O conteúdo moral na fundamentação decisória do STF: o caso da criminalização da homofobia e da transfobia

Abstract

This doctoral thesis addresses the moral content in the Science of Law and in the context of legal grounds of the Brazilian Supreme Court (STF, Supremo Tribunal Federal). It was stipulated as a pragmatic object the Direct Action of Unconstitutionality by Omission no 26 ADO (Ação Direta de Inconstitucionalidade por Omissão) no. 26 , which defined the criminalization of homophobia and transphobia. The said demand was chosen because only through empirical investigation is it possible to determine the moral content of the legal norm and its scope, aiming to objectify it. An hypothetical-deductive analysis was carried out, in which this legal action appeared as representative for the exploration of aspects associated with a legal-constitutional morality, mainly due to the nature of this demand. Hence, the exploration of normative moral content presupposes the analysis of a specific case, through hermeneutic exercise, by applying evaluative and ethical judgments in a legal foundation, in which the judge exercises their argumentative function on legal norms with axiological weight derived from the Federal Constitution itself. In other words, it pertains to constitutionally recognized morality. The general objective is to understand how morality can be addressed by the Law, according to the rationale of the judgment in ADO no 26. The specific objectives include the discussion of the theoretical premises surrounding morality and Legal Science, the elucidation of the problematic nature of normative interpretation of rules and principles, along with an examination of the difficulties in the relationship between the Legislative and Judicial branches regarding the criminalization of said discriminatory behaviors. Furthermore, there is the verification of parliamentary omission until the judgment of ADO no 26, with data on normative projects regarding the subject and the analysis of the STF stance on moral issues in this constitutional action. The work is divided into three chapters, in which it was explained about the association between Law and morality and its impact on ADO no 26, the reasons for legislative inaction were analyzed, indicating that this motivation is linked to the evaluative content associated with the action, further delving into the deliberative role of the STF, according to its institutional design at that time. The research was conducted using the following methods: descriptive-dialectical, empirical-deductive, and decision analysis method. A Information Base (appended) was developed, in which the main progressions and foundations of ADO no 26 were grouped and systematized. The novelty and originality of the research stand out in terms of the approach to the subject, given the absence of studies on the

8

correlation between morality and Law from an effectively empirical and hypothetical-deductive perspective. From this investigation, it was possible to establish inferences, parameters, guidelines, and proposals regarding the role of the STF in the interpretation of norms of moral nature, and thus, contribute to the general theory of Law concerning the incorporation of morality as a topic of regulatory importance. In the conclusion, it was understood that this demand is paradigmatic for understanding that the highlighted moral arguments should radiate throughout the entire Brazilian legal system, and also because it promotes a reconfiguration of the intersection between two forms of knowledge. The understanding of the principles of freedom and equality in the national reality was deepened, and the effects of the ADO were applied in an unprecedented manner (in a general concretist approach), by investigating an unconstitutional legislative omission.