Law, economics, and language: hermeneutics, administrative sanctioning law, and the 'impasses' surrounding the application of the concept of “advantage gained”

Abstract

Context: this article is situated within the fields of constitutional and administrative sanctioning law, with a specific focus on the application of sanctions by Cade for anticompetitive behavior. It draws on Hans-Georg Gadamer's hermeneutics and Niklas Luhmann's systems theory to examine interpretative challenges in Cade’s sanctioning practices.

Objective: to analyze the constitutional interpretation of norms related to the State's punitive power, with an emphasis on administrative sanctions applied by Cade and, in particular, on the application of the concept of “advantage gained”. The article aims to identify how different interpretations of these norms can lead to heterodox punitive decisions and, additionally, to propose solutions for the impasse in the dosimetry and application of pecuniary penalties to legal entities. To achieve these objectives, the article focuses on specific aspects of hermeneutics, such as the analysis of indeterminate legal concepts and the interaction between the realms of law and economics in the application of sanctioning norms. The research also includes a critical analysis of objectivity and legal certainty in the dosimetry of sanctions, with a focus on the methodology applied by Cade.

Method: for this purpose, a theoretical-interpretative approach is used, based on Gadamer's philosophical hermeneutics and Luhmann's systems theory. These theories are applied to investigate Cade's sanctioning practice and its constitutional implications.

Conclusions: we propose a legal hermeneutic approach that views law as an autopoietic system, with the Constitution serving as a structural link. This approach offers a balanced way to address issues in competition law, particularly in light of the “impasse” in Cade’s jurisprudence regarding fines. The suggested interpretation aims to reconcile the deterrent function of penalties with respect for constitutional principles, avoiding both rigid formalism and excessive openness. Although legislative improvements could make fine calculation more objective, the article emphasizes that the current system already allows for progress toward a more cohesive, transparent, and rights-respecting jurisprudence.