Do “factum” ao fato jurídico: racionalidade jurídica moderna entre fatos e normas

Abstract

The paper outlines the basic questions and the fundamental approach of a research project that resulted in my doctoral dissertation presented at the Law Faculty of the University of Frankfurt in 2011 and recently published in Germany under the title Savignys Theorie der juristischen Tatsachen. Focusing on the influential work of Friedrich Carl von Savigny, especially on his use of the notion “juridical fact”, I try to elaborate some distinctive features of modern legal rationality. I develop a specific approach by asking how Savigny – and the jurists that followed him around the world – distinguished between facts and norms. Emphasis is placed here not on concepts, but on distinctions. In order to grasp the central features of the new legal rationality that emerged in 19th Century Germany, I explore the uses of “factum” in legal discourse since 16th Century legal humanism. Finally, I refer to the reception process of German legal scholarship in Brazil as a case study in the diffusion of a specific form of legal rationality.