Revista Eletrônica do Curso de Direito da UFSM (2020-05-01)

THE LEGAL HERMENEUTICS IN HANS KELSEN AND THE CRIMINALIZATION OF HOMOPHOBIA AND TRANSPHOBIA

  • Samuel Mendonça,
  • Luiz Felipe Mendes Juliano

DOI
https://doi.org/10.5902/1981369439078
Journal volume & issue
Vol. 15, no. 1
pp. e39078 – e39078

Abstract

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This research has as object of study, in light of the legal hermeneutics in Hans Kelsen, the judgment of the Direct Action of Unconstitutionality for Omission 26 and Writ of Injunction 4733 that dealt with the criminalization of homophobia and transphobia in the Supreme Federal Court. The first moment of this research takes place with reviewing the literature in national and international research platforms. Furthermore, Kelsen’s books and his main national commentators are also studied, especially Fábio Ulhoa Coelho and Tercio Sampaio Ferraz Júnior. The second moment of bibliographical research is a case law analysis, a case study focusing in that specific judgment. With the analysis of all these works it is possible to formulate the question that inspired the inquiry: are there elements of Kelsenian legal hermeneutics that explains the judgment of the Supreme Federal Court concerning the criminalization of homophobia and transphobia? Therefore, taking as base the analyzed texts, it is possible to point out an affirmative response from the obtained results.

Keywords