Paternalismo jurídico na constituição de 1988: A autonomia individual contra o autoritarismo estatal

Abstract

Taking as theoretical premises the political liberalism and the inner bounds of state action, this study aims to be a contribution to the critics of legal paternalism, as it brings to the current constitutional debate a still barely studied category. Legal paternalism exists if a state official influences someone to practice or to avoid conducts that could cause harm to self through government actions. Since the Constitution of 1988, fundamental rights- especially autonomy- have been taken seriously again. Gradually, the controversial moral issues have reached both the media and the Courts, requiring from interpreters a new hermeneutics. The moral reading of the constitution is the interpretative method which brings political morality to the center of Constitutional Law. As the Constitution of 1988 is built upon a highly abstract language, it is necessary to resort to abstract moral principles, which are used as limits to the powers of State. In a word, it is necessary to develop a moral reading of the Constitution which consecrate the main principle against paternalism: the State owes to each and every person equal respect and concern as autonomous rightsholder.