A evolução da Lei 11.340/2006 (Maria da Penha) à luz de postulados levinasianos

Abstract

Dissertation that investigates the compatibility of Levinasian ethics with the evolutionary interpretative aspects of Law 11.340/2006 (Maria da Penha), which broadened the meaning and scope in relation to the terms woman, violence, domestic, family, which we believe is compatible with the perspective of the face, as well as the postulate of justice as an action of the third party, debating on the lack of representation by the victim (woman subject to the condition of violence) in non-public crimes; the absence of option as to the withdrawal of the representation (withdrawal of the complaint) by the victim; the inapplicability, as a rule, of the conditional suspension of the process in these situations; the possibility of compensation for moral damages; the application of Law 11.340/2006 in cases of relationships beyond the marital one; the application of the Maria da Penha Law in situations involving trans women in homosexual relationships; the forms of domestic/family violence and, finally, the waiver of proof, by the victim, of having suffered the violence. These elements were presented as protective of the absolute otherness of groups that, historically, called for reception and change in the Brazilian ethical and political panorama about their demands, which we think is aligned with the understanding of justice in Levinas that goes through the evidence of an original inequality, an intersubjective dissymmetry that ends up noting the need to be previously responsible for the other, and there being in this posture the indispensability of justice. Therefore, the notion of justice in Levinas is founded from the notion of responsibility. In Levinas, justice is not a matter of functional effectiveness of the city, or of just measure of virtues; it is not an eminently practical problem of jurisdictional doing, but rather an ethical-moral doing due in any system of thought, whose basis is the unsubmissive otherness to ontology and this insubmission is based on the notion of Infinite and the Face, a safe path for responsibility in the relationship of otherness, as a counterpoint to intersubjective dissymmetry. Contrary to the said modernity in which the human and his capacity for knowledge are the criteria of determination of the other and the Others, which ended up in acts of violence to which activist Maria da Penha Fernandes was subjected. We think that the jurisprudence that remains, especially by the STJ, are elements of proof of this possible approximation between the Law and Levinas, in order to praise changes, and point out necessary criticisms, starting from an ethics of the human, as the first reason.