21 de junio de 2009

Para el congreso mundial de Filosofia


De 15 a 20 de Setembro de 2009, a Associação Internacional de Filosofia de Direito promove seu encontro bienal. Neste ano ele ocorrerá em Pequim, na China (http://www.ivr2009.com/). Fomos agraciados com a aprovação de um workshop. Os detalhes podem ser encontrados no anexo.Acreditamos que sua presença contribuiria sobremaneira na discussão da temática que pretendemos desenvolver, e, por isso, estamos à sua disposição para esclarecer quaisquer dúvidas a respeito para que possamos concretizar sua participação.AtenciosamenteLenio StreckGermano Schwartz


LEGAL THOUGHT AND THEORETICAL FOUNDATIONS
OF BRAZILIAN LAW


Suggestion for a Special Workshop

Germano Schwartz[1]

Lenio Luiz Streck[2]

Leonel Severo Rocha[3]


The Federal Constitution of 1988 was a milestone in the transition of both legal thought and theoretical legal foundations in Brazil. Like most of her Latin American neighbours, Brazil was emerging from a dictatorship which started in 1964 and prolonged itself until 1986, reaching its democratic zenith in 1988 when the new Constitution was adopted.

But what is the real importance of these dates – of the new Constitution and of the establishment of the rule of law – for the legal thought and the theoretical legal grounds in Brazil? As a matter of fact, in the time that preceded re-democratization, Brazil focused her legal thought on positivist bases which vividly tended to maintain the status quo. Besides upholding the regime that disrespected civil liberties, the law that was practised in Brazil confirmed the basic characteristics of positivism: a “disregard” for the factual in a society in which destitution lived side by side with opulence since her “discovery”, a circumstance that repeats itself in all other Latin American countries.

Based mainly on the Kelsenian thought of equaling existence and validity of a statute, the military regime “justified” rules that went against (moral and ethical) principles of the new paradigm already present in Europe since the end of World War II: the Rechtsstaat. The consequence was the construction of a (non)dogmatic dogmatics totally detached from the social reality. Reflexively, this line of thought was introduced /reproduced through Law Schools and the Judiciary, transforming law into a mere rational formality. Otherwise said, the then prevailing legal thinking never cared for discussing – within the scope of jurisprudence – matters concerning the legitimacy of decisions made by the several layers of state power (legislative, administrative or judiciary). In a true “positivist operation”, legal dogmatics pledged its loyalty to the dictatorial regime executing a split between validity and legitimacy, the questions of validity to be solved through a logical-semantic analysis of juridical statements whereas the questions about legitimacy – which might include moral qualms - should be referred to a political theory that could produce precious few results in view of the dictatorial regime.



It should be highlighted that from the 70’s, from the field of jurisprudence, the juridic-political establishment started to be challenged - from a semiotic and semiologic point of view - by a new breed of legal scholars, concerned with the arbitrariness of signs in Brazilian Law and Constitution. It was an institutional “struggle” with the use of the analytical toolbox. Simultaneously, critics affiliated to the realist school of law (from North America and Scandinavia) made their bets on the possibilities of judicial protaganism as a means of opposing an illegitimate law.

The 1988 Brazilian Constitution operated a Copernican revolution both in law and in the rights of citizenship. We can say that the Constitution was also a benchmark from which new groundwork to (re)think law in Brazil was introduced. Beyond the analytical theses, new theories were introduced into Brazilian legal thinking, like Ronald Dworkin’s theory of interpretation, Jürgen Habermas’ discoursive theory, the philosophical hermeneutics of Hans-Georg Gadamer, the theory of systems of Nicklas Luhmann and Robert Alexy’s theory of argumentation.

These theories represented new possibilities for legal research, most of them adapted to the specifics of peripheral countries (v.g., Luis Alberto Warat, Leonel Severo Rocha, Tércio Sampaio Ferraz Jr. Marcelo Neves, Marcelo Cattoni, Lenio Streck, Ingo Sarlet). These are all theoretical moulds from which it will be possible to build a way out of the positivistic mindset that colonized – and keeps on colonizing – the world of law for more tha a century.

A new field of debate is thus opened and one which seeks to reappraise the foundations of legal thought in Brazil, with vivid effects on law practise and therefore on the democratic (re)construction of our future made possible by the 1988 Constitution. This will be the framework for the debates we inted for the IVR 2009.

The proponents will receive papers regarding the issue through their e-mails until June, 10th 2009. There are plans for publishing said papers later on.

A shortlist of possible participants, besides the proponents, include Luís Alberto Warat (Brazil), Albert Noguera (Spain), Marcelo Cattoni (Brazil), Ingo Sarlet (Brazil), Renata Almeida da Costa (Brazil), Leonel Severo da Rocha (Brazil), José Luiz Bolzan de Morais (Brazil), Marcelo Galuppo (Brazil), José Alcebíades de Oliveira Júnior (Brazil).


[1] Ph. D. in Law Universidade Luterana do Brasil. Mestrado em Direitos Fundamentais. ESADE. Faculdade da Serra Gaúcha. germano@razaoinfo.com.br
[2] Ph. D. in Law. Universidade do Vale do Rio dos Sinos. Doutorado em Direito. lenios@globo.com
[3] Ph. D. in Law. Universidade do Vale do Rio dos Sinos. Doutorado em Direito. leonel.rocha@uol.com.br

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