Direito, capitalismo e desigualdades: uma crítica à legalidade a partir da ADO nº 26/DF

Abstract

This research discusses the possibility of using the penal system as a tool for the genuine protection of fundamental rights, based on the decision taken by the Federal Supreme Court in case “ADO nº 26/DF”, which equated homophobic and transphobic conduct with crimes of racism. As main objective, it was intended to undertake a critical reading of the State, the Law and the Penal System, understood as concrete and contradictory social phenomena. The specific objectives were: to understand the development of the legal phenomenon in the capitalist mode of production, highlighting its concrete dynamics in the Brazilian context; investigate the decision taken in ADO nº 26/DF based on a criticism of the penal system; to observe the contradictions between the provisional face and the repressive face of the State, questioning the effectiveness of the solutions offered by the legality itself. As a research method, we sought to approach historical and dialectical materialism, integrating tools such as bibliographic research, analysis of judicial decisions and dialogue between the reflections produced throughout the text and some of the main socioeconomic indicators of the Brazilian reality. The main result achieved was the unveiling of the “theoretical common sense of jurists” about the researched objects, which made it possible to problematize the use of institutions that structurally reproduce exploitation, oppression and inequalities – such as the penal system – as tools for the protection of fundamental rights.