Construção jurídica da subjetivação: a função democrática da participação social na definição jurídica de pessoa a partir dos debates sobre gênero e sexualidade

Abstract

From the standpoint of critical legal theory, the perspective of radicalizing democracy, and the investigation of same-sex marriage and transgender’s civil register change, this dissertation seeks to investigate how the process of subjectivation of the person can be democratized under Brazilian law. In the first part, I present the main criticisms of the role of law in subjectivation processes. I examine the democratic potential of the claim as a person from the possibilities of protection and accountability by legal grammar and participation in legal norms design. I also analyze the need to ground the legal process of subjectivation on essentialist characterizations of the person. In the second part, I start from contemporary criticisms over the immutability prediction of the person’s features within legal material. I also dialogue with the personal identity right and the right to a free development of personality to investigate the possibility of a continuous process of legal subjectivation. Lastly, I argue that the greater the social participation in the legal decisional spaces, the more democratic the subjectivation process will be.