Direito e democracia: retorno sobre a abordagem processual de Habermas

Abstract

The paper develops the Habermasian thesis of 'mutual conditioning' between law and democracy, in a unity of understanding and action, aiming to contribute to its elucidation. From the Kantian theory of law, Habermas combines individual autonomywith public autonomy and elaborates a communicational version in which the modern political community, constituted by all social actors, perceives itself as a mutual intersubjectivity of positions in order to affirm, to make individual freedom grow and develop. Communicative action guarantees that plurals combine 'anonymously'; so asnot to harm the individual or individual freedom, recognizing, however, the tension existing in this communicative action, since the public space accessible to all must autonomously enable everyone to express their opinions. Habermas acknowledges theimpossibility of perfect 'consensus'; in a society built on the full autonomy of the co-societarians, which keeps communicational action permanently active. The legitimacy of 'law and democracy'; is formed in the public space with the equal participation of allsocial actors in order to 'signify' a legitimate legality. In effect, communicational action provides a democracy free from all forms of instrumentalization that will take the place once occupied by contractualism.