A influência da democracia na interpretação da autorização constitucional para a atividade legislativa do poder executivo: uma abordagem pela ciência política da democracia como princípio constitucional fundamental do Estado brasileiro

Abstract

The democracy appears as human phenomenon in constant process of construction, presenting a series of contradictions defended with passion by philosophers, politicians and jurists. Being historical conquest, fruit of the evolution of mankind, democracy passed through a long way, suffering interpretation and exercise modifications. The presented basic idea of this paper is the influence of democracy in the interpretation of the Brazilian constitutional authorization for the legislative activity of the executive. From the premise that democracy, more than a constitutional principle, is the main base of the Brazilian State, considered as the base of Brazil and its Constitution, the work focuses on the phenomenon of democracy through the optics of political science, analyzing direct, referendum and representative democracy. Conferring more emphasis to the representative democracy, this study passes to the analysis of legitimacy of the political power exercized by the State, having as the primordial point of this analysis the necessity of having as much legitimacy as possible – specifically in a democratic state – in the exercise of the legislative activity. Established that in a democratic state the legitimacy for the creation of laws (legislative activity) is collective, being pointed the basic mechanisms of transferring some legitimacy from the people to their political representatives (legitimation process), resulting, specificaly, in the electoral procedure. Analyzing the majority and proportional electoral systems without any judgment, this work selected the best adequacy of the proportional model to enable, in thesis, the approach of the collective will to the state legislative activity. In order for the state to be really democratic it must be invested in legitimacy not only by the simple majority, but also for the heterogeneous character of the people (collective will), resultant of an equation not mere mathematical, but by the consensus resulting of the dissent. Analyzing the typical government acts practised by the states in name of the collective will, the legislative activity arose as the most important one because it is the precedent of the legal structure of all three activities (legislative, executive and judicial). Studying the authorization included in article 62 of Brazilian Constitution of 1988 (“medidas provisórias” publication), and verifying that the approach of the democratic level of the Constitution could not take to the unconstitutionality of the constitutional text itself, it concludes that the interpretation of the authorization for the Brazilian executive legislative activity, chosen by the majority system, must be done in a restrictive way when analyzed the aspects of the law: opportunity (relevance and urgency), object (material content) and formality (limitations on time in force and on number of reeditions).