O ensino do direito na prudência: O «mito do dado» juspositivista ainda é um monstro à espreita

Fábio Carvalho de Alvarenga Peixoto; Ana Paula Assis Buosi; Eduardo Rocha Dias

doi:10.5354/0719-5885.2022.65120

Call to publish scientific articles that will be received between June 20 and November 20, 2019, referring to:

University Pedagogy: With topics such as public policies in higher education, legislative system and reforms, academic programs, comparative policies, massification processes, quality assurance, legal professions, and others in higher education as a general field, referring to the Chilean and international context .

Didactics of Law: With topics whose centrality is related to processes of innovation, learning, curriculum, innovations, teaching experiences, students and teachers characterization , among others in legal education in the Chilean and international context.

Ethical and citation standards (Chicago-deusto) must be taken care of, in addition to the originality of the research or innovation.

Legal teaching in prudence: The legal positivist myth of the given is still a monster on the lurk

Authors

Fábio Carvalho de Alvarenga Peixoto Universidade de Fortaleza
Ana Paula Assis Buosi Universidad de Fortaleza https://orcid.org/0000-0003-3275-8839
Eduardo Rocha Dias Universidad de Fortaleza https://orcid.org/0000-0003-0972-354X

Vol. 9 No. 2 (2022)

https://doi.org/10.5354/0719-5885.2022.65120

Abstract

In the article, the "myth of the given", a legal positivist postulate of objectivity, is critically analyzed, as well as its negative reflections on the relationship between Law and justice. Furthermore, it is investigated the potential role of legal education in overcoming that conception of Law, uncompromised with its raison d'être. The problem identified is the concealment of prejudices under the guise of neutrality of what legal positivism considers to be beforehand given to it. The question answered is: how can legal teaching contribute to overcoming the legal positivist “myth of the given”, which today is viewed as theoretical common sense? The research is qualitative bibliographical. It promotes a philosophical approach to the problem, in a complex post-Gadamerian hermeneutic paradigm – to the detriment of the classic deductivist legal positivist paradigm. The following results are presented: legal teaching, in order to overcome the legal positivist postulate of "neutral data", needs to focus on activities that exercise prudence, stimulating, with regard to the perception of the acts of the present, all the multiple intelligences of the human being.

Keywords:

ensino do Direito; positivismo jurídico; mito do dado (myth of the given); prudência; inteligências múltiplas.

Author Biographies

Fábio Carvalho de Alvarenga Peixoto, Universidade de Fortaleza

PhD student in Constitutional Law at the University of Fortaleza. Master in Law and Conflict Management from the University of Fortaleza. Postgraduate degree in Business Law from Fundação Getúlio Vargas. Graduated in Law from the State University of Rio de Janeiro. Ceará State Attorney. Attorney. ORCID: https://orcid.org/0000-0002-1736-6493. email:fabiocapeixoto@gmail.com

Ana Paula Assis Buosi, Universidad de Fortaleza

Ana Paula Assis Buosi holds a Master's Degree in Constitutional Law from the University of Fortaleza. Scholarship holder from the Coordination for the Improvement of Higher Education Personnel (CAPES-BRASIL). Postgraduate student in Cybersecurity at the Federal University of Ceará. Specialist in Mediation and Conflict Management from the University of Fortaleza. Graduated in Law from the University of Fortaleza. Judicial conciliator and mediator. Attorney. His e-mail address is anabuosi@gmail.com. https://orcid.org/0000-0003-3275-8839

Eduardo Rocha Dias, Universidad de Fortaleza

Doctor in Law from the University of Lisbon. Master in Legal Order and Constitutional Law from the Federal University of Ceará. Graduated in Law from the Federal University of Ceará. Federal Attorney - special category - of the Attorney General's Office and Professor of the Graduate Program in Law at the University of Fortaleza. ORCID: https://orcid.org/0000-0003-0972-354X . e-mail: eduardorochadias@unifor.br

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How to Cite

Carvalho de Alvarenga Peixoto, F., Assis Buosi, A. P., & Rocha Dias, E. (2022). Legal teaching in prudence: The legal positivist myth of the given is still a monster on the lurk. Revista Pedagogía Universitaria Y Didáctica Del Derecho, 9(2), 257–273. https://doi.org/10.5354/0719-5885.2022.65120