The Function of Social Constitucionalism Before Liberal Democracy

Abstract

This paper aims to analyze the effectivity of Social Constitutionalism in the face of the movement so-called “liberal democracy”. This movement is responsible for the revitalization of the principle of legality into the Brazilian legal system. This outcome has started from legal amendment in Brazil Labor Code, which was introduced by Law 13,467/17. The new law enacted by National Congress has as its main purpose to increase the space of flexibility into labor law regulations. This proceeding allowed to use mandatory trade union negotiations upon several labor issues. There are some legal aspects that have breached specific constitutional commands, and these contradictions against the constitution should be controlled by the rules with social contend, namely Social Constitutionalism. Social Constitutionalism will be tested before the Brazilian courts as an effective framework to maintain the level of protection on social rights. This tool has been used to control the precarious scheme introduced into labor rules that has breached the constitutional principle of non regression on social rights. This new guidance is actually possible through the occasional congressional majorities formed in times of great political and economic turbulences, even though the law is the expression of liberal democracy represented by popular vote. The International Labor Organization (ILO), which celebrated its 100th anniversary in 2019, has dire predictions about how the Brazilian government will lead with these changes into the law.