The Brazilian Constitution of 1988 establishes a democratic and republican rule of law as a fundamental political decision1 and as a legal norm of supreme hierarchy2.

According to constituent power theory and its legal fictions, the constitution establishes the state from the beginning, ab ovo, configuring a political framework based on the structure of power and its limitation. This configuration is determined by the guarantee of rights, by the organization of sovereignty among government institutions and by the determination of ends to be pursued by both state authorities and society. 3

The notion of constitution is inextricably linked to the notion of freedom and liberties. Its formulation in a formal document, written and protected against daily changes, reveals the intention to protect a set of rights and guarantees, as well as demonstrates the establishment of the organization and functioning of the state.

Maurizio Fioravanti presents different theoretical models adapted to constitutions derived from the French and the American Revolution and, later, the development of the concept of rule of law in Europe. While in the French Revolution the doctrine assumed freedom as individualist, statist and anti-historicist, in the American Revolution it combined individualistic, historicist, and anti-statist elements. The rule of law, developed from the nineteenth century on, eliminates the individualist element and keeps the combination of statist and historicist theories.4

Historicism assumes a perspective about freedoms that is originated out of the imperative force of rights, which has been confirmed over time in history, and goes beyond the contingent political will. The purpose of the combination with politics is to protect historically acquired positions, so that initial legal positions are not established based on an agreement of wills, which ignores historical rights. This conception does not fit in with the full notion of constituent power. According to the author, the individualistic model places the individual as the holder of rights, in a way that they have the constitutions as instruments to guarantee these rights and individual freedoms. The state law originates from the contractualism and is the only recognized authority. The limitation of individual rights arises from other individual rights and not from a social demand. The constituent power is primary and fundamental. Finally, the statist approach sees the state as a condition for the birth of rights and freedoms. The pact, derived from the contractualist theory, substitutes the contract in a way that the state, which originates from this pact, is taken as absolutely necessary for the existence of the political structure. Power and freedom are born together, they are not opposed.5

The combinations of these elements reflect the conception of freedom and rights, the notion of state, and the notion of constitution. The content of different constitutions shows evidences of these models and their incorporation. Contemporary constitutionalism, a concept that arose from the American Revolution, adopts a normative text of superior hierarchy in a formal document. Its primary content encompasses aspects related to limitation and organization of power and related to institutions of sovereignty, with the creation of a state whose action is linked to the law.6

Eduardo García de Enterría stresses that the notion of constitution originated in the French Revolution and in the American Revolution with a defined content out of certain assumptions. Its existence, according to article 16 of the Declaration of the Rights of Man and of the Citizen7, relates to the protection of individual rights and to the separation of powers in three branches, and its birth must come from popular or community will.8

This notion of constitution was lost during most of the nineteenth century.9 Hence, its origin and content no longer characterize the constitution, which became "a mere logical demand of the unity of system of laws", in any state, at any time, and in any regime. This concept becomes formalized and abstract.10 The indispensability of certain contents, however, seems to reappear in the second decade of the twentieth century, with the idea of state tasks imposed by the constitutional text.

Maurice Hauriou lists three elements of constitutional matter. First, the moral, political and social ideas. Second, the law of the constitution. And third, the constitutional organization of powers. In addition, the author mentions three moral, political and constitutional beliefs that are the power of the constitutional system. Such beliefs include: 1) The individualist order, which limits the sovereignty of the state and has as principle the idea that "everyone lives their lives, taking responsibility of the risks and dangers"; 2) The doctrine of power, divided into minority power and majority power. The first is related to the political elite and to the institutions, whereas the second is legitimized by popular election; and 3) Political freedom, conceived as the participation of each citizen as individual, instead of the nation as product of a collective development.11

The constitution, for Karl Loewenstein, must contain distributions of functions into different government institutions, mechanisms of cooperation between the holders of power, mechanisms to resolve impasses between them (related to sovereignty of the people in democratic constitutionalism) and methods of adaptation to social changes. In the author's view, the constitution also covers a recognized sphere of self-determination with guarantees that ensure it.12 On the other hand, Georges Burdeau gives emphasis to the part of the constitutional text which designates the rulers, establishing their legitimacy, their authority, and determining their responsibility.13

The models of state that aim at reducing social inequalities begin to incorporate other elements related to the guarantee of rights of equality in their constitutions.14 From this perspective, it is likely impossible to dissociate the terms "welfare state" from "democratic state" and "rule law", says Manuel Aragón15, because the elements of this defining formula are interrelated and mutually defined.16

The Brazilian Constitution brings in its set of fundamental political decisions the design of state and of democracy. It establishes the distribution of functions among the government institutions, provides individual rights and guarantees, determines legal provision for its modification within certain limits and settles rules for the legitimacy of the exercise of political power. Moreover, the constitutional text in the preamble17 and in Article 118 presents the constitutive political positions19, which frames the design of state and of the conception of democracy and republic.

Thus, the Brazilian Constitution establishes the rule of law as the foundation of contemporary citizenship, as well as a sense of democracy, a conception of political representation (indicating the framework of that relationship), and a republican ideal, based on a strong notion of freedom and equality, with the assumption of rights and duties of citizenship. For Paulo Bonavides, the Constitution is "the home of justice, freedom, legitimate powers, and it is also the palace of fundamental rights. It is therefore the house of principles, the seat of sovereignty"20.

It is a qualified rule of law, which does not harmonize with any legal content. Public authorities and individuals are subject to the law regularly elaborated, as long as the constitutional values and principles have been observed and substantially considered.21 As Luigi Ferrajoli argues, this qualified dimension of the rule of law also implies a change in the nature of democracy, which is now limited and supplemented by fundamental rights.22

According to Jürgen Habermas, the democratic constitutional state is framed as an order desired by the people and legitimized by free opinion formation and will, which allows the recipients of the legal system to see themselves as its authors. The state performance in the fulfillment of its constitutional tasks, relying on the law to handle factual inequality, makes the realization of equal rights possible. Thus, the breadth of this action expands the possibility of democratic self-legislation, intensifying society's capacity of self-conduction.23

The constitution begins to incorporate a political, social and legal project, which is not neutral nor does it require obedience towards its form, but acts "directly due to the statement of a framework of values that interprets the deep fabric of society"24. However, it is neither a matter of forming, in the constitutional text, an ideal of a good life, nor imposing it on citizens. From a republican perspective, there is the choice of objective values, which allows individuals to carry out their projects and their lives, as long as it does not prevent the others from doing so.25

The constitution must ensure the protection of the fundamental rights of any person, going beyond the representation of a pretended general will or a segment of it.26 As Luigi Ferrajoli states, the constitution guarantees the right of everyone, even regarding popular will, to ensure the coexistence of various interests in a heterogeneous society.

These constitutional promises of recognition, belonging and participation conflict with the national mentality, which is strongly individualistic.

The lack of popular participation in the proclamation of the Brazilian republic is evidenced by historians. José Murilo de Carvalho, for instance, presents different views on the republican model to be adopted, on the republican "traditions" in dispute and on the struggle to create the "myth of origin", through stories, heroes and symbols. The author uses the term of Aristides Lobo to claim that the people were "petrified" and surprised while witnessing the birth of the Republic.27

Maria Garcia claims that during the insurrections and uprisings of the end of the eighteenth century and the first half of the nineteenth century in Brazil - such as Inconfidência Mineira, Inconfidência Baiana (Revolta dos Alfaiates), Revolução Pernambucana, Confederação do Equador, Cabanada, Revolução dos Farrapos and Sabinada - it was possible to identify republican demands28. Nonetheless, the author states that after the proclamation of the Republic of Brazil, the "different Brazilian republics" demonstrated "the discontinuity of the democratic process, its gaps and shortcomings and, at the same time, the untying between institutions established in the name of republican regime, in its popular bases and roots."29

Nevertheless, it is possible to affirm that the constitutional democratic movement that culminates in the Brazilian Constitution of 1988 promotes the foundation of a republic.30 From the new constitutional framework, Brazilian society, which suddenly and by chance became republican, has a normative substrate through which it is possible to affirm that the Brazilian state is founded on a republican ideal and it enables the development of an idem sentire de republica31.

The notion of republic is not opposed to monarchy. In an eighteenth-century writing, Edmund Burke argues that the English monarchy is not only ensured by non-violation of the law by the prince, but requires that the monarch's discretionary powers "should all be exercised upon public principles and national grounds, and not on the likings or prejudices, the intrigues or policies, of a court". Burke emphasizes that everyone - parliamentarians, judges and the king - is "trustee of the people", "because no power is given for the sole sake of the holder".32 The notion of public principles as a criterion for legitimacy of political action is linked to the republican ideal. Their enemies are not confused with the king.

Philip Pettit argues that the republican thinking about citizenship and government is based on a notion of trust and also maintains that the role of government is to promote citizen's freedom. Trust in authorities derives from a conviction on their acting according to the legal rules and with a cooperative arrangement, which is seen as a civic virtue, thus impersonal and personal at the same time. Although impersonal trust is ensured by some mechanisms such as limited terms, separation of power in three branches, and democratic control, the republican relationship between rulers and the rest of the population always assumes virtue and trustworthiness on both citizens and rulers. To the citizens, claims the author, there is an eternal vigilance: without it, there is no hope for public virtue;33 for there to be freedom, a civic virtue is necessary, and it requires availability to participate in government and determination for the exercising of an eternal vigilance in relation to rulers34.

It is possible to relate the republican ideal as a sharing of values to the concept of Verfassung. It is understood as a historical-existential condition and as a community of people who articulate themselves allowing the construction of a political community, and, therefore, of the state. Verfassung assumes a set of values that informs the legal system and the actions of the public authorities.

However, these values, as António Manuel Hespanha asserts, are neither dense nor thick. There is an agreement among the thin and minimum values: all of them agree with the democratic idea, but not with its content. According to Antonio D'Atena, the fundamental common value of all rules is the equality of citizens.

For Zygmunt Bauman, the republican idea does not impose a correct model of life, but promotes "the empowerment of citizens to freely discuss the models of life of their preference and execute them. The republic is a broadening, not a reduction of options - its goal is to increase, not to limit individual freedoms"35. Aristotle states that the best government is "the government in which every individual finds the best way to live happily"36. This aspect of the republican ideal is supported by constitutions such as the Brazilian Constitution of 198837.

The republican ideal reflects the value of equality. This value, a good to be pursued, is constitutionally based on a principle of equality, which is an initial good with normative content that guides actions and has a normative force.38 Moreover, the requirement for equality is essential for the deliberative design of an epistemic theory of democracy: equal voice and equal voting are preconditions for the characterization of a substantive equality39.

This is not a liberal vision of equality which considers the subjects as equal owners of their own body, as equal towards the social contract, equal citizens in Rousseau and equal members of the nation, as Pietro Costa claims. The author emphasizes that, in this context, the defense of human rights against the power also means the defense of freedom against equality. Equality, for liberalism, is a formal and legal equality. It composes citizenship only to the extent that it allows everyone to become holders of rights. This is the only equality compatible with its notion of freedom.40

Freedom, in republican thinking, is seen as non-domination. Non-domination does not exclude the interference. It only excludes arbitrary, substantial or procedural interference, even if it is a potential interference41, emphasizes Philip Pettit. The absence of domination allows everyone to be equal, without needing to show deference to or fear one another. The republican law does not restrict nor compromises freedom. It only conditions freedom. In addition to that, the meaning of the republican ideal implies a notion of distributive justice: the maximum distribution of freedom, considered as non-domination, requires a commitment to redistribution, averting factors that enable domination.42

As stated by Sérgio Cardoso, the republican idea assumes "a common equalizer space, defined by the implication of all citizens into the system of political decisions", extrapolating the requirement of political democracy in order to achieve "economic, social and cultural democratization".43

Roberto Gargarella dedicates his studies to the analysis of contemporary republicanism, which arises at the end of the twentieth century and ends up combining liberal and communitarian critiques. To the author, this current of thought defends civic values (such as gender equality, integrity, solidarity, commitment to others, among other values) and a strong idea of freedom - which requires a set of political and economic conditions in order to happen. The state, therefore, must act to ensure those conditions, but always under the effective control of citizens. Gargarella's concern with republicanism is the possibility of intervention at the individual sphere, from the requirement of certain moral posture, with an ideal of excellence that reaches individual autonomy. It is possible, however, to have a commitment without vigorous moral conception, assuming values "institutionally circumscribed" - it is a commitment to the public good, even though each individual could live as they wish.44

The idea of equality assumed by the Brazilian Constitution indicates different readings, which extrapolate the notion of formal equality and adjust to the notion of freedom45. It is not possible, at any moment, to exhaust the requirement of an "equality before the law". The social setting of the state requires an effective action in order to foster equal conditions of life, of political participation and of personal achievement.

This is not a communitarian constitution46, but a republican constitution, which combines liberal and egalitarian elements. The state and the constitution are not axiological neutral, but they do not impose a closed content for values they elected through democratic deliberation.47

The objectives of the Federative Republic of Brazil, expressed in article 3 of the Brazilian Constitution, are: to build a free, just and solidary society; to ensure national development; to eradicate poverty and marginalization; to reduce social and regional inequalities; and to promote the well-being of all, without discrimination of origin, race, sex, color, age, and others. These objectives can also be understood as a demand to treat all citizens with equal consideration and respect.

The adjective "solidary" refers to a relationship of belonging to a community and to the joint responsibility for acts and targets of society. The task of eradicating poverty and marginalization highlights the need to recognize everyone as citizens, which is justified by the improvement of democratic institutions. There seems to be no doubt in relation to the other objectives: none of them value or disvalue conceptions of life and of individual morality.

The common good48 of Brazilian society is defined by article 3 and by other provisions of the Brazilian Constitution, which are measuring criterion of legitimacy and of legality of state actions. The common good does not interfere with individual freedom. Its demands relate to a notion of equality, but not to a total equality. It is through a notion of common good that the realization of political community is possible.

The republican model of democracy does not presuppose a moral objective truth once it is open to discussion of the purposes and the means of political society. This model, however, imposes the citizens' cooperation49. Also at the heart of the republican idea is the visibility of the political decision. According to Jônatas Machado, the republican government is characterized by the public statement, the right to vote and the freedom of speech50. It is still possible to perceive the connection between state agents and functions in the republican ideal. Such connection consists of an unsurpassed relationship between their competence and tasks, all constitutionally determined, in addition to individual self-determination.51

Geraldo Ataliba claims that the republican principle is the most important in the constitutional framework. The republic is the synthesis of all institutions, and it implies the representation of people while exercising public functions. The republican principle requires commitment of the rulers to the institutions and to the function they exert. The republic still requires free expression of minorities and the existence of institutional opposition channels. Ataliba argues that there are three basic principles of the republican institutions: legality, equality and the intangibility of civil freedom.52

Equal access to elective positions of power as an element of the republican principle is the emphasis of Gilmar Ferreira Mendes, Inocêncio Mártires Coelho and Paulo Gustavo Gonet Branco. A constitutional republic assumes equality of conditions, without any distinctions in the endowment and access to power and public office, provided that constitutional and legal conditions are fulfilled.53

Celso Antonio Bandeira de Mello is concerned with the legal content of the equality principle, affirming the imposition of unequal treatment when there is relevant discriminant factor. Yet, this distinction must cohere with real difference, and be consistent with constitutional values and principles.54

The notion of "constitution-project" or "constituzione-indirizzo" relates not only to the assignment of tasks to the state, but also to the imposition of duties upon citizens. From the understanding of the constitution as a system of values, not only the state has its power limited by the pursuit of certain purposes, but also society begins to be seen as universitas. In this perspective, each member of society plays a role on the execution of a collective enterprise.55

One established aspect of the republican ideal in its relationship with the citizen is compulsory voting. Its acceptance, however, is not peaceful regarding the democratic principle and the idea of freedom. For Celso Antônio Bandeira de Mello, "the compulsory vote discredits both quality and effective representation of the elected rulers". It does so by devaluing the decision to vote and by making manipulation easier.56

Maurizio Fioravanti refers to voting as function while explaining the statist model of freedom. In this perspective, the state appears as source of rights. Thus, the choice of representatives neither means the exercise of individual freedom nor constitutes a transfer of power. For the exercise of this function, "that [function] of designating, in the public interest and on the basis of state law, those who will have the task of expressing the sovereignty of the state in the law"57.

The republican ideal and the welfare state are demanding of citizens. They determine a more active attitude than the classic liberal position. Both the republican ideal and the welfare state require a sense of belonging and destiny sharing, a growing concern with the collectivity and economic and objective solidarity.

The individual, then, is required to choose candidates and their minimum surveillance. The periodic voting, which either approves or disapproves rulers or adheres to a particular application, is not enough for democracy. Active citizenship becomes a claim, a democracy that goes beyond the election, a democracy that generates public opinion past the results of polls and referenda.

The citizen is required to a take a leading role, not only in defense of their rights, but also "in the fulfillment of their duties and obligations"58, consisting of an effective action. In addition to citizen duties, the republican principle requires a constitutional sense59, a sharing of values that allows the setting of a legal community - even if the values are thin.

Contemporarily, the matter of citizenship is embedded in market logic. Theorists discuss users and rights against the state, but republican duties are excluded from general speech. Such exclusion is possibly due to either the emptying effect of politics or to the disbelief in democracy.60

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Notes

Author notes