Reasoning and Argumentation in Legal Discourse

José Rodrigo Rodriguez (CEBRAP/SP, Brazil)

This presentation is a part of a research project that aims both to create both a methodology to describe the decisions of Brazilian Supreme Court and a critical approach towards its decisions.
Legal and social research in Brazil evaluates negatively the ethos and pathos argumentation carried on by this court. Almost all Brazilian legal and social sciences scholars study our Supreme Court through the lenses of theories adequate to courts that do not debate on live in TV, do not decide cases through the majority of the votes of the judges and do not allow every single judge to elaborate an individual vote for each case. As a result, these studies consider Brazilian institutional reality as complete pathology when compared to Europe or North-America.
This project will follow a different path. It will a) describe and reconstruct the argumentation of the most controversial cases examined by the Brazilian Supreme Court in the last 5 years through the lenses of Aristotle’s Rhetoric, b) develop a theory of the function of the Brazilian Supreme Court as it is in the separation of powers of Brazil and c) discuss both the positive and negative aspects of Brazilian personalism and emotionalism.
To achieve the last objective, this project will reconstruct a) the critical meaning of the comparative analysis of German, French and English legal traditions by Franz Neumann’s The Rule of Law, b) Brazilian theories on personalism and emotionalism - especially the view of the rule of law of Sergio Buarque de Holanda’s Raízes do Brasil and c) the feminist critique of the Theory of Argumentation of Jürgen Habermas and its consequences to the understanding of role of the rule of law in the dynamic of multiple modernizations.
This presentation will focus on the problems regarding the description of Brazilian Supreme Court decisions and in the discussion of the role of this Court in the separation of powers.