Democracy as a Foundation: A Democratic-Deliberative Constitutional Theory for the Realization of Social Rights in Brazil

Abstract

This research investigates how understanding substantive democracy as an element that precedes and guides law can transform Brazilian constitutional interpretation and the implementation of social rights. Starting from the paradox between Brazil’s significant economic growth and its modest human development indicators, this study adopts an interdisciplinary methodology combining comparative analysis of socioeconomic indicators, critical examination of political theories, and a hermeneutic-constitutional approach. The study critically analyzes liberal paradigms that prioritize negative over positive liberties, resulting in the judicialization of politics and the phenomenon of juristocracy—a regime where judicial power overrides other powers in determining major political issues. As an alternative to the predominant neoconstitutionalism, Democratic-Deliberative Constitutional Theory is proposed, based on Souza Neto’s thinking and articulated with Danielle Allen’s five dimensions of political equality. The most innovative aspect of this approach is the repositioning of social rights not as goals to be achieved through democracy, but as prerequisites for its very existence. The conclusion is that, after nearly four decades since the enactment of the 1988 Constitution, human development in Brazil has advanced below the country’s economic potential due to a fundamental misunderstanding of what constitutes substantive democracy, whose effective promotion represents a necessary path to overcoming Brazil’s structural inequalities.