ANÁLISE RETÓRICA DO DISCURSO JURÍDICO: OS ARGUMENTOS QUASE LÓGICOS NA ARGUIÇÃO DE DESCUMPRIMENTO DE PRECEITO FUNDAMENTAL Nº 54

Abstract

The present research wanted to verify, identify and describe how the Law, through the legal language, is loaded with argumentative instruments that go unnoticed by the operators of the Law. By constructing the definition of what rhetoric is, we establish how it can be a method of investigation and how rhetoric serves us as an antistrophe of hermeneutics. Rhetorical analysis enables us to analyze figures, premises and arguments, as well as unveiling volitional elements of what and how the discourse was intended to be constructed so that it would be more persuasive. With this tool in hand, we set out to illustrate how the language of law uses notions of formal logic and mathematics to produce persuasion and naturally cover up what is, in fact, a construction. To exemplify how this process takes place, we studied the entire content of the judgment of the action which, in Brazil, goes by the name of Arguição de Descumprimento de Preceito Fundamental nº 54, so that we can identify a recurring argument in the decision: that of the legislative intention. We then conclude that the argument of the will of the law or of the legislator is used as a persuasive means to say that “if the legislator wanted it, the decision should be as such”. When we perceive this argumentative movement, we identify an inevitable construction where, in fact, who says what the legislator wanted are the parties and, finally, the decision-maker. Using this artificial construction that there is an entity as a “legislator”, and that this legislator wants something is a process of make-believe Law that ends up being persuasive until someone points out that there is creation in this process. The task of pointing is up to this research and that is what we did throughout it.