Legal resistance within the State

by Vinício Carrilho Martinez*

Translated and reviewed by Matheus Lucas Hebling

The theme of legal resistance within the State has an easy solution only at first sight – when we observe public servants (whoever they may be) acting in defense of democracy, the institutions of the rule of law, and the very security necessary for the affirmation of Federal Constitution. Well, many professors linked to the public service do this, as well as prosecutors, public defenders, and judges – inside (“inside”) all federated entities. All resistance in defense of the republic, the rule of law, democracy, public morality, will be legal, political, functional, principled. It is as if to say that the public service, by definition, obligatorily, has to follow the general principles of Law – and the first and insular one will always be of those who live honestly (“Honeste vivere”).

              If we observe with caution, it is estimated that acting in this way is only fulfilling their functional duty and under the ethical condition that disciplines the civil service. In other words, there is no heroism in these actions, only a functional obligation to act. However, it is exactly at this point that the issue is convulsed since our country has brought out the entire national fascism (the basis of the Brazilian social formation, including endemic corruption) and thus literally taking sides with what discredits and delegitimizes the public power.

As for political power, or institutionalized power itself — legitimate command power and not simply legal power — one can make extensive use of etymology, starting from the classic potestas in populo. Let’s see it in a longer passage:

É claro que potestas deriva de um verbo que significa “capacidade”, ser capaz de, como ainda é transparente em francês (onde pouvoir significa, como verbo, “posso”). No entanto, a etimologia da palavra poder expressa apenas parte de seu significado político, que não é capacidade de fazer, mas puissance, “capacidade de mandar  fazer” (pouvoir de faire faire). Essa diferença é muito clara no alemão Macht, que significa tanto poder quanto força (Sartori, 1994, p. 253).

What forces the conquest of law is the political struggle of the forgotten for law.

Political Power and Reserve of Justice

The legal-political relationship of the democratic state of law is well expressed through a written, rigid, and directing Constitution and, therefore, it is obvious that they must be democratic laws and, therefore, fair. Finally, it is a guarantee scheme[1] of rights, freedoms, and guarantees (democratic constitutional state of law[2]). For Canotilho, controlling political power under the rule of law means “the recognition that the State has rights and obligations[3]”. In practice, this implies that a widespread, recognized, and at least relatively predictable legal conscience (as a globally respected, required, and reiterated legal conscience ) cannot – by force of logic – generate a political structure or a political power that is its own averse and makes it hostage or defenseless in the face of some unconfessed political interests (Canotilho, s/d, p. 231).

In short, the State has a concrete legal capacity because it has the conditions (capacity) to provide some institutional unity. Today, the recognition that the State has rights and obligations is a truism. Because, when there is no such recognition, the State is authoritarian/totalitarian, and in this context, there are only duties – above all the duty of obedience. In the rule of law where there is a democracy, the notion of law itself stands out first (the affirmation of law and the security of the individual result from the transfer of power that comes from law).

Thus, mainly, there is the right (duty) to refuse the unjust obligation or the duty to guarantee the operation of the fair law is affirmed. We have already had the opportunity to debate the central issue present in the concept of (no-) law state, but it is curious and revealing that denial is stuck at the center, within the concept itself. The Rule of Law, to safeguard the cleavages of the injustice of the real, needs proximity to the Legal State as a legal entity capable of nurturing a socialist ideal.

Legal Status

The idea of fulfilling the public service, in reality, is a scope derived from the ideals of the French Revolution. The French Revolution would celebrate radical freedom, against any form of tyranny, what was known as the legal state: “The powers must be moderate, the laws implacable, the principles irreversible ” (Saint-Just, 1989, p. 50- 52 – emphasis added).

The so-called Legal State had to overcome a monolithic phase of Political Power and presented for the first time public affairs as synonymous with popular; the first time that the people would integrate a State policy that was not like pawns heading to war, but rather integrating popular sovereignty as the matrix of public policies.

But it will not only be an indefinite policy, that is, but it is also undoubtedly about domination: the sum or bringing together the rule of law,  the constitution and an independent bureaucracy will result in what Max Weber (1979; 1993) called legitimate domination or rational domination. cool. Indeed, he preached here a form of just domination, but it is still correct to say that Weber (1979; 1993) has not dedicated himself to analyzing in detail the law as freedom or to question the existing distance between Law and Justice: his focus will be the right of domination. Indeed, this is the historical course of the rule of law that would come to replace the predecessor to the rule of law.

In this way, workers can expand their awareness through comparison, dialogue, and verification of common problems and ailments. Thus, in possession of this social conscience for themselves, that is, the individual conscience of the worker who already scrutinizes the social relations amplified by work and all the consequences arising therefrom, the worker has become a social agent. (It goes, therefore, from the individual conscience itself to the social conscience for itself ). In a complementary way, it can be said that the legal state favored the development of the global awareness of work, especially regarding respect and the possible use of the law: (Canotilho, s/d, p. 95).

We emphasize this legal aspect of the legal state because at the top of the order was the French declaration and there rested the declaration of so-called universal interests and safeguarding the right to work: the recognition of the natural right and the social awareness that the same right should be considered in practice and collectively, since the right to work is the homogeneous and concrete guarantee to the process of hominization. In a way, the primacy of law, the rule of law, could not escape this progressive humanization of social legislation.

A conclusion for the good of the public service

In any case, all of us who serve the public must be aware of the greater sense that “the most important administrative (bureaucratic) task” will never supplant the political need and the necessary individual and collective intervention in favor of democracy and civility.

Or, in the last way, we can understand how the virtue of Justice:

Os corações também são motores.

A alma é poderosa força motriz.

Somos iguais.

Camaradas dentro da massa operária.

Proletários do corpo e do espírito.

Somente unidos,

somente juntos remoçaremos o mundo,

fá-lo-emos marchar num ritmo célere.

(Maiakovsky, undated, p. 138).

 

              The Federal Constitution of 1988 discredits all of Caesar’s advances – and his Senatus consultum ultimum – as well as declaring the non-democratic formulas null: “nuda pactio obligationem nom parit, sed parit exceptionem”.

Finally, let’s repeat the slogan: what forces the conquest of the right is the political struggle of the forgotten for the right. In other words: legal resistance “within the State” – as a form of political struggle for law, in the confiscation of class struggle – is an ethical and functional obligation; there is absolutely nothing revolutionary about it. It is described in large letters in our firm employment contract with the people and their Constitution.

 

References

CANOTILHO, José Joaquim Gomes. Direito Constitucional e Teoria da Constituição. 4ª Edição. Lisboa-Portugal : Almedina, s/d.

MAIAKÓVSKI, V. O poeta operário: antologia poética. São Paulo: Círculo do Livro S. A. [s.d.].

SAINT-JUST. O espírito da revolução e da Constituição na França. São Paulo : Editora da UNESP, 1989.

SARTORI, G. A teoria da democracia revisitada: o debate contemporâneo. São Paulo: Ática, 1994. V. 1

 

[1] As a system for guaranteeing and supporting rights, but now understood as a corollary of technical instruments (right of petition, for example) and political ones (democracy).

[2] A Constitution solemnly promulgated and constitutes a reserve of justice ( democratic, a republican reserve of value ) as to the rights, duties, obligations, and guarantees of the preservation of the public interest.

[3] Theoretically: “Submission of power to legal principles and rules” (Canotilho, s/d, p. 231). In the practical order of politics, the democratic regime is an efficient obstacle to fascism, just as autocratic practices do not benefit or instigate democracy and its procedures.

 

Vinício Carrilho Martinez is an Associate Professor at Federal University of São Carlos (UFSCar), the Head of BRaS’ Constitutional Studies Research Group, Member of BRaS’ Academic Committee and Associate Editor of BRaS-J. E-mail: vicama@uol.com.br. www.defesadacf88.ufscar.br