PESQUISA E CIÊNCIA EM DIREITO – CRÍTICA À EPISTEMOLOGIA JUSPOSITIVISTA

Abstract

Legal positivism is the theorical instance of the lawyer’s day-to-day work, the dogmatic approach of law. For the last one to work as an instance of technical replication on the context of a capitalist sociability, the first one presents the law phenomena as rational, cohesive, and coherent, so there’s no space left for criticism of the legal system, product of the state authority. Legal positivism, hegemonic ideology on law study in Brazil, mitigates the critical potential of the law student, that lose sight that the law is a social phenomenon not attached to the legal system. On the other hand, there’s the attempt to justify the law as the object and the science of itself. The main point of this thesis is to understand in which ways the legal positivism’s hegemony in Brazil’s law’s teaching impacts its scientific research. The hypothesis is that legal positivism works as an epistemology of dogmatics’ methodology, in the context of scientific research, to justify the steps inside the dogmatic approach, the so called technical-juridic method, as the quintessential method on law studies. For the analysis, in-dept doctrinal research was utilized. After that, to fulfill the requirements that came with the adoption of the dialectical materialist method, data collection was used to investigate the scientifical production of the law student in Brazil, in order to demonstrate how present the transcendentalist character (ethos) of the dogmatic approach is, which aims to make the scientific research in law an end in itself, instead of a path to face social problems. By the end of the work, the harmfulness nature of electing neutralism and relativism as scientific parameters is debated, with emphasis to the importance of science to praxis and to the agonistic democracy. Terms in which this epistemological critic to the legal positivism’s epistemology is concluded.