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Analysis Supporting Scott Erik Stafne’s Constitutional Doctrine
The following analysis applies the concepts from the article "Robert Brandom and His Pragmatist Philosophy in Law " by Francisco Kliemann a Campis to ground and support the constitutional doctrine advanced by Scott Erik Stafne, which focuses on the nullity of ultra vires acts (beyond authority) and the principle of void ab initio (null from the beginning), particularly in relation to strict adherence to US Constitution and Washington State Constitution.
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Philosophical Analysis in Support of Scott Erik Stafne’s Doctrine
Francisco Kliemann a Campis’s article on Robert Brandom and Ronald Dworkin provides a robust philosophical framework for defending Scott Erik Stafne’s constitutional doctrine. Stafne’s central thesis, as understood, is that governmental or judicial acts taken outside the jurisdiction or authority explicitly granted by the Constitutions (particularly State Constitutions) are not merely erroneous; they are void ab initio — null from the outset.
The translated article precisely articulates the philosophical distinction underlying this doctrine: the difference between “normative authority” and “mere exercise of power.”
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1. The Risk of Legal Nihilism and the “Mere Exercise of Power”
The article identifies “legal nihilism” as the danger of judicial decisions becoming a “mere exercise of arbitrary power,” where legal concepts no longer offer criteria to distinguish right from wrong.
● Application to Stafne’s Doctrine: Stafne’s doctrine confronts this nihilism directly. When a court or government agent acts ultra vires — beyond the limits of its constitutional authority — it no longer operates under the “normative authority” of the Constitution. Instead, it engages precisely in the “mere exercise of arbitrary power” that Brandom warns is the collapse of law itself. Stafne’s argument is that such an act is not “law” at all; it is a nullity.
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2. Brandom’s Core Distinction: Authority vs. Power
Brandom’s “insight,” as cited in the article, provides Stafne’s most powerful defense tool:
> “The difference between normative authority and mere exercise of power depends on our ability to reconstruct the applications of legal concepts as rationally justified in virtue of their meanings.”
● Application to Stafne’s Doctrine: An ultra vires act fails this test decisively.
An act taken without jurisdiction cannot be “rationally justified,” because the fundamental premise of its justification — the authority to act — is absent.
● Brandom describes law as a “game of giving and asking for reasons.” Constitutional jurisdiction is the very rule that allows the “game” to be played. An act outside jurisdiction is not a “bad move” within the game; it is an attempt to play an entirely different game, without rules or authority.
● Therefore, under Brandom’s own definition, an ultra vires act lacks “normative authority.” It is, by definition, a “mere exercise of power.” The void ab initio doctrine is simply the legal recognition of this philosophical failure.
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3. Inferentialism and the Break in the “Chain of Reasons”
Brandom’s “inferentialist” theory holds that the meaning of a concept (for example, “judicial authority”) is defined by its role in reasoning practices — what justifies it and what follows from it.
● Application to Stafne’s Doctrine: A state court’s authority is justified by the State Constitution. What follows from that authority are valid orders and judgments.
● When a court exceeds that authority, it breaks the inferential chain. The act can no longer be justified by its source (the Constitution). Consequently, no legal effect (no valid inference) can follow from it.
● The act becomes both semantically and legally void. It is void ab initio.
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4. Dworkin’s “Integrity” and the Right Answer
Although the article views Dworkin as an alternative, his theory also strongly supports Stafne’s doctrine. Dworkin argues that judges must find the “right answer” that best fits the “integrity of the legal system.”
● Application to Stafne’s Doctrine: The “integrity” of the U.S. (and each state’s) legal system is grounded in the supremacy of its respective constitutions. An ultra vires act is the most fundamental violation of that integrity.
● There can be no “constructive interpretation” (Dworkin’s method) of an act that disregards the very source of authority to interpret. The “right answer” for an act without jurisdiction is to recognize it as null. Any other answer (for example, treating it as merely “voidable” or “erroneous”) destroys the system’s integrity by admitting that power can exist outside the Constitution.
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Conclusion
Campis’s article, through its analysis of Brandom and Dworkin, provides the exact philosophical justification for the constitutional doctrine defended by Scott Erik Stafne.
Both philosophers stand against “legal nihilism” — the notion that law is merely power. Stafne identifies the practical example of that nihilism: the moment when a court ignores the jurisdictional limits of its own founding Constitution.
Using the article’s framework:
1. From Brandom: Stafne’s doctrine argues that an ultra vires act is not “normative authority” but “mere power,” because it cannot be “rationally justified” by its source of meaning (the Constitution).
2. From Dworkin: Stafne’s doctrine contends that the only “right answer” preserving the “integrity of the legal system” is to declare an act without jurisdiction void ab initio, because any other response would validate brute force over constitutional principles.
Read the full article "Robert Brandom e sua filosofia pragmatista no Direito” by Francisco Kliemann a Campis (ConJur, Oct. 18 2025).
AI GEMINI: literal English translation of the full article
“Robert Brandom e sua filosofia pragmatista no Direito” by Francisco Kliemann a Campis (ConJur, Oct. 18 2025).
https://www.conjur.com.br/2025-out-18/robert-brandom-e-sua-filosofia-pragmatista-no-direito/
Source : CONJUR
Class Diary
Robert Brandom and His Pragmatist Philosophy in Law
Francisco Kliemann a Campis
October 18, 2025 – 8:00 a.m.
Academia
Robert B. Brandom is one of the most influential contemporary philosophers of the so-called North American neopragmatist tradition, connected to the heritage of Hegel, Wilfrid Sellars, and Wittgenstein.
Some of his scholarus joke that Brandom would be a kind of “analytical Hegel.”
A professor at the University of Pittsburgh, Brandom became known for his monumental work Making It Explicit [1], in which he proposes an inferentialist theory of meaning.
The central point of this theory is that the content of a concept is not something given in advance by fixed representations or static definitions. Instead, content is defined by the inferential role that the concept plays in our social practices of language.
To say something with meaning is always to participate in a “game of giving and asking for reasons,” in which speakers assume normative commitments and become responsible for justifying their statements.
Simply put, “inference” is the name Brandom gives to the process of connecting ideas rationally—that is, when one statement logically leads to another. For example: if someone says “All human beings are mortal” and “Socrates is human,” one can infer that “Socrates is mortal.” For Brandom, understanding the meaning of a concept is precisely to know how it can be used in these reasoning connections, what can be correctly concluded from it, and what justifies it.
Thus, meaning does not lie in the words themselves, but in the inferential relations they maintain with others within a social practice of reasoning and justification. To understand a concept, therefore, is to know what follows from it and what supports it—to know when it makes sense to use it and why.
Brandom, therefore, investigates pragmatic semantics: instead of thinking of meaning as a direct relation between words and the world, he reconstructs it from the social practices that confer upon concepts their normative function. A Hegelian Model of Legal Authority is the only text in which he deals specifically with law—written at the invitation of scholars interested in pragmatist approaches to the legal phenomenon [2]. It is a somewhat scattered essay, not the apex of his work, but it contains relevant insights.
Brandom and Indeterminacy in Law
When applying this approach to the legal field, Brandom recognizes a classic problem, similar to the one identified by H. L. A. Hart: legal concepts are never absolutely clear or determinate. There are always borderline cases, ambiguities, and interpretive disputes.
Brandom, however, observes that recognizing this semantic indeterminacy without establishing limits can lead to legal nihilism, in which judicial decisions would become a mere exercise of arbitrary power, since the concepts would not offer criteria to distinguish correct and incorrect applications [3]. This, for him, is the risk of certain versions of legal realism, which reduce judicial decision to a disguised political choice.
Against this, Brandom proposes a sophisticated solution:
Yes, there is partial indeterminacy in legal concepts;
But this does not eliminate their normativity—the use of a concept in legal argumentation still implies normative commitments that can be rationally evaluated;
Therefore, law remains capable of distinguishing between justified applications and mere acts of power.
Brandom’s “insight” is precisely this:
> “The difference between normative authority and mere exercise of power depends on our being able to reconstruct the applications of legal concepts as rationally justified in virtue of their meanings.”
This distinction is crucial to preserving the legitimacy of law in the face of nihilistic temptation.
Ronald Dworkin and the Right Answer
Ronald Dworkin, in turn, starts from a different diagnosis. Against positivist and realist views, he upholds the famous “right answer thesis.” For Dworkin [4], even in hard cases—where there is no explicit rule that resolves the issue—law contains principles that, when interpreted constructively, provide the correct solution.
The judge, in this perspective, does not exercise unlimited discretionary power. He must interpret law as a whole, seeking the reading that best expresses the integrity of the legal system—that is, that presents it as the best possible expression of justice, fairness, and due process.
Thus, for Dworkin, there are no true “gaps” in the law: there is always an answer that can be considered correct in light of the principles that structure the legal order.
Brandom and Dworkin in Comparison
Brandom and Dworkin converge in criticizing legal nihilism.
Brandom shows that indeterminacy cannot be radical, under penalty of dissolving the normative authority of law into a mere exercise of power. For him, legal concepts make sense only within inferential social practices that confer determined content upon them—even if that content is continually reconstructed by the practices themselves. Thus, Brandomian inferentialism denies conceptual skepticism, distancing itself from positions such as Stanley Fish’s [5], which see interpretation as an essentially indeterminate game without stable normative criteria.
Dworkin, on the other hand, goes further by asserting that law always contains, in itself, the correct answer, even in controversial cases. The fundamental difference between them lies, therefore, in emphasis: Brandom highlights the role of social practices in the constitution and transformation of legal concepts; Dworkin, law’s commitment to objectivity and to the possibility of a correct answer.
The Strength of Brandom’s Distinction and Dworkin’s Relevance in Our Context
Brandom’s contribution is valuable for understanding the risks of legal realism: he helps us perceive that, if we accept total semantic indeterminacy, we will have no way to differentiate between law and power. His distinction between normative authority and arbitrary exercise of power is one of the most lucid formulations against legal nihilism [6].
However, in a constitutional law such as the Brazilian one, filled with structuring principles—human dignity, equality, freedom, due process—Dworkin’s argument proves even more convincing. Our legal system demands a hermeneutic and constructive reading that views the Constitution as a source of binding answers.
Thus, if Brandom helps to formulate the problem (preventing decision from being confused with an act of force), Dworkin offers the tools for its solution: there is always a correct answer, because constitutional principles function as normative criteria that guide and bind interpretation.
What Brandom’s Pragmatic Semantics Explains Well in Law
Law as social cohesion: Brandom shows how legal concepts function as instruments of social coordination. Content is not given from outside but produced in the social practice of mutual justifications. This helps us understand law as a practice of social organization based on reasons—not merely on force.
Law as adjudication: The distinction between normative authority and mere exercise of power is central to thinking about how judges justify decisions. Even while recognizing indeterminacy, it is still possible to distinguish justified decisions (which fit into the inferential web of concepts) from arbitrariness.
Brandom’s pragmatic semantics therefore works as a diagnostic tool: it helps map how concepts structure legal practices and how rationality is sustained despite indeterminacy. But it is not merely descriptive: it presupposes an interpretive rationality and a normative responsibility on the part of participants in the practice—a commitment to words and to the meanings they carry.
Limits of the Brandomian Approach
Even so, Brandom’s theory seems to me insufficiently deontological and lacking in substantive normativity. He describes how concepts function in practices but does not offer moral or political criteria for what law ought to be. He is more concerned with the possibility of normativity than with its moral content.
Authors such as Dworkin and Habermas [7] occupy precisely this ground: the former by linking the right answer to principles of justice; the latter by associating legal normativity with the democratic ideal of public deliberation.
Brandom’s theory, though powerful for explaining the semantic-pragmatic functioning of law, still does not take the shape of a full-fledged legal theory—especially since A Hegelian Model … remains his only essay directly devoted to the subject. To reach a normative theory of law, it would be necessary to articulate inferentialism with a deontological dimension that tells not only how law functions but how it ought to function—particularly in constitutional and democratic societies.
In any case, Brandom’s own project already contains elements that allow resistance to legal nihilism. By affirming that the meaning of an utterance derives from the inferential commitments and authorizations it implies, Brandom does not merely describe a formal mechanism of language but also a mode of rational and social bonding among participants in a normative practice.
When someone asserts something, they do not merely express an opinion: they assume commitments and become responsible for justifying what they said. This structure of reciprocal responsibility is, ultimately, incompatible with nihilism—since it presupposes the existence of shareable reasons, public norms, and a horizon of meaning constructed intersubjectively.
Thus, although Brandom does not formulate a legal theory per se, his philosophy of meaning opens the way for a hermeneutic and constitutionally oriented reading of the legal phenomenon. By recognizing that legal meanings emerge from social practices of justification—and that these practices are historically shaped by the constitutional commitments of a community—it becomes possible to conceive of law as something neither reducible to logical formalism nor to arbitrary decisionism.
Inferentialism, when articulated with an analysis of the historical and normative commitments of a constitutional order, offers a promising path to understand law as a rational practice of collective self-understanding—a space in which legal meaning is constantly reconstructed in light of the public reasons that sustain it.
Brandom helps us avoid nihilism, understand the role of concepts, and distinguish authority from power. But to think of law in its democratic, moral, and interpretive dimension, I still prefer to follow Gadamer: it is in the fusion of horizons between text and interpreter, in the historicity of meaning and openness to dialogue, that law remains alive as a practice of understanding and justice. Brandom brings luminous diagnoses; Gadamer, the hermeneutic horizon in which law can continue to be understood as an experience of truth [8].
The Hermeneutic Critique of Law, developed by Lenio Streck [9], is precisely the theoretical effort that long ago anticipated and applied, in the Brazilian legal context, many of the insights we now recognize in Brandom. It understood that legal meaning is not the product of the interpreter’s will but arises from the historical dialogue between text, tradition, and the community of interpreters—a language game that, far from arbitrary, is anchored in constitutional and democratic commitments.
Thus, by articulating Gadamer and the normative horizon of the Constitution, the Hermeneutic Critique of Law showed something that could also be drawn from Brandom: to understand is also to assume responsibilities; to understand is to commit oneself to the ethical and political project that sustains law in a community that seeks justice.
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Francisco Kliemann a Campis
is a constitutionalist lawyer, master and doctoral candidate in Law at Unisinos, a member of the Cambridge Forum for Legal and Political Philosophy, and academic coordinator of Dasein – Hermeneutic Studies Nucleus of Professor Lenio Streck.
I record my immense gratitude to my friend and doctoral colleague Victor Rebelo, who introduced me to the subject and masters it far better than I do—a colleague who also made several criticisms and comments that allowed me to construct the present text. Thank you very much, comrade.
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References
BRANDOM, Robert B. Making It Explicit: Reasoning, Representing, and Discursive Commitment. Cambridge: Harvard University Press, 1994.
BRANDOM, Robert B. A Hegelian Model of Legal Authority. In: Id. Perspectives on Pragmatism. Cambridge: Harvard University Press, 2011.
DWORKIN, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.
FISH, Stanley. Is There a Text in This Class? The Authority of Interpretive Communities. Cambridge: Harvard University Press, 1982.
HABERMAS, Jürgen. Law and Democracy: Between Facticity and Validity. 2nd ed. São Paulo: UNESP, 2016.
GADAMER, Hans-Georg. Truth and Method. 15th ed. Petrópolis: Vozes, 2022.
STRECK, Lenio Luiz. Legal Hermeneutics in Crisis. 11th ed. Porto Alegre: Livraria do Advogado, 2011.
STRECK, Lenio Luiz. Truth and Consensus. 6th ed. São Paulo: Saraiva, 2017.
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