A Constitucionalização dos direitos sociais: instrumentos de transformação da ordem democrática

Abstract

The constitutional movement and the democratic movement were born and developed at the same time from two converging principles. First, the principle that, in order to be democratic, the power delegated to its representatives by the people had to be defined and organized by a formal written constitution. Second, the principle that, to be democratic, political power must be limited by the obligation to respect the freedoms of individuals in the constitution. Thus, political democracy was gradually established by the writing of constitutions articulating these two principles. And even today, when people free themselves from authoritarian regimes (Brazil in 1988, Portugal in 1974, Eastern European states in the 1990s, Tunisia in 2011, France in 1870, ...), they rewrite a constitution imposing such These two constitutional and democratic movements were modified together when voting rights were generalized and, in Tocqueville's words, "the masses entered the political game." Then political parties and parliamentary groups emerged that transformed the meaning of the constitution, its practice, and therefore the democratic form.Today, the democratic form could be modified by a movement that would incorporate social rights to the constitution.This hypothesis of doctoral work is that if the constitutionalization of rights civil and political forms produced the political form of democracy, the constitutionalization of social rights could produce the form s or "continuous" democracy. The law that is the mark for political democracy would respond to the contract that would be the mark of continuous democracy. Parliament, which is the institution of political democracy, would answer to the judges who would be the institution of continuous democracy. For the abstract citizen, who is the hallmark of political democracy, he would respond to the concrete citizens who would be the mark of continuous democracy. This presentation does not mean that the contract replaces the law or that the judges replace Parliament. Likewise, continuous democracy does not replace political democracy. Social constitutionalism is articulated to political constitutionalism to produce a complex or mixed form of democracy.