Philosophical Subsidies to Law Education: The Virtues of Prudentia [Prudence] and of Iustitia [Justice] and the "Case Method" applied to the course of Fundamental Rights and Warranties. / Subsídios filosóficos ao ensino jurídico: as virtudes da Prudentia e da Iustitia e o "método do caso" aplicado à disciplina de Direitos e Garantias Fundamentais.

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

The methodology of education is not indifferent to the development of the ethical values of the law student and the society, on the juridical side. If law education has no ethical concerns, is formalistic, arid and not connected with reality as a whole, the reaction of the jurist and of the society before law will also tend to be without ethical concerns, formalistic and arid, nurturing the lack of prestige of law, of the institutions that create and interpret the juridical institutes and of the administration of justice itself. Therefore, the implementation of a pedagogical method of law teaching which makes it possible to irradiate ethical values of great significance, particularly in the course of Fundamental Rights and Warranties, in its modern conception of Human Rights, would lead to meaningful positive effects on the moral and legal conscience of the society, in the creation, interpretation and application of the laws. This is because, from the ethical perspective, based on the classic philosophical tradition, there is an inseparable relationship between the virtue of prudentia, which is an act of intelligence directed to the command of action, and the virtue of iustitia, as a decisive attitude towards the recognition of the right of ones fellow, with all its broad dimension of alterity (iustitia est ad alterum). The adoption of a pedagogic instrument which brings the reality, in its entire contingency, concreteness and graveness, to the classroom - strongly connecting mans being to ethics, in direction of the full realization of the individual and of the society in the perspective of the bonum commune hominis and bonum commune communitatis - should allow the student to abandon a tendency to apathy and passivity in classroom. Such dynamism in law education is feasible through the use of "case method", by which the reality of law, learned from court decisions in concrete cases - by the jurisprudentia, which would represent the prudentia of the ius -, is object of reflections and discussion in class, moving the centre of gravity from the professor to the students, who become the core of the education process in classroom. The knowledge of actual court cases would allow the law student to comprehend the general principles which comprise the legal system and life in society and to inquiry about the ideal of justice, of a jusnaturalist conception, which supports the recognition of the fellow citizen, which is the basis of tolerance and would allow the human experience of encounter and coexistence with the fellow human. On the ethical and pedagogical dimension, the affinities of the "case method" with the virtue of prudentia are magnificent. The "case method" expresses the consubstantiation, the completion of the education for the prudentia in relation to the first part of the virtue, headed for "seeing reality as it is" with all of its contingency, graveness and concretion, and with regard to the other part of the moral precept set towards commanding the action to the morally correct attitude, in the legal perspective of the ideal of justice in a concrete situation in the hic et nunc of the reality. Legal knowledge is the outcome of education and practical experience, as the virtues of prudentia and iustitia are learned ex doctrina et experimento, in accordance with the Aristotelian and Thomistic tradition. The legal hermeneutic, as an act of knowledge, follows an intellectual exercise of a technical character, but is fundamentally linked to a subjective judgment arising from the internal dimension of its agent, as an act of will towards justice, driven by the moral conscience. This results in the indissoluble connection between law and moral, from the perspective of the virtues of prudentia and iustitia, with all of their vigorous pedagogical potential for the education of law through the "case method", with its vast and positive implications to the improvement of law, the pursue of the ideal of justice and the life in society.

ASSUNTO(S)

direitos humanos ethics Ética fundamental rights and warranties philosophy of education ensino jurídico case method legal education human rights filosofia e educação método do caso direitos e garantias fundamentais

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