Liberdade de religião: um questionamento filosófico-dworkiano da prática do direito brasileiro

Abstract

This thesis proposes a philosophically based interpretation of freedom of religion in Brazilian law. Recognizing the complexity of protecting religion via a freedom right, interpretations are proposed that contribute to the intelligibility of certain legal and philosophical issues surrounding the theme of freedom of religion, reflecting on the context in which religion occurs and, at the same time, the practice of Brazilian law is consolidated. Thus, this thesis philosophically questions the freedom of religion, addressing it specifically in Brazil, taking into account the legal arguments consolidated within the scope of the Judiciary, through the decisions of the Federal Supreme Court, and, also, within the scope of the Legislative Branch, through the fundamentals underlying the proposition of certain bills. Based on the reflection made on these arguments and based on the theoretical proposals of Ronald Dworkin, it was intended to answer the following questions: is Ronald Dworkin's conception of freedom a proper normative conception to explain the practice of Brazilian law? Does his theory provide a good theoretical apparatus to reflect and problematize this practice? Questioning the practice from its theoretical assumptions, should freedom of religion be a special right distinct from freedom of conscience in the sense that Dworkin proposes that freedom of expression should be? What are the implications of an answer, negative or positive, to the previous question, for the following dilemmas of political morality under Brazilian law: tax immunity, free exercise and conscientious objection and religious education? It is noteworthy that such dilemmas were selected through the “chain novel” that was built by the detailed analysis of the STF's jurisprudence on the subject from the promulgation of the current Constitution. The answers to these questions make up a normative theory of freedom of religion, considering the role that religion plays in Brazilian law from the social-argumentative practice that it uses legally among us.