On reflexive democracy: Rule of Law and general will

Abstract

In face of the development of concentrated and abstract control of the constitutionality of laws, the strengthening of the role of the Supreme Court in the exercise of the legislative function is undeniable. Therefore, the construction of the law is no longer an exclusive competence of the electoral authorities, that is, the President of the Republic and the National Congress; so that the Constitutional Court has become a partial legislative body that participates concurrently with the expression of the general will. In this context, however, some consider a democratic return to extend to an institution whose members are not elected the power to cancel a law fruit of the will of the representatives of the people. Others, on the contrary, understand that the judicial protection of the fundamental rights that the people wanted to fix in the constitutional text represents a democratic advance. In this present work, therefore, it is demonstrated that the jurisdictional assurance of the Constitution gave rise to a new democratic reality that no longer has to be interpreted according to the traditional model of democracy. It is based on the concept of reflexivity, coined by historian Pierre Rosanvallon, who sees the control of constitutionality as a way of showing the people in their different perspectives within a complex sovereignty, that this research seeks to analyze this new democratic paradigm, in which live together electoral representation and rule of law.

Keywords: reflexive democracy, Rule of Law, representation, general will.