Rhetoric, Law, and Democratization of Justice
Code
722011110
Academic unit
Faculdade de Ciências Sociais e Humanas
Department
Ciências da Comunicação
Credits
10
Teacher in charge
Hermenegildo Ferreira Borges
Weekly hours
3 letivas + 1 tutorial
Teaching language
Portuguese
Objectives
- Understand how the Legal Rhetoric, as part of a General Theory of Argumentation, intervenes in the rational foundation of legal and the judiciary discourse at different times and modalities defined in the procedural iter, particularly in the judge´s determination intimate, in the judicial debate (instructive debate and the trial) and in motivation of the decisions of Justice.
- Understand the nature and function of legal rhetoric as a factor in the democratization of Justice.
Specific skills:
- Demonstrate ability in critical reading of key texts;
- Demonstrate ability to apply knowledge in solving research problems (problem formulation and research projects, development of research work).
Prerequisites
None.
Subject matter
The right of access to justice is, first and foremost, \"a formal fundamental right\" enshrined in art. 20, paragraph 1 of the Portuguese Constitution and, as such, it is stated as a necessary condition but not enough of what we think is an \"effective democratization of justice.\" This only begins, truly, when the judicial process opens through the principles of immediacy, of orality and the adversarial, to the free exercise of reason, even if this exercise arises conditioned by the procedural constraints will govern the time and opportunity.
In this light, the \"democratization of justice\" has its privileged moment in the instructive debate and at the trial. But it is also present in the standard case of subsumption, where the judge is trying to conform its decision with \"material system of values\" enshrined in the Constitution, values broadly shared by the society. We see it even in this intimate decision of the Judge, since at that time, his reason will open dialogically to the presumed but effective dialogue with their peers, with the instances that can potentially be called to assess the reasons for its decision, in a word, the dialogue with the judiciary universal audience.
Finally, the democratization of justice is expressed in rational argument that characterizes motivation of the decisions of Justice, fulfilling so an imperative that, being legal, it is nonetheless also an ethical and political, since giving reasons about practiced acts imposed on the entire democratic exercise of power. The \"New Rhetoric\" / Argumentation Theory, using a discursive competence of its own, yet complementary expertise of hermeneutics, it offers us as an logo-technic instrument capable of justify rationally each step of procedural iter, promoting, in this work the effective democratization of justice.
Bibliography
- BORGES, Hermenegildo Ferreira (2005) Vida, Razão e Justiça: Racionalidade Argumentativa na Motivação Judiciária, Coimbra, MinervaCoimbra
- BORGES, Hermenegildo (1992) Retórica, Direito e Democracia. Sobre a Natureza e Função da Retórica Jurídica, Separata do B.M.J., N.º418.
- PERELMAN, Chaïm (1979) Logique Juridique, Nouvelle Rhétorique, Toulouse, Dalloz.
- PERELMAN, Chaïm e Lucie Olbrechts Tyteca (1958) Traité de L´Argumentation - La nouvelle Rhétorique, Bruxelles, Éditions de L´Université de Bruxelles.
- PERELMAN, Chaïm e Paul Foriers (1978) La Motivation des Décisions de Justice, Bruxelles, Centre National de Recherches de Logique, Bruylant.
Teaching method
Through a \"non-directive\" methodology, we will do the presentation of key themes and issues listed in the program. It will stimulate discussion and, through him, the reflective and critical exercise about thinking of the authors and on the experience of each, as a citizen and / or professional in the field of Justice.
Evaluation method
The assessment in this seminar consists of two elements:
1. Presentation in class, the working draft of the final seminar (worth 10%)
2. Production of final paper written about the themes and issues raised during the semester. Its size is expected to be between 15 and 20 pages, 12 characters, spacing 1.5 (worth 90%).