Dados n. 21 Rio de Janeiro 1979

A Função Social da Dogmática e a Crise do Ensino e da Cultura Jurídica Brasileira

Faria, José Eduardo; Menge, Claudia de Lima


This article intends to demonstrate that the so discussed Brazilian Law's crisis is a consequence neither of pedagogical problems nor of the juridical culture's conservative character. In fact, it is directly concerned with the nation's institutional crisis throughout its history. This political crisis did nothing more than enlarge the distance between the legislation and its social basis; furthermore, it contributed to convert laws not in a mean of guaranty and individual security, in the way proposed by the ortodox juridical science, but in an authoritarian way of political domination. The analysis of the Brazilian juridical culture and the avaluation of our educational system show not only the way in which Brazilian juridical thought has overcome itself, since it had been formulated by a dominative elite, called marginal by Oliveira Vianna, but also the performance of our juridical institutions, nothing more than "fictions", whose objective is related to a certain kind of political domination. The educational system analysis, considering Law just as a symbol, makes it possible to identify the antagonism between the ideal and the experience in this matter. Consequently, while this system has been historically marked by liberal and democratical ideals, its reality is just the opposite of these ideals: classes are dogmatic, curriculums are marked by formal conceptions of Law and the theories are not related to the problems of legislation legitimity. In order to reach its objectives, this article starts with the classic literature about Brazilian Law's crisis - as, for instance, San Tiago Dantas' articles - and compares it with the most recent studies on juridical and sociological problems - as, for instance, Joaquim de Arruda Falcão Neto, Luiz Alberto Warat, Tércio Sampafu Ferraz Jr. and Rosa Maria Cardoso da Cunha's researches. Besides that, based on modem authors, as Thurman Arnold and Pierre Legendre, Law Science is taken as a mere logical empire behind the court: an empire in which class conflicts are apparently solved by juridical fictions. The article's last part tries to show that juridical dogmatic does not fulfill any social function, based on Gramsci distinction between traditional and organic intellectual. This analysis leads to the conclusion that the political system's authoritarism, in order to prevent the resistance enlargement in the ambit of Law Schools, has been tryng to organize juridical culture based exclusively on dogmatic and formal problems, worried with graduating bachelors in a way which Gramsci would call "traditional". Consequently, converting Law in a way of legislative technic's manipulation, authorities try to avoid deeper and less formal discussions. On the other hand, they force them to be controlled only by intellectuals related to the political system in vigour. The article comes to the conclusion that the juridical culture and educational system's crisis is caused by the fact that they do not help Law Science to fulfill its functions because, if they do that, the result should be the risk of authoritarism's desestabilization. This fact explains our authorities' positivist conception of Law and shows the reasons why the exceptional legislation after 1964 has never contained persuasive arguments; in fact, it has been based only on the government's legality

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A Função Social da Dogmática e a Crise do Ensino e da Cultura Jurídica Brasileira