Juridical pragmatism bringing themis and eros closer: The sentiment of the supreme federal court in ADFP 54/df

Abstract

Throughout its history, western thought and, especially, juridical thought have privileged reason over sentiments. This can be explained by the fact that reason has been based on invariability and eternity, whereas sentiments have been pictured as manifestations of inconstant and deceptive nature. Therefore, most contemporary
views of approaching legal norms and the attitude of its users do not give sufficient attention to the influence of sentiments in the constitution of normative prescriptions, nor even take into consideration the influence of sensorial experiences in the process
of making a juridical decision. However, the present article examined in detail the arguments used in the votes of the ten ministers of the Brazilian Supreme Federal Court (STF), during the judgement of the Claim of Non-compliance with the Fundamental Principle (ADPF) 54/DF, procedure which recognized the unconsitutionality of
the interpretation whereby the interruption of pregnancy of an anencephalic fetus would be a motive for abortion, a behavior typified in articles 124, 126 and 128, paragraphs I and II of the Penal Code. The objective of this study was to analyze the decision of this emblematic case from a pragmatic and contextualist point of view, trying to identify the relevant role of sentiments as a basis used by the ministers of the STF when deciding hard cases. In what concerns the methodology used, the ADPF 54/DF was chosen because it gives three interesting characteristics: (1) touched on a polemical question, causing strong social and political controversy and having a decision which motivated a large literary production; (2) The STF, the highest court of appeal in Brazil and which is responsible for the nterpretation of the Constitution, decided against the literal transcription of the enal Code; (3) involved a non-unanimous decision, with significant divergences of argumentation, contrasting foundations, significant emotional burden, uncertainty and confusionwhen considering technical-scientific, ethical-moral, philosophical, religious and legal terms, all of which led the Court to consult specialists in diverse areas. In that way, it is seen how the Supreme Federal Court brought the sphere of sentiments into harmony with that of juridical dogmatics by applying a pragmatic method, using the experience of women carrying anencephalic fetuses as an argumentative basis, as well as the polemics coming from the Direct Action of Unconstitutionality (DAI) 3510/DF, interdisciplinarity with other areas of knowledge (medicine, psychology, religion), prudence and equity, while, on the other hand, freeing itself from the literal application of the law