PARTICIPATORY DEMOCRACY AND ITS IMPLEMENTATION - HISTORICAL
PERSPECTIVE AND FUTURE PROSPECT – THE BRAZILIAN INTERNET
REGULAORY FRAMEWORK
Rubens Beçak
Joao Victor R. Longhi
INTRODUCTION; PARTICIPATORY DEMOCRACY; ANOTHER INSTRUMENTS FOR
IMPLEMENTATION OF PARTICIPATORY DEMOCRACY; PARTICIPATORY DEMOCRACY
AND FUNDAMENTAL RIGHTS: 1. Freedoms of expression and information in the human
rights theory, 2. The basis of human rights: human dignity, 3. (Jus) rights anthem; 4.The role
of democracy in the consolidation of the rights of freedom, 5. Decline of representative
democracy: the constitutional inadequacy of mechanisms for achieving participatory
democracy in Brazil, 6. The twenty-first century citizenship and the role of third sector:
overcoming the liberal dichotomy State vs. Civil Society; REFERENCES.
ABSTRACT: Making democracy true is an essential goal for all nations around the world.
The nowadays communications revolution brought new artifacts for freedom of expression, a
civil right that becomes global day by day. Therefore, democracy shapes up as fourth
dimension human right. It’s the participatory democracy, in which citizens act directly in the
democratic game. This article tries to investigate about the Brazilian Internet Regulatory
Framework, a pioneer joint initiative between civil society and The Brazilian federal
executive. An innovative way of exercising the popular legislative initiative, once that it was
presented to the Parliament a draft law about civil obligations and rights for national Internet
actors, with massive participation of the users. Beyond the constitutional and legal
requirements, a blog was created and maintained for the discussion and purposing of every
article, in various rounds, already finished with a concrete draft bill, to be purposed by the
Executive. With a historical perspective of our constitutional mechanisms to undertake
political direct and indirect popular participation, it is aimed to present another attempt to
overcome the political party system, which passes through a lack of representativity and
seems gently to lose legitimacy, a big risk for the survival of the democratic regime in the
country.
INTRODUCTION
The debate about a political restructuration in Brazil remains current, even if forgotten
in the national agenda, surpassed by more specific issues, as much as the parallel questions
about democracy and its expression.
Therefore we believe that is still appropriate to discuss the imperative and the
reaffirmation of the democratic ideal, especially after the Brazilian Internet Regulatory
Framework experience.
And only with the inclusion of all sectors of society onto the democratic debate it will
be possible to make true the democratic values expressed in the triad “liberty, equality and
fraternity”. And this, in our view, can only be done with a participatory democracy.
Due to this, spreading the discussion about the topic is crucial as well as an evolution
in the direction of democracy.
With the diffusion of Enlightenment’s political ideals, finally falls the absolutist
regime, what called by ERIC HOBSBAWM the "Age of Revolutions"1. From there came the
basis for the actual political order.
1
HOBSBAWN, Eric J. A Era das Revoluções: 1789-1848. 5. ed. São Paulo: Paz e Terra, 1982.
The Ancient Greece’s democracy, especially that one practiced onto the century of
Pericles in Athens, will be transplanted to contemporary times by incorporating the private
law’s famous instrument for its accomplishment, which is the mandate. With this kind of
representation the new regimes started practicing democracy, named thence as indirect, or
representative.
In the evolution of democracy, it is known that, on one hand, representative
democracy was born with the bias of the imperative nature of the represented will, but on the
other hand, in its development, especially as it evolves, the detach between them will be
unavoidable. At issue, rather worked for the doctrine, MANOEL GONÇALVES FERREIRA
FILHO scores:
[...] The fundamental basis of representation is the idea expounded by
Montesquieu that men generally do not have the necessary capacity to
appreciate and therefore very well decide about the political problems. Thus, in
the interests of all, these decisions should be entrusted to the most capable, the
representatives of the people. But each and every man can identify, in their
circle of fellowship, those who are more capable. Therefore, the selection of
their representatives should be given to all the people who lay down in the
middle of an election (note that for the Hellenic political doctrine, the election
was an aristocratic method of selection, while the draw is that it was considered
the democratic way [...].2
EDMUND BURKE, in his famous speech to the electors of Bristol (1774), had already
punctuated the prevalence of "national interest" over the electors. Also the French
Constitution of 1791 made it clear that "the representatives appointed in the departments are
not representatives of a particular department, but of the entire nation."3
The next moment, democracy will be faced with the advocacy of interests groups,
more or less closed, once called political parties. Emerges the representative democracy
through political parties.4
However, especially since the first decades of the twentieth century or even earlier, in
the late nineteenth, it begins to realize that this system - apparently the pinnacle of democratic
development - finds a sui generis inquiry about the possibility of causing this kind of
representation the detachment between both representative and represented or even if the
politic mandate is being used against the will of the represented5, especially considering new
participants in the political scene: "At the time, a general crisis of political representation was
felt, watered with interpretations alarmed by attending to the inevitably corrosive effects of
new instances of mediation - the mass parties - over the classic parliamentary system."6
At first, the seductive idea of co-existence between traditional model of representation
of interests and the cooperative solution sounded appropriate. The instrument was used by a
number of European constitutions, as well as in the Brazilian Constitution of 1934.
Nonetheless, the overwhelming rise of a new form of exercising power,
totalitarianism, suddenly caused the collapse of the democratic system as a whole, even if
seen as a decadent and detached from reality.
2
FERREIRA FILHO, Manoel Gonçalves. Curso de Direito Constitucional. 34. ed., atual. São Paulo: Saraiva,
2008. p. 85. See also FERREIRA FILHO, Manoel Gonçalves. Aspectos do Direito Constitucional
Contemporâneo. 2. ed. São Paulo: Saraiva, 2009. p. 30.
3
LAVALLE, Adrián G., HOUTZAGER, Peter P., CASTELLO, Graziela. Democracia, Pluralização da
Representação e Sociedade Civil. In: Lua Nova: revista de cultura e política. O futuro da representação. (n. 67,
2006). São Paulo: CEDEC, 2006. p. 54-55.
4
FERREIRA FILHO, Manoel Gonçalves. Curso (cit.) 34. ed., atual. São Paulo: Saraiva, 2008., p. 88 e s.s.
5
Id. p. 93.
6
LAVALLE, Adrián G., HOUTZAGER, Peter P., CASTELLO, Graziela. Cit. p. 67.
With the end of the 2nd World War, the power of the democratic ideas revives, as
much as the critics of his faults and inversion of values. Nevertheless, nowadays the criticism
is no longer focused in the attack on democracy itself, but rather in searching new instruments
that would enable the rethinking of the improvement.
JOSEPH SCHUMPETER warned in early 40’s about the fact that candidates propose
"policies to (re) elect instead of being elected to carry out policies set by the population (...)"7
PARTICIPATORY DEMOCRACY
MANOEL GONCALVES FERREIRA FILHO was one of the first jurists in Brazil to point
out the resilience of this criticism,8 demonstrating the emergence of a new form of
democracy, the semi-direct democracy.
It is the traditional representative democracy, with the same presence of political
parties besides institutions made up to measure people's will when necessary. All this in order
to reduce that “gap” already mentioned, about making true will of the represented.
His instrument par excellence is the plebiscite, but we cannot forget also those other
contained in current Brazilian Constitution, as the popular legislative initiative and
referendum, and others who will be appropriately studied during this paper .
The plebiscite has its origin in Roman law, and nowadays is an institute widely
adopted worldwide.
History records a kind of variant in its use, always seen with suspicion by its critics,
especially because of its undemocratic bias, the so-called “Caesarist democracy”.
Napoleon, Napoleon III and others used it, besides the latest tyrants like Pinochet in
Chile in the late '80s and early '90s, who tried legitimate his government decisions trough it.
Also those perceived as Democrats used these kinds of instruments. De Gaulle used
the institute to exhaustion, including having resigned the presidency of France in 1969 when
defeated in one of their consultations. The exaggerated (or "twisted") use of the instrument is
the main aim of the critics, not the engine itself.
A good and recent example in Brazil was that of 1993, which defined the form and
system of government in our country.
Besides, the art. 14, I of the Federal Constitution mentions the instrument as on of the
ways to exercise the popular sovereignty, and especially it is mechanism for the creation,
incorporation, merger and dissolution of municipalities (art. 18, § 4) and states (§ 3 of same
article).
The referendum, to differentiate it from an expression sometimes used as a synonym
of the exercise the vote, is nothing else than the possibility of accepting (or rejecting) a draft
law directly by the population.
Two exceptions are necessary here: the first is that there are systems which allow even
a possible amendment of the bill by the population (consultations on referendum, putative),
like happens in Italy; and the second is the usual misunderstanding in Brazilian constitutional
history (especially by the media, but also by the Public Administration) between plebiscite
and referendum (as an example the January 1963’s plebiscite on the government system,
which actually was the referendum).
Who conceptualizes the differences between the two institutes is once again reminded
MANOEL GONCALVES FERREIRA FILHO,9 showing even the possibility of a referendum
7
SCHUMPETER, Joseph A. apud LAVALLE, Adrián G., HOUTZAGER, Peter P., CASTELLO, Graziela.
Democracia, Pluralização da Representação e Sociedade Civil. In: Lua Nova: revista de cultura e política. O
futuro da representação. (n. 67, 2006)., São Paulo: CEDEC, 2006., p. 59.
8
FERREIRA FILHO, Manoel Gonçalves. Curso de Direito Constitucional. 34. ed., atual. São Paulo: Saraiva,
2008., p. 97.
formulated as an exercise of constituent power by the people. The instrument is provided in
the article 14, II of the Federal Constitution.
In our constitutional system, the Congress has the power to call the plebiscite and to
authorize the referendum (art. 49, XV).
Last: the popular initiative. This instrument is provided in the Federal Constitution, in
the article 14, III, and also in art. 27, § 3, which mentions the popular legislative initiative
onto the federal states. Its regulation is in article 61, § 2, where are the requirements,10 whose
the difficulty of execution themselves show their "burial":
Article 61: (omissis) § 2 - The initiative of the people may be exercised by means of
the presentation to the Chamber of Deputies of a bill of law subscribed by at least one
percent of the national electorate, distributed throughout at least five states, with not
less than three-tenths of one percent of the voters in each of them.
As SERGIO RESENDE DE BARROS ironically uses to say, it is still easier (and
"sheeper") to go to Brasilia by plane and hold pressure on the members of the parliament from
your neighborhood personally - or even during their holyday rest at their home states - than
accomplish the popular legislative iniciate’s constitutional requirements.11
Moreover, doctrine traditionally lists other forms of exercise of participatory
democracy, especially in American law, which will be better examined below.
ANOTHER INSTRUMENTS FOR THE IMPLEMENTATION OF PARTICIPATORY
DEMOCRACY
Here we have the so-called popular veto, where a draft law voted in the Congress can
go to popular scrutiny under the request of a determined number of citizens.
Although, the recall, in which, also by request of the citizens, what depends on the
popular vote is or a mandate of a Parliament member or even the election of some officials (as
magistrates in the U.S. and another functions whose are elective, for example).
JOSE AFONSO DA SILVA also reminds us about the Popular Action, which can be sued
since the Constitution of 1934 as the effective exercise of political participation.12 We even
ventured to say that the Class Action, made possible by statute since 198513, and also
mentioned by the Actual Constitution of 1988, is also - by reflex - an instrument for this.
But does all this instruments most commonly available to the public really have a
range of mechanisms that allow that gap between represented and representative above
mentioned to be narrowed, that common feeling that the real needs and anxieties of the
population are not being discussed in the appropriated forum? How to improve this?
Especially in this area a growing number of studies have been developed besides new
experiments, also in Brazil, in order to reduce this distance.
9
Id. p. 98.
10
See AFONSO DA SILVA, José. Comentário Contextual à Constituição. 3. ed. São Paulo: Malheiros, 2007.,
p. 223-224 e 449-450.
11
BARROS, Sérgio Resende de. In: Aulas proferidas no curso de graduação em Direito, na Faculdade de
Direito da USP, compartilhadas com o Autor, nos anos de 2002-2003.
12
AFONSO DA SILVA, José. Poder Constituinte e Poder Popular: estudos sobre a Constituição. São Paulo,
Malheiros, 2000. p. 50-51.
13
Lei n. 7.347/85.
MAURO CAPELETTI undertook pioneer studies about the use of television as a form of
re-approximation, a role that today would fit perfectly to the Internet, as indeed proposes the
former Vice President AL GORE U.S. in his The Assault on Reason.14
In Brazil, PAULO BONAVIDES has already advocated the possibility of drafting
popularly a Constitutional Amendment, by the inclusion of an item IV in the article 60 of the
Constitution.15
There are even proposals for creating a binding mandate, not in that old sense of the
expression, but a way to bind parliamentary work in the Parliament with his party program or
government program, on pain of revocation of his mandate.
Some experiences also effectively putted into practice cannot be forgotten, such as the
participatory budget, first in Rio Grande do Sul State, and today, as sad BOAVENTURA DE
SOUZA SANTOS, 16 used by more than 1200 Latin American cities.
It’s also important to mention the Municipal Health Councils, also cited by
Boaventura. And the School Councils, Security Councils, Public spaces administration
Councils etc., all of them elected by the population.
Obviously these forms of democratic participation find the major opposition from the
political parties, who see them as a real threat.
In all these experiences and suggestions what becomes clear is the return to the
Rousseanian values, including about this criticism of the traditional institutes of
representation.
Due to this, we must agree with ROBERTO AMARAL,17 who, relying on followers of
ROUSSEAU’S theory, as MARX, GRAMSCI, LUKACS, BOBBIO and POULANTZAS sees the
representation as a weapon against the sovereign will.
On the opposite ideological side, the critics are stronger!
JOSEPH SCHUMPETER (so revalued today) and HANNAH ARENDT are examples, once
that, for the first political representation "(...) [is a] method of selection of elites through
periodic elections (...)"18 and, for the second, "(...) what we now call democracy is a form of
government in which few govern in the interests of the majority (...)."19
Here, we should provide a brief reference to what is happening in Venezuela, and was
also discussed in the last constituent processes of the continent, namely, Ecuador and Bolivia.
In Venezuela, the Bolivarian Constitution of 1999 contains participatory mechanisms
enrolled in their article 70.20
What we see is that the path of participation as a mean of improving democracy seems
to be something irreversible, underpinned by its adoption by a growing number of countries.
14
GORE, Al. The Assault on Reason. USA: Penguin Press, 2007
BONAVIDES, Paulo. Constituinte e Iniciativa Popular. In: Folha de São Paulo. São Paulo, 9 de Julho de
2007.
16
SOUZA SANTOS, Boaventura de. In: palestra proferida no Joint Annual Meeting of the Law and Society
Association (LSA) and the Research Committee on Sociology of Law (RCSL)., Berlim, 25 a 28 de Julho de
2007. See also WAMPLER, Brian. Participatory Budgeting in Brazil: Contestation, Cooperation, and
Accountability. University Park, PA: Pennsylvania State University Press, 2007. passim
17
AMARAL, Roberto. Apontamentos para a reforma política: a democracia representativa está morta; viva a
democracia participativa. In: Revista de Informação Legislativa. n. 151. jul. / set. 2001. Brasília, 2001.
18
SCHUMPETER, Joseph A. apud AMARAL, Roberto. op. cit. p.32.
19
ARENDT, Hanna. apud AMARAL, Roberto. Idem. p. 32.
20
Article 70: Participation and involvement of people in the exercise of their sovereignty in political affairs can
be manifested by: voting to fill public offices, referendum, consultation of public opinion, mandate revocation,
legislative, constitutional and constituent initiative, open forums and meetings of citizens whose decisions shall
be binding among others; and in social and economic affairs: citizen service organs, selfmanagement, comanagement, cooperatives in all forms, including those of a financial nature, savings funds, community
enterprises, and other forms of association guided by the values of mutual cooperation and solidarity.
15
For last, also fits a reflection in regarding to the role of participation as an element to
maximize deliberative democracy, in the sense of it not be seen as ineffective in current
constitutional order. That's because many of those who defend the judicial activism lay their
hopes about accomplishing the constitutional rule there, although often become disappointed
with the actual courts precedents that, in the words of CLAUDIO PEREIRA DE SOUZA NETO,21
with the Judiciary’s overload, sees the fundamental political decisions being transferred to the
the political elites. In his own words:
Under the deliberative democracy perspective, the solution to the democratic regime
problems can only be the deepening of democratic practices themselves, not the
transfer of decision-making to the elites, whether economic or cultural. However, this
caveat does not mean that deliberative democracy fails to give the judiciary an
essential role in the democratic regime.22
PARTICIPATORY DEMOCRACY AND FUNDAMENTAL RIGHTS
"All human beings are born free and equal in dignity and rights."23 This is proclaimed
in the foreground of the Universal Declaration of Human Rights. The affirmation of freedom
as the basis for the construction of the first-generation human rights is considered the soul of
constitutionalism and the liberal revolutions in the nineteenth century, culminating in the
positivation of civil liberties in the Constitution ground.
In general, what is known is that the proclamation of freedom and equality of citizens
as the only barrier for the state authority, even for the absolutist monarchies, did not stand by
itself for too long. This because of social processes such as urbanization and industrialization,
introducing new political interests, which ones, when dialectically contrasted, created new
demands for the Liberal State that just affirmative actions could answer. Arises the social
rights or second-dimension human rights.
Today, doctrine enunciates third-dimension human rights, like collective rights, or
even four-dimension human rights, represented by the protection of genetic biodiversity,
among other matters.24 The fact is that, about fundamental rights, there is no overlap or
replacement, but cumulative and harmonious coexistence of the achievements acquiesced and
positivated in each historical moment.25
However, between positivation there is a long road and effectiveness, whose
tortuousities, moreover, constantly emerge. The challenges imposed by the increasingly
widespread use of new technologies have brought dramatic changes to the jurisprudence. The
new reality of the media, for example, confronts the legal system with new forms of violation
of fundamental rights by even the state itself, breaking down legal constructions, fruit of
political achievements so far acquiesced.
Furthermore, democracy itself, as conceived and structured for modern constitutional
republics, lives a moment of exhaustion. Representative democracy and the constitutional
forms of direct democracy are put into check when they necessarily depend on the traditional
political parties. About, JOAQUIM FALCÃO:
21
SOUZA NETO, Cláudio Pereira de. Teoria Constitucional e Democracia Deliberativa: um estudo sobre o
papel do direito na garantia das condições para a cooperação na deliberação democrática. Rio de Janeiro:
Renovar, 2006. p. 302.
22
Idem. p. 302.
23
Declaração Universal dos Direitos Humanos. Art. 1º, primeira parte.
24
ALVES, Eliana Calmon. Direitos de quarta Geração: biodiversidade e biopirataria. Revista do Tribunal
Regional do Trabalho da 5ª Região, v.4, n.1, p.41-61, dez. 2002. passim.
25
MENDES, Gilmar Ferreira; COEHO, Inocêncio Mártires; BRANCO, Paulo Gustavo Gonet. Curso de direito
constitucional. São Paulo: Saraiva, 2009. p. 268.
Never in history, so many countries adopted representative democracy. [...]. But we all
know that: a new constitution; separation of powers; elections and rotation in power;
etc. are just the beginning, not the end. The fact that countries are formally democratic
does not transform the system in free and equal for participating citizens.26
1. Freedoms of expression and information in human rights theory
The elevation of freedom of expression to Constitutional status constitutes an
achievement since the first dimension of human rights. United Kingdom was the first to
enshrine it in the "Licensing Act of 1695”. Other countries like France and the U.S. did it
years later. Today it is contained in the UN Declaration of Human Rights (Article 19)27, as
well as in the Covenants of Rome (art. 10)28 and the Pact of San José, Costa Rica (art. 1329).30
In the Brazilian Constitution, many articles refer to this fundamental right and its
corollaries. Remarkable are art. 5, sections IV, IX and XIV, as well as paragraphs 1 and 2 of
the article 220. In Europe, many constitutions do so, e.g., the Spanish Constitution (art. 20.1),
Portuguese (art. 37.1), among many others.
PETER HÄBERLE teaches that "freedoms of communication," understood by him "in
the broadest sense", including freedom of belief, artistic and scientific opinion and even
assembly and association, are not only a bridge between Human Dignity and democracy,
with respect to the binomial individual-state, "but also allow the life partial spheres of
‘society’, de a true ‘civil society’”. At last, concludes: "But in refer to the topic discussed here
[the link between internal pluralistic democracy and human dignity] we shall recognize that
freedom of communication is the heart of pluralist democracy based on human dignity."31
In turn, others distinguish freedom of expression and information separately from
freedom of communication.32 The so-called dualistic conception was consecrated by the
European Court of Human Rights, thesis also accepted in many precedents of the Spanish
Constitutional Court. Once that the European Declaration of Human Rights as well as the
Spanish Constitution adopt the monist chain, the distinction becomes relevant as a criteria
used by the court for balancing freedom of information (and not of expression) in collision
with the objective honor (el honor, in Spanish).33
Although the distinction is relevant for the balancing between these values, and also
between other fundamental rights, their theorical basis is the same. That said, we should
proceed in the analysis of the fundamentals of human rights today, the principle of human
26
FALCÃO, Joaquim. Democracia, direito e terceiro setor. 2. ed. Rio de Janeiro: FGV, 2006. p. 52
Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers.
28
See: http://www.gddc.pt/direitos-humanos/textos-internacionais-dh/tidhregionais/conv-tratados-04-11-950-ets5.html. Acess: 14 mar. 2010.
27
29
In Brazil, Decreto nº 678/92. Disponível em: http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/anexo/and67892.pdf. Acesso em: 14 mar. 2010.
30
FARIAS, Edilsom Pereira de. Colisão de direitos: a honra, a intimidade, a vida privada e a imagem versus a
liberdade de expressão e comunicação. 3. ed. rev. e atual. Porto Alegre: Sergio Antonio Fabris, 2008. p. 143-145.
31
HÄBERLE, Peter. A dignidade humana e a democracia pluralista – seu nexo interno. in SARLET, Ingo
Wolfgang (org.). Direitos fundamentais, informática e comunicação: algumas aproximações. Porto Alegre:
livraria do advogado, 2007. p. 24-26.
32
See FARIAS, Edilsom Pereira de. Ob. cit. p. 142 and also MARCONDES FILHO, Ciro. Prefácio à obra
LUHMANN, Niklas. A realidade dos meios de comunicação. Tradução Ciro Marcondes Filho. São Paulo:
Editora Paulus, 2005. p. 7.
33
GUTIÉRREZ. David Ortega. Derecho a la información versus Derecho al honor. Madrid: Centro de
estudos constitucionales, 1999. p. 118.
dignity in all its expressions, such as its intrinsic relationship to the democratic system now
adopted by most countries, albeit unfortunately far from being accomplished.
2. The basis of human rights: human dignity
Showed the role of freedom to communicate, broadly speaking, onto the human rights,
it`s necessary to determine its main substance, which is the fundamental principle of human
dignity.
As known, the end of the Second War and its consequences was the historical moment
who gave rise to a revolution in Law, especially in the theory of fundamental rights and the
theory of justice, reconnecting it to an axiological understanding of legal institutions. Thus,
jurists tried to overcome the postulates of legal positivism, by pouring the discussion about
the moral foundation of law, avoiding the problems caused by excessive application of
positivist assumptions.34
Due to this, human dignity is finally raised to a supreme status, the starting point for
building the legal system since then. However, the philosophical roots of dignity, which were
finally incorporated into the legal system, can be found in a past historical moment, the end of
the seventeenth century and early eighteenth century, with the work of IMMANUEL KANT.
RICARDO LOBO TORRES teaches: "The creation of a Theory of Fundamental Rights coincides
with the development of the Theory of Justice and is made from the 'Kantian turn', the return
to
the
legal-philosophical
thought
to
the
roots
laid
by
Kant."35
Indeed, the justification of human rights is in Human Dignity. It can be seen on the
preamble of the UN Declaration36 as well as in the current Brazilian Constitution, which
enunciates dignity as a fundamental principle (article 1, III). Of the many doctrinaire
assertions that tries to fill the content of the principle of human dignity, we recourse to the
MARIA CELINA BODIN DE MORAES’ lesson, for whom the principle of dignity is expressed
through four corollaries: liberty, equality, solidarity and psychophysical integrity.37
However, "the fundamental problem in relation to human rights today is not so much
to justify them, but to protect them. This is a not a philosophical but political problem."38
Thus, Sovereign States become to list an extensive list of fundamental rights, such as social
rights, collective and class and so on.
This was the option of the Brazilian Constitution, whose analytical nature culminates
in the Article 5 with its extended enumeration of fundamental rights and guarantees, without
excluding others deriving from the regime and from the constitutional principles, or from the
international treaties in which the Federative Republic of Brazil is a party (Paragraph 2),
besides in case of a Human Rights Treaty, which can have the status of constitutional
amendment if approved by a special quorum in the Parliament (Paragraph 4).39
34
RADBRUCH, Gustav. Cinco minutos de filosofia do direito.” in MONCADA, Luís Cabral. Filosofia do
Direito. 5. ed. Coimbra: Coimbra editores, 1974. p. 417. Also SCHOLLER, Henrich. RADBRUCH, Gustav
(verbatin). in BARRETTO, Vicente de Paulo. Dicionário de filosofia do direito. São Leopoldo: Unisinos, 2006.
p. 685.
35
What OTFRIED HÖFFE called “kantische Wende” (Kantianian turnover) HÖFFE, Otfried. Kategorische
Rechtsprinzipien. Ein Kontrapunkt der Moderne. Frankfurt: Suhrkamp, 1990. p. 351 apud TORRES, Ricardo
Lobo. O. direito ao mínimo existencial. Rio de Janeiro: Renovar, 2009. p. 25-26. nota 58.
36
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world”.
37
BODIN DE MORAES, Maria Celina. Danos à pessoa humana. Uma leitura civil-constitucional dos danos
morais. Rio de Janeiro: Ed. Renovar, 2003. p. 85.
38
BOBBIO, Norberto. A Era (cit.). p. 24.
39
As decided by the Brazilian Supremo Tribunal Federal. (STF - RE 466.343, Rel. Min. Cezar Peluso, voto do
Min. Gilmar Mendes, julgamento em 3-12-08, DJE de 5-6-09). RE 349.703, Rel. p/ o ac. Min. Gilmar Mendes,
About the comprehension of human rights, doctrine uses to teach about two
diametrically opposed opinions. The first one identifies in them the classic civil liberties
(first-generation human rights) as well as social and economic constitutional rights (secondgeneration human rights) with a great number of followers among the International Law
jurists. The latter, in turn, restricts the content of human rights to the rights of freedom,
individual rights or civil rights. Aside of these distinctions, today human rights are mostly
positivated by national legal systems, brought to the constitutional texts or incorporated by the
judicial precedents.
So if it is more important guarantee the fundamental rights than just positivate them,
it’s imperative, today, when the legal-scientific paradigm is the acceptance of normativity of
the values with the status of principles, the common matrix between human dignity and
democracy is not only freedom of expression and communication, but freedom itself as a
source of constitutional legitimacy of civil liberties. Concludes RICARDO LOBO TORRES:
The human rights concept approaches to the concept of fundamental rights, because
they relate to the rights deriving from the very nature of men. [...] But anything that
discourages the expression is taken as synonymous with fundamental rights and
liberty rights, which serve as their source of legitimacy, even as the aspect of need for
positive protection by the state minimum rights [...] human - human rights - including
freedom "of" (Freedom From), such as detention and torture; freedoms "to" (freedom
to) as the expression and assembly, and rights to the satisfaction of basic human needs
such as food and housing.40
3. (Jus) rights anthem
As spoken retro, the reinsertion of axiological elements in the legal system, creating a
constitutional table of values, was a fact that deeply altered the foundations of modern legal
science, highlighting the urgent need to undertake a methodological review of Law’s
Argumentation Theory. And in this special moment ROBERT ALEXY’s doctrine becomes very
important.
There are some special scientific conquers in his work. The first one was the
construction a new legal reasoning dogmatic as an special case of the rational-practical
discourse. Following Kant’s steps, he says that the rational pretensions of moral norms are
universally valid and can only be accepted as true when rationally confronted, motivated by
an important practical issue. Thus, rational reasons are always necessary in court decisions,
due to its special practical relevance. In verbis:
This difficulty of getting a clear categorization of procedures for magistrates should in
fact exclude the possibility of designating them as merely discourse, but on the other
hand, it means that they cannot be theoretically understood as directly linked to the
concept of discourse. This last point is particularly connected with the fact that plaintiffs
argue rationality. Thus, in private law demands, parties usually do not want to convince
each other [...], however, lawyers speak in a way that any rational person would have to
agree with their point of view. They at least intend to be presenting arguments that
everyone would agree under ideal conditions. Discourse theory, therefore, is not only
julgamento em 3-12-08, Plenário, DJE de 5-6-09. BRASIL. SUPREMO TRIBUNAL FEDERAL. A
Constituição e o Supremo. In: http://www.stf.jus.br/portal/ constituicao/constituicao.asp. Acess: 14 mar. 2010.
40
TORRES, Ricardo Lobo. Direitos fundamentais (Verbete). in BARRETTO, Vicente de Paulo. Dicionário de
filosofia do direito. São Leopoldo: Unisinos, 2006. p. 243
suitable for theorical understanding of the arguments involved, it is necessary to
41
understand them.
Later, he develops his famous Theory of Constitutional Rights, essential for
implementation of constitutional jurisdiction in most of the Constitutional Courts worldwide.
He builds his conclusions on the classical distinction purposed by RONALD DWORKIN between
rules and principles, all kinds of standards42, to face the problematic question about the
collision of values, submitted balance. In Verbis:
Often, its not rules and principles who contrasts between each other, but principles or
standards and standards or maxims. Here, rules and principles will be brought together
under the concept of standard. Both principles and rules are standards, because they
both say how it should be. Both can be formulated by basic deontic expressions of
duty, the permission of the banning. Principles are, as far as rules, concrete reasons for
judgments of duty-being, albeit in a very different kind. The distinction between rules
and principles is therefore a distinction between two kinds of standards.43
In broad terms, the balancing technique is about weighing up values expressed by
fundamental rights and elevated to the
44 status of constitutional principles. Alexy, on a pioneer
way, talks about a “collision law” which allows a valid answer, able 45to explain the
prevalence of46a right over another, to be extracted from the concrete situation. The principle
of balancing extracts from moral constitutional principles, optimization commandments
through three processes: suitability, necessity and proportionality stricto sensu. EDUARDO
RIBEIRO MOREIRA concludes: "These three phases - suitability, necessity and proportionality
stricto sensu - help to underpin the rational choice
for a principles on order to reduce the
47
uncertainty regarding the solution of a hard case."
The evolution of Alexy's work was fortified by the rebutting of his criticisms, which
only shows its effects on Law nowadays. The main one is that the radicalism of the balancing
principle was gently attenuated, becoming weakened the idea that the principles are always on
an equal hierarchical between each other, until the case presents a situation of collision. It was
accepted, thus, the possibility of priorities prima facie of principles, though not absolute in
41
ALEXY, Robert. Teoria da argumentação jurídica. 2. ed. Trad. Zilda Hutchinson Schild Silva. São Paulo:
Landy, 2001. p. 217.
42
“My immediate purpose, however, is to distinguish principles in the generic sense form rules […]. The
difference between legal principles and rules is a logical distinction. Both sets standard poit to particular
decisions about legal obligation in particular circumstances, but they differ in the character of the direction they
give. Rules are applicable in an al-or-nothing fashion. If the facts a rule stipulates are given, then either the rule
is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing
to the decision.” DWORKIN, Ronald. Is law a system of rules? In: DWORKIN, Ronald (org.). The philosophy
of law. Oxford: Oxford University Press, 1984. p. 45.
43
ALEXY, Robert. Teoria dos direitos fundamentais. Trad. de Virgílio Afonso da Silva. São Paulo:
Malheiros, 2008. p. 87.
44
ALEXY, Robert. Teoria dos (cit.). p. 167.
45
Id. pp. 173-174.
46
BARROSO, Luís Roberto. Liberdade de expressão versus direitos da personalidade. Colisão entre direitos
fundamentais e critérios de ponderação. In: SARLET, Ingo Wolfgang (org.). Direitos fundamentais,
informática e comunicação: algumas aproximações. Porto Alegre: Livraria do advogado, 2007. p. 72.
47
MOREIRA, Eduardo Ribeiro. Neoconstitucionalismo: a invasão da constituição. São Paulo: Método, 2008. p.
102.
48
itself.
Comes to scene the notion of “rights of freedom”. Regardless to that notions which
fully proclaim them as fundamental rights, what we can see is that there are rights most
directly connected to freedom, whose exercise by citizens often denotes a proactive State
attitude, not only omitive but also positive State actions to ensure their exercise. As
democracy is intimately linked with the exercise of freedom, especially in regard to political
rights, we should say that not only the democratic principle itself is an right of freedom but
also the political rights.
In this sense, RICARDO LOBO TORRES teaches that the basic characteristics of the
rights of freedom are that they: are pre-constitutional; inherent to the human person; hold
validity erga omnes, not exhausting the list of Article 5 of the Brazilian Constitution nor in
preexisting catalog; appear in indeterminate shapes, being endowed with historicity, its innate
cultural content; are indefinable cause they belong by all men regardless of their nationality;
cover both status negativus and status positivus libertatis, protecting the citizen against the
constriction of the State or of third parties besides generating for the State the obligation to
deliver positive benefits to individuals ensuring the freedom and its essential conditions;
positing institutional and procedural guarantees even if it costs for the state; and, finally,
they
49
are justifiable even without complementary legislation, enjoying immediate effect.
Thus, starting from the premise that freedom of expression and communication is a
first-generation human right and a fundamental right, which stems from the human dignity
constitutional principle, is a principle of primacy prima facie. Hence, the importance of
democracy as a necessary environment for the us of freedom, which cannot be guaranteed just
by state omissions but also with state actions.
4. The role of democracy in the consolidation of the rights of freedom
All the exposed retro showed that only in a democratic environment the rights of
freedom can be effectuated. PAULO BONAVIDES teaches us that the constitutional principles
of participatory democracy are: The principle of human dignity (art. 1, III), popular
sovereignty (Article 1, paragraph one), national sovereignty ( art. 1, I) and unity of the
Constitution. Sticking to the first, it is what gives a soul to the Constitution and to a
democratic and pluralistic society which is committed to the
50 protection of Human Rights, the
"value of values in a democratic and participatory society."
In other words, in a State that worships freedom as a basic premise, the "new
democracy"
reconnects citizens of the polis affairs overcoming the individualism of homo
51
faber by promoting political plurality. This seems to be the meaning of democracy today,
whose third sector has a crucial role on the reintegration of individuals in the political
discussion, driving and resizing freedom of expression and communication in mass society,
specially the mass media.
FRANK I. MICHELMAN points out the difference between freedom of expression
tenuous and dense, showing that the in the first State has an omitive conduit, while in the
second demands affirmative actions, guaranteeing the possibility of a true equality. For him,
48
ALBUQUERQUE, Paulo Antonio de Menezes. Alexy, Robert (verbete). In: in BARRETTO, Vicente de
Paulo. Dicionário de filosofia do direito. São Leopoldo: Unisinos, 2006. p. 35.
49
TORRES, Ricardo Lobo. O direito ao mínimo (cit.). p. 40.
50
Idem. p. 10.
51
Terms used by ARENDT, Hanna. A condição humana. 10. ed. Rio de Janeiro: Forense Universitária, 2008.
pp. 333-338.
this the true democracy,
balancing the individual subjectivity’s expression without losing
52
sight public interests.
PAULO FERREIRA DA CUNHA concludes that "Liberty, at least civil and political
freedom, starts with freedom of expression and communication." Once assured basic rights
such as life and physical integrity, to reflect the three expressions of dignity (freedom,
equality, psychophysical integrity) only the "communicative dignity",
53 which conceives the
men as a part of a common environment "in its social expression", is the way for its real
protection. That seems to be the bridge between democracy and human dignity today, giving
freedom of expression and communication: a communitarian perspective.
5. The decline of the representative democracy: the constitutional inadequacy of
mechanisms for achieving participatory democracy in peripheral modernity countriesl;
“No one pretends that democracy is perfect or without
blemish. It has been said that democracy is the worst form
of government except all those other forms that have been
tried from time to time.”
Winston Churchill
The famous phrase attributed to British Prime Minister who led the country during
World War II shows the main characteristic of the democratic regime: the ability to review its
own mistakes and change when necessary. In other words, a political regime that has been
practiced since the ancient times and renews itself according to the each historical moment.
It is known that, according to the Luhmann Systems’ Theory, when a particular social
system faces its limits it must be readjusted, being able to reorganize itself again, without
losing its essence. Evolution thus is not measured by increasing linear process, but according
to the level of complexity it can achieve. When the limits of their environment are in conflict
with other social subsystems, the need to open the gates to new forms of exercise for its
preservation is shown. According to NIKLAS LUHMANN, this characteristic is called
operational closure. As the autopoiesis (from the latin auto - himself - and poiesis - produce),
something needed to be reached on all systems, the social system creates its own methods of
reducing internal complexity by increasing external complexity. Explanes:
Due to the operational closure, a unit of a field is constituted, then, this field will be its
external environment. […] We cannot deny the reference or the influence of the
external environment. However, we just say that the system produces the relationship
with their environment from their own operations and these operations are made
possible by integrating a recursive circle,
54 called closure. More briefly: the opening is
feasible only on the basis of its closure.
In other words, as which livings require external elements to grow and develop
themselves, the legal system faces into its surroundings an increasing complexity, against
which demands reaction. That is what happens with the influence of mass communication and
new technologies, creating new Law boarders.
52
MICHELMAN, Frank I. Relações entre democracia e liberdade de expressão: discussão de alguns argumentos.
Trad. Marcelo Fensterseifer e Tiago Fensterseifer. Rev. Ingo Wolfgang Sarlet. In: SARLET, Ingo Wolfgang
(org.). Direitos fundamentais, informática e comunicação: algumas aproximações. Porto Alegre: livraria do
advogado, 2007. p. 59.
53
CUNHA, Paulo Ferreira da. Direito à informação ou deveres de protecção informativa do Estado? in Idem. p.
164.
54
LUHMANN, Niklas. El derecho de la sociedad. Trad. Javier Torres Nafarrate. México: Universidad
Iberoamericana, 2002.
And while many countries have formally adopted the democratic system and cannot
exercise it properly, or where the instruments of political rights in a representative democracy
and semi-direct are clearly insufficient for today's social demands, something must be done.
MARCELO NEVES tells us that legal systems of peripheral modernity countries live a
stalemate nowadays. Their social autopoiesis, which is the ability to adapt, incorporating
external factors, results severely damaged. In details, the democratic legal system is yoked to
other economic and political interests, blocking their normal working. This is what he calls
alopoiesis (alo – another, different - and poiesis
55 – production, creation), what means the self
reproduction by mechanisms from the outside.
This is exemplified by the current political parties lack of representation, the citizens
neglect with political issues, once that the parties, the main actors of the representative
regime, have decreased their supporters, a fenomeon also known as the crisis of
representation.
56
Therefore, following JOAQUIM FALCÃO’s conclusions, we must "invent". We must
seek solutions to the survival of the democratic regime, not only trough the constitutional
mechanisms, but create onother ones. And then, follows one of any examples around the
world.
6. The twenty-first century citizenship and the role of the third sector: overcoming the
liberal dichotomy State vs. Civil Society
Demonstrated the importance of democracy for the legal conception of freedom, as
well as the difficulties experienced by the current democratic regimes exhausted by the limits
that bind them to their liberals roots, idealized for the bourgeois revolutions, this work comes
to the final lines aiming to identify some possible ways to overcome this impasse.
Many sought to conceptualize or express in words what would be exactly be
democracy. However, as we have noted, the democratic regime that had been practiced since
the ancient Greeks, today is elevated to the constitutional principle status at the most of the
nations around the world. Further, the word “democracy” can be found at the most of the
speeches in every international forum, as an ethical and political principle, particularly related
to the intrinsic relation with the human dignity of individuals.
Diametrically opposite, unfortunately, seem to be the facts. What we see is that,
especially in the countries of peripheral modernity, the political system is dominated by other
interests which are not always fully committed in maintaining the democratic game rules.
That formerly
venerated rules of the game seem to keep a game that no longer makes sense to
57
be played.
Three historical views of democracy are traditionally
58 distinguished by doctrine: direct,
indirect and semi-direct or simply non representative. The indirect system was widely
adopted onto the Nineteenth Century National Constitutions and was partially adopted from
us, because the Brazilian system is based on the multiparty system as the rule (Article 17,
caput), with some occasional semi-direct mechanisms (art. 14, BC).
Political party is a more sociological than legal based concept. However, it is a "form
of organizing a social group, who coordinate and orchestrate the popular will in order to
55
NEVES, Marcelo. De la autopoiesis a la alopoiesis del Derecho. in Doxa Cuardenos de Filosofía del
Derecho, Alicante, v. 19, p. 403-420, 1996. p. 416.
56
FALCÃO, Joaquim. cit. p. 67
57
BOBBIO, Norberto. O futuro da democracia: uma defesa das regras do jogo. Trad. de Marco Aurélio
Nogueira. Rio de Janeiro: Paz e Terra, 1986. pp. 66-67.
58
BONAVIDES, Paulo. Ciência política. 10. ed. São Paulo: Malheiros, 2000. p. 346.
59
undertake a government program." Many are the classifications that seek to pursue a cause
segmentation of political parties.
From the real and personal vision of DAVID HUME to the ideological conclusions
60 of
AX
EBER
EORGES
URDEAU
or even the opinion and mass doctrine advocated by G
, the
M W
B
fact is that the reality party, especially in peripheral modernity countries, needs urgently to be
reviewed.
The complex interests groups that composes our multicultural society illustrate
the
61
inadequacy of the methodology proposed. The constitutional control mechanisms are no
longer sufficient to contain the lack
62 63 of loyalty to the party, the absence of financial
transparency, of ideological honesty. For those reasons it seems more than necessary that the relations of power and the rise
to it without ignoring the “rules of the game” should be revised. And here appears the
importance of the third sector. JOAQUIM FALCÃO gives the coordinates of the initial problem
to be faced by recommending that who holds political power in fact are not the parties, but
social organizations. Although political parties hold a legal monopoly to nominate candidates
64
for election, this is not enough, because of the lack of political monopoly.
Indeed, it seems to show the strengthening of civil society. Also known as the third
sector, in fact, constitutes a set of private entities whose interests transcend their institutional
boundaries who sketch public shapes. That is, institutions that are not a direct or indirect part
of the administration, but have extremely important functions for society. This is because, in a
participatory democratic atmosphere, they become an important weapon in the defense of
interests often forgotten in the rigid party system.
The examples are many: NGOs, trade unions, public and private foundations, and
many other forms of association whose ideals are not unlawful. So, when we focus on the
ideal democracy system to be adopted, - direct, representative or semi-direct, the answer is: all
of them, together. The models of
65 democracy are not sequential and surpluses, they are
complementary and simultaneous.
Along the same line, PAULO BONAVIDES goes even further. Based on the premise that
participatory democracy is a fourth-dimension fundamental right, concludes:
The fourth generation constitutional democracy is necessarily a direct democracy.
Made possible thanks to the communication technology advances, and legitimate
through the correct information and a pluralistic system. Also, a democracy that is
exempt from contamination of the manipulator media, from the hermetic exclusion,
from autocratic and Unitarian-natured monopolies of power. All this, of course, if the
information and social pluralism walk parallel, as coadjutors of democracy; and this,
59
SILVA, José Afonso da. Comentário Contextual à Constitução. 6. ed. São Paulo: Malheiros: 2009. p. 235
apud BONAVIDES, Paulo. Ciência (cit.). p. 464-467
61
SILVA, José Afonso da. Comentário (cit.). p. 237.
62
Insta ressaltar a interpretação evolutiva preconizada pelo TSE e pelo STF no que concerne à mudança de
entendimento já declarada pelo STF quando do julgamento do MS 20.297. Em suma, conclui-se que em se
tratando de fidelidade partidária: “o mandato ‘pertenceria’ ao Partido. [...] O Supremo Tribunal Federal, por
ocasião do julgamento dos Mandados de Segurança 26.602, 26.603 e 26.604 reconheceu a existência do dever
constitucional de observância do princípio da fidelidade partidária. [...] São constitucionais as Resoluções
22.610/2007 e 22.733/2008 do Tribunal Superior Eleitoral.” (ADI 3.999 e ADI 4.086, Rel. Min. Joaquim
Barbosa, julgamento em 12-11-08, Plenário, DJE de 17-4-09)
63
MENDES, Gilmar Ferreira; COEHO, Inocêncio Mártires; BRANCO, Paulo Gustavo Gonet. Curso (cit.). p.
826.
64
FALCÃO, Joaquim. p. 40.
65
Id. p. 87
60
as a right of
66 humankind, designed and implemented in the last degree of its conceptual
evolution.
And we bring just an example of those principles coming into reality. In 2009/2010, a
pioneering project was undertaken in Brazil: The Civil Regulatory Framework of the
Brazilian Internet, a collaborative manner to build a bill, a joint initiative of the Secretary of
Legislative Affairs of the Ministry of 67
Justice (SAL / MJ) in partnership with the School of
Law of the Rio de Janeiro Law School
The initiative gives life to the principles hitherto advocated. After all, using a powerful
tool for the exercising the fundamental right of freedom of expression and communication, it
was process who occurred in two phases.
The first was a round of discussions on in a blog for the expression of diverse points of
view on topics predetermined: individual and collective rights (privacy, freedom of
expression and right of access to the net); liability for providers and users Internet, and public
policies regarding the Internet. At the end of the first stage a draft was presented,
summarizing the discussions article by article. Every moment happened in 45 days, which
may be expressed the views of all stakeholders, with their diverse views.
This is just a example of the potential of participatory democracy and the use of new
technologies in achieving citizenship on the twenty-first century. While most of the bills
currently being prosecuted for years in our legislative houses begin by establishing criminal
penalties for Internet users, this bill tries to search solutions to the governance of the net
proclaiming first the right of the users instead of starting by strength, punishment, by the legal
enforcement function.
MICHEL FOUCAULT tells us that social relations moved by coercion in most cases
have a dubious and cruel hidden face. Occult power relations that underlie different
institutions in different historical epochs. That is why the Law should renounce68binomials like
violence-ideology, property-wealth, State-coercion, and so many other dogmas.
Therefore, human dignity is a moral principle. Establishes the must-be substrate for
every actor in society. On Bobbio trail, dignity will not proceed without freedom, which
necessarily requires a democratic environment for your ideal flowering. But that democracy
depends not only on State omissions but rather on the creation of mechanisms for its exercise.
This seems to be the spirit of the State today state which does not act to punish and
omits to give freedom, but in most cases should act positively to accomplish and ensure it. For
grit, the Democracy in the information society is fundamentally participative, including before
and segregating, fusing public and private interests and allowing the individuals to play a
game based on one simple rule: freedom and dignity for all.
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