35 years of the Federal Constitution

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By VINÍCIO CARRILHO MARTINEZ*

The democracy that we constitutionally design may not be the best in the world, however, the 1988 Constitution resonates with the Universal Declaration of Human Rights

On October 5, 2023, we completed 35 years of the Citizen Constitution – in the same year in which there was an attempt to abolish the Democratic Rule of Law and 10 years after the children's rebellion (in 2013), on the eve of the preparatory run for the Coup d'Etat. 2016. In itself, this is already a milestone to highlight a constitutional youth who wants to live long in the democratic order. With comings and goings, the core of citizenship, of democracy, the strongholds of the 1988 Federal Constitution (CF88), are intact, its assumptions remain pointed to human dignity, fundamental rights, the teleological capacity of the civilizing process.

Likewise, the constitutional effort to recognize, defend and promote cultural diversity, political pluralism, inclusion, autonomy, isonomy and equity, freedom and equality, social co-responsibility, decentralization of power with the entry of more and greater popular participation.

The crowning of this constitutional flow, still pulsating, we also observe in the constitutionalization of the right to have rights, and this is another pillar of support for the 1988 Political Charter, articulated with the immutable clauses that guarantee us recognition, defense and promotion of human rights and citizenship, in addition to guaranteeing federative unity and the separation of constituted powers.

Despite the labor reform that annulled article 7, without it having been revoked, in addition to other structural problems – such as article 142, taken in a coup-friendly reading as a “moderating power” and facilitator of an unconstitutional aberration called “military intervention” , and article 84 that encouraged confusion between government and State (Kaiserpresident), especially between the fascist period of 2018-2022 –, the 1988 Constitution remains civic.

Therefore, considering the necessary criticisms – some of which we have pointed out – we must go beyond the limits of empiriocriticism towards the criticism of criticism, if we actually aim to formulate a new synthesis, in the form of understanding, revisiting and formulating a new, more relevant conceptual framework. to what we have and what we want. The criticism of criticism goes beyond technical or empirical criticism: empiricism is fundamental – since Bacon –; however, little differs from the concrete experience experienced by common sense, merely observant and often limited to immobility: “it has always been like this, it will be like this”. Or, the criticism is limited, for example, to the number of constitutional amendments already imposed (not all of them negative), without getting involved with the civilizational core that has remained and that we wish to see placed as part of the reality lived by every Brazilian .

Other types of empiriocriticism focus on “how to do it” – which is, evidently, the path to follow for those who yearn for change –, but they forget how important it is to define the objective: “what to do”. The objective we highlight is, precisely, to protect and deepen the positive object of the 1988 Federal Constitution: its teleological and civilizing essence.

Thus, with the due concept fixed in our thesis (the positive object of the 1988 Federal Constitution: “civilizing teleology”), and aiming to transform the reality that denies human dignity, this “what to do” is demanded by the critical mass , through in-depth reflection, equidistant from empiricism and closer to concrete-thought - considering that the concrete is thought conceptually, based on practices subjected to self-criticism, and not only referenced by the impact of empiricism or subjected to analogy or comparison with realities similar.

Analogy and comparison (comparative method) can be illustrative, indicating where we failed and what the neighbor did best; however, reality is ours and we need to adjust to it to readjust it according to our needs and potential. The example of what or who is next to or far away helps, but is not enough.

Our concrete-thought, already largely overcoming that initial phase of empiriocriticism, will require another conceptual level so that (initial) social practices can be evaluated, revised, abandoned or transformed, and this only occurs when the essence is put to the test. proof: is the essence, as a constitutional premise, still valid?

If so, if the essence is in force, in which the constitutional premise is pulsating, what can be done to guarantee its maturation and ensure its continuous process of perfectibility? If it is no longer in force, let us ask: what did we do wrong? What can we do so that it can be recovered and, once regained, it will no longer be lost?

The democracy that we constitutionally designed may not be the best in the world, it may be tactile with prospects of perfectibility, it may be indebted – just like the national reality itself – to a demanding enjoyment of rights. However, the 1988 Federal Constitution resonates with the 1948 Universal Declaration of Human Rights in many ways. One of them is exactly the commitment to article 21 of the Charter of Human Rights,[I] by endorsing democracy and its fluency as a non-negotiable human right. In addition to article 6, when it textually emphasizes that we all have the right to have rights: “Every human being has the right to be, everywhere, recognized as a person before the law”. It is necessary to be clear that every human being is subject to rights, that we have not lost the legal nature of pleading or proposing the institution of rights. It is only in this sense that the proposed Democratic State of Fundamental Rights will be a set of forceful actions, a proposition beyond the cold letter of the law. And it is only in a democratic environment that this will be possible.

*Vinicio Carrilho Martinez He is a professor at the Department of Education at UFSCar.

Note


[I] "Article 21:

1. Every human being has the right to take part in the government of his country directly or through freely chosen representatives.

2. Every human being has an equal right to access public services in their country.

3. The will of the people will be the basis of the government's authority; This will will be expressed in periodic and legitimate elections, by universal suffrage, by secret ballot or equivalent process that ensures the freedom to vote.”


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