The social function of the jurist in contemporary Brazil

Abstract

The function or social usefulness of the work of the jurist, as an academic cultivator of Law, unfolds in two activities: scientific research and technical invention. The intelectual work of the Roman jurisprudence did not limit itself to the conceptual classification of the data of the juridical reality, with the application of the Greek diairessis, but went on also to the elaboration of new institutes, designed to solve emerging social problems, specialy in processual Law. In the evolution of English Law, the creative contribution made by the equity jurists was remarkable, they developed a work similar to that of the Roman Praetor completing, correcting and supplying the deficiencies of the Common Law. In the beginnings of European capitalism, nevertheless, the creative capacity of the jurists was clearly superseded by that of the traders themselves, that originated the great institutes of the modern business life, as the exchange, the insurance and the stock companies. With the emphasizing of state Law, from the Renaissance and, specially, since the French Revolution, the work of the jurists remained almost all of it confined to the explanation of positive law. The democratic theory, never liked the creation of law by people not legitimated by popular vote. In Brazil, the creation of new juridical institutes has been due not so much to the inventive efforts of the jurisconsults but to the talent of the court professionals or the business sphere. As regards the work of interpretation and application of law, the movement of the so called "alternative law" does not seem to be the most balanced solution in the search for greater justice. The jurists of today will only justify their social usefulness when they are able to, on one hand, develop new exegetic standards of realization of justice, without disrespect to the principle of the supremacy of the Law over the individual will of the interpreter, and, on the other hand, when they know how to act, specially in constitutional matters, as real social engineers, in the building of a new society.