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

65  R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  TOMO 1 behind the norm, nor the social reality that brought forth the problems the norm was meant to solve and in which it is to take effect, nor the consequences the interpretation may entail. There can be but one correct understanding of a norm and this remains correct as long as the norm is in force, no matter how the context changes. The problem with positivism was, on the one hand, that it could not fulfil its promise to eliminate all subjective influences on interpretation. Rather these influences were infused into the interpretation in a clandestine way, mostly in connection with the definition of the notions used by the legislature. On the other hand, positivism prohibited an adaptation of the law to social change by way of interpretation. Since the social reality in which the norm was to take effect was regarded as irrelevant for the interpretation, a positivist could not even perceive of social change. Of course, a positivist would not have denied that, because of social change, a legal norm may miss its purpose and produce dysfunctional results. But this was regarded as a matter for the law-maker, not for the law-applier. It was this deficit that largely contributed to the decline of positivism after the far-reaching social change in the wake of the Industrial Revolution and World War I. There is yet another influential theory of interpretation that claims to preclude all subjective influences, namely originalism. Different from positivism, originalists believe that only a historical method is the right way to ascertain the meaning of a legal norm. The law-applier must give a norm, in particular a constitutional norm, no meaning other than the one that the framers had had in mind. Sometimes originalism appears in a crude way that excludes the application of a norm to any phenomenon the framers could not have known. If the First Amendment to the U.S. Constitution protects the freedom of the press, this would not allow the law-applicant to extend the protection to radio and TV by way of interpretation. Sometimes originalism appears in a more enlightened form. The law-applier is then permitted to ask whether the framers clearly would have included a new phenomenon had they known it at the time the law was enacted. In this case it would be methodologically permissible to include radio and TV into the protection of the First Amendment by way of interpretation. But like a positivist an originalist is not prepared to acknowledge that there can be more than one sound interpretation