El papel de los abogados en la intención : la influencia de la práctica de la resolución alternativa de conflictos (ADR) sobre la educación y el pensamiento jurídicos
"Originally published as Fleerackers, Frank, 'Effective Law through Legal Education,' in ARSP, Issue 106, 2007, pp. 211-220. In the translated version, the article is titled: 'The Role of Lawyers in Interaction: Influences of ADR practice on Legal Thinking and Legal Education.�...
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| Formato: | Artículo publishedVersion |
| Lenguaje: | Español |
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Universidad de Buenos Aires. Facultad de Derecho. Departamento de Publicaciones
2009
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| Acceso en línea: | http://revistas.derecho.uba.ar/index.php/academia/article/view/741/648 http://repositoriouba.sisbi.uba.ar/gsdl/cgi-bin/library.cgi?a=d&c=academia&cl=CL1&d=HWA_3528 https://repositoriouba.sisbi.uba.ar/gsdl/collect/academia/index/assoc/HWA_3528.dir/3528.PDF |
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| Sumario: | "Originally published as Fleerackers, Frank, 'Effective Law through Legal Education,' in ARSP, Issue 106, 2007, pp. 211-220. In the translated version, the article is titled: 'The Role of Lawyers in Interaction: Influences of ADR practice on Legal Thinking and Legal Education.' The editors thank the author for permission to translate and publish it in this journal. The Spanish translation was done by Daniel Oliver-Lalana, University of Brussels (HUB). This translation was carried out within the framework of research funded by the Spanish Ministry of Science and Innovation through the National R&D&I Plan 2008-2011." -- This article is inspired by a key provision of the new European directive on mediation: the obligation of Member States to promote the training of mediators. This training, which implies a review of legal education, may prove necessary for the future of legal thinking. Drawing on Deleuze and Derrida, as well as Rawls and Habermas, Professor Fleerackers argues against rationalized views of law as communication and proposes an interactive, case-oriented, and interdisciplinary (ICI) approach to overcome the decline of liberal legal thought. The author shares Derrida's perspective, whom he considers a fellow traveler, and addresses the affective/effective aspects of law in order to update legal discourse for a world of difference that demands a dynamic concept of security and legal certainty. In essence, legal theory is legal practice. And legal practice, in all its forms, is case-oriented, seeking to achieve effective coexistence within a multicultural, multi-moral, and multi-individual society still burdened by rationalization. In light of the failure of natural law and legal positivism, as well as communitarianism and liberalism, many have abandoned the bastions of morality or rationality that underlie the legal field. Although not all cases are difficult, these are certainly of crucial interest to any philosopher or legal theorist. If it is true that morality or rationality can still maintain legal efficacy and effectiveness in most easy cases, then these are less important, given the enormous difficulties societies encounter when legal norms can only be upheld by force or violence. Epitomized as the conscious acceptance by a minority of a decision made by a majority, or as the legal conscience of a condemned party in relation to a judge's decision applying the law, legal effectiveness has consequently shed its traditional guise, and the structures that once underpinned it have been dramatically blurred. Therefore, the survival of legal pragmatism as an effective instrument for maintaining a society's communal aspirations depends primarily on the lawyer's attitude. Well-trained lawyers make social interaction possible in order to uncover differences, as well as truths born from interaction, that are in fact shared by all parties to a conflict. As such, legal education is unequivocally at the heart of legal theory and practice. The need for a shift in legal thinking, still rooted in 19th-century thought, to adapt it to contemporary globalization depends above all on how legal education is reformed in the coming years. In conclusion, Professor Fleerackers argues for a legal education that teaches lawyers to master interactive processes and transform these into frameworks for social cohesion, thereby preserving the persuasive power of legal discourse from within, through an interactive, case-oriented, and interdisciplinary (ICI) approach to law. |
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