Ativismo institucional e estrutural: o Direito como microfísica de poder

Abstract

This dissertation studies legal activism from its own perspective, as a microphysics of power. The aim is to overcome the field of observation that restricts it to the Judiciary, to encompass legal decisions in general and, more specifically, those arising from State careers, which instrumentalize Law as a form of defense and imposition of life projects. Given the reiteration of potentially activist legal decisions, the topic is very popular and its importance naturally arises from the harmful effects of legal activism, which, in addition to the injustice caused to the parties in dispute, degenerate the Law and, ultimately, put it at risk democracy itself. By focusing on the causes of the phenomenon, the aim is to detect its intimate relationship with the society of control, surveillance capitalism and violation of privacy; identify how and for what reason legal activism manifests itself in its structural and institutional forms; as well as cooperating for an efficient treatment of the topic, in addition to reviewing decision theory. In the research, eminently theoretical, it is argued that legal, structural and institutional activism corrupts the Law. Technologies of power have always been present in some way in the history of humanity. While in disciplinary societies the panoptypist logic presupposed, for the constitution of knowledge, the gathering of people in concrete architectures, in the control society deep and constant observation does not require a physical locus for the introjection of projects of domination. The virtualization of life allowed capitalism to develop in the form of surveillance, so that the most powerful political and economic groups traded behavioral predictions as commodities. The encounter of the solipsistic and anguished subject, typical of postmodernity, with the virtual offers of markedly provisional news, leaves the door open for the invasion of privacy to become normalized on gadgets, search engines and social networks. Fictional observation, worthy of Nineteen Eighty-Four, guarantees the extraction of an infinite volume of private data, the treatment of which improves behavioral predictions. The market, then, sells charming personalized life projects, whose adherence is externalized in the Law and against the Law, in the form of legal activism, whether institutional or structural, according to agent and field. Law, used as a tool to defend one's own interests, becomes a site of microphysics of power. To interrupt the vicious circularity, it is necessary, concomitantly with updating the philosophical bases of Law and reviewing the decision theory, to ensure that Law operators, especially members of State legal careers, are at the very minimal willing and able to resist the promises of new consumer innovations, improving public entrance exams and monitoring the respective continuing education actions, as well as ensuring that their own careers are not constantly subject to external pressure