A decisão judicial e o “micrototalitarismo”: uma leitura a partir do referencial Arendtiano.

Abstract

This investigation's central point is the possible micro-totalitarian character of the legal decision-making in Brazil; it aims to understand what it could have in common with ‘Totalitarianism’, an event that took place in the 20th century and is regarded by Hannah Arendt as the most important of her time. The hypothesis that orients this investigation is that the legal decision-making in the mass society (20th century) has a micro-totalitarianism profile, according to the political thinking of Arendt. The term ‘micro-totalitarianism’ does not appear explicitly in the writings of this political thinker, although it is possible to be interpreted on her reflections. We notice some common grounds: the intention of the dominion of individuals through the ‘correction’ of the past and the determination of the future, the usage of logical thinking, and the blank space from the suspension of the order. It is so due to the events that took place in the Modern Era (21st century), such as the Discovery of the New World, the Protestant Reformation, and the Industrial and Scientific Revolutions, which, by altering the concept of subject, made possible the kickoff of the process of property accumulation, not as a place in the common land, but as wealth. The State has guaranteed the process of accumulation. These alterations gave origin to the mass society (20th century), characterized by the atomization of the individuals, making them ready to join Totalitarianism. The Law is the instrument of the State that guarantees the processes, yet there are Political Letters formally committed to the diminishing of inequality. The Law’s answer to the demands, which is the decision, does not aim to satisfy the vital process of the human metabolism (labor), or to be the political action that origins the novelty (action), because it does not ascend to the public space, in which men distinguish themselves through their accomplishments and their words, in the plurality. It occurs in the isolation of the homo faber (work), in conformity to a model. In the Brazilian Law, it occurs due to its structure, function, and its “means”. In other words, in the perspective of the Law that is practiced, from what can be observed in the legal practice - which is the perspective of this study. But as Hannah states, the man is the one that, being born, is placed right in the gap between past and future, being able to create novelty through action. In this sense, in spite of the instrumental bias of the legal practice, it must cease being solely the about the laws, but the organizer of the common living.