A INFLUÊNCIA DO DIREITO CANÔNICO NO DIREITO DE FAMÍLIA BRASILEIRO CONTEMPORÂNEO

Abstract

Through a historical and legislative trajectory, we perceive that the Catholic religion, in addition to having influenced culture and politics in Brazil, has filled a normative and theoretical vacuum with regard to the formulation of our legal system, being remarkable the existence of principles, values and moral aspects derived from Canon Law, having been incorporated by the State, grounding the production of norms, even implicitly, that remain in our legal order, contemporaneousness. Thus, having originated from the Catholic religion, the Brazilian family law developed parallel to it, and the regulation of family relations is based on guidelines from Canon Law, which justifies the content of our Family Law, rooted in Catholic Christian morality. In view of this delimitation, through this research, we propose to analyze the influence of canon law on contemporary Brazilian family law, based on some questions raised, with the concern of presenting a theoretical reference that could fudar and direct responses presented, in relation to the configuration of the public sphere in Brazil, in the context presented. Based on this assumption, we examine the translation and inclusion of religious contents, linked to canon law, in the public sphere of family law in post-secular Brazilian society, marked by a persistent religious pluralism and multiculturalism of ideas and convictions, in the which refers to its meaning, limits, impacts, modalities and implications. In addition, we oppose the political integration between Catholic and secular citizens, in the context of public debate, on controversial political issues, concerning the new formation of existing families, regarding the expansion, effectiveness and respect for their fundamental rights, which collide with the principle of religious freedom and the world view of religions. Finally, we present a solution to the normative deficit of post-secular societies, such as Brazil, characterized by the pluralism of life forms. To that end, we discuss the concept of public reason, proposed to respond to the problem of political integration between religious and secular citizens, in the context of the public sphere, presenting the proposal of Rawls, Proviso, and also the proposal of Habermas, the translation cooperative of religious contents. In addition, we examine the concept of tolerance, as a form of social integration, presented by Habermas. At the end of the present research, we could perceive that, in the context of conflicts arising from contemporaneity, the issues to be raised are not linked to the presence of religion in the public sphere, and the great challenge is to rethink religion, with the understanding of that values, principles, culture and identities must be articulated with democracy, plurality and fundamental rights, seeking to achieve justice, which requires legitimacy to be established. For this, it is essential that the identities of the people involved be confirmed and renewed in the public debate, which will make them feel belonging to the society of which they are part.