Pensando a inclusão-excludente do direito: uma reflexão sobre a inclusão jurídica dos sujeitos neurodivergentes a partir da obra de Giorgio Agamben

Abstract

This study investigates, through the philosophy of Giorgio Agamben, particularly Homo Sacer I and State of Exception, the ontological limits of law as it is constituted in the Western tradition. Beginning with an analysis of the exception as the foundational operation of Western legal-political rationality, this research demonstrates that law functions only through the production of structural dichotomies, such as inside/outside, normal/abnormal, able/disabled. Historically, these dyads recur across different dispositifs. The distinction between “exception” and “state of exception,” as developed by Agamben, reveals that the capture of life by the norm is not accidental but constitutive of law itself. In dialogue with Michel Foucault, the study examines how biopolitics modernizes this structure through the differential management of life, shifting the paradigm from physical exclusion to a mode of exclusive-inclusion. Within this context, it critically analyzes Brazilian inclusion legislation – the Decree No. 6.949/2009), the Berenice Piana Law, and the Brazilian Law for the Inclusion of Persons with Disabilities – showing that, although these norms expand rights, they continue to operate according to a logic of “inclusive exclusion”: they include by distinguishing, protect by classifying, and recognize by capturing. The study concludes that, due to the very ontological structure of law, no internal solution to the problem of the exception is possible. Any genuine overcoming would require an “other law,” no longer grounded in normativity or separation, but in the possibility of a common use of life and language.