A ilusão paralisante da figura perfeita: o senso comum teórico e a crise do discurso jurídico

Abstract

The current legal discourse is still based on a model of positivist thought, whose development took place from the beginning of modernity. To this manner of thinking, law and justice would be limited to what the State imposes through its laws and decisions, without much room for questioning the rules already positivated.It happens that even the positivist discourse, that calls itself neutral by just performing law enforcement, is loaded with an ideology based on the dominant interests in the capitalist way of life. In this context, it is relevant to study the work of Luis Alberto Warat that tried cutting through and overcome the current dominant discourse in the legal environment. Following this line of thinking, this paper presents, at first, how was the formation of positivist thinking and the ownership of their model by law. Afterwards, by aproaching the evidence it demonstrates the inadequacy of this discourse, with Luis Alberto Warat's notes regarding the way of teaching and application of the law prevailing in today's world, in what he calls "common sense theory of jurists". By establishing these initial premisses, proposals to overcome the dominant paradigm are presented in the law by Warat: first, the political semiotics, followed by the semiotics of desire, and afterwards, by alterity. Finally, we highlight two central proposals in Warat's work to a necessary innovation in legal thinking: the educational carnivalization and mediation as alterity.