Democratic state of law as a structuring principle and the defense of administrative morality
Revista de Direito Constitucional e Internacional do Instituto Brasileiro de Direito Constitucional (IBDC) – Revista dos Tribunais, v. 29, no. 128 (October/December 2021) Authors: Prof. Dr. Nuno Morgadinho dos Santos Coelho and Arnaldo Rodrigues Neto.
1. THE DEMOCRATIC STATE AS A CONSTITUTIONAL PRINCIPLE STRUCTURING ADMINISTRATIVE LAW
In order to correctly understand the proposed theme, it is necessary to make a digression so that it can be truly understood in its entirety.
From the 1940s on, especially after the end of World War II, new needs within society emerged and, likewise, Law needed to evolve towards its consolidation by means of a normative constitutional administrative system, called constitutional matrices.
These matrices arise through systems of constitution that have specificities particular to public administration. They can be conceptualized as constitutional rules that form the legal-administrative regime. Through them, it was possible to begin the construction of the conception of the legal-administrative regime, more adequate and related to the normative structure, accompanied by the normative-axiological construction of the structuring principles.
From this reading, an attempt was made to overcome the traditional paradigm that legitimized the legal-administrative regime in the interest of all, which arose from a system of vertical powers and without symmetry of the Public Administration.
In this way, through the structuring foundations, the logic of the constitutional normative arrangement was sought, based on the Constitutional State of Law, evidencing three structuring principles:
a. Dignity of the human person;
b. Democratic rule of law; and
c. Republican Principle
Canotilho (2003, p. 1173-1174) defines structuring principles as “legal-constitutional beams of the legal status of the political”, the fundamental normative guidelines, constitutive and indicative of “the basic directive ideas of the entire constitutional order”.
Thus, the structuring principles concretize other principles and rules, capable of illuminating “their legal-constitutional and political-constitutional meaning, forming, at the same time, with them, an internal system” (CANOTILHO, 2003, p. 1173-1174).
On the other hand, the discussion of the democratic rule of law as a structuring principle is based on the paradigm that arises from democratic public administration with social participation in the decisions and efficiency of the public machine.
2. THE DEMOCRATIC RULE OF LAW AS A STRUCTURAL CONSTITUTIONAL PRINCIPLE
There are many democratic theories that attempt to explain how the current sociopolitical context came about, further aggravated by the COVID-19 pandemic. This fact rules out the most critical approaches, leaving only the most theoretical relations, relevant to the debate about the legal-administrative regime that the present study is focused on.
As mentioned before, after the Second World War, it was possible to observe the emergence of movements that sought to constitutionalize Administrative Law, dealing with a greater refinement of the instruments of combat and social transformation. As exponents of these movements with more pertinence to the present study, we highlight:
a. Democratic theories according to Paulo Bonavides (2003): they seek to explain the complex current sociopolitical context through a comprehensive discussion;
b. Ideological-constitutional component: an instrument that helps in the commitment to social transformation. For Bonavides, this instrument should be placed alongside the social state as precepts of democracy, freedom, and development. The enslavement of the media by capital is a point that deserves attention in the author’s theory, because it is one of the obstacles that prevent the achievement of a participatory democracy.
c. For Bonavides, the social and democratic State of law, in its construction, needs to break with the exclusionary practices characteristic of neoliberalism, an obstacle to material democracy.
d. The movements of the globalizing opening are necessary because of their pretensions of building a new model of globalization, a universally conscious globalization with respect for differences and human dignity: “A possible utopia where technologies do not serve to enslave people and feed the rapacious market, but that they are libertarian and emancipatory instruments of the human being” (SANTOS, 2001).
Therefore, it is evident that, after a global reading of the political and sociological aspects, it is necessary for the law applicator to analyze the current theories of democracy, so that it is possible to debate the Democratic State of Law and its normative-constitutional content.
3. THEORIES OF DEMOCRACY
When dealing with the Theories of Democracy, one notices that the doctrinal convergence is based on the agreement that it is “a framework under constant construction”, leaving the definition of models and theoretical conceptions to each doctrinaire. Thus, it is believed that Canotilho’s division is the best for didactic reasons:
a. Pluralist-democratic theory
b. Elitist theory of democracy
c. Ordo-liberalism’s theory of democracy
d. Normative theory of liberal democracy
e. Normative theory of republican democracy
f. Normative theory of deliberative democracy
g. Normative theory of discursive democracy
h. Normative theory of corporatist democracy
i. Minimalist conception of democracy and
j. Electronic Democracy
Pluralist theory believes that the process of democratic will formation is not in the people, nor in the notion of an abstract individual, as in liberal theory, it is in groups resulting from social interactions. Political decisions are the reflection of and response to the interests of such groups. As for the criticism, it is important that the groups do not have equal political influence.
The elitist theory of democracy starts from a precept of democracy that has it as a means of obtaining support from the population, through domination for the exercise of power, the moment when the governed can decide through the vote “which competing elite should exercise power” (CANOTILHO, 2003).
Criticism of this theory is based on its opposition to other models of active popular participation in choosing political decisions. Besides this, it goes against the precepts of the social and democratic rule of law, based on the set of fundamental principles and rights (individual and social).
The normative theory of republican democracy, on the other hand, is based on the “constitutive dimension of the democratic will,” converting democracy into an “ethical-political commitment.” Unlike liberal democratic normative theory, the republican conception holds that the citizen is not just a set of negative rights and freedoms, but a subject of rights and political communication, with positive freedoms.
The reading of these institutes refers to the most influential current theoretical models, conceptualized as follows:
Theory of deliberative and discursive democracy with Habermas (1997) as the main philosopher, this model is based on “rules of discussion, forms of argument, institutionalization of processes – discussion and negotiation network – whose purpose is to provide a natural and universal solution to problematic, moral and ethical issues of society” (Canotilho, 2003). In this way, it is possible to affirm that it is a procedural concept of democracy, in which there is political self-organization, being still a model that distances itself from state conceptions, which is concerned with the construction of the “network of communication and structuring participation of a democratic society” (HABERMAS, 1997).
For Habermas, discursive democracy has at its core the concepts of public sphere and civil society. The public sphere has the characteristic of equal and public participation of a plural subject, with authority being the best argument. It is also a space with increasing public domain, where new issues are submitted to national debate:
(…) the public sphere can be described as a network suitable for the communication of contents, positions and opinions; in it, communicational flows are filtered and synthesized to the point of condensing into public opinions bundled on specific themes.
The Habermasian conception shows itself as an environment of construction of the democratic public sphere, related to the world of life and ensuring proximity to the problems and issues of ordinary citizens, without much instrumentality.
On the other hand, Habermas’s criticism is based on the need for equal conditions of opportunity and participation in public debate, quite distant from the reality of peripheral democracies, such as Brazil. The political educational deficit of the national community makes this proposal only an ideal, far from reality.
Bonavides’ (2003) normative theory of democracy represents a more finished version of the welfare state, according to the author. His analysis shows that the enslavement of the legislature by the executive puts judges and courts in a position of defending the Constitution, strengthening the supremacy and principles of the constitutional rule of law.
The author also points out that in developing countries there is nothing but a covert dictatorship of representative democracy, in which one wants to know where the people are.
Thus, participatory democracy proposes to overcome the separation of powers, moving towards a more organic division, based on constitutional unity. When dealing with the media, the author points out that it is one of the major responsible for the people’s political passivity, asserting that “the media, in the hands of the dominant class, is the most irresistible force for sustaining the status quo and its conservative, unpopular, and unfair governments”. He still concludes that Brazil has a democratic spirit that has been blocked by delegitimized representation, without the constitutive essence of the people.
It is also important to note that the proposal of participatory democracy does not seek the mitigation, nor the cancellation of political representation. Brazil is betting on the strengthening and effectiveness of the direct sphere of popular participation, seeking the efficacy and effectiveness of fundamental rights.
However, even if it is sophisticated, it still allows for some criticism, such as the concepts and standards of the political-ideological proposal that are common to Neoconstitutionalism. Besides the democratic deficit it presents, since it finds in judicial activism its constitutive features, capable of worsening the political apathy it was trying to improve.
Thus, even if there is an intention to increase popular participation, through judicial activism, there is a clear risk of promoting the figure of the “citizen-client”, instead of the implementation of participatory democracy that shows the citizen-participant.
In any case, even with the criticism in the context, the fight for rights, even judicially, establishes participative and active citizenship in the citizenry.
There is no doubt that democracy is food for the soul of the community, and freedom and equality are only achieved through citizen education. It is necessary for the political community to be ready to respect and guarantee fundamental human rights. Initially it is necessary to know what rights one already has, and then fight for them.
Political consciousness will only be formed through education and freedom of information. In this way, it is inevitable to think about the impossibility of having democratic dialogue, when a large part of the members does not have the conditions for its exercise.
Briefly, the proposal of participatory democracy is an exercise of evolution towards discursive democracy, based on the Habermasian model of open and plural dialogue, always seeking equal conditions for participation, so that all issues can be brought to debate (CRISTÓVAM, 2016).
In Brazil, it is still a future project, a utopia to be built through education and political and citizen formation. Therefore, it should be noted that one of the big problems of the popular movements is their small organization, which causes the members to act according to their exclusive interests.
4. THE DEMOCRATIC RULE OF LAW AS A FUNDAMENTAL PRINCIPLE
Canotilho (2003), when dealing with democracy as a normative principle, returns to Abraham Lincoln’s formula about democracy: “government of the people, by the people, and for the people”, treating it as a means to positively justify democracy.
Bonavides, on the other hand, states that, in the democratic process, the people are active subjects, so there is no democracy without participation, in which case there would only be a constitutional dictatorship. The people, in this sense, can be seen in three ways:
a. People in a political bias
b. People in a legal perspective
c. People in a sociological perspective
In this sense, before dealing with the democratic state as a fundamental principle of the Brazilian order, it is valid to make a prior approach to the normative content of the rule of law, so that “it aims to respond to the problem of the content, extent and way of proceeding with the activity of the state, conforming “the structures of political power and the organization of society according to the measure of law, a means of rational and binding ordering of an organized community (BONAVIDES, 2003).
In our constitutional system, there is a determination that the rule of law be associated with the constitutional rule of law, through the complex of norms based on the Constitution, as in article 1, caput and articles 18 and 33, which deal with the federative form of State ; in articles 2, 44 and 126, which deal with the separation of powers and functions; in articles 5 and 17, which address individual, collective, social and political rights; in articles 59 and 69, which deal with the legislative process; articles 102 and 103, which deal with constitutionality and control; and in articles 37 and 41, which deal with Public Administration.
Returning to the democratic state and its status linked to the Constitution, it is valid to point out that in the preamble of the Constitution there is already mention of the democratic state, while article 1 deals with the “democratic state of law” as in the German, Portuguese and Spanish Constitutions.
Furthermore, the Federal Constitution gives the Brazilian State the republican, social and democratic model of law, in all material and organizational dimensions. Linking the legitimation of the state to other negative and prestational obligations, with obligations linked to popular sovereignty, pluralism, citizenship, and democratic political participation.
In this way, Canotilho treats democracy as a legal-constitutional principle, related to several dimensions. In the representative dimension: “the democratic principle embraces the most important postulates of the representative democratic theory – representative bodies, periodic elections, party pluralism, separation of powers” (CANOTILHO, 2003).
As for the participatory dimension: “structuring of processes that offer citizens effective possibilities to learn democracy, to participate in decision-making processes, to exercise critical control in the divergence of opinions, and to produce democratic political inputs” (CANOTILHO, 2003).
It is possible to affirm that these dimensions of the democratic principle are inserted in the Brazilian constitutional plan. In article 1, sole paragraph of the Federal Constitution, when stating that “all power emanates from the people, who exercise it through elected representatives or directly, under the terms of this Constitution”, there is the idea of representative democracy. There are also norms in the Constitution dealing with the Chamber of Deputies and the Federal Senate (articles 44 to 58), political pluralism (article 1, V), universal suffrage, secret and direct vote (article 14 and 60, paragraph 4, II), and dealing with political parties (article 17).
Direct and participatory democracy can be found in article 1, sole paragraph of the FC, as well as in article 14, clauses I, II and III. In addition, there are other constitutional provisions dealing with freedom of speech, the right of assembly, and political manifestation.
In summary, the democratic principle of law needs to be understood as a dynamic and changing model. Moreover, it must be opposed to any static reductions and imprisonments. It must be an open principle that informs the actions of the State and society, guiding the path to democratization of the public space through education for citizenship and self-determination, aiming at participation in the political process with equal conditions for all.
Therefore, there is no doubt that the democratic principle and the material and organizational dimension of the democratic rule of law move in the direction of material integrity and substantial equality, being a defense mechanism and a means to promote fundamental rights.
Thus, one can see the dialectic relationship that does not end in the role of defender of the freedom of participation, because it reaches essential contours to the free participation in the formation of democracy.
With all the information mentioned above, it is possible to see that there is no democratic freedom without material equality, that is, without the minimum conditions for active and critical participation in public life. The Democratic State of Law is formed by individual and social fundamental rights, and they are inseparable. Leaving this orbit, one realizes that fundamental rights are static and the conditions for political debate are scarce.
5. THE INTERNAL NEXUS BETWEEN DEMOCRACY AND FUNDAMENTAL RIGHTS: BRIEF CONSIDERATIONS FROM THE PERSPECTIVE OF DISCOURSE THEORY
For the correct understanding of the dimension that the internal nexus of causality exists between Democracy and Fundamental Rights, some notes in the light of the Discourse Theory are necessary.
When dealing with the subject, it is not possible to separate it from Habermas, since the author and philosopher sought to create a universalistic theory of law, overcoming, through discourse theory, the liberal and communitarian views of law.
Through this reasoning, Discourse Theory distances itself from legal positivism, situated on the normative plane, and from realist and skeptical currents, which understand it by “facticity.” Some points of Habermasian theory are very relevant in this work:
a. Habermas’ democratic theory is based on a broad political conception, on public participation, and on the search to overcome realist approaches;
b. Habermas deals with a non-aggregative view of democratic theory, based on communicative exchanges;
c. Habermas relates discourse and reason, showing the ways that consider the particular and the universal simultaneously;
d. Habermas deals with discourse ethics, making it possible to deal with pluralism;
e. Habermas’ theory of democracy recognizes the relevance of decentered publics.
With this conception, Habermas seeks to present to citizens that, in the quest for equal rights, it is not valid to submit the principle of democracy to morality, and that human rights, private and public autonomy, and sovereignty can go hand in hand.
In this way, for the author, morals are made up of symbols, so it is easy for them to change so that a certain part of society can appropriate them, hindering the common good. Furthermore, the theory also deals with healthy democracy, which basically would be the achievement of legitimate law, with the participation of all citizens assured. This is very relevant because, for Habermas, subjective freedoms must be guaranteed to everyone.
The equality in the subjectivity of individuals, advocated by Habermas, is shown as the cornerstone of the work, arguing that no autonomy should override another.
Habermas’s intention is to say that the discourse theory is capable of making citizens who may not know each other or be in different places in society know that they are the authors and recipients of their rights and, thus, reach a greater social participation.
It is possible to say that this theory is an “opening of new perspectives”, because it shows several ways of dealing with law and social justice, besides dealing with law with a more updated thought, so that other theories can be formed through this one.
In another sense, when dealing with fundamental rights, it is possible to notice that the explanations are focused on clarifying the relationship between popular sovereignty and fundamental rights. For the author, the positivization of the fundamental rights system through the Constitution has the function of contextualizing the principles and making them become common ground for all citizens:
The idea of human rights and the sovereignty of the people determine to this day the normative self-understanding of democratic rule of law states. The history of theory is a necessary component, a reflection of the tension between facticity and validity, between positivity of law and its intended legitimacy, latent in law itself (HABERMAS, 1997).
For the author, the concepts of human rights and people’s sovereignty are means of sustaining modern law, because, these ideas survive even if the normative substance goes through post-traditional grounding. These rights are not subordinate to self-determination.
In this sense, the existence of democracy will only persist through the conjugation of the guarantee of subjective liberties, for the participation of citizens. In this way, it can be noted that democratic society only shows itself if there is freedom between discourse and the guarantees of fundamental rights:
The basic idea is this: the principle of democracy results from the interconnection that exists between the discourse principle and the legal form. I see this intertwining with a logical genesis of rights, which can be reconstructed step by step. […] the principle of democracy can only appear as the core of a system of rights. The logical genesis of these rights forms a circular process, in which the code of law and the mechanism for the production of legitimate law, therefore the principle of democracy, are co-originated (HABERMAS, 1997).
Regarding the tension between human rights and popular sovereignty, Habermas asserts that there is a solution through “a proper understanding between facticity and validity in the realm of law. Therefore, human rights can be based on the self-determination of peoples, through the exercise of popular sovereignty.
Therefore, it is possible to say that if fundamental rights are guaranteed in the Constitution, with legitimacy of the process, they become impositive and obligatory norms, protected against social interference and preventing the instrumentalization of power through representation, division of powers and the difference between ordinary and constitutional law.
Moreover, as stated above, there is no intention of exhausting the subject in this work, focusing on showing specificities of the democratic rule of law as a structuring principle, through normative theories.
The present study sought to demonstrate, through the approach of the structuring fundamentals, the importance of refining the dialogue and maintaining the logic, which relies on the constitutional normative arrangement, always based on the Constitutional State of Law and on the paradigm of democratic public administration.
Furthermore, after World War II, it was possible to notice an increase in the number of movements for the constitutionalization of Administrative Law, always based on the search for means of combat and social transformation. Thus, it is clear that democracy is fundamental to the political soul of society, and that freedom and equality, the guiding principles of the democratic principle, are achieved through good education and citizen training.
For this, it is necessary that the community is prepared to understand, respect, and promote fundamental human rights, by initially discovering what rights they have, and then fighting for them and going in search of their duties in society.
The axiological proposal of participatory democracy is like an exercise in evolution to achieve discursive democracy, based on the Habermasian model of an open and plural dialogue process, on an equal footing, in order to achieve the free and informed participation of the population, bringing the most diverse issues to debate.
In Brazil, this participation is still like a future project, which can be achieved through libertarian education and the political and citizen formation of the population. In the movements and demonstrations that take place here we can see how little organization there is, which makes the demonstrators victims of a game of interests.
With the above, therefore, one can see the non-existence of real democratic freedom, without material equality, without participation in public life. In this way, the Democratic State of Law is founded on individual and social fundamental rights, founding the very mold of a constitutional state of law. In another bias, not approached by this logic, one perceives the immobility of the conditions for the debate around democracy, with no longing for constitutional legitimacy.
Therefore, it is possible to deduce that if the fundamental rights are not assured in the Constitution by means of procedural legitimacy, there is the insertion of impositive and obligatory norms, protected against the interference of society, which many times are based on the momentary commotion of the people, making it impossible to instrumentalize power through mechanisms such as representation and division of powers.