As relações entre direito, política e sociedade: retórica e teoria da ação na análise da argumentação em casos difíceis no Supremo Tribunal Federal brasileiro

Abstract

Law, politics and society can relate to each other in several ways. This thesis aims to understand these relationships from the rhetoric and argumentation. Analyzing the decisions of the judges of the Brazilian Supreme Court, in cases with great social repercussion, it’s possible to observe as arguments from other social fields, beyond the law, are used as essential elements to justify the decisions in the legal field. For the hard cases, the legal field, ordinarily, have not absolute and clear solutions to solve the conflicts. Nevertheless, the judges remain bound to take a decision (because of principle of non liquet) for these cases. To take a decision, it’s necessary to build justifications for the other judges and society in general (because there is no decision, if there is no justification), and the judges does it, using arguments that do not belong to legal field. Recognize this judges’ activity creates difficulties for a strict interpretation about the legal field. This interpretation is based an idea created for the legal field itself and affirms the autonomy of law, scientifically and, mainly, operationally. The Luhmann’s Systems Theory, for which the autonomy is an essential element, exhibits affinities with the image that law has built about itself. In general, this theory was accepted as the better way to understand the legal system. The Systems Theory affirms that law is an autopoietic system, based on binary code for its operations, and this system does not connect directly to the environment. Therefore, the systemic approach has problems to understand the complex relationships between the legal system and other systems, mainly the politics system. The Systems Theory intends to avoid abusive influences of politics on the law, but, if understood in a radical way, the systemic theory offers a restrictive perspective to the several and complex relationships between law, politics and society. Based on this theory, the law can be isolated. However, the rhetoric demonstrates that law and politics can relate each other in a nondestructive way and that the law is not an autopoietic system. To understand these relations based on argumentation it is necessary to consider a theory of action based on human agents, something that Systems Theory does not do. Pushed by practical need to establish and justify a decision, the judges uses, in the legal field, extra-legal arguments, but it does not mean that the autonomy and identity of field being impaired. A theory of action based on human agents and rhetoric requires the retrieval of a classic debate in the social sciences, the perception of law as a field in which the individuals act with restrictions imposed by the structure of the field (and not as a system, in Luhmann’s conception), and the recognition that external influences can be thought as important contributions for the legal field. This proposal requires a different way of perceiving the relationships between law, politics and society.