Public opinion imposes a brake on power
Article in O Globo, of 23/10/2017, on public opinion as a brake on power, based on Rousseau's theory of the Social Contract.
Translated from the original.
The limit must be the law, the Constitution, the normative system. Still within the liberal logic, the prohibition of arbitrariness will always be possible on the basis of case law
Jean-Jacques Rousseau was the one who conceived the expression “public opinion”. In his theory of the Social Contract, he maintains that nothing is more dangerous than the influence of private interests in public affairs, stressing that public opinion is a legitimizing instance of power and constitutes a brake on its exercise.
In the Medieval Era, there was no press, and the opinion of the masses held no institutional position whatsoever. And it was Rousseau, one of the great exponents of the Enlightenment, who laid the basis for the ideals of the French Revolution.
Public opinion is born as a modern institution, which functions by granting legitimacy to and imposing limits on political power. Its elements and composition nevertheless display considerable complexity.
The French thinker Benjamin Constant, in the 19th century, conceived “public opinion” from other elements, especially tied to more specific content, such as the prohibition of arbitrariness and the presumption of innocence.
For political liberalism, the pillars of security, liberty and property should be guaranteed by the State. Constant said that, if there were arbitrariness by the authorities or public opinion, striking people unscrupulously, even suspects, it would not be only the individual himself who was hit, but the entire nation, corrupting social morality and the political system.
In today’s world, freedom of the media is one of the indispensable foundations of free public opinion. However, when new distortions arise, through the proliferation of fake news or virtual wars, whether in the political or economic field, the liberal and democratic model is called into question.
Thus emerges a “crisis of legitimacy” of public opinion, at the same time that the critical benchmarking of decisions of multiple instances of power becomes ever more dynamic and swift.
Back in the 19th century, regarding distortions of public opinion, Alexis de Tocqueville worried about the tyranny of the majority, which would represent the bankruptcy of the realm of criticism. In democracies, the majority principle is a structural pillar, but it must find a barrier in fundamental rights and in the Constitution itself, which is founded on a democratic pact.
Democracy provides the basis for “public opinion” as a factor of legitimation of political power, yet within the normative frameworks set by the system. Indeed, Tocqueville himself, in studying democracy in the USA, observed that the judge was one of the main political forces.
Currently, the space for activism has also expanded among lawyers and members of the Public Prosecution Service, even other oversight institutions. In this context, it is imagined that the broad spectrum of the category “public opinion” infiltrates numerous open normative spaces and influences these actors designated by the Constitution as “political agents”.
But what is the limit for the conduct of judges, police officers, lawyers or members of the Public Prosecution Service, among others, in light of what may come to be considered “public opinion”? The limit must be the law, the Constitution, the normative system. Still within liberal logic, the prohibition of arbitrariness will always be possible on the basis of case law or the parameters used, including from precedents.
And what about the media outlets? The due process of news production must be improved more and more, with quality, freedom and adversarial debate. Here too, recalling the classic Benjamin Constant, arbitrariness must be curbed.
A plural, liberal and democratic society must cultivate strong institutions exposed to the principle of social responsibility. But this cannot justify, in any way, any kind of curtailment of investigative journalism and of the right to information.
Fábio Medina Osório is a jurist and was a minister of the Office of the Attorney General of the Union