Constitucionalidade social

• Autor(a) principal: Teixeira, Mateus Schwetter
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/139054
• topic: Criminalização da homofobia; Direito constitucional; Direitos LGBTI+; Direitos das minorias; Kelsen; Criminalization of homophobia; Constitutional law; Minority rights; LGBTI+ rights; Kelsen.; Direito

The objective of this paper is to propose a theory of Social Constitutionality that legitimizes the STF's interpretation of the rights of the LGBTI+ population, in the face of a legislative stoppage, based on the demands of social movements. In view of the Brazilian panorama, as the country is common law, it is expected that rights are created by laws in Congress. However, with the strength of opposing movements, these rights are conquered by decisions of the STF, leading to a country specificity in which there are advances in rights, without advances in legislation. This is not judicial activism, but a constitutional interpretation by the STF. The work will be divided into three chapters. In the first chapter, whose methodology is a literature review, concepts developed by Kelsen in two studies will be analyzed, namely: The problem of Parliamentarianism (1924) and Who should be the guardian of the Constitution? (1931). Kelsen's first study focuses on the concepts of majority and minority in Parliament, as well as the concept of compromise, which consists of moving away from what divides them and uniting what brings them together. In the absence of commitment, in order to find an answer, Kelsen's second study will be analyzed, with a focus on constitutionality control, the political role of the Constitution and the rights of minorities. In the second chapter, whose methodology continues to be a literature review, Brazilian constitutionality and the theory of Democratic Constitutionalism, by Reva Siegel and Robert Post, will be confronted. This theory analyzes the relationship between social movements and constitutional courts, but in a common law context, so an adaptation to the Brazilian scenario will be necessary. In the third chapter, whose methodology is, in addition to literature review, also data analysis and case study, a critique of the classical liberal theory of parliamentary representation is proposed, based on new theories that consider social movements as representative. The history of the LGBTI+ social movement in Brazil, which began in the 1960s, will be analyzed. Statistical data and metadata about the life of the LGBTI+ population in the country will be analyzed. A case study - a leading case of the Supreme Court on the criminalization of LGBTphobia - will show the consolidation of the activity of social movements, which claim rights enshrined in theory and denied in practice. Finally, at the conclusion, a purposeful agenda for the LGBTI+ movement will be carried out. The study is relevant to demonstrate that the interpretation of rights by the judiciary based on the provocation of social movements is legitimate, since representation does not only occur in Parliament: social movements can be considered as representative as well.