Direitos fundamentais e a democracia agonística: considerações jurídicas sobre a teoria política de Chantal Mouffe

Almeida, Leonardo Monteiro Crespo de

doi:10.1590/2179-8966/2019/42298

Rev. Direito Práx.

2020

DOI: 10.1590/2179-8966/2019/42298

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Direitos fundamentais e a democracia agonística: considerações jurídicas sobre a teoria política de Chantal Mouffe

Leonardo Monteiro Crespo de Almeida

Abstract: Resumo O objetivo principal deste artigo reside em articular a ideia de democracia agonística desenvolvida por Chantal Mouffe e uma noção abrangente de direitos fundamentais. Pretende-se, deste modo, ressaltar mecanismos de institucionalização que promovam limites e referenciais para o conflito de perspectivas políticas ao mesmo tempo em que se rejeita qualquer fundamentação última e transcendente para as práticas democráticas.

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2021

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Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

Mańko

2021

Law Critique

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The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

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Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

Mańko

2021

Law Critique

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Direitos fundamentais e a democracia agonística: considerações jurídicas sobre a teoria política de Chantal Mouffe

Cited by 1 publication

References 11 publications

Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

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