O dilema democrático e seus reflexos no campo jurídico brasileiro: um debate sobre o direito a liberdade de expressão

Abstract

This work pretends to address the democratic process and freedom of expression from the perspective of the conflict. Thus, some concepts will be studied: legal field, democracy and freedom of expression. Through a literature review and documentary analysis, check how the legal field works and how its agents use the legal instruments as a way of maintaining the established order. In this scenario, the right to freedom of expression will be used as a way to display how these theories are applied and verified in the concrete environment. As a general goal, it purports to demonstrate, through the right to freedom of expression, the idea of conflict as a builder of a more democratic society. Specifically, it is intended to differentiate the consensus democracy concepts of democracy and conflict; make an analysis on freedom of expression as a key issue for building democracy; explain the features and hegemonic against hegemonic within democracy. Regarding the chances, first, that Brazilian society still has a difficulty in recognizing the instruments of social struggle, especially those who use the public expression of political dissent; second, that the legal field, in Brazil, lives a strong tension between progressive ideas and conservative ideas, which is clearly depicted by the decisions of the judicial authorities; and, finally, that the Brazilian State is still largely dominated by ideology and symbolically authoritarian instruments, which are still present within the institutions and undermine democratic experience. In recent times, especially in begin of the XXI Century there was a great questioning of concepts and structures that traditionally make up the State especially when it comes to formal representation and construction of public policies. In several, Western countries and some Eastern emerge movements that challenge traditional forms of government and how these people have been represented in social policies, such as Los Indignados and Occupy. It was considered necessary the study of this tension that occurs between the forces acting in society due to the intensification of demonstrations, including Brazil. So the study versa when analyzing the interaction of these forces and their legal struggles, whether in political or legal environment. Historically, the ruling classes were ahead of the economic and social decisions, including using the symbolic violence and ideological creation in order to transform it into general will and the idea of the common good. The creation of hegemonic discourses contributes to the maintenance of the dominant power and a hierarchical structure. In this sense, the production that takes place in the legal field contributes to the perpetuation of certain logic and own speeches this field, featuring the forces that structure and the way we produce. It is in this tense political scenario that will examine the effectiveness of the democratic construction, when the existence of a conflict, the right to freedom of speech is the first to suffer restrictions.