DEMOCRACY AND SOCIAL JUSTICE IN THECORE OF THE RULE OF LAW: A NORMATIVE DISPUTE?

As part of the civil law tradition, Estado de Direito is naturally closer to concepts such as Rechtstaat and Etat de Droit than the Anglo-American rule of law. The continental counterparts of the rule of law were highly influenced by the German doctrine of the Rechtsstaat, though their distinct constitutional histories and cultures raise particular challenges and imply some structural differences.^[65] In all those cases, the intricate balance between formal and substantive conceptions of the rule of law as well as the normative disputes over the meaning and extent of the core values they should embody have marked their histories.

This reflects on a different relationship between the state and individuals, and it also lays the groundwork for the �principle of legality’, one of the hallmarks of those concepts. The continental versions of the rule of law have been greatly impacted by the historical developments of constitutional law, and, particularly after World War II, some core values began to be directly associated with them. The German Rechtsstaat, whose nineteenth century interpretation pointed to a �symbiosis between the law and the state’^[68] and the primacy of the state over legislation,^[69] evolved to embrace substantive principles and values, particularly human dignity.^[70] It became a constitutional Rechtsstaat^[71] and a democratic Rechtsstaat^[72] which could, in a more restricted version, set the administrative goal of realising social rights or, in a broader version, determine the constitu­tional duty of doing so.^[73] It is no wonder that the Bundesverfassungsgericht, the German Federal Constitutional Court, has become a prominent player in the promotion of social welfare in Germany.^[74] By the same token, the French Etat de Droit, unlike the more formalist Etat Legal that was mostly based upon the �principle of legality’,^[75] was coined to embody substantive principles in its core, and it has as such been adopted by the French Conseil Constitutionnel.^[76] Despite their original differences, both concepts have thus become more analogous.^[77]

The Portuguese Estado de Direito would adopt a similar narrative: a gradual, though impactful, transition from a formalist to a substantive conception.

The normative debates on the subject predominate in both the Portuguese and the Brazilian constitutional literatures. Depending on how Estado de Direito is interpreted and whether it embodies substantive values in its core, the impacts on political agents’ and constitutional courts’ behaviours are not

Democracy and Social Justice in the Core of the Rule of Law 21 negligeable. JJ Gomes Canotilho, one of the leading Portuguese constitutional scholars, wrote that �the proclaimed tension between “constitutionalists” and “democrats”, between Estado de Direito and democracy, is a myth of the modern political thought’.^[81] His argument is similar to Jose Afonso da Silva’s, a prominent Brazilian constitutional scholar, who points out the gradual transi­tion from a liberal Estado de Direito to a democratic Estado de Direito.^[82] For Silva, Brazil’s 1988 Constitution adopts an even stronger democratic core than Portugal’s 1976 Constitution: Estado Democratico de Direito instead of Estado de Direito Democratico.

The upshot is that, though the origins of those concepts are marked by particularities that are not easy to translate into other contexts, the continental counterparts of the rule of law have evolved to embrace the genuine concern with enhancing democratic inclusion as well as incrementally providing instru­ments for social justice. There is an insurmountable debate over whether and how Estado de Direito or any such analogous concepts should embrace substan­tive values. In many respects, setting the boundaries and extent of the rule of law and its analogous concepts overlaps the conflictive relationship between constitutionalism and democracy.^[89] This normative debate is well portrayed in the constitutional literature,^[90] as is the discussion of the importance, impacts and risks of such substantive assumptions for political institutions^[91] and

constitutional courts.^[92] These normative debates are important and have defined much of the functioning of legal institutions over history. Yet, as with many concepts with such a degree of normative disputes, Estado de Direito has also been largely conceptually manipulated and abused.^[93] In Brazilian history, such normative ideals have clashed with its preservationist adoption as justification for maintaining and constructing inequality.

III.