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  66 TOMO 1 of a norm and that the interpretation can legitimately change when the circumstances change in which it is applied. The problem with originalism is first a practical one. In most cases it is difficult, even impossible, to discern the original understanding or the original intent. It is even more difficult if many persons are involved in the process of constitution-making, many of whom may not have expressed their understanding or intent. For this reason ascertaining the original intent or understanding is often a highly selective process, in which some utterances of actors are singled out and taken for the whole. The second problem is the similar to that which positivism encountered. There is extremely limited, or even no, room for adapting legal norms to social change. If social change affects the constitution adversely the only remedy is to amend the text, which can be extremely complicated in a country like the United States. The constitution tends to petrify, in opposition to the theory of a living constitution. Although one would have difficulties in finding positivists or originalists in Germany, these methodologies are by no means of historical interest only. Positivism, or more precisely a crude literal understanding, plays a considerable role in a number of post-communist countries and in parts of Latin America. Originalism has a stronghold in the United States in reaction to the activist Warren Court of the 1950s and 1960s. In Germany, the idea that a legal method exists that can exclude any subjective element from the interpretation of legal norms is no longer maintained. The same is true for the majority of American legal scholars. But the consequences drawn from this premise differ considerably in the two countries. A very powerful school in the United States, Critical Legal Studies, is of the opinion that not only law-making is a political operation, but also is the interpretation and application of law, with the only difference being that the legislature operates in a political setting while judges operate in a judicial setting. As a further consequence, the focus of academic interest in the law differs. The question many American jurists tend to ask is: how will the courts decide? The dominant question in Germany would be: what is the correct decision? In the last resort a different attitude toward the autonomy of the law appears behind the two concepts. While adherence to Critical Legal Studies does not leave much room for scholars to recognize the