Stratification, differentiation and irreducibility of the law

Abstract

This reflective article aims to reconceptualise Law based on the ontology of critical realism, overcoming the limitations of irrealist perspectives that obscure the understanding of the ways in which Law operates in the reproduction (or transformation) of society. The central argument is that Law must be understood as an emergent and differentiated antinominial socio-historical practice, marked by irresolvable dialectical contradictions, yet open to transformation. The construction of the argument follows three logical stages. First, it demonstrates the praxiological dimension of dominant legal theories, which discursively reduce the legal phenomenon to its normative surface, blocking access to the deep causal mechanisms that constitute its effectiveness (or ineffectiveness). Second, it develops an original model distinguishing: (i) the underlying causal strata (identity repertoires, institutional materiality, culture, politics, economy); (ii) Law as an open system ; and (iii) its three causal powers: antinomial negation, coercive transduction, and diachronic double contingency. Finally, in the third stage, the model is applied to the analysis of the case of judicial recognition of LGBTIAPN+ community rights by the Brazilian Supreme Federal Court, demonstrating how antinomial negation operates as an ideological investment that conceals the persistence of power structures that block the effectiveness of legal norms, revealing that the ineffectiveness of Law is not a technical accident, but a constitutive feature of its operation in societies marked by asymmetrical power relations.