A alopoiese da fundamentação jurídica: uma análise sistêmica das decisões do Supremo Tribunal Federal frente ao sistema social, econômico e religioso

Abstract

This Dissertation is part of the Constitutional Jurisdiction Research Line and Democracy of the Master's Course, with the New Paradigms of Law. The question that underpins this work is the possibility of identifying the occurrence of allopoiesis of Law in decisions handed down by the Federal Supreme Court. The research aims to analyze the application of a contemporary theory of Law, capable of adapting more flexibly to social complexity, breaking with the paradigm of classical legal theory proposed by Kelsen. Niklas Luhmann's Systemic Theory is thus presented, which propose an observation of society from a circular and systemic, enabling a more dynamic Law System suited to the current affairs. The Law System is proposed with the function of stabilizing the social expectations, which are filtered through a binary code - right/no right - and enter the system, starting to operate in a closed way through the its self-regulation, guaranteeing its autopoiesis. In the same sense, systems also have their cognition open, allowing a constant updating of the Law with society and other subsystems. The Courts are the bodies responsible for this update, also operated within the perceptual autopoietic and self-referential. However, in countries with peripheral modernity, like Brazil, it is observed that institutions frequently undergo interventions and influences from other systems, however, these interferences harm its autopoietic functioning, which ends up being corrupted by elements from other systems, since this information starts to operate within the Law, destabilizing the internal operability of the system and damaging its autonomy functional. This phenomenon is recognized as allopoiesis, which is characterized through from denial to the operational self-referentiality of Law. Four were studied decisions handed down by the Supreme Court with the aim of identifying the occurrence of this phenomenon, focusing research on the systemic corruption of Law caused by the interference of information originating from the Social, Financial and Religious, which will override arguments and interpretation of the legal order. The occurrence of allopoiesis of the Law System was confirmed when communications of a social and financial nature were used to support legal decisions, 11 not being identified when verified in the religious field. In that sense, despite Brazil being a country of peripheral modernity, it was observed that the allopoiesis, despite being confirmed in two analyzes is not a consolidated phenomenon and inherent to the decisions handed down by the Federal Supreme Court.