Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

 R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  64 TOMO 1 the text of the law in the process of interpretation has its basis in the text and can be derived from it in a reasonable argumentative manner. If not it becomes a political one. The task therefore is to distinguish between legal and non-legal arguments, be they political, economic or religious. This decision can only be taken within the legal system. No other system is competent to determine what counts as a legal argument. Within the legal system the distinction between a legal and a non-legal argument is the concern of legal methodology. By doing so, methodology attempts to eliminate subjective influences from the interpretation of the law so far as possible. This is why the distinction between legal and non-legal operations in the course of law application becomes largely a question of legal method. Yet, different from the text of the law that is the product of a political decision and thus not at the disposition of judges, methodology is itself a product of legal considerations. It emerges in the process of interpreting and applying the law or is developed in scholarly discourse, but it is nowhere decreed authoritatively. This suggests that various methodologies can coexist, as can different variations of a certain methodological creed. Method is a matter of choice within the legal system. All historical attempts by legislators to prohibit interpretation or to prescribe a certain method have been in vain, since they have themselves been subject to interpretation. But the lack of one authoritative method does not mean that methodology can justify any solution and thus loses its disciplining effect on judges. Just as certain legal orders have their time in history, so too do methodologies. There is usually a core of accepted arguments or operations and a number of arguments or operations that are regarded as unacceptable. The degree to which a method can succeed in eliminating all subjective elements from interpretation is controversial, though there were, and are, methods that claim this capacity. One historically influential method that promised to eliminate subjective influences was legal positivism, not in its capacity as a theory of the validity of law opposed to all natural law theories, but in its capacity as theory of legal interpretation. For a positivist in this sense the legal norm consists of its text and nothing else, and the only instrument to discover the meaning of the text is philology and logic, i.e. neither the legislative history, nor the motives or the intent of the legislature, nor the values