Detalhes bibliográficos
| Ano de defesa: |
2021 |
| Autor(a) principal: |
Almeida, Tânia Mara Felipe de
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| Orientador(a): |
Roque, Nathaly Campitelli
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| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
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| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
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| Departamento: |
Faculdade de Direito
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| País: |
Brasil
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| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://repositorio.pucsp.br/jspui/handle/handle/24876
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Resumo: |
The work developed seeks to come up against the renewal given to the current Law and loosing the link with the just, given that the technicality of contemporary times has made Law unnatural and synthetic, weakening it ontologically, making it a means to maintain political and economic ends, abstracting from the legal phenomenon ethics and justice, resignifying it in its form and transforming decisions into normative archetypes. Within the narrow limits of this work, the current positivist method of law is evaluated, if it would not be covered by an ideological instance, drunk with economic, political interests, devoid of social justice and mainly leaving aside its main function, social transformation, inflating the legal meshes, sterilizing the hermeneutic sense and applying ideology to it. Based on this reflection on the proposals of the current Law, it is asked whether the Law is not seen as a set of rules removing its legality. The present work investigates the paradigm, providing it with reflections and excerpts from the Portuguese work, The Future of Justice by Eduardo Vera Cruz Pinto drawing a parallel in Brazil, a work to which he presents a view on the nature of Law to overcome the confusion made between Law and Laws, defending that the law has its ontology restored and can be contemplated with the legal justice that it deserves, not as number and statistics in the judicial pragmatics, suggesting that it is based on the specific case, on the use of the jurisprudential method and above all the inevitability of a break in legal education. The investigation continues with criticisms of the current legal education, in the sense that today's model is in crisis, and a given crisis is followed by the identity of the law student and the loss of his political role, deducing that the problems reflecting the legal education, would actually be the conflict of paradigms or even arising from the ideological structure, whereas normativism and positivism have indicators of exhaustion revealing an epistemological crisis as the political paradigm of liberalism. After the structural analysis of Law and legal education, it is confirmed, according to Vera-Cruz's investigations, above all, the indispensability of returning to the study of Roman Law and the History of Rome, a proposal that guides academic legal studies to understand the creation of rules through “jurists” and methods used by them, returning to the origin of things, their genuine nature from the root and later adapting them to our days, centering the creation and adaptation of legal rules on the person in man. The work presented here adopts the basically critical, technical and scientific methodology, seeking to present in a systematic way, a possible answer to the problem presented taking into account to present the gaps and contradictions of a legal culture steeped in rationalist dogmatisms, taken by a positivism substantial, therefore resulting from a dogmatic and authoritarian legal culture, which makes up the legal knowledge based on a liberalist and normativist ideology which Kelsen called the “fundamental hypothetical norm”, and which does not accept questions and inquiries, so that the legality operated by a liberal and ideological jurist, never questioned, not even the social, economic and cultural function, dogmatic legal education, succeeds in losing the essential function of law and lack of justice |
