Vulnerabilidade e direito: tensionamentos epistemológicos para (re)pensar a pessoa humana

Abstract

Adhering to the area of concentration on the constitutionalization of law in the line of research on the effectiveness of fundamental rights and their impact on social and business relations, this research discusses vulnerability as a category in the legal field. The research is based on the following question: in what way has legal epistemology failed to recognize vulnerability in the human person? To answer this question, using bibliographical research, Judith Butler's studies were adopted as a theoretical contribution. Her analysis recognizes vulnerability from a bodily ontology of the human being but also identifies the existence of an unequal distribution of this vulnerability that leads to the precariousness of specific lives. Considering that the principle of dignity has occupied a central place in contemporary constitutionalism, the study of vulnerability is contrasted with the legal representation of the human person. The itinerary developed made it possible to show that the hegemonic conception of the human person, because it is based on a liberal rationality, has failed to recognize vulnerability. Under this logic, the intrinsic dependence of the human person on others, institutions and the environment are not considered, due to an understanding in which every person is independent, rational and autonomous. What's more, by defining a framework of intelligibility, it assigns certain bodies to precariousness, to a life devoid of human status. Judith Butler's theory contributes to highlighting the need to adopt a counter-hegemonic conception of the human person that recognizes ontological vulnerability and, consequently, the importance of care in the public sphere. The view of vulnerability as passivity has been overcome, since, for bodies in precarious situations, this condition implies resistance, especially when used to claim that the law should be an instrument of emancipation in favor of the dictates of social justice.