Phenomenology in Class: A Case Description

Publication Date01 July 2020
DOI10.1177/2322005820903506
AuthorMário S. F. Maia
Date01 July 2020
SubjectArticles
03ALE903506_ncx.indd Article
Phenomenology in Class: A Case
Asian Journal of Legal Education
7(2) 116–126, 2020
Description
© 2020 The West Bengal National
University of Juridical Sciences
Reprints and permissions:
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DOI: 10.1177/2322005820903506
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Mário S. F. Maia1
Abstract
This is a descriptive article concerning a pedagogical intervention and philosophical activity carried
out in a Law School in Brazil. The activity described has the pedagogical goal of stimulating the critical
and comprehensive approach to law on students. The article presents the philosophical foundations
and the ethnographic guidance necessary to develop the activity. The analysis of the results was done
considering and interpreting student’s written and oral feedback. Results are shown in a positive light
since the activity described is understood as a tool to facilitate and improve the awareness of the
law students by making them reflect about the concrete practices, symbols and interactions in the
professional field.
Introduction
This article aims to present a concrete pedagogical experience carried out in the classroom of a philosophy
of law’s course with a freshmen group in a law school in Brazil.2 By presenting it to the academic
community, we hope to allow it to be replicated and, of course, criticized.
In short, we can describe the pedagogical activity as an effort to make the freshmen students (workers
to be, under their training process) to think critically about the daily routines and interactions of the
workers in the field (judges, lawyers, attorneys, clerks, etc.). It is a philosophical activity with an ethno-
graphical inspiration.
Showing the first-year students the institutional life of law (law in courtroom environment) was a way
I found to make them think about the ‘law in action’ or, more specifically, the law being made in the
‘trouble cases’.3 This is, in fact, something quite prosaic, but as I will discuss in the final section of this
article, represented a great change in the point of view from which we usually teach law in Brazil.
1 The Federal Rural University of the Semi-arid Region (UFERSA), Mossoró – RN, Brazil.
2 Mario Sérgio Falcão Maia, The habiTuS and habiTaT oF The PracTicing JuriST (FgV Direito SPA, 2019), https://ejurparticipativo.
direitosp.fgv.br/portfolio/habitus-habitat-jurista-praticante
3 auSTin SaraT, eVeryday PracTiceS and Trouble caSeS (Northwestern University Press, Evanston, 1998).
Corresponding author:
Mário S. F. Maia, The Federal Rural University of the Semi-arid Region (UFERSA), Costa e Silva, Mossoró - RN,
59625–900, Brazil.
E-mail: mario.maia@ufersa.edu.br

Maia 117
When in classroom, we tried to never lose sight of our main goal, which was to work on reducing the
gap between theory speculation and the training of students for practising the law, or, more accurate,
suggesting a pedagogical activity that ‘resist’ to separate completely theory from practice in law school.4
In a very deep sense, it’s possible to say that this is a work based in humanistic philosophy. In general
terms, what a humanist ‘sees’ when observing our culture is the process of standardization in mass
society; the cultural construction of a consumer’s society, as put by Arendt5. In that light, even the activi-
ties developed in the juridical field—where the professionals are called to ‘solve’ real-life problems
usually related to a moral violation6 —are characterized by the mass production and, because of that,
assumes a technological spirit.7
In this case, guiding students through a phenomenological exercise, based on the ethnographic
method, should be understood as a tentative guarantee to an empirical base to a humanistic study. It is
also important to say that the phenomenological studies based on an existential philosophy do not
represent anything new; it is not an invention of a particular researcher. Possibly the main name behind
this epistemological approach is Heidegger. In our particular case, the use of a phenomenological
approach has a lot to do with a tentative to reconnect with a Brazilian academic tradition institutionally
mediated through the twentieth century.
Like it was said before, this is fundamentally a case description, and the idea is to develop the student’s
critical thinking based on a humanistic approach to law. In that sense, it is important to say that the
critical perspective that we hope to stimulate in the students should not be taken as a mere ‘talking bad’
about the law and the jurists. The critical thinking, in those terms, is part of a comprehensive epistemo-
logical effort. Criticizing in that sense means to ‘talk about’ a phenomenon so that we can say that the
very act of executing a phenomenology caries within itself the genesis of a critical thinking.
We also have to say some words about the concrete institutional context and legal culture that the
activity was carried on. We have practised this activity with students who are at the beginning of their
graduate courses (in law) in Brazil. So, we have to keep in mind the different legal culture when
considering the Anglo-American one. In the legal culture of Brazil, the concept and everyday work of
the professional jurist is much more related to the state’s bureaucracy and a normative view than it is in
those countries, which contains the common law. In that particular case, our legal culture is much more
like the one lived in continental Europe.8
Finally, we have yet to say that we strongly believe that, when educating law students, professors of
both legal cultures face similar challenges, especially when it comes to teaching a ‘humanity’ course to
students eager to learn objective professional skills. In this context, ‘the law’ taught in law schools has
almost nothing to do with the prudential being, as put by Aristotle, and it becomes a mass product itself.9
This article is intended to serve as a reflection instrument, useful in different cultural settings.
4 Heather K. Gerken, Resisting the Theory/Practice Divide: Why the “Theory School” is Ambitious About Practice, 32 harV. l.
reV. F. 7, 135 (2019).
5 hannah arendT, The huMan condiTion 126 (The University of Chicago Press, Chicago, 1998).
6 Luís Roberto Cardoso de Oliveira, Existe Violência sem Agressão Moral?, 23 rbcS 67 (2008).
7 Theodore Viehweg, TóPica e JuriSPrudência (SAFE, Porto Alegre, 2008). See also, Tércio SaMPaio Ferraz Jr., dogMáTica
Jurídica (GEN, São Paulo, 2nd ed., 2015).
8 Emmanuelle Jouannet, French and American Perspectives on International Law: Legal Cultures and International Law, 58 Me.
l. reV. 291, 299 (2006). Also see Franz wiacker, hiSTória do direiTo ProVado Moderno, 225–275 (1980).
9 Hazard, Geoffrey C. Jr., Challenges in Law Making in Mass Societies, 67 la. l. reV. 1103, 2327 (2007).

118
Asian Journal of Legal Education 7(2)
Being a Professor of Law in Brazil: Normative Expectations and
Classroom Reality
In Brazil, building a career as a full-time researcher of law is an unusual choice of career. In our professional
field, someone who graduated from law school, who eventually decides to make a living as a researcher,
has to engage professionally as a professor, and even the life as a full-time professor is not something very
usual for a professional jurist in our country.10 This concrete condition of the Brazilian field is responsible
for connecting two different sides of the professional jurist who dedicates himself/herself to the work of a
professor: the epistemological elements (developed as an institutional agent that ‘produces’ science) and
the pedagogical orientations (developed as an institutional agent responsible for ‘educating’).
In our professional juridical field, it is possible to say that pedagogical questions and reflections
have a smaller repercussion. This is possibly related to the fact that in our country, being a professor,
in the opinion of the other jurists...

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