“Virtue, honor and punishment” in jury court: a study of the ADPF 779/STF in the light of Neil MacCormick’s Legal Argumentation Theory

Abstract

The present study aims to understand, within the context of the Brazilian Democratic Rule of Law, to what extent the decision rendered by the Federal Supreme Court (STF) in ADPF 779 — which declared the unconstitutionality of the “honor defense” thesis — proves to be adequate in light of Neil MacCormick’s Theory of Legal Argumentation. The topic was investigated through bibliographical and documentary research, adopting a qualitative approach to comprehend the cycle of construction, consolidation, and rejection of the “honor defense” thesis in cases of femicide, analyzing the meanings and contexts of the arguments used in jurisprudence. To this end, the study presented the interpretative foundations of MacCormick’s Theory of Legal Argumentation, considering its relevance for justifying judicial decisions in cases involving interpretative problems in law. Subsequently, as an interpretative issue, it explored the process of consolidation and later rejection of the “honor defense” thesis in Brazilian jurisprudence, arising from the interpretative conflict surrounding the legal concept of self-defense and the guarantees of full defense and the sovereignty of jury verdicts. Finally, the study assessed the soundness of the decision, analyzing whether the linguistic, systemic, and teleological-deontological arguments presented in the ruling and by the justices adequately justified the adopted position, based on MacCormick’s criteria of universality, consistency, coherence, and consequence. Ultimately, it was concluded that the decision proved to be universal, coherent, and consistent, considering the consequences of accepting or rejecting the opposing interpretations.