Do pluralismo jurídico à pluralidade de direitos: uma construção não essencialista do direito.

Abstract

The present work aims to construct a theoretical perspective that allows to read the current phenomenon of the plurality of rights. Our working hypothesis was as follows: to pluralize the law we deny any possibility of defining a content given a priori to the law. We make it a point to point out that this hypothesis represents only a path and not the path. "To arrive at such a construction, we first chose to map the existing discussions. We draw what has been conventionally called modern state monism, produced from the theory of sovereignty. We read about its emergence, development and crisis. Therefore, such reading is limited by the chosen references. Next, we try to point out that the authors who deal with the crisis of state legal monism propose legal pluralism as the new paradigm in force, as the most appropriate to read the phenomenon of law nowadays. In this context, we produced a discussion about legal pluralism in the theoretical instance of the sociology of law, within the law and within sociology. We approach the question from the classics, ie, taking as reference the sociology of nascent law: Marx, Durkheim, Ehrlich and Weber. Soon after, we try to debate with more recent authors who work with the theoretical problematic of legal pluralism. We arrive at the following result: the authors worked, pluralize the law in constructing another criterion to distinguish what is right and what is not, and, differing, in this way, from those authors who work in the sphere of state legal monism. However, in producing such a distinction, they universalize the right from the criterion elaborated, so that they also postulate the existence of a single right, with a defined content, some forever. In this sense, the empirical research carried out in a favela seeking to study alternative mechanisms to state-level conflict resolution and perception of an essentialist construction of law from the "pluralist" authors discussed in this work led us to elaborate among other possible readings of what we call the phenomenon of plurality of rights, namely: a non-essentialist reading as a condition of plurality .