O Estado (liberal) de direito contra a demokratia: da liberdade-privilégio á exceção jurisdicional

Abstract

This thesis opposes the concept of freedom and its realization under the rule of law. The concept it adopts is that which was built within political liberalism, mainly by XVIII and XIX centuries authors such as Locke, Kant, Tocqueville and Sieyès. Reference is made also to important politicians, among which Madison, Franklin, Calhoun and Robespierre. The concept of freedom is divided into two intertwined ideas: that of positive freedom, connected to autonomy and political participation, and that of negative freedom, which relates to limiting the State’s interference on property and the action of its subjects. Liberal ideas are commonly employed for their representation of the very core of the rule of law, based on the binomial authoritative optimism and normative pessimism. Thus they justify and theorize upon the sovereign and the State’s limitation through law, mostly in order to ensure property-freedom. The analysis of negative freedom is opposed to the experiences of coercion and exploitation within the social field of production. From the work of various authors, but mainly Domenico Losurdo, the lack of the right to freedom and to property by the majority of the population under liberalism is denounced. The forms slavery, apprenticeship, servitude and wage labor performed by masses after the industrial revolution represent the contradiction of negative freedom. The thesis approaches the means through which the liberal State was paramount to the realization and maintenance of its forms of limiting individual freedom, and through which negative freedom works as the authorization for the private relationships to freely limit the freedom of the deprived and dispossessed majority. Private property, which is both a dimension and a goal of freedom, can be freely employed to coerce other individuals while other forms of freedom are violently violated and plundered. Property-freedom is not understood as a right, but as a privilege. Positive freedom, defined as one’s autonomy on deciding about one’s own destiny and the rules which are to govern the political community, is directly related to democracy, with the individual’s political participation. The thesis shows how representativeness arises in order to limit the democratic possibility, and not to fulfill it, as the political tradition tends to define. Democracy is seen as the risk of the majority limiting or conditioning the free oppressive use of property. Representative democracy makes two moves, citizenship expansion and the very deflation of the concept, reducing the capacity of the State in interfering with the individuals’ economic relationships. Furthermore, representativeness exists only to fulfill a gap, to include those who cannot be included. It is an inclusion mechanism which necessarily depends on exclusion, functioning as a disjunctive synthesis. Representative democracy is the liberal solution for the problem of democracy. The democracy risk, even mitigated, still exists and the universalist tension of rights still represents a risk to the liberal project of free abuse of the privilege of property-freedom. The thesis, then, investigates the role of the sovereign and the state of exception through authors such as Agamben, Matos and Schmitt. The judiciary has an emerging central role since the nineteenth century, taking on the function of guardian of the Constitution and thus of the liberal project for the society and the State. It acts eventually as the sovereign, deciding on the state of exception. The thesis shows how judicial interpretativism is a historical tradition which opposes law and justifies the arbitrariness of judges. Today, this tradition is revived by neoconstitucionalism and techniques which appeal to an interpretation of principles within liberal Constitutions. Alexy’s theories, bringing means of ponderation and proportionality, are central in the Brazilian and Latin-American practices, and are thus chosen as the basis of this analysis. From those theories and the Brazilian Supreme Court’s decisions, the use of judicial interpretativism as a tool for the suspension of the rule of law and law making becomes evident, with the consequent broadening of the State’s repression power.