A teoria do fato jurídico de Pontes de Miranda e seus reflexos no ensino do direito civil parte geral brasileiro no século XXI: uma abordagem a partir da hermenêutica filosófica Gadameriana

Abstract

The following dissertation concerns the Legal Fact Theory by Pontes de Miranda, the need of rethinking it from the Philosophical Hermeneutics and inserting it effectively in Law teaching. The Theory of Legal Fact was developed in 1954 by Pontes de Miranda, one of the biggest Brazilian jurists. According to that theory, a fact enters the legal world when the factual support becomes juridical. At that time, the incidence occurs, which is infallible and automatic, that is, it does not depend on the understanding of the sources of Law or the fact itself. Later and only contingently, it would be feasible to mention application. When such theory has risen, it had great recognition; however, as a countersense to the work by Pontes de Miranda, it has not been inserted into the pedagogical projects of Brazilian Law universities. In despite of that, there had been emphasis, at the same time as the legal and social scenario was changing regarding the importance of that theory. However, given the new legal conflicts, coming mainly from the New Technologies of Information and Communication, latent remains the insufficiency of the Theory of Legal Fact. Being indispensable to rethink it to be later inserted in Law education. In this context, it is essential to survey to what extent the Philosophical Hermeneutics may be the one way to rethink the Legal Fact Theory by Miranda Bridges, setting new parameters for their Brazilian legal education under the general part of civil law. To answer the research problem, it has been adopted as a "method" for approach and procedure, respectively, the phenomenological-hermeneutic and the historical and structuralist. As research techniques, indirect documentation and extensive direct observation have been employed. Thus, Teaching Plans will be analyzed as well as 13 and 124 Pedagogical Projects of the twentieth and twenty-first century, in order to verify the basis of legal education. Also, surveys have been given to teachers from all regions of the country so that they highlight the way they understand the theory, its sufficiency and how they teach it. As a basis theory, the teachings by Pontes de Miranda and Gadamer. Finally, the following dissertation has been divided into three chapters. The first chapter will address to life and work of Pontes de Miranda, focusing on the Theory of Legal Fact and its teaching at the heart of the twentieth century. In the second chapter, the legal and social changes brought about in the twenty-first century and how they influenced the emergence of new legal conflicts, which resulted in the latency of insufficiency of the Theory by Pontes de Miranda and his absence on the academic environment. In the last chapter, the space will be for the Philosophical Hermeneutics by Gadamer as a way to rethink the structural elements of the Legal Fact Theory. Then, it will show the way it may occur his inclusion in Law education. From this, it was concluded that it is possible to rethink the structural elements of Legal Fact Theory based on Philosophical Hermeneutics, which will serve the existing complexity. Moreover, the inclusion of this Theory and traditional Theory in Law education is vitally important, being therefore necessary for such, to change what is taught and the way it is taught.