Uma crítica à ética da tolerância como neutralidade axiológica e algumas consequências para o direito brasileiro

Abstract

The following work, pursuing the research line on "Constitucional Jurisdiction and Realization of Fundamental Rights and Guarantees" of the FDV Master in Laws on Fundamental Rights and Guarantees program, aims to criticize the toleration ethics as axiological neutrality, demonstrating the contradictions of conceptions that are skeptical on the moral plane, but simultaneously defend specific, substantial and non-neutral normative perspectives. Also, the work aims to apply this criticism to the Brazilian law, showing that it is also not neutral axiologically, from the example of the limits of political pluralism in the CRFB/88. The method used is dialectical, in the sense of constant contrast of ideas, seeking to depurate the most the conclusions reached. In the first chapter there is the presentation of tolerance and democracy ideas as axiological neutrality, from the concepts of these three authors: João Maurício Adeodato, with his rhetoric of tolerance; Hans Kelsen, with his skeptical view of procedural democracy; and Norberto Bobbio, also with the defense of ethical skepticism and procedural democracy. In the second chapter, the work proceeds to the criticism of the ethics of tolerance as axiological neutrality, with the following subchapters: the first discusses the need for limits to tolerance; the second presents a critique of the liberal idea of ethical and political neutrality, primarily from the communitarian Michael Sandel, also relying on the thought of Carl Schmitt and Chantal Mouffe; the third subchapter discuses the possibility of neutrality in moral and politics in a phenomenological perspective; the fourth subchapter shows the Gadamerian critics to the attempted neutrality of Habermas Proceduralism; and finally, there is the conclusion of the second chapter. In the third part of the dissertation, which is identified with the third chapter, it is proposed an application of the conclusions reached in the previous chapter to the Law, analyzing if the Brazilian law express or not an axiologically neutral and totally tolerant perspective, from the example of the limits of political pluralism in the Constitution of 1988. Thus, the first subchapter demonstrates the importance of the Constitution in the ethical framework of a society; the second subchapter presents a concept of political pluralism and also shows how it appears in the Constitution; in the third subchapter, the essential ethical traits of the Constitution are studied, especially regarding the economy and some important fundamental rights, which may involve substantial limits to political pluralism; the fourth subchapter discusses some limits that the Constitution imposes on freedom of expression; and finally the fifth subchapter presents some multiparty limits, also according to the Constitution. At the end of the work, a section is dedicated to its closing, concluding that all normative perspective, since it is not totally anarchic, always presents some trace of non-neutrality and intolerance, giving priority to certain beliefs, interests and values; furthermore, Brazilian law is not totally plural and tolerant, and could never be, as it favors some views of what good life is and, consequently, rejects those that are opposed to it.