A (in)efetividade da tutela dos direitos das mulheres e a questão do aborto a partir do HC 124.306/RJ : contrapúblicos interpretativos e a busca pela resposta correta

Abstract

We can’t deny the political face of the law. Admitting this connection doesn’t mean saying that judicial decisions must be guided by moral theological judgements or that is possible to correct the law by moral, because this way we would be attacking the democracy. However, we can’t deny the value element that sustains the correct answers. From this premise, we seek in this paper to analyze the democratic potential of interpretive counterpublics aimed at the realization of the women’s rights and the control of deviations on substantiation speeches of judicial decisions that, even from principle matters, end up reproducing implicit stigmatizing discourses. The main problem that motivates the research consists in the following questioning: how the dynamic action of social movements contributes to the reflexive renovation/renewal of tradition in the search for correct answers to juridical questions, to the deconstruction of asymmetries in the larger public sphere and, finally, to the control of the linguistic-discursive basis of judicial decisions that enforce women’s rights taking into account intersectionality? From the use of the phenomenological-hermeneutic method, the intention is to sustain the following hypothesis: the chain-novel proposed by Dworkin must be hermeneutically unveiled in the tradition by the interpretative impulses of vulnerable minorities that are established dynamically in the interpretative counterpublics. So that his best construction would be given not only from the interpretative effort of the judges in create sustained speeches, but also when they validate the decline of social asymmetries, especially regarding intersectional claims. Therefore, the interpretive counterpublics, by making possible the continuous and democratic renewal of tradition, are limits to particularist judgements and capable of deconstructing a set of implicit discourses inherent to certain judicial decisions that, although based by principal arguments, in order to enforce rights, mostly recover the discursive foundation marked by the use of purely political arguments. To that end, the research technique employed involved indirect documentation, through bibliographic research in books, scientific articles and book chapters that contemplate the theoretical framework of Ronald Dworkin, Nancy Fraser and of indoctrinators that compose the academic movement denominated as Democratic Constitutionalism, with the purpose of adopting the theoretical framework the contributions of Bunchaft’s Democratic-Parity Constitutionalism. Finally, in order to demonstrate the applicability of interpretive counter-publicity, we use as prime example the critical analysis of the arguments used by Ministers Luís Roberto Barroso and Rosa Weber in HC 124.306.