Para início de conversa, é bom ter bem claras duas noções:
– “Pois” e “porque” podem ter o mesmo sentido; ambas podem ser conjunções explicativas.
– A conjunção “porque”, além de explicativa, pode introduzir oração que denota causa.
Então, só se pode falar em diferença entre “pois” e “porque” se se partir do pressuposto de que o “porque” cumpre APENAS função causal (o “pois” é sempre explicativo).
Diante desse pressuposto, usa-se “pois”, não “porque”, para introduzir oração que denota o motivo óbvio, natural, notório, lógico da oração que ela explica. Vamos logo para os exemplos:
“O recurso não pode ser conhecido, POIS ausentes os pressupostos de admissibilidade” (vejam que o “pois” introduz um motivo óbvio da oração anterior.
A frase pode ser lida assim: É CLARO que se não houver pressupostos de admissibilidade o recurso não pode ser conhecido).
“O recurso não pode ser conhecido, PORQUE ausente o preparo” (agora o motivo não é tão óbvio assim; isso porque, não obstante a inexistência de preparo, o recurso poderia ser conhecido na hipótese de gratuidade da justiça, por exemplo).
“Não acolho o pedido de indenização por danos materiais, POIS feito apenas na réplica”.
“Não acolho o pedido de indenização por danos materiais, PORQUE não provou o autor fato constitutivo do seu direito”.
“No caso não existiu dano moral, POIS o episódio causou ao autor apenas mero aborrecimento”.
“No caso não existiu dano moral, PORQUE a inscrição do nome do autor nos órgãos de proteção decorreu de exercício regular do direito do réu”.
Ocorre que no direito é muito comum a construção silogística de frases, e nesse sentido o “pois” é bastante usado como elemento coesivo-argumentativo, sugerindo que a posição assumida é óbvia e lógica, quando não pacífica.
Vejam o seguinte período, em que o “porque” deveria ser usado, mas o “pois” também está correto uma vez que quem escreve quer passar a ideia de obviedade:
“Não é nulo o julgamento dos embargos de declaração por outro magistrado que não aquele que proferiu a sentença, POIS o recurso não está vinculado ao juiz, e sim ao órgão jurisdicional”.
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