Há oposição entre direito e lógica? os paradoxos da autorreferência, a emenda constitucional n. 26/85 e o sentido mágico da lei

Abstract

This research seeks to study the paradoxes of self-reference and self-amendment, illustrating the problem through the case of the Constitutional Amendment nº. 26 of 1985, which summoned the Assembleia Nacional Constituinte (Brazil’s “National Constituent Assembly” for the current Constitution). The paper shows in details how self-reference necessarily causes a rupture in the chain of validity between the dictatorial Constitution and the Constitution of 1988. It also comments on Ross’ attempt to solve the paradox of self-reference, demonstrating its error. After, the paper shows that the paradoxes are not limited to the formal aspects of Law, but that they are applicable to the notion of the Sovereign which is underlying to the Law. Finally, the paper proposes that the rise of such paradoxes is not a mere result of the natural limitations of language, but that they are also caused by Law’s founding violence, which is prior to the logic of positivation. The paper is philosophical in nature and the research is centered on authors in the fields of logic, epistemology and jurisprudence.