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An Introduction to Latin-American Philosophy of Law Author(s): Josef L. Kunz Source: The University of Toronto Law Journal, Vol. 15, No. 2 (1964), pp. 259-282Published by: University of Toronto PressStable URL: http://www.jstor.org/stable/825283Accessed: 27-10-2015 15:32 UTC

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AN INTRODUCTION TO LATIN-AMERICAN PHILOSOPHY OF LAW

JOSEF L. KUNZ*

IN 1939 the Association of American Law Schools created its Committee on Twentieth Century Legal Philosophy. The committee's task was to

prepare and edit a series of volumes which would give English translations of the outstanding European philosophies of law of this century. This writer, a member of the committee since its creation, was charged by his colleagues in 1942 with the task of preparing a volume on contemporary Latin-American philosophy of law, and of writing an introduction to it. His research lasted for about ten years and he discovered, at the very beginning, that practically nothing was known of this topic either in the United States or in Europe, and that even in Latin America no adequate work existed. Hence his research became by necessity a pioneering enterprise. After publication of his volume of translations,' he presented in 1950 his book on the subject.2 At the request of the UNIVERSITY OF TORONTO LAW JOURNAL, he is now offering an introduction, which must be short, but which can examine the topic from the perspective of 1963.

I

Contemporary Latin-American philosophy of law may be said to date from the end of the First World War. It was preceded in the whole of Latin America by a long period of sociological jurisprudence, which had started in some countries already by the middle of the nineteenth century, but predominated from 1875 to 1925. In colonial times, naturally, Spanish influence and Catholic natural law was predominant. But with the beginning of the independence movement, the influence of Spain was replaced by the influence of France, an extraordinarily deep influence in all cultural fields, lasting the whole of the nineteenth century and, to a certain extent, up to the present day. By the end of the eighteenth century Catholic natural law was replaced by the "classic" natural law, the droit de la raison, and French revolutionary philosophy. All the leaders of Latin-American independence were imbued with this philosophy, especially that of Rousseau. At

*Professor emeritus, College of Law, University of Toledo, U.S.A. 1Latin-American Legal Philosophy (Cambridge, Mass.: Harvard University Press,

1948), vol. III. This volume contains English translations of writings by Luis Recasens Siches, Carlos Cossio, Juan Llambias de Azevedo and Eduardo Garcia MAynez.

2Josef L. Kunz, Latin-American Philosophy of Law in the Twentieth Century (New York University Law School, 1950); also published as La Filosofia del derecho Latino- Americano en el siglo XX (Buenos Aires, 1951), Spanish translation by Luis Recas6ns Siches.

259

Vol. XV, No. 2, 1964



260 THE UNIVERSITY OF TORONTo LAW JOURNAL

the beginning of the nineteenth century, Latin America, always following Continental European trends, again followed, although somewhat tardily, the European reaction against classic natural law and towards positivism, again under French leadership, in the form of A. Comte's "philosophic positive." The influence of Comte was deep throughout Latin America, even sometimes penetrating politics and religion, but it was particularly strong in Mexico and Brazil. During this whole period Latin-American philosophy of law was a positivistic, strictly anti-metaphysical, sociological-biological jurisprudence. Apart from Comte, Spencer's theory of evolution, the ideas of Darwin and Haeckel, the Italian scuola positiva, itself based on Comte, the German "ethnological" jurisprudence, and, particularly in Brazil, the "teleo- logical" jurisprudence of Rudolf Jhering, all exercised great influence.

Works of this type were abundant throughout Latin America. We mention as an outstanding example the book of the Argentinian professor, Carlos Octavio Bunge,3 which for many years dominated the philosophical attitude of the Buenos Aires Law School. He was a strong adherent of the Austrian, Gumplowicz: victory is for him the generating principle of law; a subjective right is the power of a victor; objective law is the obligation of the vanquished.

In Brazil, Comtism in philosophy of law had its seat in the north: the "School of Recife." From Tobias Barreto to the present day there is in Brazil a long line of sociological philosphers of law. There is Tobias Bar- reto,4 rather more under the influence of Spencer than that of Comte and a deep adherent of Jhering and his "Struggle for Law." There was the great jurist Clovis Bevilacqua, the drafter of the Brazilian Code. There was Sylvio Romero,5 the outstanding Brazilian philosopher of law at the beginning of this century, who tried to combine Spencer's evolutionism with Kant's theory of cognition. There was Pedro Lessa6 at the Law School of Sao Paulo.

II

Contemporary Latin-American philosophy of law, as stated, may be said to begin with the end of the First World War. First of all, we must indicate a split between Spanish-American and Brazilian philosophy of law. Whereas Comte's positivism was completely abandoned in Spanish America, sociological jurisprudence is dominant up to the present day in Brazil. There is, first, a continuation of the old sociological jurisprudence on the lines of Comte and Spencer. Ivan Lins7 seems to be the most orthodox continuator

8El derecho: ensayo de una teoria juridica integral (1909). The French translation has the significant title, Le Droit c'est la force.

4Questioes vigentes de philosophia e de direito (Pernambuco, 1888). 5Ensayo de philosophia do direito (2nd ed., Rio de Janeiro, 1916). 6Estudos de philosophia do direito (2nd ed., Slo Paulo, 1916). 7IntrodufGo a estudo da philosophia: a concepGdo do direito e da felicidade perante a

moral positiva (Rio de Janeiro, 1939).



LATIN-AMERICAN PHILOSOPHY OF LAW 261

of this tradition. He has written much, but his later writings show a tendency to go beyond Comte, to combine theoretical, axiological, and sociological jurisprudence, and thus to go toward an "integral" jurisprudence. Yet in general the character of contemporary sociological jurisprudence in Brazil has changed. Whereas before the end of the First World War it was mechanical, biological, or ethnological, that is, to use a distinction drawn by Roscoe Pound, "early," it is now sociological jurisprudence "in the stage of maturity," in the "stage of unification."

As prominent representatives of this modem, contemporary sociological philosophy of law in Brazil we may name Hermes Lima,8 Carlos Campos,9 Djazir Menezes,"o Eusebio de Queiros Lima," and last, not least, Francisco Pontes de Miranda.12 Their concept of law is one of fact: the realm of law is in the sphere of "isness," not of "oughtness." The concept of a legal norm is neither normative nor axiological, but factual. We may think of the title of a book by a prominent member of the Scandinavian school of "legal realism": "Law as a Fact." Carlos Campos is an important sociological thinker who tries to show the factors which determine the interpretation of statutes by the courts and comes to the conclusion that all juridical theories are only techniques to satisfy the interests of men and are, therefore, a product of the general social situation in a given epoch. Queiros Lima is strongly influenced by Spencer, strictly anti-metaphysical, also opposed to what he calls the "metaphysics of Kelsen," and adopts the functional method of Leon Duguit. There is also a revival of the older school in the north. The principal representative is Pinto Ferreira.13 A great admirer of Pontes de Miranda, influenced by German natural scientists, by psycho- analysis, behaviorism, semantics, by the "Neo-Positivism" of the "Vienna Circle," he wants a "scientific" jurisprudence based on the principles of monism, evolutionism, and determinism. He stands for a "universal, frater- nal, solidary, pacifist Christian message against all superstitions and feudal ideas, against the old established myths."

There can be no doubt that the most original work of present-day Bra- zilian philosophy of law are the two big volumes by Pontes de Miranda. He is voluminous, difficult, and in his attitude extreme. Reading these two volumes is no easy job for a lawyer, for they abound in lengthy quotations in highly technical language from all fields of natural sciences, and are full of geometrical figures, diagrams of physics, and complicated formulas of higher mathematics. A science of law which wants to be a science must be a natural science like physics or chemistry. Free from all metaphysics, law must be studied in the reality as a fact among facts.

8IntroduGdo a ciencia do direito (6th ed., Rio de Janeiro, 1952). 9Sociologia e filosofia do direito (Rio de Janeiro, 1943).

l?IntrodufGo a ciencia do direito (3rd ed., Rio de Janeiro, 1952). 11Principios de sociologia Juridica (4th ed., Rio de Janeiro, 1936); Teoria do estado

(4th ed., Sio Paulo, 1943). 12Systema de ciencia positiva do direito (2 vols., Rio de Janeiro, 1922). 13Introdufdo a filosofia cientifica (1951).



262 THE UNIVERSITY OF TORONTO LAW JOURNAL

Contemporary Brazilian philosophy of law is relatively close to the sociological jurisprudence and "legal realism" which prevails in the United States. Brazilians are well acquainted with the work of the leading philosophers and philosophers of law in the United States. It is interesting, but only natural, that German and Austrian philosophers of law, such as the Aus- trian sociologist of law, Eugen Ehrlich, who exercise great influence in the United States, should also do so in Brazil; on the other hand, thinkers whose influence is overwhelming in Spanish America are less influential in both the United States and Brazil.

Compared with what we will have to say on the characteristics of contemporary philosophy and philosophy of law in Spanish America, it is obvious how different Brazilian philosophy of law is today from that of Spanish-speaking Latin America. Yet a warning is necessary. Just as in the United States, so in Brazil, sociological jurisprudence is prominent, but not alone. As in the United States, there is a Neo-Thomistic jurisprudence in Brazil, and the newer philosophies, those of "the phenomenological movement," which dominate present-day Spanish-American philosophy of law, have appeared in Brazil too. During these last decades there has been a great deal of work done in Brazil outside of sociological jurisprudence.

III

At the beginning of the nineteenth century legal positivism banished natural law from philosophy of law, and famous positivistic thinkers de- clared natural law to be dead. But the Encyclical "Aeterni Patris" of Leo XIII of August 4, 1879, became the starting point for a revival of Catholic natural law. A Neo-Thomistic philosophy of law, strictly on the lines of St. Thomas Aquinas, came into being. Neo-Thomistic philosophy of law re- stricts natural law, in the sense of St. Thomas and Francisco Suirez, to a relatively small number of the highest and, therefore, relatively vague principles which, it is true, are immutable, but whose application is subject to

change, according to the particular conditions of a time and nation. Natural law is not considered to be a duplication of positive law, the existence of which is held to be absolutely necessary. Neo-Thomism also rejects the idea of a rivalry between natural and positive law. Modern Neo-Thomism has sometimes exhibited the weakness of doing nothing but restating the philosophy of St. Thomas which was developed in the thirteenth century; but it has often recognized the necessity of restating the philosophy of St. Thomas for present-day problems, as the Encyclical "Aeterni Patris" has laid down: "vetera novis augere." Catholic natural law is important in the United States in the many Catholic law schools. There are great Catholic law schools in Europe, such as at Paris, Fribourg, Louvain. There are important philosophers in Europe, such as Jacques Maritain, Heinrich Rommen,'4

14Die ewige Wiederkehr des Naturrechts (Leipzig, 1936).




Jean Dabin."5 The renaissance of natural law at the turn of the twentieth century became more and more pronounced, and it flourished in forms different from Neo-Thomistic philosophy. There were scholars, such as Leon Duguit or Georges Scelle, opposed to natural law who, nevertheless, oper- ated with principles of natural law. This general revival of natural law was also closely related to the newer philosophies of Neo-Kantianism and the so-called "philosophies of the phenomenological movement." Within the Neo-Kantian School of Marburg, Stammler developed his "natural law with a variable content." Within the Vienna School of Hans Kelsen, Alfred Ver- dross followed, in his philosophy of law, the "philosophia perennis" of St. Thomas and of Suarez.

The trend toward natural law was fed from many sources. Natural law influences flowed from the Baden Neo-Kantian School. There was a strong connection between natural law and all types of "intuitionist" philosophy: Bergson, phenomenology, theory of values, existentialism. Strong influences lead from Bergson to Neo-Thomism. Maritain is a disciple of Bergson. Hus- serl's phenomenology leads via Brentano to Neo-Scholasticism. Modem Neo- Thomists everywhere, and thus in Latin America, are often strongly under the influence of this modern philosophy. There is a "Catholic phenomenology," there is a "Catholic existentialism," following, of course, not the lines of Heidegger, but of Jaspers and Gabriel Marcel. Much influence comes from Max Scheler and Nikolai Hartmann.

The tendency toward natural law is a consequence and an expression of the great crisis of the Occidental world. Even such unwelcome philosophies as the pessimistic, atheistic existentialism of Heidegger and the "pessimisme integral" of his French disciple, Jean Paul Sartre, must be admitted to por- tray this great crisis. Two world wars, the unheard-of cruelties committed in these wars and by totalitarian states, the whole period in which we are con- demned to live, naturally have given an enormous impetus to the revival of natural law. In such periods of horror, fear, and despair, men feel that a complete ethical indifference cannot suffice. Men long for salvation, for eternal, supra-positive values on which they can rely. Hence Rommen speaks of the eternal return of natural law. Hence, after the war, new Neo-Thomis- tic systems, as that of Messner,'6 or works on other foundations, as those of Helmut Coing.17 Hence the late Sir Hersh Lauterpacht, an adherent of Kelsen, confessed himself drawn to the classic natural law, as far as fundamental human rights are concerned, under the impact of the atrocities committed against the Jews. Hence the repudiation of his former relativism of values by Gustav Radbruch in his philosophy of law of 1950.18 Hence newer

15In his Thiorie ginirale du Droit (2nd ed., 1953) Dabin clearly stated that natural law is not law, but ethics. See Josef L. Kunz, "Jean Dabin et Hans Kelsen," Milanges en Honneur de Jean Dabin (Brussels, 1963), vol. I, pp. 149-69.

16Das Naturrecht (1950). 17Die obersten Grundsaetze des Rechts (1947); Rechtsphilosophie (1949). I8Rechtsphilosophie (1950).




adherents of natural law in the United States, like Lon Fuller, Jerome Hall, Edmond Cahn,19 Edgar Bodenheimer,20 whose works are of special interest in Latin America.21 Hence, the new excellent Natural Law Forum,22 a Catholic review, which endeavours to bring the whole problem of natural law once more to a full discussion on wide and objective lines.

All these influences from the United States and Europe have had their effects in Latin America. Natural law philosophy is there; naturally, in an overwhelmingly Catholic continent, it is Neo-Thomistic. There is a large Neo-Thomistic literature in the philosophy of law in Latin America, although only a few names can here be given. In Mexico, where rather strong tensions existed between the state and the Catholic Church during certain phases of the Mexican Revolution, Oswaldo Robles can be named as the restorer of the "philosophia perennis" of St. Thomas Aquinas. In Argentina we would like to name Alfredo Frageiro, the author of many distinguished writings, and Manuel Rio,23 who, in his recent monumental work on the liberty of human will, defines the Catholic attitude, but also gives a sketch of all the other doctrines since classical Greece.

There is also a Catholic natural law philosophy in Brazil. A reaction against the dominating positivism set in with Farias Brito24 who, from an original adherent of evolutionist positivism, became, under the influence of the fear of death, a representative of religious faith and mysticism. Much has been written about him in recent days, in Brazil and in Spain. The disciple of Farias Brito, Jackson de Figueireda, was the leading thinker in this respect in Brazil. Among the present-day Catholic philosophers of law we mention Alceun de Amoroso Lima,25 who writes under the pseudonym Trist'o de Althayde.

In the Latin America of the Spanish language, particular mention must be made of two great Neo-Thomistic philosophers of law. First there is the Colombian, Cayetano Betancourt,26 also the director of the valuable review Ideas y Valores, whose book on philosophy of law is symptomatic of modern Neo-Thomism. It stands strictly by the doctrine of St. Thomas, but also takes a positive stand with regard to modern philosophies. The author sees

i19The Sense of Injustice (New York, 1949). 20Jurisprudence (1940). 21See Luis Recasens Siches, "Dos ius naturalistas norteamericanos de nuestros dias:

Cahn y Bodenheimer," in Dianoia: Anuario de Filosofia (Mexico City, 1962), pp. 3-41). 22Edited by the Catholic Law School of Notre Dame, South Bend, Indiana. 23Perspectivas actuales del dereco natural (Buenos Aires, 1939); La libertad humana:

Anthropos y Anagke (1955). 24Base fisica del espiritu (1912); El mundo interior (1914). On Farias Brito see Teo-

filo Cavalcanti, "A filosofia juridica de Farias Brito," Revista Brasileira de Filosofia, III, no. 2 (1953), pp. 225-41; also the writings of the Spanish professor at the University of Sevilla, Francisco Elias de Tejada, "Farias Brito na filosofia do Brasil," Revista Portu- guesa de Filosofia, VI, no. 1 (1952), and As doutrinas politicas de Farias Brito (Sao Paulo, 1952). Recent works are Djazir Menezes, Evolucionismo e positivismo na critica de Farias Brito (1962), and Carlos Lopez de Mattis, O pensamento de Farais Brito: sua evolucao de 1895 a 1914 (1962).

25IntroduGao ao direito moderno (Rio de Janeiro, 1933). 26Ensayo de una filosofia del derecho (Medellin, 1937); Introduccidn a la ciencia del

derecho (BogotA, 1953).




in the distinction between concept and intuition, as made by phenomenology, a return to the ancient doctrine of Scholasticism and is a jubilant follower of Scheler, who is to him the philosopher of our time richest in ideas and suggestions. Then of great value also is the work of the Mexican, Rafael Preciado Hernandez.27 His is a highly interesting book, strictly Neo-Thomist and yet very modem. The author is influenced by Maritain, by G6ny, Le Fur, Dabin, and the French Institutionalist School (Renard, Delos), and by Max Scheler. The book is modern in its repudiation of "classic" natural law, in its restriction of the content of natural law, in its opposition to a dualism of and a rivalry between natural and positive law, in its insistence on the basically ethical character of the so-called natural law, and in the author's longing for an "integral" philosophy of law.

IV What has characterized Spanish-American philosophy since the end of the

First World War is, first, its reflection of the crisis in pragmatist, positivistic thinking and then its repudiation of the long-lasting influence of Comte. That is what gives Spanish-American philosophy today its unity, what distinguishes it from the Spanish-American philosophy that obtained up to the end of the First World War, and what distinguishes it also from the majority of Brazilian philosophies of the present day. This reaction against positivism followed the trend of European Continental thinking. But the difference is that it did not follow again French, but rather German and Austrian, thinking. In this respect, Latin America owes much to her mother country, Spain, where Jose Ortega y Gasset, the "European" Spanish philosopher, wanted, to quote his own words, to "enrich Spain with the stream of Ger- man intellectual treasures." He founded in 1922 in Madrid the Revista de Oriente and inspired Spanish translations from the works of leading Ger- man and Austrian thinkers, translations which, therefore, were also for the benefit of Spanish America. The foundation of the Revista de Oriente, writes the Mexican philosopher, Leopoldo Zea, "terminated French philosophical influence in Spanish America." Spanish-American philosophy followed the European trend of reacting against Comte's positivism in the same two stages as Continental Europe did. The first stage was the return to Kant and, later, the reaction against the logical Neo-Kantianism of the Marburg School by the Baden Neo-Kantian School, and then, by the newer philosophy of the phenomenological movement: phenomenology, theory of values, existentialism.

Only the briefest sketch can be given here.28 The return to Kant was

27Lecciones de filosofia del derecho (Mexico City, 1947). 280n contemporary Spanish-American philosophy, see, among Spanish-American litera-

ture: Frondizi, Panorama de la filosofia contempordnea (Cuaterno Minerva, Buenos Aires, 1944); Francisco Romero, Filosofia contempordnea (2nd ed., Buenos Aires, 1944); Samuel Ramos, Historia de la filosofia en Mexico; Jose Gaos, Antologia del pensamiento de lengua espaiiola en la edad contempordnea (Mexico City, 1945).




basic. The great philosopher who initiated the critique of positivism in Argentina, and introduced Kant into Argentina, was Alejandro Korn, an Argentinian of German extraction. He has become, in the words of Latin- American writers, "the patriarch of the modern philosophical tradition in Argentina." Creative liberty, the title of one of his most important books, is at the very centre of his thought. His direct successor, Francisco Romero, is the outstanding philosopher of our time in Argentina, a great and original thinker, and of great influence all over Spanish America.

While there are important philosophers in Uruguay-Carlos Vaz Fer- reira, Antonio M. Grompone-and in Peru-Alejandro O. Deustfia-it is in Mexico that, as in Argentina, we find great philosophers. We mention Alfonso Reyes, literary critic, poet, diplomat, philosopher, a typically His- panic combination. He belongs to the Mexican philosophers who, in consequence of the Mexican Revolution, have developed a nationalist and "americanista" philosophy, which stands for the intellectual equality of Latin America with Europe. A great "americanista" is also Jos6 Vascon- celos, a great and original thinker who proclaims the unity of Ibero- America, who predicts that out of the mestizos of Latin America will come a "cosmic race," who stresses, in opposition to the Pan-Americanism spon- sored by the United States, Bolivar's Ibero-Americanism. Philosophically he is the great antagonist of Comte and positivism. He moves, first, toward Marburg Neo-Kantianism, and then, in opposition to it, he arrives at his own anti-intellectualist and anti-pragmatist system, which he calls "esthetitic monism," a philosophy built up by emotional intuition. The Mexican Neo- Thomist, Oswaldo Robles, calls Vasconcelos "the thinker of greatest His- panic-American originality," not a "Europeanizing" thinker.

Mexico also had Antonio Caso. In his philosophical development we see reflected the development of the whole of recent philosophy. Educated in the philosophy of positivism, it was Caso who definitively destroyed the rule of Comtist positivism in Mexico. Adherent to the Marburg Neo-Kantian School, he later took a stand against it, became a follower of intuitionism, first in the form of the emotional intuitionism of Bergson, later in the form of the intellectual intuitionism of Husserl. He reached the theory of values and existentialism, and the philosophy of the "new humanism." Caso is, in the words of his disciple, Samuel Ramos, not a great philosopher, that is, not an originator of new ideas and new philosophical systems, but a great philosopher in the sense of an original interpreter. The outstanding modern Mexican philosopher is Samuel Ramos, the disciple of Caso and Vascon- celos. These newer philosophies have also found entry into Brazil, where the most important philosopher representing the "new humanism" is Euyalo Cannabrava.

V

These two turns in Continental European philosophical thinking consti- tute the framework within which contemporary Spanish-American philoso-




phy of law operates. Already in 1913 Spanish-American writers could state that the prestige of the positivistic philosophy of Comte was vanishing, that positivism was slowly retreating under the impact of the philosophy of Kant. In Germany, the reaction against positivism through Neo-Kantian- ism set in by 1870, but it reached Latin America only at the end of the First World War. At that time the Marburg School of Neo-Kantianism and the powerful German Neo-Kantian school of philosophy of law dominated Latin America. Cohen, Natorp, Cassirer were the leading philosophers. The Neo-Kantian school of philosophy of law of Marburg29 emphasized the logical and formal. It held that Kant had given the real, the critical philosophy in his Critique of Pure Reason, but that in his ethics and legal philosophy he remained within the old-fashioned natural law. Hence his ethics and legal philosophy had to be brought up to the level of his Critique of Pure Reason. The greatest influence that these thinkers in philosophy of law exercised in Spanish America was through Rudolf Stammler. The Argen- tinian, Enrique Martinez Paz, professor of philosophy of law at the Law School at Cordoba, introduced Stammler into Argentina and was himself30 a full adherent of Stammler. It was Stammler who in Germany had broken the predominance of Comte's positivism and who, in turning to philosophy of law, had accented the logical and formal. His philosophy of law deals with two great problems: the "pure forms of legal thinking"-the concept and definition of law, in a word, analytical jurisprudence-and the "idea of law"-the value of justice. But the idea of justice, the problem of the "just law" universally conceived, is necessarily formal. As applied to different concrete situations, it can produce different "just laws"; hence, his theory of natural law with a variable content. It is in connection with the second problem that Stammler has been praised in Europe and Latin America as the "restorer of philosophy of law"; for as philosophy of law was mostly identical with natural law, it has often been held that since the positivistic reaction against natural law at the beginning of the nineteenth century there has been no philosophy of law. That explains why Stammler enjoys such a great reputation among Spanish-American Neo-Thomistic thinkers.

In Italy, as a branch of the German Neo-Kantian philosophy of law, the scuola neo-critica was founded by Igino Petrone and had overcome the influence of the older scuola positiva. Of the members of the Italian neo- critical school particular influence was exercised in Spanish America by Giorgio del Vecchio.3"

But the greatest, and overwhelming, influence exercised in Spanish- American contemporary philosophy of law is that of Hans Kelsen, the

29The work on the history of recent German philosophy of law, Larenz, Rechts- und Staatsphilosophie der Gegenwart (2nd ed., Berlin, 1933), was translated in Madrid into Spanish in 1942 and much studied in Spain and Spanish America.

30Enrique Martinez Paz, Sistema de filosofia del derecho (3rd ed., Buenos Aires, 1940). 31Del Vecchio's Lezioni del diritto (5th ed., Rome, 1946) has been translated by Luis

Recasens Siches, "con extensas notas originales" (3rd ed., Mexico City, 1946). Essays of Del Vecchio or collections of his essays have been translated in Mexico and in Spain, the latter with excellent introduction by GalIn y Gutierrez and Legaz y Lacambra.




founder of the "Vienna School," the creator of the "Pure Theory of Law." His works are translated in Spain and Spanish America;32 numerous books and studies on Kelsen and his Pure Theory of Law are continuously published in many parts of Spanish America.33"

VI

Spanish-American philosophy also followed, as stated, the second turn in European Continental thinking, a reaction against the Marburg School of Neo-Kantianism, dominant up to the end of the nineteenth century in Ger- many. This reaction had started in Europe by 1900 with Husserl. Marburg Neo-Kantianism, which had begun in Germany by 1870, had reached Latin America, as we have stated, only at the end of the First World War. But the second reaction, the so-called newer philosophies of the phenomenological movement, reached Latin America more quickly. This is a consequence of many factors: there were Ortega y Gasset's Revista del Oriente and the Spanish translations of these German philosophies; there was later the cir- cumstance that, as a consequence of the Spanish Civil War, many important Spanish philosophers and philosophers of law left Spain and settled in Spanish America, particularly in Mexico; and a number of young Spanish Americans studied in Europe directly under these European philosophers and philosophers in law, and later introduced them into their native countries.

These philosophies arose from the great crisis of the Occidental culture. A tendency toward the concrete, toward substantive richness, toward eternal values and natural law-in a word, toward metaphysics-began to dominate philosophical speculation. This tendency attacked the merely logical, scientific, and what was called "formalistic" thinking of the Marburg Neo- Kantian School. We have seen that the Mexican philosopher Caso went

through all the consecutive steps, from Marburg Neo-Kantianism toward the "new humanism." A similar development is characteristic of Jose Ortega y Gasset, who was originally a Neo-Kantian of the Marburg School, had studied under Cohen and Natorp, and later developed his own theory of

cognition, his "perspectivism" or the "philosophy of the point of view" and, independent of Heidegger, created his "philosophy of life," his philosophy "according to vital reason."

The reaction against Marburg began with Edmund Husserl, the creator

32See particularly H. Kelsen, General Theory of Law and State (Cambridge, Mass,.: Harvard University Press, 1945); Spanish translation by Eduardo Garcia MAynez, Teoria general del derecho y del estado (Mexico City, 1951).

33See the recent critical article by Argentinian, Roberto F. Vernago, on Kelsen's "basic norm": "La funci6n sistematica de la norma fundamental," Revista Juridica de Buenos Aires, I/II (1960). The influence of Kelsen on many contemporary Spanish- American philosophers of law is clear. The review, Estudios de Derecho, Universidad de Antioquia, Medellin, Colombia, contains in vol. XX, no. 60 (Sept., 1961), six articles as a Kelsen Festschrift, "Homenaje a Kelsen."




of phenomenology. It is also of great importance in contemporary Spanish- American philosophy of law. Two of Husserl's principal works have been translated into Spanish by Spaniards who later lived in Mexico,34 and many studies on Husserl and phenomenology have been published in Spanish America.35 But whereas Marburg Neo-Kantianism has produced great systems of philosophy of law, phenomenology has, up to now, no such record, although in Europe and in Spanish America attempts have been made to develop a phenomenological philosophy of law. Spanish-American philosophers of law have recognized Husserl's merit in the realm of logic, but they have not taken everything of his into their philosophy of law; only parts of his philosophy, such as the doctrine of "essences" as ideal, a priori beings which can be captured by intellectual, "eidetic," intuition, and his doctrine of "regional ontologies," have been taken over in order to locate the law among the objects of the universe.

Phenomenology has also become important, because the dominating philosophies, the theory of values and existentialism, have been developed phenomenologically. The great importance of values is characteristic for contemporary philosophy; there are many theories of values, based on very different philosophies, from scholasticism to pragmatism and Dewey's "instru- mentalism." Nietzsche36 and his "transvaluation of values" holds again an eminent place in contemporary philosophical thinking. Great also was the influence of Bergson's intuitionism and vitalism in Spanish America; translations of his works have been published there. His influence can be seen in such philosophers and philosophers of law as Manuel G. Morente, Fran- cisco Romero, Antonio Caso, Eduardo Nicol, Jos6 Gaos; but his influence is receding before the impact of German and Austrian thinkers.

The influence of the Baden School of Neo-Kantianism-itself a reaction against the Marburg School-must not be overlooked. Windelband and Rickert are the leading philosophers of the Baden School. Rickert had taught that there is a realm of nature and a realm of values, but that between them there is a third realm, the realm of culture-reality, related to values. Hence sciences which deal with nature-the "nomothetic" sciences-and sciences which deal with the singular and unique--the "idiographic" sciences. The study of values is the task of philosophy, not of science. Cul- tural sciences study the realm of reality related to values. This "philosophy of culture" has also found expression in German schools of philosophy of law. Its principal representatives are Emil Lask, Fritz Munch, Max Ernst Mayer, and, particularly, Gustav Radbruch, all of whom have been translated and studied in Spain and Spanish America.

34lnvestigaciones 16gicas, translation by Jos6 Gaos and Garcia Morente, and Medi- taciones cartesianas, translation by Jose Gaos (Mexico City, 1943).

35E.g. by Francisco Romero; by the late Colombian philosopher of law, Eduardo Nieto Arteta; by the Spaniard, Xirrau; by Antonio Caso; and by Jos6 Gaos.

36See Garcia Barcena, Estampa espiritual de F. Nietzsche (1944); Molina, Nietzsche dionisfaco y asceta: su vida y sus ideas (Santiago, 1944); Miguel Reale, Nietzsche y el valor de la filosofia (1945).




Another name of great influence in Spanish America is Dilthey,37 whose work was continued by Eduard Spranger. Dilthey is primarily a historian of the spirit. Whereas Husserl wants to make philosophy a rigorous science, for Dilthey philosophy is impossible as a science. Of great influence was his dichotomy of explanation and "comprehension" as the method of the cultural sciences. Such comprehension is not possible by pure reason, but only by "comprehending" intuition. Only such intuitionist capturing of sense and meaning can lead to a Weltanschauung. Dilthey's concepts of comprehension" and "structure" play a great role in Spanish-American jurisprudence.

While there are many theories of values, perhaps the most influential is that developed by Max Scheler and continued by Nikolai Hartmann. Scheler's theory of values was developed phenomenologically. But starting with Husserl, Scheler went his own and very different path. Originally a Neo-Kantian, he embraced Husserl's phenomenology, but his results are very different from Husserl's. The rigorous science of Husserl became in Scheler's hands metaphysics, often strongly Catholic; and this partly explains why Neo-Thomists were often, to quote the word of Cayetano Betan- court, "jubilant followers of Scheler." Scheler took from Husserl the "regional ontologies" and the "essences," to which he added values. Values are for him ideal objects, not created, but only discovered by men. But they cannot, contrary to Husserl, be captured by intellectual, "eidetic," but only by emotional intuition. Scheler opposed the "formalism" of Kant's ethics and postulated a "material ethics of values," the subject of a work later written by Nikolai Hartmann. The ideas of these men on the objectivity of values, the necessary polarity of values, and the hierarchy of objective values had the greatest influence in Europe and Spanish America on philosophy and philosophy of law. There is no doubt that this philosophy corres- ponded to deep longings in a period of total crisis of Occidental culture.

The development of these newer philosophies, which had started in Europe by 1900 with Husserl's phenomenology, reached its climax with modern existentialism. The latter had many forerunners: Ortega y Gasset tries to trace it back to Goethe. Maritain writes that St. Thomas of Aquinas was, "to use a fashionable word, one of the 'most existentialist' philosophers." One must not forget that there is not only the pessimistic, atheistic existentialism of Heidegger and Jean-Paul Sartre, but also the existentialism of

Jaspers and Gabriel Marcel. Perhaps the most immediate forerunner was the Dane, Kierkegaard. It is amazing how the works of Kierkegaard, largely unknown since they were written a hundred years ago, have been translated and studied everywhere during these last few decades. There is a Portuguese translation of Kierkegaard.

All great new systems of philosophy have appeared in times of crisis, when

37Dilthey has been translated in Mexico by Eugenio Imaz: Introduccidn a las ciencias del espiritu (1944); Psicologia y teoria del movimiento (1945). See also Roura Parella, Spranger y las ciencias del espiritu (Mexico City, 1944).



LATIN-AMERICAN PHILOSOPHY OF LAW 271 old-established faiths and values were being attacked and new values had not yet established themselves. That was the case when Greek mythology and the holiness of law were attacked by the Sophists: the new philosophies appeared with Socrates and Plato. In this sense the philosophies of the phenomenological movement are the philosophies of the great crisis of Occiden- tal culture. The nineteenth century had been a century of optimism in Occi- dental culture, which was taken to be practically the only culture, embracing more and more of the world. Today we see a world of many cultures, and open attacks against the Occidental culture. The Prime Minister of the Soviet Union has voiced his programme "to bury us." And yet history shows that great cultures have perished, in the last analysis, not from attacks from outside, but by weakness from within. Doubts about the Occidental culture can already be found in Pascal. Kierkegaard voiced them strongly, but writing in the middle of the optimistic nineteenth century his voice was at that time not heard. Nietzsche foresaw, long ago, with the eye of genius, the "transvaluation of all values." At the time of the outbreak of the First World War, the beginning of the upheaval of the present-day world, Oswald Spengler published his two volumes Untergang des Abendlandes; his work was translated into English euphemistically as "The Decline of the West," whereas Untergang in German does not mean "decline," but "fall." And Spengler's ideas have taken hold on many, even while his theories are dis- puted. There is something of Oswald Spengler also in Arnold Toynbee.

Here we come to Martin Heidegger38 and his influence in Spanish America. Heidegger, a disciple of Husserl, developed his existentialism phenomenologically. He tried to apply the phenomenological method to human existence. He was not interested in essence, but in existence; for man's existence precedes, or even is, his essence. He wanted to give an "analysis of existence." Existing, not thinking, is the basic concept. This analysis begins with the everyday "existence of banality," dominated by a feeling of anxiety (Angst) and "care," "concern" (Sorge). But man can also become an "authentic ego" through resoluteness in the face of death. Heidegger leads us to an atheistic, pessimistic existentialism, primarily attracted by Death and the Nothing. He wrote in an impossible un-German German, greatly admired by his adherents. His principal work was Sein und Zeit ("Being and Time"). Also of great influence in Spanish America is the philosophy of Jose Ortega y Gasset and his particular kind of existentialism.

38His influence can be seen in Romero, Canabrava, Nicol, Zubiri, Gaos, and others. The Spaniard, Zubiri, the Argentinian, Astrada, the Peruvian, Wagner de Reyna, were disciples of Heidegger in Europe. Carlos Cossio's "egological theory of law" is also indebted to Heidegger, particularly to his concept of "temporality." Gaos has achieved the nearly incredible task of translating the impossible German of Sein und Zeit into a faith- ful, nearly equally bad Spanish (El ser y el tiempo, Mexico City, 1961). See also the critique of Heidegger's ideas in Julio Enrique Blanco's "Mitografia heideggeriana" in the review Estudios de Derecho, Universidad de Antioquia, Medellin, Colombia, nos. 146, 151 (Oct.-Dec. 1962), pp. 580-616, 771-812 (a third part is to follow).




VII

We have now the philosophical elements on hand which explain not only contemporary Spanish-American philosophy of law in general, but also the particular place of Kelsen's Pure Theory of Law in this philosophy of law. As stated earlier, Kelsen's influence is, by far, the strongest. It would be easy for this writer to give hundreds of quotations to show that this is so. Often the conviction is voiced that Kelsen is the jurist of the twentieth century. The Latins think that the Pure Theory of Law is a product of intrinsic greatness which will remain incorporated in the thinking of jurists; that, to quote one phrase, all philosophy of law in the future will have to be a dialogue with Kelsen. But the strong position which the newer philosophies of the phenomenological movement, as a reaction especially against Mar- burg Neo-Kantianism, hold in contemporary Spanish-American philosophy of law has not been without impact on Kelsen's Pure Theory of Law.

The work of the Cuban, Antonio S. de Bustamante y Montoro,39 is, in general, no more than a very clear restatement of Kelsen's principal doctrines in Spanish. In his preface the author accepts Kelsen's doctrines, but voices a longing to transcend Kelsen's relativism. Can we of this generation, the Cuban author asks, accept Kelsen's dictum that law can have any content whatever? Can we be satisfied to regard law as a mere form, a social technique? Exactly by his demonstration of law in its nakedness, Kelsen pro- vokes in us a "new thirst for justice." These remarks are, in a way, symptomatic of the attitude of many Spanish-American philosophers of law toward the Pure Theory of Law. That theory is for them a starting-point, a doctrine of which much may be accepted, but it is also a target. They think that Kelsen's theory is not sufficient, that the sociological substratum and the evaluation of the law must be included; and, accordingly, that philosophical relativism must be overcome. In varying forms and degrees they try to retain Kelsen's theory of law, but to go beyond him in philosophy. As Carlos Cossio in his earlier writings stated: "To go beyond Kelsen without abandoning him." They have tried, again in varying forms and degrees, to combine Kel- sen's theory with phenomenology, with the theory of values, or with existentialism.

When this writer, twenty years ago, started his pioneering investigations into the terra incognita of Latin-American philosophy and philosophy of law, the question could be asked: Is there a Latin-American philosophy and philosophy of law, in the sense of expressing at the same time original and typically Latin-American thought? And he could quote negative answers by Latin-American writers who had asked that question themselves. But the situation is different in 1963, as the Mexican philosopher, Leopoldo Zea, who asks the same question today, states in his still modest answer. First of all, interest in philosophy and in philosophy of law has increased tremendously

39Teoria general del derecho (2nd ed., Havana, 1940).




and this increased interest is in itself, as Leopoldo Zea correctly says, a sign of approaching maturity. Institutes of philosophy of law have been founded, courses in philosophy of law and introduction to law are widely given in Latin-American law schools. Many law reviews publish studies in this field; particular reviews for philosophy of law, even yearbooks, have appeared. Not only the number of students, but also the number of men who dedicate their life to teaching, investigation, and research in philosophy of law, have grown substantially. There is an enormous amount of work done in translating all important philosophies and philosophies of law of the world. Spanish-American philosophy of law has not only reached a very high de- gree of knowledge of all the philosophies of law, including a much greater acquaintance than formerly with the thinking of the English-speaking countries, but has also made many important studies on these philosophies, given valuable critiques, made new interpretations, contributed many new thoughts. Great thinkers have appeared; original and brilliant books have been written. And this development has by no means been restricted to a few, particularly important countries, but can be seen in all the Spanish- American republics.

In Cuba, prior to the coming of the present Marxist-Leninist dictatorship, philosophy of law had gained a particularly prominent position in the last few decades. Stammler had great influence, but more recently Cuba has been strongly under the influence of Kelsen. Pablo Desvernines y Galdos,40 who played an important part in Neo-Kantian thinking in Latin America, is influenced by Stammler. Carlos Azcarate y Rosell wrote interestingly on the different schools and their principal representatives in Europe from positivism to the modem theory of values.4' Ataulfo Fernandez Llano wrote on Kelsen's normative theory.42 There was the already named Antonio S. Bustamante y Montoro.43 But the real renovator of the philosophy of law in Cuba is Emilio Fernandez Camus, fundamentally inspired by the ideas of Kelsen.44

In Guatemala it was Enrique Mufioz Meany45 who has the merit of having inspired studies of philosophy of law in Central America. He shows the influence of Kant, of Scheler, Hartmann, and Ortega y Gasset. Jose Roelz Bennet46 moves on the lines of phenomenology, the theory of values, and of existentialism, but contributes interesting personal points of view. In Peru Juan Bautista de Lavalle, together with a younger Peruvian scholar, Julio

40Estudios fundamentales del derecho (1928). 41De Bergson al neotomismo (1933); Estudios de la filosofia del derecho (Havana,

1943). 42La doctrina normativa de Kelsen (Havana, 1937). 43See his La fenomenologia: de Husserl a Heidegger (1933), and Introduccidn a la

ciencia del derecho: vol. I, Nociones preliminares (2nd ed., 1942); vol. II, Tecnica juridica (2nd ed., 1945); vol. III, Sociologia jur'dica (2nd ed., 1945).

44Filosofia juridica contempordnea (Preface by Hans Kelsen; Havana, 1932); Leccio- nes de filosofia del derecho (Preface by Luis Recas'ns Siches; 2 vols., Havana, 1945).

45Libertad metafisica y libertad juridica (1943); La definicidn del derecho (1944). 46El problema de la seguridad en la estimativa juridica (1941).




Ayasta y Gonzalez, has translated the work of the Swiss scholar, Du Pas- quier.47 In Venezuela the leading figure in philosophy of law is Rafael Pizani. 48 In Ecuador a very important contribution has been made by the "Introduction to Philosophy of Law" of Jorge Villagomez Yepes.49 In Bolivia, Vicente Teran;so but the most important contribution has been made there by the work of Rafael Garcia Rosquellas."1 He is a strong adherent of Kelsen.

In Colombia the outstanding figure in contemporary legal philosophy of modern tendencies was the late Eduardo Nieto Arteta.52 His thinking was basically inspired by Kelsen and Husserl, but the influence of Carlos Cossio is also clear. Like Cossio, he wished to overcome Kelsen, without leaving him. His thought was directed toward the union of phenomenology and the Pure Theory, a task already attempted within the "Vienna School" by Kaufmann and Fritz Schreier. Basically Nieto Arteta accepts Kelsen's Pure Theory of Law. But he interprets it, following Cossio, as the discovery of a logic of "oughtness." That is why the Pure Theory is for Cossio merely juridical logic, not science of law. Kelsen himself rejected this interpretation in a long conversation with Nieto Arteta at San Francisco, on which the latter made an extensive report. His philosophy of law is given in an extensive series of studies and articles. But this scholar, who tragically ended his life by suicide, never reached a solution of the problems which occupied him, never achieved a philosophical system. We have to mention also in Colombia Rafael Carrillo53 and Abel Naranjo Villegas.54 Recently B. Mantilla PinedaB" has published a textbook on philosophy of law. Under the influence, as he himself states, of Luis Recas'ns Siches, Claude Du Pasquier, Gustav Rad- bruch, Miguel Reale, and Carlos Cossio, he represents an "integral" theory of law, according to which law is dialectically norm, conduct, and value.

The leading philosopher of law of Uruguay, and a very original one, is Juan Llambias de Azevedo." He is a follower of Husserl, but takes from him only the concepts of "essences" and of "regional ontologies." His principal work is "Eidetics and Aporetics of the Law." He is not interested in the form, but in the essence of law, not in the theory, but only in the philosophy

47Introduccidn a la teoria general y a la filosofia juridica (Lima, 1944). The preface by Lavalle is highly interesting and the often extended notes by both translators are very valuable.

48Principios generales del derecho (1941). 49lntroduccio'n a la filosofia del derecho (Quito, 1946). 50Temas para una introduccidn a la ciencia del derecho (1944). 51Bases para una teoria integral del derecho (1943); Curso abreviado de filosofia del

derecho (1951). 52His work consists for the greatest part of articles published in Argentinian, Colombian,

and Mexican reviews. 53Ambiente axiologico de la teoria pura del derecho (Bogota, 1947). 54Filosofia del derecho (Bogota, 1947). 55Filosofia del derecho (Medellin, Colombia, 1961). 56Eiditica y aporetica del derecho: prolegdmena a la filosofia del derecho (Buenos

Aires, 1940; English translation by Gordon Ireland in Latin-American Legal Philosophy, pp. 401-58); El pensamiento del derecho y del estado en la antiguidad desde Homeros hasta Plat6n (Buenos Aires, 1956).




of law-in the ontological and axiological problems of law. With Husserl, Llambias assumes the existence of the essences, apprehended by the phenomenological method of intuition. The science which deals with these essences is the Eidetica. The essence of law Llambias describes in these terms: "The positive law is a bilateral and retributive system of dispositions, made by man for the regulation of the social conduct of a group of men, and as a means of realizing the community values." Law is a phenomenon of mediation between values and human conduct. From the problem of essence and existence (validity) of law the author advances to the ontological problem, the place of law in the general sphere of objects, and comes to the conclusion that law is a spiritual object. Having intuitively captured the essence of law in the "Eidetica," Llambias arrives at the "Aporetica," the pure science of the problems raised by the phenomenon of law. A recent work of Llam- bias is a big volume on Greek philosophy from Homer to Plato.

VIII

The two leading Spanish-American countries, as far as philosophy of law is concerned, are, no doubt, Argentina and Mexico. After the long rule of Comte's positivism, Neo-Kantianism held a strong position in Argentina. The influence of Stammler was particularly strong. Segundo Linares Quin- tana57 wrote on problems of Stammler's philosophy of law. The man who introduced Stammler into Argentina and was also in his own work a full adherent of Stammler, was, as we have mentioned before, the distinguished philosopher of law, Enrique Martinez Paz. Alberto J. Rodriguez58 played an important role in making known the Neo-Kantian philosophy of law, particularly Stammler, in South America. Anibal Sanchez Roulet59 wrote on Lask. At the end of the thirties four books on "Introduction to Law" were published in Argentina. Martin T. Ruiz Moreno"o of the Law School of Buenos Aires is a highly distinguished philosopher of law, who has written a number of valuable works. Enrique R. Aftali6n has written, together with Fernando Garcia Olano,61 an excellent and much-read "Introduction to Law." A critique is made of Comte's positivism, which had ruled Argentina for so long. The authors note the absolute predominance of Kant and Neo- Kantianism, as well as the tendency to return to natural law (Stammler, Del Vecchio, Recasens Siches).

Notwithstanding the many interesting figures in philosophy of law in Argentina, the outstanding name in the forties and early fifties was that of

57La prdctica del derecho en la filosofia stammleriana. 58See, among his many writings, La filosofia del derecho de Kant (1924); De Kant a

Stammler (1925); Stammler (1926); La filosofia del derecho de Stammler. 59Emil Lask y el problema de las categorias filosdficas (1942). 60El pensamiento filosdfico juridico de los griegos (Buenos Aires, 1939) ; Filosofia del

derecho-teoria general e historia de las doctrinas (1944); Vocabulario filos6fico (Buenos Aires; now in 3rd ed., 1962).

61Introducci6n al derecho (4th ed., Buenos Aires, 1939).




Carlos Cossio.02 He introduced Kelsen into Argentina and became the head of the Argentinian "Kelsen School." Stimulated by the Argentinian revolution of 1930, he began his work with the investigation of the pure concept of revolution and the relevant function of Kelsen's hypothetical basic norm. Also, in his later writings, he was inspired by actual happenings, because of his conviction that philosophy of law must be close to the practice of law. He dealt with problems of "lacunae" in the legal order, the interpretation of law by the courts, the hermetic completeness of the legal order, the creative character of judicial decisions, all themes of Kelsen. He hailed Kelsen as the greatest jurist of the epoch, a scholar of genius, whose Pure Theory of Law is not just another theory, but represents a revolution of legal science which has an irrevocable, eternal value. But already in his series of monographs we can see points where his theory is not only different from but in contradic- tion to Kelsen. It was in 1944, in his book "The Egological Theory of Law," that Cossio gave for the first time a systematic discussion of his philosophy of law, developed in later writings which followed soon after. Cossio's philosophy is an attempt to create an original philosophy of law, to shape an "Argen- tinian" philosophy of law. According to his own words, it is based on three philosophies: Kelsen's Pure Theory, Husserl's phenomenology, and Heideg- ger's existentialism. From Husserl he takes the phenomenological methods, the theory of objects, and the regional ontologies. From Heidegger he takes the "existing," the Da-sein, the "being-in-the-world," and the distinction between "chronological" and "existential" time. But also the philosophy of Dilthey, Dilthey's concepts of 'structure" and "comprehension," that cultural sciences must not explain, but comprehend, is basic for the egological theory of law.

Like Llambias and Recasens Siches, Cossio starts with the problem of the essence of law and its place among the objects of the world. Law is for him a cultural object. The adequate method of knowledge of cultural objects is, as Dilthey had taught, the method of comprehension. But among the cultural objects he distinguishes the "objects of the world," the product of the activity of man, and the "egological" objects, that is, human action in which human conduct, as such, is articulated. Law is an egological object, hence the name of his theory. Law, on the basis of phenomenology, is human action in its intersubjective relationship, a formulation, stemming from Del Vecchio. This is the cornerstone of Cossio's theory. Hence the object of the science of law is human conduct, not norms. But as all science is cognition by concepts, in law, by legal concepts, logic is necessary. The logic must be adequate to its object. The only adequate logic is the logic of "oughtness" which has been definitively discovered and developed by Kelsen. Kelsen's Pure

Theory of Law is not science of law but only "juridical logic." The object of

62El concepto puro de revolucidn (Buenos Aires, 1936); La plenitud del ordanamiento juridico (1939; 2nd ed., 1945); La teoria egoldgica del derecho (Buenos Aires, 1944); El derecho en el derecho judicial (1945); Panorama de la teoria egol6gica del derecho (1949); Teoria de la verdad juridica (1954) ; Los valores juridicos (1956).




the science of law is human conduct. Legal norms are merely intellectual representations of human conduct. We can, therefore, approach law without any reference to norms. This is the second pillar of the egological theory of law.

On this basis Cossio founded his own "Cossio School." A great number of his young disciples, ready to swear on their master's words, have tried to enhance Cossio's prestige. Cossio is undoubtedly a highly gifted personality, a man fanatically devoted to philosophy of law, and an indefatigable debater. But he is also a man of great vanity for himself and for Argentina. It is his pride to have established a theory of law, sufficiently different from that of Kelsen to be spoken of as "original," and as an original "Argentinian" theory. The egological theory has been studied in Latin America. It has influenced mature scholars in Argentina, such as Aftali6n; it has won converts in Portugal, such as Brandao. But there has been a great deal of propaganda around the "Cossio School," and Cossio resorted to less than fair methods when Kelsen accepted his invitation to come to Buenos Aires in 1948 for a lecture in French. Already some time before, a strong opposition to Cossio had developed in Argentina. Studies and critiques of Cossio's theory have been published in Argentina by Ricardo Smith, by Robert Goldschmidt, by his own disciple, a man of great talent, Julio Cueto Rua,63 and by others. The excellent philosopher of law, Ambrosio L. Gioja,64 originally a direct collaborator of Cossio, but also close to Kelsen, has abandoned the egological theory. An excellent and penetrating critique of the theory was made in 1951 by the Venezuelan philosopher of law, Rafael Pizani.65 The egological theory has been rejected by most outstanding Spanish-American philosophers of law, such as Recasens Siches, Eduardo Garcia Maynez, Llambias de Azevedo, Miguel Reale.

When Kelsen arrived, at Cossio's invitation, at Buenos Aires in 1948, Cossio, in his polemical way, which is for him a principle, and in his arro- gant, overbearing language, put before Kelsen the dilemma, either to admit the superiority of the egological theory or to refute it "annihilatingly." Kelsen chose the second alternative and showed in an article with his usual mastery in polemical writing, his deadly irony and penetrating power of logical analysis, the whole untenability of Cossio's two principal theses, on which primarily Cossio's claim to originality is based. Without these two theses the egological theory of law would be, as he states himself, no more than a rehash of the Pure Theory of Law. These two theses are, of course, the thesis that Kelsen's theory is not science of law, but merely juridical logic, and that law is conduct. Kelsen shows the absolute untenability of the latter thesis. He shows that Cossio confuses the fact that law regulates human

63Julio Cueta Rua, "Estudio critico sobre el libro 'La teoria egol6gica del derecho' de Carlos Cossio," 3 Revista del Colegio de Abogados de Buenos Aires (1944).

64Kant y el derecho (Buenos Aires, 1945) ; La arquitectonica del conocimiento juridico (1945).

65Reparos a la teoria egol6gica (1951).




conduct with the object of the science of law, namely, legal norms by which the law regulates human conduct. The story of the egological theory of law is a rather sad story. Since the middle of the fifties it has been quiet around the Cossio School.

IX In Mexico philosophy of law holds a particularly high place and has

achieved great results. The long influence of Comte's positivism was overcome by Neo-Kantianism. The latter plays naturally a great role. Neo- Kantianism of the Baden School was introduced into Mexico by Francisco Larroyo, who also translated Windelband's "History of Philosophy" into Spanish. Whereas his field is primarily in general philosophy, Guillermo Hector Rodriguez is primarily interested in philosophy of law and is the most fanatic and orthodox adherent of the Marburg School of Neo-Kantian- ism. He has translated the principal works of Cohen and some works of Natorp. He himself writes most of the content of the "Philosophical Journal of the Neo-Kantians of Mexico." In his own works he follows mainly Stammler and Kelsen." Mexico is, at the same time, the country where there exists a deep split between Neo-Kantianism of both the German schools, on the one hand, and the newer philosophies of the phenomenological movement, on the other hand, as many polemical writings of Larroyo and Rodriguez show. There is a rich line of Mexican philosophers of law, and new names are always appearing.6' That is partly the result, as we have remarked earlier, of the relatively many eminent Spanish philosophers and philosophers of law who settled in Mexico as a consequence of the Spanish Civil War. We would particularly mention Juan Jos6 Bremer,68 who has written an excellent exposition of Stammler's philosophy, and whose principal work considers the logical and the axiological theories of law in an effort to overcome them by an "integral theory of law." Interesting is the book by Genaro Salinas Quiroga69 on the new routes of law, giving a survey of the philosophies of the phenomenological movement and of the systems of jurisprudence of Del Vecchio, Stammler, Kelsen, and Recas6ns Siches. A great work in philosophy of law has been written by Rafael Rojina Villegas.70 In

66Fundamentos de la jurisprudencia como ciencia exacta (1937) ; Etica y jurisprudencia (Mexico City, 1947).

67See Juan Manuel Terin Mata; La idea de la justicia y el principio de la seguridad juridica (1941), and Juricidad y antejuricidad (1942) ; Luis de Garay, Que es el derecho? (1935), and Hans Kelsen y la teoria pura del derecho (1938); Rail Rangel Frias, Identitad entre estado y derecho en la teoria juridica de Kelsen (1938); Gabriel Garcia Rojas, Sobre la indefinicion del derecho (1938); Trinidad Garcia, Apuntes de intro- duccion al derecho (2nd ed., 1941); Yolanda Higareda Loyden, Filosofia del derecho: la teoria pura del derecho y el derecho positivo (1954).

68Teoria o1gica, teoria axiol6gica, y teoria integral del derecho (1933). 69Las nuevas rutas del derecho (1942); Sociedad y derecho: filosofia del derecho

(1959). 70lntroduccidn y teoria fundamental del derecho y del estado (2 vols., 1944); Teoria

juridica de la conducta (Mexico City, 1947) ; Introducci6n al estudio del derecho (1949).



LATIN-AMERICAN PHILOSOPHY OF LAW 279 his "Introduction and Fundamental Theory of Law and State," in two volumes, he gives a survey of all systems, including a survey and critique of the sociological jurisprudence of Benjamin Cardozo, Roscoe Pound, and Timasheff. He is primarily influenced by Kelsen and Recasens Siches, but is an independent thinker who has his own ideas and makes his own contri- butions.

Eduardo Garcia Maynez,71 a Mexican of cosmopolitan outlook and an accomplished linguist, studied in Mexico under the philosopher Antonio Caso, did postgraduate studies under Alfred Verdross at the University of Vienna, and studied in Germany under Scheler and Hartmann. Returning as a young man from his studies in Europe, he dedicated himself to philosophy of law and has entered upon an academic life of achievement. We see, therefore, the influence of Kelsen, of Verdross' leaning toward Catholic natural law, of phenomenology, and of the theory of values of Scheler. In his early writings he accepted, to a certain extent, the pure theory of Kelsen. But the formal foundation of law in Kelsen's "basic norm" does not suffice; the real problem is that of the "ultimate" foundation of law and he feels that this problem can only be solved through Scheler's theory of values. In his later development, while retaining his adherence to Scheler and Hartmann, he has become more and more interested in logical and axiomatic problems of law and has also become much closer to Kelsen, whose "General Theory of Law and State" he has so magnificently translated into Spanish. By giving an expose of juridical axioms, such as, that a legal norm cannot order and prohibit at the same time, he insists that the law has also an ensemble of universal principles, which do not have their origin in statutes, customary law, or the decisions of the courts, but are axioms a priori, or, to speak with Leib- niz, are "des v6rites de la raison." In his book on the definition of law, starting with the reproach of Kant that jurists have not yet reached a definition of the object of their science, he believes that this failure can be ex- plained by the fact that different jurists have had in mind three different objects: valid law, natural law, and efficacious law. He attempts to apply the "perspectivism" of Ortega y Gasset. But as this writer has critically shown, this is not an application of Ortega's perspectivism. According to Ortega, if three persons look from different points at the same landscape, and everybody describes what he sees from his point, all three may be right. But in Garcia Maynez the three persons look at three different landscapes. This is not Ortega's perspectivism, nor can it lead to an integral theory of law.

Through his indefatigable work, through his great knowledge of philosophy and the philosophies of law, through his teaching, through his eminent writings, Garcia Maynez has exercised influence in Mexico and all over

71Ensayos filos6fico-juridicos, 1934-1959 (Mexico City, 1959); Introducci6n al estudio del derecho (1st ed., 1940; 7th ed., 1957) ; La definicidn del derecho: ensayo de perspec- tivismo juridico (1948); Los principios de la ontologia formal del derecho y su expresidn simbdlica (1953) ; Lo'gica del juicio juridico (1955).




Latin America. His Introduccio'n al estudio del derecho, now in its seventh edition, has been adopted as a textbook by all the law schools of Mexico, by most law schools of Central America and by the law school of San Marcos at Lima, Peru. But he has also in many other respects done very much for philosophy of law and its development in Mexico and Latin America. He is himself an excellent translator and fosters translations, which are done with great efficiency and effect and beautifully printed in Mexico. He has been and is the Director of the Centro de Estudios Filos6ficos of the National Uni- versity of Mexico, established in the wonderful Ciudad Universitaria at Mexico City. He was the founder and Director of the Bulletin of this centre of philosophical studies. For many years he directed the outstanding and important review, Filosofia y Letras. And he is the founder and Director of the yearbook of philosophy which carries the Platonic name Dianoia, first published in 1955 and now in 1962 in its seventh volume, a beautiful and excellent publication, a unique achievement in the whole of Latin America.

Luis Recasens Siches72 was born in Guatemala of Spanish parents and was taken in early childhood to Spain. At the University of Madrid he studied under Jose Ortega y Gasset and did postgraduate work with Giorgio del Vecchio at the University of Rome, with Rudolf Stammler in Germany, and with Hans Kelsen at the University of Vienna. After 1932 he was a professor at the Central University at Madrid, but left Spain because of the Spanish Civil War, settled in Mexico, and became a professor at the Law School of the National University of Mexico. Later he lived for a number of years in New York City where he was a scientific officer in the Human Rights Section of the Secretariat of the United Nations and taught at New York University Law School; he later returned to his professorship in Mexico.

A Spaniard of universal outlook, a profound student of philosophy and philosophies of law, a man of highest talent, a great linguist, an excellent translator, an indefatigable and enthusiastic worker, a man of a wealth of ideas, he has done great and admirable work. Even in his early work, published in Spain, he showed a trend toward an encyclopaedic knowledge of philosophy of law. A first climax of this rich work came with the publication of his great book, "Human Life, Society, and Law." It consists of three principal parts: ontology of law, analytical, and axiological jurisprudence. In the first part he examines the place of law among the general objects of the world. Law belongs neither to the realm of nature nor to that of pure values. Law is part of human culture. Law is a specific significance, a form of objec-

72La filosofia del derecho de Francisco Suarez (1st ed., Madrid, 1927; 2nd ed., Mexico City, 1947) ; Direcciones contempordneas del pensamiento juridico: la filosofia del derecho en el siglo XX (Barcelona, 1928); Los temas de filosofia del derecho en perspectiva histdrica y visidn del futuro (Barcelona, 1934); Estudios de filosofia del derecho (Bar- celona, 1936; 3rd ed., Mexico City, 1946); Vida humana, sociedad y derecho (1st ed., Mexico City, 1940; 3rd ed., 1945; English translation in Latin-American Legal Philo- sophy, pp. 1-341) ; Nueva filosofia de la interpretacidn del derecho (Mexico City, 1956); Tratado general de filosofia del derecho (Mexico City, 1959).




tivated human life; contrary to Carlos Cossio, law is a complex of norms of a special type. In his analytical philosophy of law or theory of law he is a critical follower of Kelsen. In his legal axiology he tries-and this is an original contribution-to found Scheler's objective theory of values in the philosophy of life of his teacher Ortega y Gasset. Here we are at the problem of the justification of law. Recasens recognizes with Kelsen that this problem transcends the theory of law, but it is, according to him, unavoid- able. For law is necessarily related to values. Spanish individualism is the author's heritage. He distinguishes the "person" in law, participating in an inferior rank of values in which all individuals are equal, generalized, sche- matized, typified, from the "real, authentic ego," the unique individual, participating in a realm of single and individual values, superior in rank to law and state. But as a true democrat and a Catholic who puts human dignity highest, he insists that the security guaranteed by the legal order is the conditio sine qua non for the fulfilment of one's real and unique life.

In 1956 Recasens published a very different work: "New Philosophy of the Interpretation of Law." It shows the influence of a closer acquaintance with the common law, American sociological jurisprudence, and "legal realism," gained during his years in New York City. This book takes as a starting-point the distinction between the "academic" and "non-academic" philosophies of law. An example of the first is Kelsen's Pure Theory of Law, the other stems from attorneys-at-law or judges. The two schools are often hostile to each other. Recasens holds that both approaches are perfectly jus- tified. But he also shows that both are often in agreement on problems of capital importance, such as, for instance, the necessarily creative function of the judge.

In 1959 Recasens published his monumental "General Treatise of Philoso- phy of Law"; and now his equally monumental work, "Panorama of Juridi- cal Thought in the Twentieth Century" is in the press. Recasens Siches has exercised wide-reaching influence. We have no doubt that he is one of the foremost, if not the foremost philosopher of law in the whole world of His- panic culture.

X In the last twenty years a new centre of philosophy of law has been

formed in Brazil-a centre on modern lines, not following the sociological jurisprudence prevailing in contemporary Brazilian philosophy of law. This centre is situated at Sao Paulo and its inspirator as well as its leading philosopher of law is Miguel Reale. He is the successor of the sociological philosopher of law, Pedro Lessa, in the chair of jurisprudence at the Law School of Sao Paulo, traditionally the "Harvard Law School of Brazil." Miguel Reale73

730 estado moderno (Rio de Janeiro, 1934); Fundamentos do direito (Sio Paulo, 1940); Teoria do direito e do estado (1940); Filosofia do direito (2 vols., 3rd. ed., Sio Paulo, 1962).




has done much for the growth of philosophy of law in the state of Sao Paulo and in Brazil; he has founded the Brazilian Institute of Philosophy which edits, under his direction, assisted by Renato Cirell Czerna, the "Brazilian Review of Philosophy,""7 a highly interesting publication with a rich and valuable content. He convoked the First Brazilian Congress of Philosophy, which took place at Sao Paulo in 1950,"7 and prepared the International Congress of Philosophy which took place at Sao Paulo in 1954, as a part of the festival commemorating the fourth centenary of the foundation of Sao Paulo. He is a great student of philosophy and all philosophies of law; he does much to translate outstanding philosophies into Portuguese, and has written a great deal himself since the late thirties, the climax of his work being the two volumes of his "Philosophy of Law" which attained its third edition in 1962. His thought is based on the "three dimensions" of law. That there are these three dimensions, and, hence, an analytical, an axiological, and a sociological jurisprudence, is widely recognized. This means, Reale tells us, that the significance of the word "law" is delimited by three elements: value, norm, fact. But a recognition of these three elements is not yet an "integral" theory of law, for which Reale stands. In this sense Reale critically investigates the trichotomy in Roscoe Pound and in Julius Stone, who has built up his great work on The Province and Function of Law entirely on this trichotomy. He mentions that this trichotomy follows also from the work of Kelsen; but for Kelsen, he says, axiological and sociological jurisprudence is always somehow "metajuristic," so that there is no integration. Reale investigates the "trialism" of Lask and of Radbruch, of Santi Romano and Hauriou, the "perspectivism" of Ortega y Gasset and Garcia Maynez. But all that is not yet integration of social elements in a normative order of values. Here new problems open up which he investigates. Miguel Reale exercises wide influence. He is a great and original thinker.

74Revista Brasileira de Filosofia; latest number XII, 49 (1963). 75Anais do primero congresso de filosofia (2 vols., Sio Paulo, 1950).



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