Acesso (e bloqueios) à justiça no Brasil: observações críticas a partir da potência crítica da Teoria dos sistemas

• Ano de defesa: 2020
• Autor(a) principal: D´Amico, Rafael Gandara
• Orientador(a): Guerra Filho, Willis Santiago
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Teoria dos sistemas; Acesso à justiça; Direitos fundamentais
• Palavras-chave em Inglês: Systems theory; Access to justice; Civil rights
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/23721

At least at the legislative and institutional level, after the 1980s and the 1988 Federal Constitution in particular, mechanisms were created and access to justice was expanded in Brazil. Whether in the law, guaranteeing rights never recognized before or reinforcing rights previously recognized, the Federal Constitution of 1988 is the paradigm of legal text that guarantees and reinforces rights. Thus, it was expected that, in addition to the arrival of citizens in the Judiciary, rights would be realized from such a movement. Not only that, it was expected that social transformation and overcoming inequalities would come from there. Nevertheless, expectations were dashed. The frustration of such expectations can be explained by the difficulties in implementing functional differentiation and the peculiarities of Brazilian peripheral modernity. The new systems theory, initially developed by Luhmann and developed by his critical disciples, in the form we chose to call the critical power of systems theory, is the best theoretical tool for diagnosing the impasses of the legal system in Brazilian peripheral modernity. Bringing Luhmann and Deleuze together, as well as other critical authors, such as Foucault and Luhmann's Brazilian critical disciples in Brazil, we can develop the critical power of systems theory. The critical power of systems theory carries a certain courage for the truth that makes it possible to treat law with the radicalism that the study of law in Brazilian peripheral modernity requires. In the face of Brazilian reality, systems theory has gained developments that go beyond more dogmatic readings of the theory that can restrict its critical potential. It is necessary from the limits immanent to the legal phenomenon, as well as observing what we call unfulfilled promises of the post-redemocratization right in the face of the social inequalities characteristic of Brazil in a way that is detached from dogmatic or idealistic theses. The inclusion / exclusion pair is a central concept so that we can explain the reasons why the law and access to Justice found limits for the realization of social transformation, pointing to the complexity of the law system. The hope remains that, once the limits of the law and the difficulties of peripheral modernity are recognized, we can suggest initiatives that are capable of tackling the complex framework aimed at achieving some improvements in the realization of access to justice and the realization of rights in Brazil