Da concomitância entre direitos humanos e direito: sobre a base fundacional da democracia como um sistema público de direito com caráter antifascista

Abstract

The paper aims to clarify the sense of contemporary fascism, particularly from the example of the Brazilian Bonsolarism, defining it as an anti-systemic, anti-institucional, anti-juridical and infralegal perspective with a personalist, devoted, voluntarist, spontaneous and militant character which starts from inside judiciary and in terms of subversion of the relation among law, politics and moral, and that, by means of politicization and partisanship of law, branches to the political system, serving as instrument to the fratricide political war among parties, from there linking to civil society in the form of constitution of a digital-social mass-militia of acclamation oriented to an anti-systemic posture. In this dynamic, the fascism has two constitutive and streamlining cores: on one side, it subverts the correlation of human rights and law, delegitimizing and truly destroying the ontogenetic primacy, the separation, the differentiation, the self-referentiality and the overposition of law in relation to politics and moral, as the subsidiarity of them regarding law; on other, it leads to the deconstruction from inside to judiciary and political system of the highly institutionalist, legalist, technical, formal and depersonalized perspective which is proper to them, eliminating the centrality of the judiciary and, them, delegitimizing its regulator role regarding to political system and to the social dialectics, normalizing the totalizing regression caused by political-moral colonization of the democratic law. By reconstructing the pluralist and universalist democracy’s meta-normative and generative basis as a public system of law, that is, the co-originality of universality of human rights, pluralism and law, the condition of ontogenetic primacy, independence, self-subsistence and overposition of law in relation to politics and moral, as the subsidiarity of these regarding to law, we will point to the renewal of this systemic, systematic, procedural, mediated, instancial, progressive and publicized perspective of the public system of law, in the interrelation, separation and overposition of judiciary and political system, demarcated by a strong ideal of methodological-procedural-axiological institutionality, legality, technicality, formality and depersonalization, which eradicates the politicization and partisanship of law and, by devolving the complete integrality to law-judiciary, confines the democracy’s political system and civil society to their true limits which are its structural basis: the human rights, the legal process and the public system of law, with the necessity of full translation of politics and moral to law, delimitating the pluralist and universalist democracy as a public system of law oriented to the production of universality in/as/by legality.