By VINÍCIO CARRILHO MARTINEZ*
We find ourselves at a time when sovereignty is threatened, as much as the urgent thesis of digital sovereignty is presented.
If we look from the present to the relatively recent past, we will see that the decreed death of the State, of sovereignty, of institutions and processes of public institutionalization – proclaimed in the 1990s, with globalization – did not occur as predicted. This decree did not occur or did not have the projected scope – even if the current existence of a true platform State, privatized, sheltered, converted to monetization and financial capital, stands in the way.
We have a clear and provocative example in the dispute between the Supreme Federal Court and Elon Musk, and the entire chain of arm wrestling between the digital world magnate and Brazilian institutions. In our assessment, within the scope of this work, the institutions of legitimacy have proven themselves once again – just as happened on the famous January 8, 2023, and in the days that followed until the present of the judicial process investigating the main crimes against the democratic rule of law in Brazil.
This leads us to revisit a bit of the history surrounding sovereignty (as a classical concept) and the formation of subsequent institutions, notably the foundations of the rule of law. We will then briefly rewind to finally return to the present, which we call the third generation rule of law.
Jean Bodin described the need for sovereignty, followed by Thomas Hobbes – obviously including the efforts of Niccolò Machiavelli –, in view of the need for organization and centralization of political power (State). Jean Bodin (1530-1596), refers to a strong and protective domain (Bodin, 2011, p. 196), (the last reason of kings as prime ratio) acting upon his people.[I]
For Thomas Hobbes, power is consistent with the means to achieve advantages: (i) As dominion over others or over nature; (ii) As possession of the means to obtain advantages; (iii) To establish a relationship between subjects and the State: command and obedience. For Thomas Hobbes (1588-1679), it is necessary to have clear rules that operationalize or condition sovereignty. Thus, in Thomas Hobbes, the State is the Leviathan, a biblical monster, a superhuman fortress capable of subjugating all individuals, thanks to its enormous strength.
This historical phase could be called the great era of power technologies, since the state apparatus accompanies the development of science and technology. It is the Renaissance, a European historical landmark that encompasses the 1991th century until the mid-2003th century, with highlights including: Primitive Accumulation (Marx, 1979); Silk Road – expropriation of peasants; The myth of Faust (Solar, 2005) – Capitalism; Overseas expansion; Unification of power, Centralization of power, Organization of power (Machiavelli, XNUMX); Modern Science: empiricism (Bacon, XNUMX); Technologies and developments: improvement of the compass; Heliocentrism (Galileo, XNUMX); Inventions: Gutenberg's printing press: from the printing press to the press.[ii] In a way, this would be the basis for confluence with the classical Modern State.
Sovereignty and Rule of Law
All things considered, there is a sense in aligning the insurgency of Parliamentarism with sovereignty, with the edicts of King John Lackland in 1215 – imposing the first limitations on the handling of power. A phenomenon that would later be called Negative Freedom.[iii] – less room for action for sovereign power, greater guarantees for citizenship. The constitutional pact, in itself, would come from the German territorial unification – also known as the Myth of Arminius – and the following Treaty of Westphalia (17th century).
The rule of law would ensure the division or separation (tripartite) of institutional functions and powers, individual rights and sovereignty. From this complex, themes that are as current as they were in the past would emerge: Monopoly of the legitimate use of physical force, institutional violence (Weber, 1985); the State as “the public institution” (par excellence, supervening on the others; the trinity between people, territory, sovereignty; the State as the sovereign legal order whose purpose is the common good of a people located in a given territory) (Dallari, 2012, p. 122).[iv]
It would also be a first phase of the Constitutional State and the need to affirm the legal guarantees in the Constitution: “The Constitutional State implies a commitment of the administrative State by the legislative bodies, a “self-commitment of the State”, and, as its consequence, the rights of subjects against the State as such, “subjective, public rights” (Radbruch, 1999, p. 167-168).[v]
In the second phase of the rule of law (2nd generation rule of law), already in the XNUMXth century, in addition to Nazism and fascism, the end of the Second World War would also bring legal milestones for another way of treating sovereignty – especially so that the excesses of sovereign power would no longer reach genocidal dimensions: the determination of international law, in the same context as the Nuremberg Tribunal, was decisive.
The Democratic State was established there, with the founding of the UN (1946), the Proclamation of the Universal Declaration of Human Rights (1948), the Bonn Constitution (Germany, 1949), the emergence of TV – the uprising of the so-called Seductive State (Debray, 193) – the resumption of the Turing Machine and the trip to the moon (with a 386). From this phase onwards, we can say that the democratic rule of law (2nd generation of the rule of law) has been around for approximately four decades. It is the State of justice, as defined by Elías Díaz.[vi]. It is also about the rationality applied or constructed around the political phenomenon that is essential to understanding the Modern State. This perspective is usually demarcated from the thought of Max Weber (1979), but can/should be seen in authors such as Machiavelli (with his peculiar realism), Hobbes, Vico.
Legally, in another conceptual leap, we have the bases of the Spanish Constitution (1972), more formalistic, moving away from Francoism and setting another limit to sovereign power, that is, expanding negative freedom. In the same way, guided by the Carnation Revolution (1974), overthrowing Salazarism, the compatriots built the Portuguese Constitution (1976): more socialist.[vii]. We thus have other institutional constructions, such as the conceptual unification between democracy, rule of law and division of powers: Republic and Federation, and prohibition of the right of section.
If we extend legal thinking to the basis of the democratic rule of law, then we should highlight some complementary elements: predominance of public-subjective rights; publicity; responsibility; legitimacy; public health – the sanitation of the State structure (public accounts) implies an improvement in the public health of the State and the people. Under the auspices of the rule of law, it is understood that autonomy and sovereignty will be conditioned by self-limitation and hetero-limitation.
This legal capacity that ensures that the State acts in accordance with clear legal precepts indicates the need to return to the main theories of legal personality: (a) theory that only recognizes man as a person and denies the State legal personality; (b) theory that only admits legal personality for the State, but denies it the essence of a moral person; (c) theory that recognizes the State as a moral and legal person; (d) theory that also personifies the nation (French variant) and defines the State as the legally organized nation (Azevedo, 2009, p. 102).
Regulated power, without a doubt, means that political power (State) and legal power (State-Judge) are mutually and concomitantly recognized. In this union, which would also be the congratulation between legitimacy and legality[viii]. By legal capacity, we read that every man is capable of bearing rights and obligations. By competence, we understand the legal power attributed by the legal entity to its bodies; it is a delimitation of the scope of action. In other words, both refer to the limitation of political sovereignty (restrictive to the State) and the extension of legal sovereignty (expansive of rights, guarantees, freedoms and also of responsibilities).
It is also a way of understanding the necessary communication between legal power and legitimate power. It is not that it comes from there, but certainly, after this institutional construction, the democratic principle[ix] gained unusual relevance. The democratic state returned as a theme after the Mexican Revolution (1910s) and with Soviet popular democracy (Russian Revolution): “socialization of law: social and labor rights”. However, in democracy there is no power or unlimited rights. Popular sovereignty is regulated, based on laws and improvements in “social relations and representations”.
Popular sovereignty: (i) Refers to the maximum exercise of power, as political sovereignty; (ii) is added to social rights of all types (those that already exist and those that may be created – Welfare State); (iii) adds negative freedom (closer to classical liberalism); (iv) is understood as a guarantee against abuse by the State or the power of others.
Positive freedom is feeling free to do something. It is positive freedom that is associated with the idea of a right that must be formally established. It needs to be guaranteed concretely for the exercise or enjoyment of this right. (In France, for example, striking is a freedom: it is not in the codes. But, one pays for abuses as a citizen).
Finally, back in the 21st century, we find ourselves at a time when sovereignty is threatened, as much as the urgent thesis of digital sovereignty is presented. And this will occur in an encounter with the third-generation democratic rule of law or international democratic rule of law, with its more or less visible predictive attributes.
At this moment in the 21st century, we are reflecting not only on the possibility that sovereignty is already something very remote – given the flow of autocratic, hegemonic powers in vogue. In addition to this, or in conjunction with the collapse of the certainties contained in the Reason of Kings, emancipation, as human integrity, is underway with some unexpected setback – our praxis needs to be calibrated, reviewed daily, as an individual and social capacity to approach and transform one's own reflection into action.
Bearing in mind that praxis is the transformation of practice (habits, involuntary or repetitive actions) into decisive actions. A conscious practice, this overcoming of the “habitual attitude”, of habits, is one of the challenges in dealing with digital advancement or technological abuse. Therefore, it is not enough to denounce, it is necessary to speak out, in the sense that reflection becomes action.
*Vinicio Carrilho Martinez He is a professor at the Department of Education at UFSCar. Author, among other books, of Bolsonarism. Some political-legal and psychosocial aspects (APGIQ). [https://amzn.to/4aBmwH6]
References
AZEVEDO, Caio Nelson Vono de. State Theory: general part of Constitutional Law. Helm: Habermann, 2009.
BOBBIO, Norberto. The theory of forms of government. Brasilia: University of Brasilia, 1985.
BODIN, Jean. The six books of the Republic: first book. 1st ed.
CANOTILHO, JJG Constitutional Law and Theory of the Constitution. Lisbon: Almedina, 1990.
CANOTILHO, JJG rule of law. Lisbon: Gradiva, 1999.
DALLARI, Dalmo de Abreu. Elements of General Theory of State. Sao Paulo: Saraiva, 2000.
OLD, Giorgio. The State and its sources of law. Belo Horizonte: Leader, 2005.
MALBERG, Raymond Carré de. General theory of the state. Mexico City: Facultad de Derecho/UNAM; Fondo de Cultura Económica, 2001.
MACHIAVELLI, Nicholas. The prince. Brasilia: University of Brasilia, 1979.
MARX, Carl. Pre-capitalist Economic Formations. Rio de Janeiro: Peace and Land, 1991.
MIRANDA, George. Constitutional Law Manual. Volume IV. Coimbra: Coimbra, 2000.
MIRANDA, George. Historical Texts of Constitutional Law. Lisbon: National Press – Mint, 1990.
MIRANDA, George. Theory of State and Constitution. Rio de Janeiro: Forensics, 2002.
JELLINEK, Georg. General Theory of the State. Ciudad de México: Fondo de Cultura Económica, 2000.
HOBBES, Thomas. Leviathan. São Paulo: April, 1983.
SEVCENKO, Nicholas. The Renaissance. New York: Routledge, 1994.
SOLAR, Juan José del (editor). History of Doctor Johann Faust – anonymous from the XVI century. Siruela: Madrid, 2003.
VICO, Giambattista. The New Science. Rio de Janeiro: Record, 1999.
RADBRUCH, Gustav. Introduction to the Science of Law. São Paulo: Martins Fontes, 1999.
WEBER, Max. The Rational State. In: Selected Texts (The Thinkers). São Paulo: Abril, 1985, p. 157-176.
ZUBOFF, Shoshana. The Age of Surveillance Capitalism: The Struggle for a Human Future on the New Frontier of Power. Rio de Janeiro: Intrinsic, 2020.
Notes
[I] Bobbio (1985, p. 95) also makes it clear that Bodin was based on other medieval jurists, who had also studied this topic: “Medieval jurists, commentators on the Corpus Juris, had drawn a distinction between the 'civitates superiorem recognoscentes' and the 'civitates superiorem non recognoscentes' – only the latter possessed the requirement of sovereignty, and could be considered States, in the modern sense of the term”.
[ii] While Vico (1999) will be one of the first to address and name the class struggle, Dante (1998) will build a beacon and a sure warning to the lords of sovereign power: The most significant landmark of modern literature is [the] Divine Comedy by Dante Alighieri (1265-1321) […] The work is probably the most accomplished synthesis of all the values that guided the medieval world […] Dante’s guides on this sacred and symbolic journey are a pagan poet from Latin Antiquity and a lowly, bourgeois and homely young lady […] During his journey through hell and purgatory, Dante recognizes and converses with numerous characters he knows, notable people in the recent history of Tuscany who appear in the sacred space with all the characteristics of their earthly life. In other words, just like Giotto’s figures […] He is thus a man of two worlds, for, at the same time that he summarizes medieval civilization, he synthesizes all the perplexities that will mark and dignify modern man (Sevcenko, 1994, p. 39-41).
[iii] “The law, by itself, can only, and always under the condition of being supported by the preponderant social will, establish this limitation, so to speak, negative: that norms incompatible with its own, derived from other sources, are not enforced, in such a way that the coherence and organic unity of the system are always safeguarded” (Del Vecchio, 2005, p.56-57).
[iv] “By Rule of Law we must understand a State that, in its relations with its subjects and in order to guarantee individual status, submits itself to a regime of law, insofar as it chains its action with respect to them, by a set of rules, some of which determine the rights granted to citizens and others previously establish the ways and means that may be used with the objective of achieving the State's goals: two classes of rules that have the common effect of limiting the power of the State by subordinating it to the legal order that they enshrine” (Malberg, 2001, p. 449-461).
[v] “Constitutional State means a State based on a Constitution regulating both its entire organization and its relationship with citizens and aimed at limiting power” (Miranda, 2000, p. 86 – our emphasis).
[vi] “Socialism and democracy coincide in our time and are institutionalized together with the proposal of the so-called democratic State of Law: socialism as a result of overcoming the neo-capitalism inherent in the social State of Law […] This means that the old State of Law, while continuing to be such, will have to become a State of Justice […] State of Justice undoubtedly has a much more abstract meaning. Both terms can only be considered interchangeable if we understand them in the sense that the democratic State of Law is today the State of Justice, that is, the State that currently appears as legitimate, as just, precisely in function of some specific historical values that are democracy, socialism, freedom and peace” (Díaz, 1998, p. 133-134).
[vii] “The Constituent Assembly affirms the decision of the Portuguese people to defend national independence, to guarantee the fundamental rights of citizens, to establish the basic principles of democracy, to ensure the primacy of the democratic rule of law and to pave the way for a socialist society, respecting the will of the Portuguese people, with a view to building a freer, fairer and more fraternal country” (Preamble).
[viii] “Legal power is that which is only instituted by law; legitimate power is that which, instituted by law, is legally and morally correct. It is important to remember that legitimacy is the coincidence between the desires of the people and the objectives of power […] The power of the State is, therefore, legal power, without losing its political character […] The State, an abstract entity, a legal fiction, makes its presence felt through public agents (natural persons) and through legal entities” (Azevedo, 2009, p. 102-103 – our emphasis).
[ix] In the Democratic Principle (Canotilho, 1990) a right only exists if there is a guarantee that it can be enjoyed: “Free association, organization and expression depend on objective characteristics: i) being entirely free; ii) having great publicity; iii) the theme of Public Good being present; iv) bringing Government and Nation closer together” (Menezes, 1998 – our emphasis).
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