Judicial decision, authorship and legal meaning: empirical communicativist research on the right to house arrest for pregnant women and mothers of children up to twelve years old

Abstract

Law nº 13.769/2018, upon altering the Code of Criminal Procedure, regulates house arrest for pregnant women or for mothers responsible for children or the disabled. This research was dedicated to observing the construction of juridical meaning in the context of a very exceptional situation by way of Habeas Corpus (HC) in the appeal for house arrest in cases of pregnancy and imprisoned mothers with children less than 12 years of age. This demarcation has led us to a set of 122 decisions by the Supreme Justice Tribunal (STJ) and 3 by the Supreme Federal Court (STF), all sentencing having occurred between December 20, 2018 and December 19, 2019, representing the first year of validity for Law nº 13.769/2018. The decisions were collected from the electronic sites of the STJ and STF, using the following entries for searching: “13.769”, “situation” and “very exceptional”, “remand” and “house arrest”. The data was distributed onto an Excel spreadsheet and analyzed under the theoretical-methodological perspective of communicativation. The analysis treated methodological elements applied in empirical research on sentencing and the construction of juridical meaning and authorship, where rapporteur, vote and unanimity were not taken as transmitters of information and decisions, but as pertaining to wordings. The study made viable reflections that indicate the necessity for distancing from causal logic, at the same time promoting the application of reflexive circular logic, as proposed by the communicativationist perspective. What one stresses here is the impossibility of empirical research on juridical decision without transdisciplinary reflection. As for juridical meaning, we observe that it is not suited to a fixed meaning, but rather a constant process of construction, reconstruction and deconstruction of meaning. Observation reveals that three deliberations (drug trafficking at the residence, noncompliance with previous house arrest and participation in organized crime), having induced the construction of meaning in the direction of a very exceptional situation, are not contained in the legal text, nor in any judicial precedent, independent of their first-time application, non-application or reapplication. Finally, as a result of observing that within the same proceedings the same minister, whilst rapporteur votes for house arrest and whilst not rapporteur votes against it, we consider that it is not fitting to maintain authorship as though it would be responsible for the establishment of meaning. Preceding this, the juridical meaning of something is made and unmade due to juridical communication itself, not due to the author. The study, with these contributions, reveals how important and necessary it is to develop methodological and epistemological reflections about studies on juridical decision.

Keywords:
incarceration; House arrest; Legal decision; Systems theory; Comunicativation