A concepção de direito político em Rousseau: o problema da elaboração da Constituição e o papel do legislador

Abstract

This dissertation presents the conception of Rousseau about political rights focusing on limits and possibilities of transforming a society established in inequality into a more free and democratic society, through the central approach to the problem of drafting the Constitution and the role of the Legislator. Rousseau introduced a critical to the foundation of society using the contractualist model (state of nature civil State) to reflect about human nature and its fundamental attributes (self-preservation, natural piety, natural freedom and perfectibility), as well as the origin of the civil inequalities among men. With the support of his historical-hypothetical method, he said that inequality civil does not come from nature, but from the establishment of a group of social conventions that ended up degenerate the development of society (pact of the rich, institution of private property, law of the stronger, etc.). About the relation between economy and policy, he inferred that the for the economy of a State may protect the poor from the economic influence of the rich and for it may be considered legitimate or popular, the general will of the citizens and the activity of the rulers need to be united under a common interest. Through an economy regulated by a policy based on popular sovereignty, Rousseau proposed a series of restrictive measures in order to reduce the economic disparity between the members of State. In addition, he proposed in the work The Social Contract a new model of association civil, established by a social pact that aims to ensure the civil liberties among the citizens via the juridical equality of the contract. For this association becomes effective, it is necessary the legislative mediation of Legislator figure, public agent enlightened able to conduct the mediation between the space of the manifestation of the general will where are elaborated the laws by the deliberations of the people in civil assemblies and the space of its execution by the established government. Through these conditions, the people have the possibility of ensuring their rights and duties, as well as the establishment of laws appropriate to the maintenance of civil liberty and the common good. These laws are the result of the manifestation of the general will, that is, the product of the exercise of civil liberty of every citizen, the result of active participation of the people in the legislative process, expressed in the Constitution. For Rousseau, the government is responsible for enforcing the laws obeying the directives of popular sovereignty, thus guaranteeing the legitimacy of political power instituted. To this end, the democracy corresponds to the type of government that is closest to contribute to the maintenance of the common good, of political participation of the people, as well as the legitimate assumptions of political rights, ensuring finally, the civil liberty and the facto equality in the political community. We will see lastly, that the legislative process culminate in the composition of the Constitution, that needs to be open for the formation of the new society and that it may to dialogue permanently with the real contradictions of the population, always looking for political and social conditions favorable to maintaining of the political rights in the political community.