A função imunológica do sistema jurídico na crise de imunodeficiência do estado democrático de direito

Abstract

This research aims to analyze the relationship between the recent "democratic recession", resulting from the rise of politicians and authoritarian parties in world society, and the immunological provision of law to the political system. This is a literature review that observes society from the standpoint of legal sociology, using Niklas Luhmann's theory of social systems as a theoretical macro-lens of observation of this complex and contingent modern society. From this framework, we understand the functioning of the political system, a social subsystem that rules in order to bind the collectivity, operated by the government/opposition code, which, in turn, is a product of the institutional requirements of liberal democracy. This political regime, since the second half of the 20th century, has become the hegemonic semantics, especially in the Western hemisphere. However, in the last two decades, several political scientists have observed an authoritarian rise that threatens this hegemony of liberal democratic institutions. It is a gradual “recession” operated within the structures of the Democratic Rule of Law, above all by politicians and parties elected or acclaimed by the public of the political system. After studying this phenomenon, we started to observe the legal subsystem, its function and operational characteristics and we observed that the law has an immunological function in society and immunizes the political system, by institutionalizing fundamental rights, the electoral procedure, the "division of powers” and differentiation between politics and administration. However, we note an immunodeficiency of the legal system, as we observe the increasingly destructive expansion of the authoritarian virus. As a result, we diagnose an immunodeficiency crisis of the Democratic Rule of Law in the face of the viral mutation of authoritarianism, as well as observe the autoimmune risk of the law's reaction in the face of destructive authoritarian viral expansion. At the end, we present immunological responses to the current democratic crisis, through the search for environmental sustainability (in a broad sense), mediated by the structuring of environmental expectations in law, as well as through consistent decisions on fundamental rights by the constitutional court, avoiding judgments ad hoc and an autoimmune response that further undermines the gradual erosion of democratic institutions.