by Vinício Carrilho Martinez, Federal University of São Carlos (UFSCar)
Reviewed by Matheus Lucas Hebling
To be or not to be? This dubiousness, uncertainty, and even alienation is an aspect of the social life of Mankind: is it fascism or not? Is it a dictatorship or not? Does it relate to a serious or severe violation of fundamental rights, the denial of social life and dignity – or does it not?
Under Politics, in the sense of Polis, however, the law must be incisive to minimize such an outlook. For instance, the Brazilian Constitution of 1988, hereafter referred to as CF88, as a teleological map, must function as a guide, a moral compass, so that public policies are not strangulated.
For the CF88 to prevail, the State must be in a state of institutional balance, albeit not like a centering podium, i.e. pending and at risk of falling into whichever side enlists more power or falling under the “law of the most powerful”, and there remaining sub judice (MÉSZÁROS, 2015). As of this moment, in 2020, there is a strong tendency to a fascist barbarism, with enormous constraints on fundamental rights and guarantees.
On the other hand, in contrast to this tendency, the CF88 is expressed so that Hamlet (SHAKESPEARE, 2004) does not place us as the “not to be”, for this option is not valid for human and social life. Under Section 225 of the CF88, the Amazon, the Pantanal, and the mangroves (as well as the Pampas, the Cerrado, the Caatinga) must be a priority – so that in “being”, we can also be.
● As national heritage – natural, social, cultural (Section 225, § 4, of the CF88) – the preservation of the environment is a direct inclination to the Civilizing Process (Section 225, caput).
● Therefore, teleology is this moral compass that preserves us as social life, ensuring that the present and future of generations to come is a reality and not evidence.
● The effective mean, the political-legal mechanism, from Constitutional security to the Civilizing Process, is also inscribed in the 1988 Charter: it deals with the integrity of the genetic heritage and the activation of the Principle of Diversity (Section 225, II).
● When this is not the case, it is because something is rotten in Denmark, to quote Hamlet, and even more so in Brazil in 2016-2020.
● Finally, it can be said that we need to expand the right to consciousness which then will allow us to understand that every Constitution has a political unity; however, as a Charter, in the CF88 a political value is tantamount: notably, that no citizen should have to question whether they “are” or they “are not”.
What we do when seeking guidance for a Science of the CF88 is still, however, the application of a technique to the Constitutional text itself. Nevertheless, both this approach of inquiring about the CF88 and the Positive Object of the CF88 itself – that is, the principle of inclusion of Citizenship Rights – are cultural manifestations. They are not positivist techniques or sciences in the sense of obtaining neutrality or equidistance of knowledge per se. On the contrary, it is technical, political, and legal knowledge, at the service of the fight for citizenship rights (BORJA, 1998).
Similarly, within the scope of the CF88’s Positive object (pluralism, mutualism, and multiculturalism), the technique and science applied to the CF88 are political-legal, meaning that they refer to themselves as the inclusion and cultural manifestation of the Constitutional content (BORJA, 1998). In such a way that, given political realism, we must differentiate political rights when observing the analysis of political scientists and jurists, properly speaking. (BORJA, 1998).
Where the Civilizing Process highlighted in the CF88 is concerned – from Section 4, IX and 215, § 1 – it is also clear that assistance should be received, in this initial Science of the CF88, from the fields of Philosophy (or Constitutional philosophy), Sociology, Political Anthropology and Political Science (BORJA, 1998), especially when referring to First Nations and populations marginalized by the rule of law, notably the poor and black, since they are only recognized by the power of the lightbar.
That way, we reinforce the guidelines of the CF88 and the use of a constitutional methodology that must be established in this reading of the Science of the 1988 Charter. In this sense, we understand that the Science of the CF88 is more indebted to Social Sciences, the Theory(ies) of state and Constitutional philosophy than, properly speaking, to a positivist nomology – even though the latter is an essential contribution, as technical knowledge, in the Struggle for Law. An accurate reading of individual and social fundamental rights reveals that the CF88 is inclusive, emancipatory, cultural, and expansive.
The science behind the CF88 bears the marks of fields such as Modern Constitutionalism – specifically the third generation democratic rule of law, namely the internationalization of the right to sovereignty, i.e., a type of internationalization of negative freedom -; also in the present case, we have influences from Political Science, or, more precisely, Political Theory; Constitutional theory and Constitutional Ethics itself; Political Anthropology, which is strongly cultural, as well as other substrates and constitutions – these marks are present in the form of analogies, comparisons, and deduction. This methodology is drawn from History, especially from Constitutional history, and from induction, particularly when we see that the references affixed to sections 4, IX and 215, § 1, are more than a turning point in values; they are, above all, fomenters of civilizing patterns that must guide – constitutionally – society, individuals and the political power.
Moreover, the question that we must ask ourselves, continuously, refers to the relation between the State – the political power, the organization par excellence -, and society: the Brazilian social formation. Is the issue in the definition of democratic rule of law, as stated in the CF88, or is it the extreme concern regarding the political realism that consistently assaults this very reference in the 1988 Charter? Is the issue constitutional, nomological or ethical – in the sense that legal and constitutional principles, which are ethical, end up succumbing to a national reality that not only is permeated by the interests of speculative capital but is also filled with small powers and small favors?
If that is not the case, as it is known, then the issue is not constitutional, but rather, it stems from the social condition and political realism faced in the country’s current state of affairs, under the hook of national fascism or Necrofascism (MARTINEZ, 2020) promoting the absolute denial of the Environmental State (CANOTILHO, 1999) envisioned in the CF88.
Thus, we affirm an approach to the 1988 Charter that rejects any authoritarian sense, unlike others who defend Section 142 as an assertion of an alleged “moderating power” to support a Cesarean constitution. Due to the imposition of the principle of oneness and the interposition of a principle of non-regression of social conditions, we ridicule this type of hermeneutics.
However, the Science of the CF88 must realize, and emphasize that it is an Antifascist and anti-cesarean Constitution and that in itself reveals much of what is this Science of the CF88 – a Charter that is decisive to socialization and humanism. Our claim that the civilizing process is only present when there are effective guarantees for future generations (Section 225) and upon the understanding that the Science of the CF88 emphasizes cultural, environmental, institutional, social heritage is obvious.
On the other hand, there is an intrinsic relation between Politics, Polis – and political realism – and every Constitution, and with the CF88 it would not be any different, simply because every Constitution is political, in the sense that it expresses the power relations and dominance relations present in a given context – especially the nature of the Constituent power. However technical or historical it may present itself, every Constitution establishes rights, sets forth duties, delineates the State and power; nevertheless, it is a concurrent process, since the Constituent power itself results from the clash between other powers which are socially constituted, and from this clash we have that every Constitution presents itself as a commitment and also a compromise.
Hence, the CF88 is a commitment, without being exclusive. The form of government, the structuring of political power, the relationship between rights, duties, freedoms, and guarantees, the arrangement between the Three Powers, the mechanisms of checks and balances, the regularity of elections, political pluralism (or not), and the issuance of currency, everything is representative of the commitments assumed in the occurrence of the Constituent power – and afterward, under the derived Constituent Power, controller of the legal process. Everything will be a political commitment, even if the Constitution is granted or promulgated; for the latter case, it is necessary to observe some elements of the democratic principle – which, in theory, is the guide to the civilizing process present in the 1988 Charter.
BORJA, Rodrigo. Enciclopedia de la Politica. (2ª ed.). México : Fondo de Cultura Económica, 1998.
CANOTILHO, José Joaquim Gomes. Estado de Direito. Lisboa : Edição Gradiva, 1999.
FERREIRA FILHO, Manoel Gonçalves. Princípios Fundamentais do Direito Constitucional. São Paulo: Saraiva, 2009.
MARTINEZ, Vinício Carrilho. Fascismo Nacional – Necrofascismo. Curitiba: Brazil Publishing, 2020.
MÉSZÁROS, István. A Montanha que devemos conquistar: reflexões acerca do Estado. São Paulo : Boitempo, 2015.
SHAKESPEARE, W. Hamlet, príncipe da Dinamarca. Tradução de Ana Amélia de Queiroz Carneiro Mendonça. In: BLOOM, H. Hamlet: poema ilimitado. Tradução de José Roberto O’Shea. Rio de Janeiro: Objetiva, 2004. p.140-319.
 “The Constitution also lays out some rights of solidarity. These are recently identified projections of fundamental rights. Among them, the Magna Law includes the right to the environment (art. 225) and the right to the media (art. 220). These rights are diffuse, insofar as they do not have a natural person, but “all” individually. They are rights that belong to a collectivity as such.” (FERREIRA FILHO, 2009, p. 310).
 Translator’s Note: Giroflex (Portuguese for lightbar), refers to emergency vehicle lighting, particularly that in police cars and ambulances. In Brazilian Portuguese, it is also used colloquially to refer to the police, which is the use intended here by the author.
 “Section 142. The Armed Forces, constituted by the Navy, the Army, and the Air Force, are permanent and regular national institutions, organized based on hierarchy and discipline, under the supreme authority of the President of the Republic, and are intended for the defense of the Fatherland, to guarantee constitutional powers and, on the initiative of any of them, of law and order ”(bold emphasis added, in verbis)
 T.N. One of the four powers of the Brazilian Constitution of 1824, vested in the Emperor giving him wide control over the Executive, Legislative, and Judiciary, supposedly as a “neutral power” to solve any disputes between the other powers.
 “We, representatives of the Brazilian people, gathered in a National Constituent Assembly to establish a Democratic State, designed to ensure the exercise of social and individual rights, freedom, security, well-being, development, equality, and justice as supreme values of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, internally and internationally, to the peaceful settlement of disputes, we promulgate, under the protection of God, the following CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL.” (in verbis).