Revolution trough Constitution: the Brazilian’s directive Constitution debate

The article discusses the phenomenon known as Directive Constitution and points out that several constitutions enacted in the 20th and 21st centuries in peripheral countries seek to bind the legislature to a constitutional project, thus establishing a political line of action that ensures the progressive construction – through the law – of a new social and economic reality, therefore overcoming underdevelo-pment

One of the most important challenges to new democracies in Latin America after the 1980's is related to the implementation of their interventionist constitutions, characterized by the State's role on economic regulation.This recent reality has caused different expectations to societies that traditionally lived with a very strong economic and political private power to guarantee to few people the wealthy's participation.Besides these interventionist constitutions, elections during the past seven years in Latin America of leftist governments have leaded hopes to democratization and transformation in these societies.This paper suggests that constitutional law, seen under a Marxist view, could also be important to democracy's consolidation and recuperation of State's role, therefore, constitutional law, from a marxist analysis, can be converted in an important tool of the democratic consolidation and the recovery of the State's power especially if one considers law not as an automatic and dependent response to economic structure.On the other hand, the marxist understanding must also let the boundaries of the law to be evident in the transforming action as a revolutionary perspective.
This topic, directive constitution, appears at all times in the contemporary Brazilian constitutional debate.After its apogee, in the period immediately posterior to the promulgation of the 1988 Federal Constitution, the series of neoliberal constitutional reforms during the 1990´s affects this constitution's model's defense and the perplexity of the Brazilian doctrine accentuates with the publishing of new theoretical positions of the Portuguese constitutionalist José Joaquim Gomes Canotilho, where he reviewed his masterpiece "Constituição Dirigente e Vinculação do Legislador", from 1982, which had strongly influenced a good share of the Brazilian's public law doctrine's 1 conception.The debate about "death" or "survival" (or even "resurrection") of the directive constitution became one of the main / central topics of the Brazilian constitutional discussion 2 .In 1961, when using the expression "directive constitution" ("dirigierende Verfassung"), the German jurist Peter Lerche, added a new dominium to the traditional existing sectors in the constitution.In his opinion, all constitutions would present themselves in four parts: the lines of constitutional direction, the determinant disposals of means, the rights, the guarantees and the division of State competency and the rules of principle 3 .However, modern constitutions characterize themselves by possessing, according to Lerche, a series of constitutional policies that configure permanent imposition for the legislator.These policies are what he determines as directive constitution 4 .Due to the fact that the directive constitution consists of permanent policies to the legislator, Lerche will claim that it is in the directive constitution's extent that the material discretionary of the legislator could occur 5 .
The difference of conception of Peter Lerche´s "directive constitution" from the renowned Canotilho´s masterpiece is evident.Lerche is concerned in defining which rules link the legislator and comes to the conclusion that the permanent policies (the directive constitution) would make the material discretionarity possible to the legislator.Canotilho´s concept is a lot wider, for not only a part of the constitution is called directive, but all of it 6 .The common ground between them, however, is the mistrust of the legislator: both wish to find a way to link, positively or negatively, the legislator to the constitution.
Canotilho´s proposal is far wider and deeper than Peter Lerche´s: his objective is the reconstruction of Constitutional Theory by means of a Constitutional Material Theory, conceived also as a social theory 7 .The directive constitution searches to rationalize politics, incorporating a materially legitimate dimension when establishing a constitutional fundament for politics 8 .The core of the idea of directive constitution is the proposal of material legitimation of the constitution by the means and functions anticipated by the constitutional text.In summary, according to Canotilho, the directive constitution's problem is a legitimating problem 9 .
For the Directive Constitution Theory, the constitution is not only a guarantee of the existent, but also a program for the future.When providing lines of procedure for politics, without substituting it, the interdependency between State and society stands out: the directive constitution is a state and social constitution10 .Canotilho´s conception of directive constitution is linked to the defense of reality's change by law.The meaning, the objective of the directive constitution is to give strength and juridical substratum for social change.The directive constitution is an action program for society's alteration11 .This emancipative dimension is highlighted by all the versions of the directive constitution12 .Whether the directive constitution is revolutionary, like the 1976 Portuguese constitution, in which the original version had the transition to socialism be acclaimed with one of the Portuguese's Republic's objectives, or whether the directive constitution is "reformist" like the 1978 Spanish constitution and the 1988 Brazilian constitution, that even though they don't propose the transition to socialism, they determine a vast program of public policies, inclusive and distributive, through its "transforming clauses" 13 .
At a first moment, the conservative authors will criticize the directive constitution for being filled with "contradictions" and "dilatory compromise" 14 , bringing up to date an argument developed in the Weimar Constitution, during the years of 1919-1933.Carl Schmitt, in his Constitutional Theory (Verfassungslehre) of 1928 affirmed that Weimar's German Constitution, even though it contained fundamental political decisions about the way of concrete political existence of German people, possessed in its text a number of compromises and obscurities that didn't represent any decision, but on the contrary, whose decision had been delayed.These compromises, denominated by Schmitt "dilatory formal compromises" (dilatorischen Formelkompromiss), fruit of partisan disputes that delayed the decision about certain themes, would only generate confusion to the interpreter.After all, for Carl Schmitt, in these mechanisms, the only will is not to have, temporarily, any will in that matter, not making it possible however to interpret an inexistent will.These "dilatory compromises" actually represent only one tactical victory obtained by a coalition of parties in a favorable moment, whose objective is to preserve its private interests against all majority parliamentary variables.The "dilatory formal compromises" would be particularly noticeable between the fundamental rights, whose guarantee would be debilitated with the subscription of social reform programs, of interest to certain political parties among the rights properly said 15 .
The critic made to the directive constitution by the conservative authors corresponds, amongst other aspects, to the fact that the directive constitution "ties up" the politics, substituting the political decision process for the constitutional impositions.A greater responsibility was ascribed to the directive constitution for ungovernability 21 .The curious thing is that only the constitutional devices that are relative to public policies and social rights that "cover" politics, taking away the legislator's freedom to act.And the same critics of the directive constitution are the greater defenders of establishing policies of economic stabilization with the supremacy of the monetary budget on social expenses.With the imposition, through constitutional reform and infraconstitutional legislation, of the orthodox politics of fiscal adjustments and of economics liberalization, there was no demonstration whatsoever that they were "tying" the future governments to a one and only possible policy, without any alternatives.In other words, the directive constitution of public policies is understood as harmful to the country's interest, ultimate responsible for the economic crisis, public shortage and "ungovernability".The inverted directive constitution, or so, the directive constitution of neoliberal policies of fiscal adjustment, is seen as something positive to the country's credibility and trust joined with the international financial system.This inverted directive constitution is the real directive constitution that attaches all the Brazilian State's policies to the State custody of the capital's financial income and to the guarantee of the gathering of private wealth22 . 19See CRISAFULLI, Vezio.La Costituzione…, p. 101. 20Ibid.p. 105.Cristafulli´s main critic to the programmatic norm is in the text "L'art.21 della Costituzione e l'Equivoco delle Norme 'Programmatiche'" (In: Ibid, p. 99-111).This text, the third from Cristafulli´s collection about the constitution and its principle devices, is strangely not analyzed the way it should have been by the Brazilian doctrine that imported the ideas from the Italian debate, bringing the conception of programmatic norm and not its critic. 21See MOREIRA NETO, D. F. Desafios Institucionais Brasileiros.In: ______ [et.al.].Desafios do Século XXI.São Paulo: Editora Pioneira, 1997.; and FERREIRA FILHO, Manoel Gonçalves.Constituição e governabilidade: ensaio sobre a (in) governabilidade brasileira.São Paulo: Saraiva, 1995.p. 5, 21-23, 142.See also BERCOVICI,  Gilberto.A Problemática..., p. 39-40.; and CANOTILHO, José Joaquim  The conservative critics can all be solved, formally, by a constitutional hermeneutics loyal to constitution23 .However, only that is not enough.To be able to resist to the critics and attempts of weakening and disfigurement of the 1988 Constitution, it is necessary to get out of the constitutional instrumentalism that the Brazilian constitutional doctrine have been thrown into by the adoption of the exaggerated uncritical of the Directive Constitutional Theory which is a Constitutional Theory that is self-centered.The Directive Constitutional Theory is self-sufficient from the constitution.Therefore, a Constitutional Theory was created so powerfully that the constitution by itself seems to solve all the problems.The constitutional instrumentalism is, in that manner, privileged: it is believed that it is possible to change society, to transform reality only with constitutional devices.Consequently, the State and politics are ignored, left aside.The Directive Constitutional Theory is a Constitutional Theory without State Theory and without politics24 .So, I disagree with Canotilho´s vision that the Constitutional Theory's crisis comes from the sovereign State's crisis 25 .After all, it is only through State and politics that the constitution will be effective.
This detachment of the Constitutional Theory from the State is also connected to the representativeness's crisis and to the political parties' crisis.After the Second World War, the instrument that guaranteed the State's political unit and made the popular sovereignty concrete, reducing it to its constitutional limits, was the political party.The political party was the big actor of the constitutional democracy, with the task of developing the constitution and its content.With the crisis of the political parties and their leading role in constitutional politics, the trend was, according to Italian legal historian Fioravanti, the emancipation of the political unit from the constitution, either from the constituent power or from the sovereign State.This emptiness of the political party's role would be filled by another power that will assume the function as the main actor of the debate and of the constitutional practice: the courts.The judges, and no longer the political partisan-parliament, will arrogate themselves of the function of making the constitution concrete 26 .
The constitutional doctrine was able to create, according to Eloy García, a technical mechanism in a mainly juridical territory.Politics was reduced to the formal vision of constituent power, and that turned over to second plan.The constitutional jurisdiction was made the warrantor of normativity´s correct application, the only reference of the legitimacy of the system, sheltering itself to the doctrine of the exegesis of the constitutional court's interpretations.The supremacy of the courts over the other powers characterizes itself by the fact that the courts intend to be the "summit of the supremacy", in which they would dispose of their competence to decide in final instance, with binding character.In this manner, the constitutional court transforms itself in a substitute of the sovereign constituent power.However, with the "jurisprudential positivism", the constitutionalism continues incapable of leaving the formalist "must be" speech, with the constitutional jurisdiction, according to Pedro de Vega García, assuming the ambitious pretention of reducing and concentrating in it all the constitutional theory's problematic, abandoning essential matters such as, for example, democracy or the constituent power 27 .
The risk of separation of the constitution regarding the State and politics with the hegemony of the constitutional courts and of a constitutional theory without any concerns with the State is the abandonment, by democratic and partisan politics, of the constitutional sphere.After all, if the constitution frees itself from politics, also politics can ends up letting go by the means and tasks anticipated in the constitutional text.As Fioravanti affirms: "Ad una costituzione libera dalla politica rischia di corrispondere una politica libera dalla costituzione" 28 .That is, when constitutionalizing everything, turning the constitutional court into the big actor of the constitutional text's interpretation and of its capability of being effective, the risk is that its represents, as a reaction, the constitutionalization of nothing, with the political partisan activity less and less linked, in practice, to the constitutional determinations.Before this picture, what is the point of even mentioning the directive constitution?The meaning of directive constitution in Brazil is linked, in my point of view, to the conception of constitution as a project of national construction.The constitution has several meanings and functions, as it was well demonstrated by Hans Peter Schneider29 .Although among them, there's a certain point of view that must be highlighted, founded in Rudolf Smend, the constitution as a symbol of the national unit 30 .Herbert Krüger overruns and understands the constitution as a national integration project 31 , which in Brazilian case, would be interesting to comprehend the idea of the constitution as a national project of development.A work's hypothesis would be of trying to understand if the States that seek to finish their national construction, such as Brazil, would end up adopting the idea of the constitution as a plan of social transformations and of State 32 , founded in the view of a national project of development.This hypothesis could explain the conception of directive constitution adopted by the Brazilian National Constituent Assembly of 1987-1988.And the corollary of it all would be the aspect that the Brazilian constituent crisis would be overcome with the fulfillment of the 1988 constitutional project, that would include the construction of the Nation 33 .
This way, I can affirm that, while the pretention of constitutionalizing everything, and therefore, constitutionalizing nothing, the directive constitution doesn't make any sense.It ends up becoming an empty constitutional theory of politics and of the State and so, unproductive.However, it makes sense as an emancipatory project that expressively includes in the constitutional text the tasks that the Brazilian people understand as absolutely necessary for the outdoing of the underdevelopment and the conclusion of the Nation's construction and that weren't concluded.As a national project, and as a complaint of these non-accomplished wishes of the popular sovereignty in Brazil, to talk about directive constitution still makes sense. 1.

Constituição dirigente e vinculação do legislador: contributo
See, by all the transcription of the debate in COUTINHO, Jacinto Nelson de Miranda (Org.). 2