THE ETHIC GROUND OF JURIDICAL PRACTICE UNDER AN ARISTOTELIAN PRISM: A STUDY ON ARGUMENTATIVE RATIONALITY AND ITS USES IN LAW PRACTICE

Prof. Dr. Lucas de Alvarenga Gontijo

Resumo


The purpose of the present text is to analyze the juridical phenomenon through the perspective of its rhetorical practice and to discuss whether such posture is by itself censorable from the ethical point of view. In order to achieve our purpose in this text, we have chosen to study, within the broad oeuvre of Aristotle, parts of the Organon collection, namely: Analytics, Topics, Sophistical Refutations, and also Rhetoric and Poetics, with an emphasis on the Art of Rhetoric. The aim that governs this entire demarche is to understand the Aristotelian proposals to a theory of rationality, which is to be investigated through the discursive practices applied to the juridical phenomenon. The utility of rhetoric is thus emphasized to what concerns it as a technique of discourse analysis, not its power to dominate minds. The function of rhetoric is not only to persuade, but also to find the persuasion means that fit better each case, to recognize what seems to convince and what convinces indeed. Even though it may be dishonestly used, that does not diminish its value. Aristotle has freed rhetoric from the burden of moral. It is necessary to be capable of defending the pro as well as the contra, not to make them equivalent, but in order to understand the adversary mechanism of argumentation and, thus, refute it. Aristotle believes that the true and the just are by nature stronger than their contraries. This is also how juridical praxis works.


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DOI: http://dx.doi.org/10.5752/P.2318-7999.2017v20n39p134