desired behavior for
49
Id.
50
See id. at 470.
51
See id.
52
Id. at 473 (as translated by author).
53
See id. (as translated by author).
94 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
54
See id. at 474.
55
LEGAZ Y LACAMBRA, FILOSOFA DEL DERECHO [PHILOSOPHY OF
LAW] 55 (2d ed. 1961) (1953) (as translated by author).
56
See id. at 479.
57
Id. (as translated by author).
58
Id.
A Brazilian Perspective: Reales Tridimensional Theory 95
C. Natural Law
As mentioned above, positioning natural law last may,
along with other evidence, reveal Reales natural law bent,
an accusation which he fights.59
Moralists, says Reale, understand the reasoning behind
normativism but believe that if the norm does not bind the
conscience, the norm is then pure form with no content or
meaning.60 Moralists, he continues, also understand the
reasoning behind social empiricism but cannot follow
empiricism when the latter claims that the norms are what
can normally be verified in society.61
For the moralist, ought-to-be (the law) cannot be
devoid of its content, because its content is key and has no
relation to time or place. The moralists ought-to-be is
capable of gaining the adhesion of conscience.62 Reales
account of morality reflects two of the few demands shared
by most natural law theorists: (i) universal principles that
are (ii) mandatory.63
Reale distances juridical morality from an old school
of Natural Law, rationalistic and abstract, which idealized a
complete and perfect legal order, and upon which judges
and legislators would base their legal creations or
59
Reale rejects Kunzs characterization of his ideas as those of a
natural law philosopher. Miguel Reale, Personalismo e Historicismo
Axiolgico [Personalism and Axiological Historicism], 20 REVISTA
BRASILEIRA DE FILOSOFIA 541 (1956), reprinted in REALE, TEORIA
TRIDIMENSIONAL, supra note 38, at 129.
60
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 481.
61
See id. at 482.
62
Id.
63
Id. The other commonly accepted natural law tenets include (i)
natural law is immutable, (ii) it is a higher form of law (not necessarily
in the religious sense, but higher in terms of better quality), (iii) it is
discoverable by reason, and (iv) it is created by God. See DAVIES,
supra note 41, at 61-62. See also HARRIS, supra note 6, at 7.
96 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
64
REALE, FILOSOFIA DO DIREITO, supra note 7, at 482 (as translated
by author).
65
Id. at 482 n.1.
66
Id. at 482. Reale also included accounts of the natural law theory
for Julius Binder, a theory he saw as a less extreme version of Gentiles
theory. See also Morris R. Cohen, Italian Contributions to the
Philosophy of Law, 59 HARV. L. REV. 577 (1946) (providing a broader
view of jurisprudence in Italy and devoting attention to Vico. My
endeavor in the present piece is somewhat similar to that of Cohen).
67
AQUINAS, supra note 32.
68
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 484.
69
See id. at 485-86. I note that the minimum moral content of
positive law discussed by H.L.A. Hart is a matter of fact. Hart does not
A Brazilian Perspective: Reales Tridimensional Theory 97
74
See id. at 489.
75
Id. at 490.
76
Id. at 492.
77
The term juridical experience is a deeply philosophical concept
that occupies most of Reales later works. See, e.g., REALE, DIREITO
COMO EXPERINCIA, supra note 39 at 9; MIGUEL REALE, EXPERINCIA
E CULTURA (PARA A FUNDAO DE UMA TEORIA GERAL DA
EXPERINCIA) [EXPERIENCE AND CULTURE (FOR A FOUNDATION OF A
GENERAL THEORY OF EXPERIENCE)] (2d ed. 2000) (1977) [hereinafter
REALE, EXPERINCIA E CULTURA]. The concept can be described as
follows: If we talk of experience it is only because we find ourselves
in the face of something that has been given. . . . [Experience] is a
very complex collection, but very much whole, of diverse data, which
are reciprocally interwoven, such data have a double nature - they are
facts dealing with inter-human relations, full of references to value-
ations. REALE, DIREITO COMO EXPERINCIA, supra note 39, at 35,
citing Luis Recasns Siches, [unnamed article], 11 DIANOIA 34 (1965)
(as translated by author). Dialectical tension, a concept which will be
discussed below, can be seen in the concept of experience.
A Brazilian Perspective: Reales Tridimensional Theory 99
II
REALES TRIDIMENSIONAL THEORY OF LAW
A. The Theory
Reale says that [l]egal doctrines are not created by
chance or in accordance with personal inclinations of this
or that jurist. Rather, they reflect demands which are
deeply felt by the interpreters of economical and social
facts in a certain time and place.79 According to Reale,
today law has three dimensions, each of which are
incomplete when considered separately. But he also sees
the value that each dimension brings to law, and feels law
can then only be fully comprehended through a theory that
combines these three dimensions.80
78
REALE, FILOSOFIA DO D IREITO, supra note 7, at 492. Reale does
not address the theory developed by John Finnis, which represents what
is probably the most respected contemporary account of natural law.
Among other deviations from classical natural law theory, Finnis does
not believe an unjust law can be disregarded. JOHN FINNIS, NATURAL
LAW AND NATURAL RIGHTS 363-67 (Oxford Univ. Press 1980). See
also HARRIS, supra note 6, at 18-19 (stating that Finnis claims that the
slogan lex iniusta non est lex has been misrepresented by critics of
natural law doctrine. An unjust law is not a nullity [for Finnis].).
79
REALE, FILOSOFIA DO DIREITO, supra note 7, at 409 (as translated
by author).
80
Id. at 410. Reale is also emphatic elsewhere: [T]here can be no
law, nor a study about the law, which is not necessarily
tridimensional. REALE, DIREITO COMO EXPERINCIA, supra note 39,
at 76.
100 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
81
But cf. Trcio Sampaio Ferraz Jr., A Noo de Norma Jurdica na
Obra de Miguel Reale [The Notion of Juridical Norm in the Works of
Miguel Reale], 26 CINCIA E CULTURA 1011, 1012 (1974) (claiming
that Reales ideas about norms try to overcome the loss of confidence
in normative solutions).
82
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 152. Reale
bases his concept of theory on the definition of theory in NICOLA
ABBAGNANO, DIZIONARIO DI FILOSOFIA [DICTIONARY OF PHILOSOPHY]
(848 Unione Tipografico editrice torinese 1961).
A Brazilian Perspective: Reales Tridimensional Theory 101
83
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118. A vague
idea of tridimensionalism is not saying much, given that Reale saw
that same tridimensional vagueness in legal sociology, legal positivism,
and natural law. I believe Reale would not agree with my division of
his ideas into three stages, as my division entails actual
tridimensionality only after 1953, not after 1940, which is Reales
claim.
84
Id. at 118.
85
HERMES LIMA, INTRODUO CINCIA DO DIREITO 212 (8th ed.
1955); see also REALE, TEORIA TRIDIMENSIONAL, supra note 38, at
130.
86
See KUNZ, LATIN-A MERICAN PHILOSOPHY, supra note 3, at 30; see
also REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 130. Kunzs
characterization of Reale as a neo-Thomist can also be found in an
article by Josef Laurenz Kunz, Latin-American Philosophy of Law in
the Twentieth Century, 24 N.Y.U. L. Q. Rev. 283, 313-14 (1949).
Kunzs views might have changed by the time he wrote the article,
Contemporary Latin-American Philosophy of Law - A Survey, 3 A M. J.
COMP. L. 212, 218 (1954) (mentioning, very briefly, Reales
tridimensional theory of law, but without any explanation or change of
the authors account of Reale as a neo-Thomist).
102 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
87
Id. at 118 (as translated by author).
88
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 118-19.
Again, by pointing to value as the ending point, Reale invites the
characterization of his theory as a theory of natural law.
89
Id. at 119 (as translated by author).
90
REALE, FILOSOFIA DO DIREITO, supra note 7. For a short review of
such book in English, see Ilmar Tammelo, Book Review, 1 SYDNEY L.
A Brazilian Perspective: Reales Tridimensional Theory 103
94
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 120-21 (as
translated by author).
95
See id. at 121.
96
See id. at 120 (as translated by author). This is not much different
from Harts soft positivism, as we shall see below. The quote also
reveals an important point in Reales career: he never ceased to practice
law. He accorded great importance to the impact his legal practice (as
an attorney and in many state positions) had on his legal philosophy.
The trend of legal philosophers-practitioners seems to be in slow
decline in Brazil as more and more professors are teaching full time.
97
Id.
98
Id.
A Brazilian Perspective: Reales Tridimensional Theory 105
99
Id. at 121. I can see the sense in equating the science of law with
legal positivism, and sociological jurisprudence with facts, but once
again, one can sense that Kunz saw bias in Reales notion of equating
natural law with the philosophy of law. However, I can accept that the
term philosophy of law is equated with natural law. Natural law
for Reale involves ethics and morals, two issues which have been
paramount for philosophers.
100
REALE, FILOSOFIA DO DIREITO, supra note 7, at 553. The figure
appears in many other works from Reale. See, e.g., REALE, TEORIA
TRIDIMENSIONAL, supra note 38, at 123; REALE, DIREITO COMO
106 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
102
Id. at 124.
103
The Brazilian Code of Civil Procedure has a mechanism to create
smulas, which are very powerful case headnotes (usually in the
form of short imperative sentences) that a superior court can use to
bring uniformity to its decisions in certain areas of law. In Brazil,
smulas are one of closest institutions to the stare decisis doctrine. For
more information regarding judicial decisions in Brazil, see AUGUSTO
CSAR MOREIRA LIMA, PRECEDENTES NO DIREITO 9.2 (2001).
108 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
106
Id. at 125.
107
Id. at 127.
108
Id. at 113.
109
Id.
110 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
110
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 77 (as
translated by author). Because it is perhaps the most important
summary of Reales theory, I provide the original:
Em suma, o termo tridimensional s pode ser
compreendido rigorosamente como traduzindo um processo
dialtico, no qual o elemento normativo integra em si e supera
a correlao ftico-axiolgica, podendo a norma, por sua vez,
converter-se em fato, em um ulterior momento do processo,
mas somente com referncia e em funo de uma nova
integrao normativa determinada por novas exigncias
axiolgicas e novas intercorrncias fticas.
I will discuss below how this description of dialectics has been seen as
stopping at the normative moment, which would result in a legal
positivist bent to Reales theory.
111
See REALE, FILOSOFIA DO DIREITO, supra note 7, at 543. We will
see, especially in my discussion of value and my listing of the key
insights from Reales theory, that historicism plays an important role in
Reales theory, if anything, because it provides the objectification of
value. Reale also states in many of his writings that the tridimensional
theory is integrated within the broad terms of contemporary
historicism. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
111. The broad concept would not allow history to be converted into
the reason or measure of human activity; also, history is law, but not all
A Brazilian Perspective: Reales Tridimensional Theory 111
a. Value
One might think that, for Reale, behind the
provocatively tautological definition of value there would
law, because law still has to account for the history yet to be made.
Id. at 219. See also ANGELES MATEOS GARCA, A TEORIA DOS
VALORES DE MIGUEL REALE (FUNDAMENTO DE SEU
TRIDIMENSIONALISMO JURDICO) [MIGUEL REALES THEORY OF
VALUES (FOUNDATION OF HIS JURIDICAL TRIDIMENSIONALISM)] 44
(Talia Bugel trans. from Spanish into Portuguese, 1999) (claiming that
Reales contributions to historical axiology are original), 46 (claiming
that, for Reale, axiology cannot be separated from history, hence the
term axiological historicism). But see KARL RAIMUND POPPER, THE
POVERTY OF HISTORICISM (2002) (claiming that it is now generally
recognized that the importance of historicism in social theory is over-
rated, but that the method is still being used; referring primarily to
Hegels historicism); Robert W. Gordon, Historicism in Legal
Scholarship, 90 YALE L.J. 1017 (1981) (discussing the ways in which
legal scholars can deal with criticism based on historicism); and
Morton J. Horwitz, Commentary, The Historical Contingency of the
Role of History, 90 YALE L.J. 1057, 1057 (1981) (claiming that [b]y
and large, the dominant tradition in Anglo-American legal scholarship
today is unhistorical.). I believe a few other concepts, from varied
perspectives and fields of inquiry may be related to historicism,
particularly traditionalism, integrity, genealogy, and path dependence.
Given the purposes of the present work, I will not address those issues,
but an analysis linking the scholarship from Luban, Dworkin, Foucault,
and Hathaway in a Realean light would be in order. See generally
David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035 (1991);
David Luban, Integrity: Its Causes and Cures, 72 FORDHAM L. REV.
279 (2004); RONALD M. DWORKIN, LAWS EMPIRE 225-75 (Harv.
Univ. Press 1986) (discussing integrity in law); FOUCAULT, supra note
104, at 117 (discussing the meaning of genealogy); Oona A. Hathaway,
Path Dependence in the Law: The Course and Pattern of Legal Change
in a Common Law System, 86 IOWA L. REV. 601 (2001).
112 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
112
REALE, FILOSOFIA DO DIREITO, supra note 7, at 187.
113
Id. at 183.
114
Id. at 186; see also REALE, EXPERINCIA E CULTURA, supra note
77, at 85.
115
REALE, FILOSOFIA DO DIREITO, supra note 7, at 187.
116
Id. at 188.
A Brazilian Perspective: Reales Tridimensional Theory 113
117
Id. at 188-89.
118
Id. at 192.
119
Id. at 208. However, such objective existence is relative. The
relativism refers to the fact that values do not exist in and of
themselves, but they exist in relation to humans [all humans in a certain
time, not particular individuals], with reference to a subject. Id. (as
translated by author) (emphasis in original).
120
Reale, Axiological Invariants, supra note 4, at 65.
114 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
121
Id. at 71-72. Cf. Lon L. Fuller, Positivism and Fidelity to Law: A
Reply to Professor Hart, 71 HARV. L. REV. 630, 648-57 (1957)
(discussing how morality, not legal positivism, would be more apt at
addressing the consequences of Nazism). The overall positive tone for
morality in Fullers article parallels Reales indication of a need for
axiological invariants, for the same reasons indicated in the above
quote from Reale.
122
REALE, FILOSOFIA DO DIREITO, supra note 7, at 228. Reale rejects
life as a value because he sees life as a material condition for the
realization of all values. Id. at 239. In this sense, one could argue that
for Reale, life is as fundamental a value as the value of the human
being. The value of the human being is the source-value for all other
values because only it [the value of the human being] is originally
capable of being aware of its own value, of the value of its subjectivity,
not by virtue of a revelation or of a sudden enlightenment of an
intuitive character, but by means of and through the historical
experience in communion with all human beings. Reale, Axiological
Invariants, supra note 4, at 73.
A Brazilian Perspective: Reales Tridimensional Theory 115
123
REALE, FILOSOFIA DO D IREITO, supra note 7, at 237. Reale says
that his classification is more exemplificative than necessarily
classificatory, an indication that it is open to challenge (which I will not
undertake). Also, Reale is not clear as to whether the values in his
classification would be axiological invariants. The values in his
classification are not necessary to the human being in the same sense
that ecology is; thus, I do not believe Reale considers those values to be
axiological invariants.
124
Id. at 237.
125
Some authors use different terms in their translations of values.
See e.g. GRACIA, supra note 2, at 201 (using the term true, instead of
"truth").
126
REALE, FILOSOFIA DO DIREITO, supra note 7, at 238.
116 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
127
Id.
128
Id. Although Reales text implies strong criticism of the econo-
mists move with respect to utility (or wealth) as the main value, his
criticism is certainly not as strong as Dworkins. Cf. Ronald M.
Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191, 196-201 (1980)
(explaining, albeit for purposes which are quite different from Reales
purposes, why he believes wealth is not a value).
129
REALE, FILOSOFIA DO DIREITO, supra note 7, at 238.
130
Id. at 272, 274.
A Brazilian Perspective: Reales Tridimensional Theory 117
131
Id. at 276.
132
Id. at 277
133
Id.
134
Id. at 278-79.
135
Id. at 279.
118 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
136
My discussion of the characteristics of value are based on Reales
FILOSOFIA DO DIREITO. Id. at 187-92, 207-09. See also GARCA, supra
note 111, at 21-24.
137
But cf. P.T. Geach, Good and Evil, 17 ANALYSIS 33 (1956)
(implying that good and evil may depend more on context and
intention than on each other).
A Brazilian Perspective: Reales Tridimensional Theory 119
b. Dialectics of Complementarity
Reales views on dialectics are thoroughly developed in
Experincia e Cultura, a book first published in 1977. His
view is a broad account of the concept of dialectics.141
138
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 95.
139
Id. (claiming that juridical empiricism errs in thinking that value
converts into fact).
140
Id. at 96.
141
REALE, EXPERINCIA E CULTURA, supra note 77. My discussion
of Realean dialectics will be substantially based on the current edition
of such book (2d ed. 2000). In Reales writings, he usually refers
readers to this book for his views on dialectics. See, e.g., REALE,
DIREITO COMO EXPERINCIA, supra note 39, at XXI. A comprehensive
contemporary account of dialectics can be found in English in SCOTT
WARREN, THE EMERGENCE OF DIALECTICAL THEORY: PHILOSOPHY
AND POLITICAL INQUIRY (1984) (providing a broad discussion of the
many philosophers making use of dialectics in order to apply the
concept to political science; focusing on Kant, Hegel, and Marx, as the
precursors of the contemporary discussion on dialectics, and on
philosophers like Husserl, Sartre, and Merleau-Ponty, as developers of
A Brazilian Perspective: Reales Tridimensional Theory 121
144
REALE, DIREITO COMO EXPERINCIA, supra note 39, at XXVII (as
translated by author). See also DAN ZAHAVI, HUSSERL S
PHENOMENOLOGY 125-26 (2003) (providing an equally contemporary
and concise account of Husserls Lebenswelt). For our purposes, it is
important to note from Zahavis text that Husserls Lebenswelt is a
reaction against the objectivism reigning in the sciences since the
Renaissance. Such objectivism was so successful that science became
overly focused on technical issues. Husserl presents more fundamental
questions for scientific inquiry, including, What is reality? and What
is a good and meaningful life? Husserl notes that the focus on
technical issues by science results in a necessity of reaching solutions
to problems, albeit one-dimensional solutions to problems. But in
Husserls Lebenswelt, what we find are relative truths: When I
experience the water as cold, my friend may experience it as warm.
See also Hugh Baxter, System and Lifeworld in Habermass Theory of
Law, 23 CARDOZO L. REV. 473, 510 (2002) (providing a similar
account of Husserls lifeworld, but stating that lifeworld was a concept
not fully developed by Husserl, even though it has been applied in
social theory something with which Reale would agree).
145
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 104.
A Brazilian Perspective: Reales Tridimensional Theory 123
146
See generally Thomas Hofweber, A Puzzle about Ontology, 39
NOS 256 (2005) (discussing the broad range and relevance of
ontology). For the author, ontological questions are questions about
what kinds of things make up reality. Id. at 258.
147
REALE, EXPERINCIA E CULTURA, supra note 77, at 83-85.
148
Id. at 90.
149
Id. at 108.
124 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
155
See id. at 119.
156
Id. at 123.
157
Id. at 124. Even though for Reale, Husserl is never able to
completely rid his ideas of Kantian subjectivism. Id. at 131.
126 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
158
Id. at 120 (as translated by author).
159
Id.
160
Id. at 155.
A Brazilian Perspective: Reales Tridimensional Theory 127
161
Id. at 188 (as translated by author).
162
In such approaches Reale includes Italian legal philosopher Luigi
Bagolini, Danish physicist Niels Bohr, French physicist Louis de
Broglie, and other Europeans, as well as Brazilians Vicente Ferreira da
Silva and Almir de Andrade. Id. at 155.
163
Id. at 156.
164
Id. at 170-71.
165
Id. at 172 (citing Thomist Jacques Maritain).
128 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
166
Id. at 178. Reale claims that one of the two parts of Aristotles
dialectics served as the basis for Hegels dialectics. Id. at 179. But cf.
D.W. Hamlyn, Aristotle on Dialectic, 65 PHIL. 465, 476 (1990)
(claiming that dialectics for Aristotle is a form of argument starting
from whatever agreement is available and seeking to produce some
insight (nos, intuition) as to the truths from which demonstration can
possibly start, so-called first principles, thereby furnishing an
understanding of why things are necessarily as they are. In that sense,
the concept of dialectics for Aristotle is subject to debate, and
Hamlyns account of dialectics for Aristotle would not provide a basis
for Reales use of the concept, as it solely lends to Hegelian dialectics).
A Brazilian Perspective: Reales Tridimensional Theory 129
167
Cf. REALE, EXPERINCIA E CULTURA, supra note 77, at 180-81.
From such explanation, a more difficult problem may arise. According
to Aristotle, seconded by Reale, two contradictory terms that cannot be
put through dialectics could be, again, to be seated and not to be
seated. But a similar, and more specific situation, could be analyzed
in a dialectical process, instead of the simple negation. For example,
the two terms could be made contrary (they would cease to be
contradictory) by specificity, as in to be seated and to stand up or
to lie down (either term instead of not to be seated). Hence,
specificity could be one way to convert contradictory terms into
contrary terms. This constitutes a problem because the difference
between contradiction and contrariety is an attempt to address the
criticism dialectics face. Popper attacks dialectics exactly on the
grounds that the concept allows philosophers to put up with
contradictions when they should be focused on never accepting them.
POPPER, CONJECTURES AND REFUTATIONS, supra note 142, at 316, 323
(preferring to use the term trial and error instead of dialectics in
most cases).
168
Many authors claim that complementarity is not broadly
applicable to all sciences, with some, like Andr Marc, arguing that the
concept is only applicable to philosophy. See REALE, EXPERINCIA E
CULTURA, supra note 77, at 157, 164, 169-170, 183. Reale credits the
expansion of the use of complementarity to areas outside science to
Niels Bohr. Niels Bohr, Causality and Complementarity, 4 PHIL. SCI.
289, 294-295 (1937) (claiming, from a physicists standpoint, that in
130 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
171
REALE, EXPERINCIA E CULTURA, supra note 77, at 189.
172
Id. at 185.
173
Id. at 189. Reale uses the term opposite in the first part of the
quote, but the remaining text in the paragraph indicates that he means a
particular kind of opposite: contrary.
174
REALE, DIREITO COMO EXPERINCIA, supra note 39, at XXI,
XXXII. Reale also claims that [i]f the juridical experience was not in
itself dialectical, it would not be possible to interpret it dialectically.
132 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
Id. at 72. Renato Cirell Czerna, a student of Reale who now occupies
Reales chair in legal philosophy at the University of So Paulo, claims
that Reales dialectics of implication-polarity (as a subset within the
dialectics of complementarity) is quite original; it differs even from
current versions of the dialectics of implication-polarity. The
distinguishing factor would be that in Reales version the
consciousness of the permanent and open tension between the two
terms [subject and object], instates an infinite possibility for ulterior
knowledge, in which the future is assumed in the present, precisely
because of such openness. RENATO CIRELL CZERNA, O PENSAMENTO
FILOSFICO E JURDICO DE MIGUEL REALE [THE PHILOSOPHICAL AND
JURIDICAL THOUGHT OF MIGUEL REALE] 55 (1999). Interestingly
enough, Czerna adopts a Hegelian view on dialectics, even though he
acknowledges the originality of Reales dialectics.
175
REALE, EXPERINCIA E CULTURA, supra note 77, at 191.
176
Id. at 193.
A Brazilian Perspective: Reales Tridimensional Theory 133
177
Id. at 177 (as translated by author) (quoting lyrics by Z Limeira,
a singer from the Northeastern part of Brazil). The original lyrics in
Portuguese read:
Eu briguei com um cabra macho,
Mas no sei o que se deu:
Eu entrei pru dentro dele
Ele entrou pru dentro deu
E num zuado daquele
No sei se eu era ele,
Nem sei se ele era eu.
Id. The verses above are meant to show what dialectics cannot do,
134 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
178
Reale claims that [m]utation is inherent to juridical life, which
nonetheless, cannot go without stability, of a certain horizon marked by
136 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
4. Summary of Insights
Having discussed the tenets of Reales theory, and
before moving on to the criticism such theory has
encountered, let me summarize the key insights it entails:181
(i) In Reales conception of the law, fact, value and
norm will always be present whether the law is studied by
order and certainty. Viewed through such lenses, the juridical order in
effect corresponds to the horizon of stability reached on a certain
historical moment. REALE, TEORIA TRIDIMENSIONAL, supra note 38,
at 99 (as translated by author). Many other passages point to Reales
desire for stability. See id. at 106 (claiming that the legal Science
would not be possible . . . if social life had not presented certain stable
and predictable relations) (as translated by author).
179
Pierre Schlag, A Brief Survey of Deconstruction, 27 CARDOZO L.
REV. 741 (2006) (providing a recent account of such criticism).
180
Another analogy could be that of a piece of music written for a
trio of different instruments. Each instrument would be doing
something different but of equal importance. The piece would not exist
without any one of them. I thank Bruce MacDougall for this additional
analogy.
181
I offer my summary of Reales fourteen insights that arise out of
his theory. See REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 57-
65.
A Brazilian Perspective: Reales Tridimensional Theory 137
182
Id. at 61 (as translated by author).
183
Id. (as translated by author).
A Brazilian Perspective: Reales Tridimensional Theory 139
B. Criticism
In the separate analysis of each of the three dimensions
considered by Reale, one can almost feel a preference for
184
The insight that law can be seen as reflection of human history
resonates with the chain novel example expounded by Dworkin. See
infra note 194 (providing a brief explanation and accompanying text).
140 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
185
This has been the criticism of Kunz, who saw Reale as a natural
law theorist. See supra note 86.
186
See LIMA, supra note 85, at 212.
187
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 99.
A Brazilian Perspective: Reales Tridimensional Theory 141
188
MIGUEL REALE, NOVA FASE DO DIREITO MODENO [THE NEW
PHASE OF MODERN LAW] (1990).
189
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 128 (as
translated by author). The original in Portuguese reads: O Direito
uma concretizao da idia de justia na pluridiversidade de seu dever-
ser histrico, tendo a pessoa como fonte de todos os valores. Id.
190
REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 120.
191
Argentine critic Jos Villanova viewed Reales theories this way.
See REALE, TEORIA TRIDIMENSIONAL, supra note 38, at 100. However,
Reale maintains that such criticism represents only a partial reading of
his work. To say that his dialectics of complementarity stops at the
142 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
norm is to say that facts and values do not change; only the norm
changes. Id.
192
See H.L.A. HART, THE CONCEPT OF LAW 185 (Penelope A.
Bulloch & Joseph Raz eds., 2d ed. 1994) (claiming that it cannot
seriously be disputed that the development of law, at all times and
places, has in fact been profoundly influenced both by the conventional
morality and ideals of particular social groups, and also by forms of
enlightened moral criticism urged by individuals, whose moral horizons
has transcended the morality currently accepted, but distancing that
statement from a proposition under which a legal system must exhibit
some specific conformity with morality or justice). Reale criticized
Harts positivism in many points, but chiefly in Harts claim that the
law does not have a Grundnorm, a statement that, when coming from a
legal positivist, Reale equates with having a nephew who does not
have an uncle. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
101.
A Brazilian Perspective: Reales Tridimensional Theory 143
193
Reale discusses how time affects tridimensionalism, conceding
that one could even think of time as a fourth dimension in his theory,
but he goes on to reject that notion of time as a fourth dimension
because, basically, time necessarily affects all three dimensions
equally. Cf. REALE, DIREITO COMO EXPERINCIA, supra note 39, at
218. Note also that an important part of Dworkins legal theory
involves precisely the development of law. See DWORKIN, supra note
111, at 228 (developing The Chain of Law novel analogy, whereby law
is compared to a novel written by many different writers throughout
history, all of whom need to be aware of the aesthetics of the entire
novel in order to add their own development to the story).
144 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
194
Reale cites Roscoe Pound, Gustav Radbruch, Emil Lask, and
other European names as abstract tridimensionalists. REALE,
FILOSOFIA DO DIREITO, supra note 7, at 535. Reale saw Roscoe Pound
as a source of abstract tridimensionalism in the common law area. Id.
Pound can be considered a legal sociologist. It is not clear to me
whether Reales assessment is a result of a lack of English sources in
Brazil at the time of publication of Reales book in 1968 or whether
Reales understanding of Pound just reflects his different point of view.
Reale concedes that the various circumstances and conditions affecting
each country would inevitably lead to different experiences and
nuances of a tridimensional theory. Id.
195
Even if Halls ideas were published before 1953, the date when
Reales tridimensionalism was made explicit, Reale claims to have
been the first to expound tridimensionalism in 1940. See REALE,
TEORIA TRIDIMENSIONAL DO DIREITO, supra note 38, at 48 n.47.
Jerome Halls initial ideas on Integrative Jurisprudence were published
in INTERPRETATIONS OF MODERN LEGAL PHILOSOPHIES: ESSAYS IN
HONOR OF ROSCOE POUND (Paul Lombard Sayre & Roscoe Pound eds.,
1947).
A Brazilian Perspective: Reales Tridimensional Theory 145
III
CONCLUSION
If forced to give a birds eye view for the context in
which tridimensionalism is inserted, one could say that it is
a Brazilian attempt at weaving together theories that alone
face solid criticism. Tridimensionalism is a patchwork of
the main legal theories from Europe and the United States,
two places Brazilians (and the rest of the world at that)
have been going for theoretical concepts for quite some
time. In that sense the debate between legal positivism and
natural law in Europe, and the fact-based and
interdisciplinary approaches from the United States197 were
merged into a tridimensional theory of law, in a best of all
worlds approach for which Brazilians display much
propensity.
But I prefer to fly much lower, low enough to be able to
see that with his Tridimensional Theory of Law, Reale
provides a unique way in which to combine three well-
known legal theories quite an original endeavor. He
achieves that through his dialectics of complementarity, a
concept which weaves the three dimensions of the legal
experience into one theory of law. To this day, the role of
196
REALE, TEORIA TRIDIMENSIONAL DO DIREITO, supra note 38, at
48. The views of Recasns Siches can be found in English in LATIN-
AMERICAN LEGAL PHILOSOPHY 1-342 (Luis Recasns Siches & Gordon
Ireland eds., Harv. Univ. Press 1948) (the book offers translations of
the basic work of four important legal philosophers in Spanish speaking
Latin America: Luis Recasns Siches, Carlos Cossio, Juan Llambias de
Azevedo, and Eduardo Garcia Maynez).
197
Cf. Jerome Hall, Integrative Jurisprudence, 27 HASTINGS L. J.
779, 780-783 (1976) (claiming, for different purposes, that legal
positivism and natural law were taken from Europe and sociology of
law taken from the United States).
146 OREGON REVIEW OF INTL LAW [Vol. 10, 2008]
201
Jack Balkin sees similar uses for deconstruction. See Jack M.
Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743
(1987); Jack M. Balkin, Deconstructions Legal Career, 27 CARDOZO
L. REV. 719, 723 (2005) (claiming that deconstruction can be a way to
rethink the relationship between conceptual opposites and observe
previously hidden or submerged similarities and conceptual
dependencies).