Not today a significant directory of comments on social media – among other things – discussed the foundations of power in democracies. More or less, the question posed raises democracy as a connection between demonstrations and the authorities, in a formula that is reflected in the “simplification of this meeting”, defines the position of the majority as legitimate and democratic. A good generalization of this understanding, which in the romanticism of his argumentation is gaining more and more followers, can be found in the well-known opinion of the journalist Alexander Garcia: “We Brazilians have not lost the habit of discussing the obvious. This is because we are not aware of the obvious. The constitution begins by saying that “all power comes from the people.” If democracy is the will of the majority, then power comes from the majority of people. But the overwhelming majority of so-called intellectuality disputes this evidence. She claims that democracy is not the will of the majority. “ [1]…

However, is the question so obvious? Let’s see: if democracies are political regimes that, of course, are guided by the will of the people, but not only, but also are a means of protection against a possible majority, there are some contradictions in this.

Let’s watch – in this sense and for example – a question posed through the prism of the French political philosopher Pierre Rosanvallon. According to him “Democratic legitimacy” [2], there are new opportunities to legitimize this form of government in addition to holding elections. And in that sense he goes back to a kind political common sense in order to recall already in the introduction to the work the premise that it intends to violate: “The idea that the people are the only legitimate source of power”… what idea – as the author calls fiction – asserts itself, of course, because it breaks “An ancient world in which minorities dictated their laws”… And, above all, for this reason, it was not even discussed, constituting “Garcia’s evidence.” In the end, he came up with a clear and necessary opposition in the setting and context of an outright break with an authoritarian past: on the one hand, the Church, for example – who was in charge say divine right to the throne –, contested after the conclusion of two Locke treaties. On the other hand, peopleis now viewed as new star a source legitimacy to govern.

Faced with this democratic common sense, Rosanvallon believes that the legitimacy of democracy has not been established, however, exclusively from people. In other words, democracy and the functioning of its mechanisms are also legitimate, in addition to the procedures for the selection of government officials, which have so far been sufficient. – it is repeated in that fiction undeniable – “To shape the rights of the majority against the clearly defined will of despotic or aristocratic regimes” [3]… But, moreover, for Rosanwallon such legitimacy would also be granted impartiality, for closeness and why reflexivity…

It is on this last possibility of democratic legitimacy that the interest of this discussion may fall, since constitutional courts are institutions that embody this mode of legitimation. After all, it is from them – or remember – restrictions on the executive leader or parliament, clarifying: Expressing a majority in a polling station does not imply permission for any form of discretion. Otherwise, in a dimension other than electoral dispute. – and the differences that characterize it –, these same institutions are located to guarantee a common interest, theoretically limited by political pacts. – that is, in constitutions –, the space in which the principles that guide the political community that projects them are cataloged.

The dictatorship of the judiciary? Not. Principles of Close Interpretation. And that is precisely why such a premise does not mean the perception of the locus of protection of this constitutional space. – which the courts themselves – as a kind of Babylon of the senses, in which the voluntarism of the ruler or “majority” is replaced by the decisiveness of judges. In the end, it will remain nothing more than a shift of free will from one power to another.

The thing is:
Autonomy belongs to the Law, which constitutes a language game and, ideally, is posed as a condition for the ability to project unity onto a democratic way of life. It is not a matter of one force or another, or even some popular abstraction. The historical path is winding, and there is no doubt about it, since the reality of democracy never tires of showing us. In any case, there are no shortcuts: democratic legitimacy does not lie in unrestricted executive action or legislative proposals, even if voice from the streets – ultimately mirror image – so ask. In the end, in this way, the manifestation of strength will always be associated with strength. And that, I must say, seems a bit republican. We would replace the glorified and absolutist “I am the state” new and “democratic” “We are the state”… But what if you, the potential reader, are not among the “we”how would it be? This is a fundamental question.