by Doctor Vinício Carrilho Martinez [i], M.A. Claudia Pires [ii] and Flávia de Almeida Montingelli Zanferdini [iii]
Edited and reviewed by Giovanna Imbernon
Our first goal is to disseminate the Brazilian Constitution of 1988 (CF88), nationally and internationally, in what brings or holds at its core – its meaning as a political charter. Many aspects stand out, from the prevalence of social justice (Articles 3, 170) to the evident defense of fundamental rights, including participation, emancipation, social inclusion, and a constitutional structure ensured through the civilizing process (Preamble, Article 215 and 225).
There is no place for the poor and workers in 21st-century Brazilian society. It means that on Labor Day – under the government that took the side of the State – no regulation against forced and slave labor will be bright in . By the way, what do slave-like work conditions mean? Nowadays, we use escapist parables to deny and run away from reality. Recalcitrant slavery in 2021 does not need technicalities nor analogies. It needs legal and institutional measures to fight it and effective penalties.
Claiming “terrorism in the countryside,” state terrorism is regulated by refusing to set rules to the worst of crimes: slavery in the 21st century. Likewise, the fascist closure, indigenous leaders were investigated by the Federal Police precisely because they filed a request at the ICC for serious investigations on the burned Amazon.
The imposition of an irrationality that forces the country to sink as an international pariah, because of a state and government that take sides and, consequently, condemn the people, but not its ruler. This is the outcome: we can say that national fascism weakened Max Weber’s (1979) concept of state, considering the rule of law collapse based on rational-legal domination.
The popular May 1st protests took crowds to central beaches and avenues throughout the country, soaked by the frenzy (“viva la muerte”) of denying life – obediently following the state machinery of misinformation: enough proof of the irrationality of “our” rule of law. Or we can say that political irrationality is further proof that the state of exception is highly contagious and became part of popular political culture.
However, looking back to 2012 – before the naive revolution of 2013 – we may say that Late Modernity not only confirmed the state of exception as the driving force behind rational-legal domination (Martinez, 2010) – as a huge and forceful stock and contribution of extraordinary power to the rule of law (national interest) – and capable of imposing itself as an institutional coup in 2016, as well as, once again, weakened Weber’s concepts.
Thus, we can also conclude that, if the political exception – or exception to politics, because it occupies the public sphere to claim a military intervention – is a political power strategic weapon (National Interest Law); exception inoculated in unconsciousness.
Popular politics is capable of leading a subject to proclaim in these negative manifestations of life and public health, “I authorize the president to kill me.”
Brazil has never known the democratic rule of law; the country only had flashes of an anti-slave political consciousness; it never understood the exercise of democracy and rights – 2013 was just one more example. One cannot use political freedom to defend the institutional coup of 2016 – the impeachment process against Rousseff –, nor democratic freedom of expression will be used to legitimize the end of this same democracy.
Only the logic of the exception allows procedures to become more relevant than their ends – to the point of denying the proposed end. After all, it is an element of irrationality caused by the exception to subvert the logic that “the end justifies the means”. In simple words, we can conclude by saying that only in the exception “the means stand up against the ends”, in this case, the so-called “freedom” used incites the end of freedom.
Restrictions, violations, constitutional misappropriations – the re-election amendment, the social barrier clause designated as the reserve of the possible and many of the following, ending in 2021 – are treated here as constitutional misrepresentation, allowing procedures to become more relevant than the ends – to the point of denying those purposes.
Finally, we conclude that the rule of law based on the CF88 brings together freedom, democracy, dignity, social justice, popular and political participation constituting the public space and that, it should be said consciously, “no one is given the right to deny dignity”. That is, once again, it turns out because the Constitution of 1988 is the largest and most fruitful one when seen as a political charter.
Canotilho, José J. G. 1999. Estado de Direito. Lisboa: Edição Gradiva.
Häberle, Peter. 1997. Hermenêutica Constitucional: a sociedade aberta dos intérpretes da Constituição – contribuição para a interpretação pluralista e “procedimental” da Constituição. Porto Alegre: Sérgio Antonio Fabris Editor.
Häberle, Peter. “A dignidade humana e a democracia pluralista – seu nexo interno,” in Direitos fundamentais, informática e comunicação, eds. Ingo Wolfgang Sarlet; Frank I. Michelman … [et. al]. 11-28. Porto Alegre Livraria do Advogado, 2007.
Martinez, Vinício C. Estado de Exceção e Modernidade Tardia: da dominação racional à legitimidade (anti) democrática. Tese de Doutorado em Ciências Sociais. UNESP/Marília, SP: [s.n.], 2010, 410 páginas.
Weber, Max. 1979. Ensaios de Sociologia. Rio de Janeiro: Zahar Editores.
[i] Doctor Vinício Carrilho Martinez: Associate Professor at Federal University of São Carlos (UFSCar), Head of BRaS’ Constitutional Studies Research Group, Member of BRaS’ Academic Committee, and Associate Editor of BRaS-J. https://www.defesadacf88.ufscar.br
[ii] M.A. Claudia Pires: Head of BRaS’ Communication and PR Department, Head of BRaS’ Social Media Studies Research Group, Member of BRaS’ Academic Committee, Associate Editor of BRaS-J.
[iii] Flávia de Almeida Montingelli Zanferdini: Judge, Ph.D., and Professor of Undergraduate and Graduate Programs in Law the University of Ribeirão Preto (UNAERP), member of Bras’ Constitutional Studies Research Group, and of BRaS-J’s Advisory Board.