A afirmação dos direitos da mulher e a efetividade jurídica nas relações familiares

Abstract

The objectives of this dissertation are to present the legal development of women s rights and discuss its effectiveness within the Family Law. The juridical effectiveness becomes the core of this study, after describing the period in which there were women claims and the women s rights assertion, both in the international and national/regional levels. It must be emphasized that women s participation in society is indispensable for the social development, for human rights accomplishment and for the establishment of the democracy. Therefore, this theme has been chosen after reflecting about the Women s legal situation in Brazil, where, so far, women have occupied a secondary role, both in the public and private spaces. Is there efficacy of women s rights in the Brazilian society? Is the growing effectiveness of the female rights barely an apparent process or is it real? How can equality be provided in an uneven society without passing from discriminated to biased subject? These questions constitute the object of the present inquiry. The analysis of the jurisprudence, especially of the twenty sentences collected in the Revista dos Tribunais (Magazine of the Courts), from 1989 until 2006, is guided by the principle of the equality. Its content is based on three principles: the equality, proposed by Celso Antonio Bandeira de Mello; the inequality compensation, according to Gomes Canotilho, and the battle against the discriminations that generate inequalities, in accordance with Boaventura de Souza Santos. The criteria for the comprehension of the principle here presented are: the constitutional examples, the concepts predicted in International Treated of Human Rights and the interpretation and application of the Law proposed by Eros Roberto Grau, which is presented in the conclusions. The method used in this dissertation is the analytic inductive one. Through these instruments, it can be concluded that the legal effectiveness of the women s rights, in the Right of Family, is a real process and it is being expanded in the Brazilian Courts, although, as a rule, they do not mention as their foundations the constitutional principles nor the treatises of human rights. As minority tendency implicit and in decline it can be noticed the maintenance of the social functions attributed to the men and to the women in the family, in other words, the stereotypes of father supplier and affectionate mother are still present in the decisions, although in a smaller scale. The legal effectiveness of the women s rights does not impair men, on the contrary, the equality diminishes the family burden for the male sex and represents a social advancement without precedents, because it recognizes the dignity of the human being as a person and enables a greater social improvement. Therefore, nowadays, the claims and conquests of the women s rights are transformed in a continuous challenge for the legal effectiveness, which is related to human rights and development