António Castanheira Neves
Encyclopedia
António Castanheira Neves (born November 8, 1929 in Tábua
) is a Portuguese
legal philosopher and a professor emeritus
at the law faculty of the University of Coimbra.
According to Castanheira Neves, law can only be understood through legal problems (roughly, legal case
s), which have to be solved within the legal system
(including a necessary connection to morality
). Law, he claims, is not something given or previous, but the solution to legal problems. Legal problems are the decisive starting point. His opposition to positivism
, to natural law
and to the several theories of legal syllogism would make him one of the first and most accomplished advocates of interpretivism.
Castanheira Neves, however, has always claimed that law — the task of lawyers — is not essentially interpretive or hermeneutical, but practical
, i.e., action guiding. He maintains that legal interpretation is not a necessary feature of legal reasoning. On the contrary, law always arises from legal problems, which are concrete, historically situated, normative
, and practical. Every legal decision aims to settle what someone (legally) ought to do in a particular case in a particular historical (and social) situation, and that is its defining
feature. A legal decision is also itself an action. Interpretation is not always needed and, when it is, it is auxiliary.
The central tenets of Castanheira Neves' philosophy of law were made clear in his 1967 massive book on the philosophical and methodological distinction between matter of fact and matter of law
. Castanheira Neves addresses the similarities and significant differences between his and Dworkin
's theses in the last part of his 2003 book.
Castanheira Neves also claims that there is no law in general norms (rules, principles, etc.) as laid down by legislators, but only in solving particular cases. To this thesis, he calls "jurisprudentialism".
In this, he was preceded by authors like Viehweg and schools of thought like critical legal studies
, but he differed from these authors as he claimed it to be essential to law as a normative matter, and not only descriptively. His position is therefore equivalent, in this subject, to J. Dancy's
later moral particularism
. Castanheira Neves would come to agree with Gadamer's
dictum that all interpretation is application (as Dworkin did).
Tábua, Portugal
Tábua is a municipality of the Coimbra District, in Portugal. It contains the town of Tábua.-Parishes:* Ázere* Candosa* Carapinha* Covas* Covelo* Espariz* Meda de Mouros* Midões* Mouronho* Pinheiro de Coja* Póvoa de Midões* São João da Boa Vista...
) is a Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
legal philosopher and a professor emeritus
Professor
A professor is a scholarly teacher; the precise meaning of the term varies by country. Literally, professor derives from Latin as a "person who professes" being usually an expert in arts or sciences; a teacher of high rank...
at the law faculty of the University of Coimbra.
According to Castanheira Neves, law can only be understood through legal problems (roughly, legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
s), which have to be solved within the legal system
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
(including a necessary connection to morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
). Law, he claims, is not something given or previous, but the solution to legal problems. Legal problems are the decisive starting point. His opposition to positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
, to natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and to the several theories of legal syllogism would make him one of the first and most accomplished advocates of interpretivism.
Castanheira Neves, however, has always claimed that law — the task of lawyers — is not essentially interpretive or hermeneutical, but practical
Practical reason
In philosophy, practical reason is the use of reason to decide how to act. This contrasts with theoretical reason , which is the use of reason to decide what to believe. For example: agents use practical reason to decide whether to build a telescope, but theoretical reason to decide which of two...
, i.e., action guiding. He maintains that legal interpretation is not a necessary feature of legal reasoning. On the contrary, law always arises from legal problems, which are concrete, historically situated, normative
Norm (philosophy)
Norms are concepts of practical import, oriented to effecting an action, rather than conceptual abstractions that describe, explain, and express. Normative sentences imply “ought-to” types of statements and assertions, in distinction to sentences that provide “is” types of statements and assertions...
, and practical. Every legal decision aims to settle what someone (legally) ought to do in a particular case in a particular historical (and social) situation, and that is its defining
Definition
A definition is a passage that explains the meaning of a term , or a type of thing. The term to be defined is the definiendum. A term may have many different senses or meanings...
feature. A legal decision is also itself an action. Interpretation is not always needed and, when it is, it is auxiliary.
The central tenets of Castanheira Neves' philosophy of law were made clear in his 1967 massive book on the philosophical and methodological distinction between matter of fact and matter of law
Question of fact
In law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
. Castanheira Neves addresses the similarities and significant differences between his and Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
's theses in the last part of his 2003 book.
Castanheira Neves also claims that there is no law in general norms (rules, principles, etc.) as laid down by legislators, but only in solving particular cases. To this thesis, he calls "jurisprudentialism".
- Law is not an element, but a synthesis, not a premise for validity, but fulfilled validity, not a prius, but a posterius, not a given, but a solution, it is not in the beginning, but in the end. (Castanheira Neves, 1967, p. 586)
In this, he was preceded by authors like Viehweg and schools of thought like critical legal studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
, but he differed from these authors as he claimed it to be essential to law as a normative matter, and not only descriptively. His position is therefore equivalent, in this subject, to J. Dancy's
Jonathan Dancy
Jonathan Peter Dancy is a British philosopher, working on epistemology and on ethics. He is currently Professor Emeritus at the University of Reading and Professor of Philosophy at University of Texas at Austin.-Biography:...
later moral particularism
Moral particularism
Moral particularism is the view that there are no moral principles and that moral judgement can be found only as one decides particular cases, either real or imagined. This stands in stark contrast to other prominent moral theories, such as deontology or utilitarianism...
. Castanheira Neves would come to agree with Gadamer's
Hans-Georg Gadamer
Hans-Georg Gadamer was a German philosopher of the continental tradition, best known for his 1960 magnum opus, Truth and Method .-Life:...
dictum that all interpretation is application (as Dworkin did).
Major works
- (1967) Questão-de-facto — questão-de-direito ou o problema metodológico da juridicidade, CoimbraCoimbraCoimbra is a city in the municipality of Coimbra in Portugal. Although it served as the nation's capital during the High Middle Ages, it is better-known for its university, the University of Coimbra, which is one of the oldest in Europe and the oldest academic institution in the...
: Almedina. Matter of fact / matter of law, or the methodological problem of legality.
- (1983) O instituto dos "assentos" e a função jurídica dos supremos tribunais, Coimbra: offprint of RLJ. The institute of "assentoAssentoIn Portuguese law, the assentos were general obligatory rules expressed in some of the decisions of the Supreme Court of Justice. Unlike precedents, the assentos had the form of a general rule...
s" and the legal function of supreme courts, first published between 1973 and 1982.
- (1993) Metodologia jurídica. Problemas fundamentais, Coimbra: Coimbra Editora, 1993. Legal methodology / Fundamental problems.
- (1995) Digesta: escritos acerca do direito, do pensamento jurídico, da sua metodologia e outros, 2 vols., Coimbra: Coimbra Editora. Digesta is a collection of works first published between 1968 and 1994, including:
- (1976) A revolução e o direito (Revolution and law),
- (1979) A unidade do sistema jurídico (The unity of the legal system), and
- (1982) Fontes do direito (Sources of the law).
- (2003) O actual problema metodológico da interpretação jurídica, Coimbra: Coimbra Editora. The present day methodological problem of legal interpretation.