A incorporação do conflito no processo legislativo para a conformação do discurso de justificação da lei - um desenho institucional

Abstract

This research is shouldered by Legistics and Legisprudence, working under the premise that the positivation of Law must be founded on a discourse resulting from a deliberative process of will formation set on popular sovereignty. The scope of this research leads us to the theoretical formulations developed by Chantal Mouffe, who introduces to political and social philosophy innovative concepts on citizenship and on the circumstantial elements that lead citizens to engage in political activities. Taking inspiration from Carl Schmitt, she believes that collective actors constitute themselves politically through conflict and antagonisms – which she denominates agonistic pluralism – resulting from the pluralism of ideas and values that cohabitate in a heterogeneous society. The exercise of the political, to Carl Schmitt, is the exercise of the manifestation of hostilities who permeate human relationships, resulting from the multiplicity of citizens’ values and preferences – the hostilities create the political space. The political permeates life among humanity, establishing and reestablishing its way of acting. Based on Mouffe’s agonistic pluralism, and on Urbinati’s “agonistic model of deliberative democracy”, it is understood that the process of positivation of Law must incorporate conflict much more than consensus, at least immediate consensus, which is not always obtained through a democratic deliberation. The process of positivation of Law must reflect the complexity and social plurality, being open to the conflict resulting from disputes among multiple preferences and constituting itself as an effective locus of democratic struggle, inclusive public space, dialogic and contentious, receptive, therefore, to the passions of the exercise of the political.