Legal sociology: Tool for the construction of the humanistic legal entity

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ORIRGINAL ARTICLE

MORAIS, Carlos Nascimento de [1], DUARTE, Nayane Gonçalves dos Santos [2]

MORAIS, Carlos Nascimento de. DUARTE, Nayane Gonçalves dos Santos. Legal sociology: Tool for the construction of the humanistic legal entity. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 10, Vol. 05, pp. 51-66. October 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/legal-sociology

SUMMARY

The present work aims to analyze the need for in-depth study of General Sociology and Sociology of Law in Brazilian universities. It is perceived that currently there is no human, sociological and scientific evolution on the subject in question. Legal Sociology or Sociology of Law is a propaedeutic discipline, usually taught in the first year of law courses, along with the Philosophy of Law. We can also say that these two sciences come from, or daughters, philosophy, mother science of all other sciences, named Exact, Human and Biological. The aim of this study is to analyze the Brazilian legislation on higher law courses. The specific objectives are: to understand how it is neglected by academics and professors, the study of sociology of law and philosophy of law in undergraduate studies. Not generalizing, but through bibliographic research, empirical, one can observe a tendency to abandon these sciences, either by prejudice, or by more objective interests, such as examinations of the Brazilian Bar Association, or other evidence. To achieve these objectives, we chose to conduct bibliographic research, with theoretical reference.

Keywords: Sociology of Law, Critical Thinking, Humanism, Universities, Teaching.

1. INTRODUCTION

The law course is one of the most currently desired by those who want to attend an undergraduate course. It is the most offered course in brazil, with more than 1500 colleges distributed throughout the territory, according to Folha de São Paulo sources. From the beginning of 2018 to April 10 of this year, 52,000 new vacancies were created in this course.

It is asked what is the motivation of so many courses throughout the country. One wonders why you’re looking. Is it the dream of young people to enter the public career? Are all academics dedicated to the legal profession? Or is it just a means of seeking economic stability through public tenders?

In short, these questions are complex and sometimes unanswered, since it is in the altero of each one that the answers are found. That said, only an empirical survey could respond to this complexity.

However, the only certainty we risk to clarify is that not all law colleges are able to provide appropriate legal knowledge for student development. As well, students are also not prepared to receive such teachings, due to the lack of maturity and psychological development, especially in students aged 18 to 30 years.

Legal Sociology or Sociology of Law is a propaedeutic discipline, usually taught in the first year of law courses, along with the Philosophy of Law.

However, in the eagerness to study compendiums, laws and jurisprudence, do students really care about Legal Sociology?

In principle, we must conceptualize law. Thus, several renowned authors cite the conceptualization of law in their works, and in this word (law) can assume different meanings. For André Galtieri de Oliveira, in his work Filosofia do Direito, the word right can be used in the sense of science (science of law); sense of justice, when referring to the legal system (objective law) or when it is said that someone has a prerogative to exercise a right (subjective right).

According to Miguel Reale, (2002, p. 18), the term “Ubi societas, ibi ius“, brings a clear notion of what can be right, because “where there is society, there is law”. It’s a requirement of community life. The human being is a social being in essence, for no one is self-sufficient to live in isolation. Thus, according to the author André Galtieri de Oliveira (2012, p. 28), “The right is, therefore, a set of rules of conduct. More specifically, law is a type of social norm, that is, norms that regulate behavior within a society.”

Continuing with the author Miguel Reale (2002, p. 18) says that: “Law corresponds to the essential and indeclinable requirement of an orderly coexistence, for no society could survive without a minimum of order, direction and solidarity.” Again it is observed that, in the notion of life in society, according to the author, law is a social fact or phenomenon and only exists in society in a way that cannot be conceived outside it.

The jurist Arnaldo Vasconcelos (2006, p.12) briefly conceptualizes the law as “a normative order”. He adds that “Its parts are integrated in the formation of a harmonic whole, with interdependence of functions. Each standard occupies an intersystematic position, unique to the species.”

Based on this brief demonstration, we saw the direct link between Law and Sociology. We can also say that these two sciences come from, or daughters, philosophy, mother science of all other sciences, named Exact, Human and Biological. Although the relationship and systematic is somewhat complex, it is necessary to study and read Philosophy and Sociology.

Thus, the crux of the question is: Why is there so much disinterest in philosophical and sociological studies? We know that the study of the human sciences, in addition to making the subject more learned, also transforms the inner self. True knowledge is not only that acquired in a cognitive, rational way, but also that brought to the interior of your consciousness, in the field of emotions, of feelings. In other words, knowledge transforms the world, the individual, and the environment in which he lives.

Would the daily rush, the knowledge of technical knowledge, modernity, individualism, the cloister within them be factors that discourage and disinterest not only law students, but all individuals neglecting studies in philosophy and sociology? Or would it be the other way around? The lack of philosophical and sociological knowledge, would be the cause of most of humanity’s ills, such as sentimental coldness, lack of tolerance, empathy, resilience?

In fact, the mechanization of law courses, transform the people of this branch into robots, so that, they make petitions, sentences, appeals, collections of fees within others without observing the sense of justice, equity and solidarity? Does the rush to study subjects that fall into the exams of the Brazilian Bar Association and competitions, cause us to set aside the principles of solidarity, commitment to justice and humanist sentiment? In an article published in a journal Miguel Reale Júnior (2014, p. 95) states:

If in the past, until 1970, there was a deficiency in the teaching of law, merely exhibition methods, analysis limited to dogmatic interpretation, teachers with little scientific production many only legal professionals, prosecutors, magistrates, lawyers, unrelated to the teaching career, except made to official faculties, but which also had lenses involved in many activities, the problem is currently another and more serious. Forty years ago, at each step the law course turned into mass education, with students and teachers unprepared, turning law schools into mere sources of revenue, focused on profit rather than the promotion of in-depth study for the creation of quality graduates.

The aim of this study is to demonstrate the fundamental, primordial importance of the study of General Sociology and Sociology of Law for the formation not only of law operators, in the strict form of the term, but also in the formation of authentic jurists, human, who not only seek the economic stability that the law course can provide, but that above all, seek individual and collective growth intellectual and spiritual.

Adds the renowned jurist on law courses (2014, p. 95):

It can be said that if legal courses have never corresponded to a demand for excellence, if there has always been a “crisis” in legal education, however, there is now a process of degeneration that has been going on for three decades. Only the rigor in the evaluation of the courses, added to the measures recommended above and also to the proposals proposed by Abedi, can minimize the ailments present.

Therefore, the general objective of this study is to analyze brazilian legislation on higher law courses. The specific objectives are: to understand how it is neglected by academics and professors, the study of sociology of law and philosophy of law in undergraduate studies. To achieve these objectives, we chose to conduct bibliographic research.

Thus, this work was structured in two chapters. In the first chapter, we will present the concept of General Sociology and Sociology of Law, as teaching occurs in Brazil and in the world.

In the second chapter, we will analyze the reflexes and losses that the lack of this study can cause in a society, especially in law scholars.

2. CONCEPT OF GENERAL AND LEGAL SOCIOLOGY

Before we enter the main theme, we recommend the concept of Sociology. The term comes from the Latin socius (association) and the Greek word logos (reason, study). Simply put, it can be the study of human associations. It should be understood that “human associations” or “collectivities” are all kinds of “societies”, “social groups”, “tribes”, “communities”, “companies”, “families”, or any other social structure. This is because man is a gregarious animal.

Sociology is a scientific knowledge, because the explanations for the social world are rational, conceptual, theoretical and systematic. It is a kind of knowledge that differs from those produced by common sense and religious thought.

According to Zygmunt Bauman (2010, p.11):

Sociology encompasses a disciplined set of practices, but it also represents a considerable body of knowledge accumulated throughout history. Looking through the sociology section of libraries reveals a set of books that represents this area of knowledge as a tradition of publication. These works provide considerable volume of information for new to new to the area, whether they become sociologists or just expand their knowledge about the world in which they live.

For this respectable sociologist, sociology, in addition to science, can also be understood as a form of consciousness. And this awareness helps us think better about the world we live in. He adds that: “Sociology in this sense is a space of continuous activity that commends learning with new experiences and expands knowledge, changing, in this process, the form and content of the discipline itself” (BAUMAN 2010, p.12). He is meaning that sociology is constantly changing, evolution, because social behavior also changes over time. And the theoretical knowledge acquired, combined with new social facts and enhancements sociological knowledge. It is also a “dialogue with human experience”. It distinguishes the terms Erfahrungen (experiences) and Erlebnisse (experiences), words taken from German, and that in many languages these terms mix, giving almost the same meaning. “Erfahrung is what happens to me when interacting with the world; Erlebnis is ‘what I experience’ in the course of this meeting – the joint product of my perception of the event(s) and my effort to absorb it and make it intelligible” (BAUMAN, 2015, p.18).

It still differs from thinking sociologically with “common sense”. Unlike physical and biological sciences, which do not bother to relate their knowledge to common sense, “the relationship with common sense is, in sociology, conformed to important issues for its permanence and practice” (BAUMAN 2010, p.17).

Continuing Bauman’s understanding (2010, p.17) adds that most sciences have a frontier that differs from each other, which does not occur with sociology and common sense. This knowledge, although rich, has the quality of disorderly and not systematic. The exact sciences do not mix with common sense, because their knowledge does not deal with everyday experiences. In Bauman’s view (2010, p.21), ordinary people do not have so much interest in science, nor will they give their opinion on subjects to which they do not know, contrary to what happens with sociology, where non-scientific concepts, filled with their own opinions, permeate common sense.

First, sociology, to the difference of common sense, strives to subordinate itself to the strict rules of responsible discourse. It is an attribute of science to distinguish itself from other forms of knowledge, known to be more flexible and less vigilant in terms of self-control. Sociologists are expected, in their practice, a great care to distinguish – in a clear and visible way – statements corroborated by verifiable evidence and those that claim their status from mere provisional and untested ideas. The rules of discursive responsibility require that the “workshop” – the set of procedures leading to the final conclusions and which, it is said, would guarantee its credibility – is always open for inspection.

As stated earlier, sociology is derived from philosophy, both of which are concerned in their analyses of the human world. It was the exclusive task of Philosophy to study the rationality of human life until the end of the 19th century, when the first social scientists emerged in Europe.

For Professor Reinaldo Dias (2005, p.05) conceptualizes sociology as “the scientific study of society and its influence on human behavior”. Sociology is the collective study of the human being, while psychology is the study of the singular individual. This comparison was made by Émile Durkheim, in the introduction of his work O Suicídio (2000), in a very objective and clear way. Although he referred to the specific study of sociology, such a comparison can be extended widely.

Professor Agérson Tabosa cites several scientific concepts of sociology, from classical authors, with Auguste Comte and Émilie Durkheim being the most notable. For Comte (2000, p.29) “Sociology is the positive study of the set of fundamental laws related to social phenomena”. Durkheim (2000, p.31) conceptualizes sociology as “the science of institutions, of its genesis and evolution”.

However, even with the citation of several concepts, sociology has an object of study called Social Fact, which Durkheim (2007, p.10) defines as “power of external coertion that exercises or is capable of exercising on individuals”. He understands that, social fact is any norm imposed on individuals by society. These rules will not necessarily be written, but implicit, with their non-compliance would lead to sanctions.

According to Professor Ana Lúcia Sabadell (2002, p.45):

Durkheim calls social facts the norms in force in a given society indicating two important elements: First, that the origin of all norms that influence individual behavior is society (not the legislator or certain individuals). Second, that norms are not simple words or orders, but exist objectively in society and the sociologist should study them as facts, that is, as “things”.

According to professors Cláudio Souto and Solange Souto (2003), it shows that the object of Sociology is to study social facts in themselves, which is all that actively externalised, derived from a mental activity. That is, the being thinks and acts, interconnecting his attitude with the actions of other individuals in society.

3. THE CONSTRUCTION OF BEING

After the brief superficial and conceptual explanations about general sociology and law, the main focus of the problem in the formation of law students is analyzed. Resolution No. 5 of the National Council of Education, dated December 17, 2018, establishes the national curriculum guidelines of the Undergraduate Course in Law, disciping what should be included in the Pedagogical Project of the Course (PPC). Let’s look at what’s in Article 3 of this standard:

Art. 3º. The undergraduate course in Law should ensure, in the profile of the undergraduate, solid general, humanistic training, analytical capacity, mastery of concepts and legal terminology, capacity for argumentation, interpretation and valorization of legal and social phenomena, in addition to the domain of consensual forms of conflict composition, combined with a reflexive and critical vision posture that fosters the capacity and aptitude for learning , autonomous and dynamic, indispensable to the exercise of law, the provision of justice and the development of citizenship. (CNE, 2018, Online)

It is observed here the focus on “general formation” and “humanistic formation”, in addition to “valorization of legal and social phenomena”. There is no need for further dissection, to clearly understand that one should focus on the philosophical and social sciences, as already said, they analyze the human being, his behavior and the environment they live.

Still in the same diploma, specifically in Article 5 it is noted:

Art. 5º The undergraduate course in Law, prioritizing interdisciplinarity and the articulation of knowledge, should include in the PPC, contents and activities that meet the following formative perspectives: General I-Training, which aims to offer the undergraduate the fundamental elements of law, in dialogue with the other expressions of philosophical and humanistic knowledge, social sciences and new information technologies , covering studies that, in attention to the PPC, involve knowledge of other formative areas, such as: Anthropology, Political Science, Economics, Ethics, Philosophy, History, Psychology and Sociology. (CNE, 2018,Online)

In this article, with the expression “prioritizing interdisciplinarity and the articulation of knowledge” can conclude that knowledge is systematic, that is, an interconnected network of concepts of various sciences that form the universal whole. From this, the conclusion of

that “philosophical and humanistic knowledge” is the alchemical stone of the transmutation of being. The sciences that are set as an example in item I form and build the personality of the scholars of law, activating the use of critical thinking, reasoning, logic. It is not arbitrary to find there, together, the words “Psychology” and “Sociology”.

According to Rodrigues and Grubba (2012, p. 236), “knowing the law – that is, producing knowledge about the object Law – presupposes an interrelated or, in other words, interdisciplinary knowledge.” However, law cannot be studied in isolation, in the same way sociology and philosophy. Unlike the exact and biological sciences, which are strict and technical, the human sciences, which the law is classified, encompass the whole systematic set of knowledge (GRUBBA, 2012, p.236).

This is because it would be a merely tautological discourse if the law, as a knowing, was identified to its formal component, that is, the law as the norm. The norm is a constitutive part of the law, without which it does not exist, but this is not restricted to its formal limitation; it is also a social being that is founded on human praxis itself.

He adds Rodrigues and Grubba (2012, p. 237):

Therefore, scientific research of law cannot be limited to the problematization of legal norms, as if they did not emerge from society and generate consequences in society. If the discourse of law is formal, but also involves, among others, the social, political, economic, cultural and environmental elements – situated in time and space, that is, contextualized – research in and of law must dialogue with these dimensions.

And they corroborate our understanding when they conclude (GRUBBA, 2012, p.237):

Thus, even if a research has as object the problematization of a norma or a normative code, it cannot be considered scientific when it no longer has correspondence with the social entity, that is, it is empirically related to society. This is because, being the normative dimension of law, a human construction, an abstraction and a social product, it is created precisely to respond to problems of society.

In today’s world, in the stage of advanced globalization, knowledge becomes easier to access, due to the modernization of the media and the storm of information collected daily, making us have criteria and care when choosing what is scientific and what is common sense, and may be true or false. That’s why you have to develop critical sense, critical thinking.

There is a tendency to accept and propagate ideas in an uncritical way, without any kind of concern to check the sources. Professor Dr. Valdemir Guzzo (2015, p.66), in his article states that “it is necessary that schools and universities are concerned with certain aspects of the intellectual formation of their students, especially those related to the development and strengthening of critical thinking”. It also states that critical thinking is a “tool of intellectual defense” (2015, p.69).

“We humans have a talent for deceiving ourselves,” writes Sagan (1996, p. 71), considering that critical evaluation of ideas does not seem to be a spontaneous cognitive instance. In fact, studies on decision-making in humans, conducted mainly by cognitive psychologists, social psychologists and neuroscientists, present evidence that, contrary to what common sense supposes, a considerable part of human decisions is made superficially, non-reflectively, rapidly and irrationally (i.e., without the proper consideration of reasons to support the conclusions) , and that, moreover, people are subject to numerous cognitive biases and perceptual failures, even if they do not realize it (CHABRIS; SIMONS, 2010; KAHNEMAN, 2012; SHERMER, 2012).

However, nothing clearer, like what has been happening with the Brazilian political scenario, where people are deceived and deceived by ideological, populist and extremist ideas, no matter what political position (left or right). We can empirically risk that fake news (recently institutionalized term) has existed since the dawn of humanity, where the ruling class used (and still uses) lies to subject the less favored to its power. Karl Marx, Friedrich Engels, Jean Jaques Rousseau, Friedrich Nietzsche, Norbert Elias, Michel Foucault, Paulo Freire are just a few names, of the many illustrious that existed, who clearly and sometimes obscurely portrayed the domination of the rich against the poor. They were all despised and attacked by the bourgeois class and clergy for trying to remove the veil of ignorance that still covers the eyes of the masses. To reflect sociologically on the consequences that the persistence of poverty and socioeconomic inequality caused, and evidently bothered many people who had an economic advantage.

Adds Guzzo (2015, p.69) yet:

An education that prioritizes the development and strengthening of critical thinking skills, and encourages critical thinking, presents itself as a way to counter some of our cognitive tendencies by enabling students to analyze ideas more rationally.

Thinking critically means protecting yourself against coercose and thoughtless belief. We can affirm, without fear of error, that an enlightened “spirit” is free and immune from the bonds of prejudice, intolerance, ignorance, antipathy, being, therefore, a being who walks towards the spirit of brotherhood, humanism, equality. Wisely Guzzo (2015, p.70) expose:

We have difficulty assimilating and evaluating the veracity of the large amount of information to which we are exposed daily, and much of it is composed of false assertions. On some occasions, false statements are presented to us deliberately, and the purpose of the interlocutor is to manipulate our opinion and beliefs. If we don’t question other people’s ideas or our own, we won’t know what the most reliable information is about any subject. In this context, thinking and critical spirit are presented not only as mechanisms of intellectual defense that decrease the chances of being deceived, but also as essential tools to better understand the world and guide the course of our actions more reasonably.

This role should be fostered by higher education institutions, by encouraging the academic to think and reflect, thus, as the object of this work is the importance of the study of sociology in law schools, the academic should be encouraged to read, think and reflect. Being exposed the teachings in various doctrinal currents, jurisprudential and hermeneutic techniques, and if, the university is not willing to learn from the adapted mind, worked, possibly will not understand certain academic scientific writings. It will only be an “operator of the right” (GUZZO, 2015, p.71).

Considering that critical thinking skills and critical thinking need to be strengthened in students, and assuming that these characteristics are important for the life of any subject in a democratic society, it is necessary that schools and universities make efforts to highlight critical thinking in their educational activities.

Similarly, Edgar Morin states (2000, p.19) that “there is not a higher stage of the dominant reason of emotion, but an axis of intellect/affection and, in a way, the capacity for emotions is indispensable to the establishment of rational behaviors”.

Now, the writer Morin (2000, p.19) says that “All knowledge carries the risk of error and illusion”. He teaches that error and illusion do not recognize themselves, people are sure they are right. That’s what we’re experiencing today. Education must face this double face of error and illusion.

Error and illusion parasitize the human mind since the onset of Homo sapiens. When we consider the past, including the recent, we feel that it has been dominated by countless mistakes and illusions. Marx and Engels rightly stated in The German ideology that men have always elaborated false conceptions of themselves, of what they do, of what they should do, of the world in which they live. But neither Marx nor Engels escaped these errors (MORIN, 2000, p.20).

Still according to Morin (2000, p.20) it is necessary to know the knowledge, because errors can be seized during the process.

Knowledge is not a mirror of things or the outside world. All perceptions are, at the same time, brain translations and reconstructions based on stimuli or signals captured and encoded by the senses. This results, we know well, the numerous errors of perception that come to us from our most reliable sense, that of vision. Intellectual error is added to the error of perception. Knowledge, in the form of word, idea, theory, is the fruit of a translation/reconstruction through language and thought and, consequently, is subject to error. This knowledge, at the same time translation and reconstruction, involves interpretation, which introduces the risk of error in the subjectivity of the connoisseur, his vision of the world and his principles of knowledge. Hence the numerous errors of conception and ideas that come in spite of our rational controls. The projection of our desires or our fears and the mental disturbances brought about by our emotions multiply the risks of error.

Only with critical thinking, with the “spirit of mistrust”, the human being can immunize himself against untruths produced and disseminated in society. With the use of logical reasoning, one can protect the reason for the erroneous perceptions of everyday life. And these erroneous perceptions make us faithful defenders of a questionable “truth.”  We make our opinions, our common sense into a scientific truth.

The courses of philosophy and sociology have always dedicated to the students the development of this psychic capacity, and it is salutary that the legal sciences should also focus on this sense.

4. CONCLUSION

We can conclude that the study of the human sciences (sociology and philosophy) should be fostered not only in higher education, but also in the basic teaching of schools.

The daily life of modern life presents us with several individuals trapped in their absolute truths, intolerant and insensitive individuals. Among these, we come up with university colleagues, from youth, to avid and power-hungry legal professionals, fame and money. Immersed in their doctrinal compendiums, they forget the sublime art of stoning the raw stone encrusted in the chest. They become pilgrim zombies of an empty and gloomy daily life, whose arrival, at the end of life, always comes the questioning of what is life, the meaning of it and its purpose.

Specifically in law courses, human disciplines are already mandatory, as we saw in resolution No. 5 of the National Council of Education, dated December 17, 2018, which establishes the national curriculum guidelines of the Undergraduate Course in Law. Although they are already considered mandatory, the study of the themes should be deepened, making their exposure not only in a single semester, but in at least three, divided into disciplines of General Sociology, Sociology of Law I and Sociology of Law II. The same applies analogically in Philosophy.

Only in this way, combined with alternative pedagogical techniques and adding to traditional exhibition classes, the academic will be obliged to study, read and learn, which taught us the great masters of knowledge of our history and current affairs. The interdisciplinarity of legal sciences with the universe of knowledge is unquestionable, being an intercom system, an authentic network of knowledge.

The treatise in this study was dedicated to the planned treatment of the student in the undergraduate course, but the same applies, with even more intensity, to the students of the master’s and doctorate courses.

We can conclude that, at first sight, the human and humanist formation of law is indispensable, because it is inadmissible and repulsive the feelings of prejudice, pride, vanity, whether of anyone, but mainly of scholars and intellectuals, regardless of party and ideological political preferences. The legal scientist is above all, a defender of justice, even if justice is in opposition to the law.

The complexity of the scientific thought of law and its interdisciplinarity is not limited to the studies of laws, codes, jurisprudence and doctrinal books. It is an authentic philosophical, hermeneutic and sociological study. We must not know only the laws, but the behavioral, sociological causes that led to their editing. In this sociology of law becomes a very useful tool for the construction of the human and full legal environment.

Everyday life, modern life, presents us with several individuals trapped in their absolute truths, intolerant and insensitive individuals. Among these, we come up with university colleagues, from youth, to avid and power-hungry legal professionals, fame and money. Immersed in their doctrinal compendiums, they forget the sublime art of stoning the raw stone encrusted in the chest. They become pilgrim zombies of an empty and gloomy daily life, whose arrival, at the end of life, always comes the questioning of what is life, the meaning of it and its purpose.

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Lawyer, master of the Law Course of the University Center 7 de Setembro (UNI7), post graduated in Law and Tax Process, from the University of Fortaleza (UNIFOR).

[2] Graduated in Law from the University of Fortaleza UNIFOR (2012). He has a postgraduate certificate in the labor and constitutional areas. Master’s student in Constitutional Law, with emphasis on private relations at UNI7.

Sent: May, 2020.

Approved: October, 2020.

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