O direito enquanto praxis argumentativa: uma análise tópicoretórica das decisões judiciais

Abstract

This work aims to investigate the relationship between Law and argumentation. It is intended to achieve this objective through, firstly, a return to the classical origins of judicial practice in ancient Greece, which refer to the technical handling of arguments by orators who explore the art of rhetoric to achieve success in their reasons. Then, this work sets out in search of a contemporary scenario that reflects this ancient relationship, and for that, it was supported by the rehabilitation of Aristotle's practical thinking in the 20th century that provided a reunion of philosophy with classical thought, consequently provoking a sensitive and fruitful rupture with the formalist model of reasoning and the scientistic pretensions of several areas, including Law. From the rehabilitation of aristotelian practical thought, the present work investigated in particular the contributions of Theodor Viehweg, with his topics, and Chaïm Perelman, with his new rhetoric, since both are exponents of the movement of resume a legal methodology with an argumentative bias that explores the legal discourse in its form, content and outcome, providing a solid base for a Legal Reasoning analysis. Finally, the present work seeks to prove this legal methodology of argumentative bias using the contributions of topic-rhetoric to reveal the forms, contents and discursive strategies of the orators who spoke in ADPF 811.