• Fernando de Brito Alves Universidade Estadual do Norte do Paraná
  • Jairo Neia Lima Universidade de São Paulo (FD/USP).



democracy, constitutionalism, popular participation


Currently, the tension between constitutionalism and democracy has been directed to critiques related to supremacy of judicial review. These approaches indicate that the democratic fragility of Constitutional Courts in comparison to Parliaments requires more popular participation in issues involving Constitutional content and, therefore, constitutional interpretation must be opened to institutional dialogue instead of judicial monopoly. However, for this dialogue to happen it is necessary the possibility of dissensus externalization. In the contemporary democratic theory, two main traditions analyze the role of consensus and dissensus. Habermasian deliberative theory evidences rational consensus between subjects through a communicative action. Nevertheless, the overvaluation of consensus is considered an obstacle to the emergence of institutional mechanisms of dissensus. Conversely, Chantal Mouffe’s agonism seeks to reinforce the constitutive role of dissensus in societies. However, her approach is limited to the presentation of an agonistic principle without answering the issues related to the creation of institutional spaces. In the face of these irreconcilable approaches, this paper argues the possibility of a establishment of democratic decisions, which involves institutional dialogue, such as the proposals of the critics of judicial review, in a panorama which consensus and dissensus are in opposite sides. It demonstrates that a rereading of habermasian model of the Democratic State of Law and the presentation of normative proposals to the agonistic approach put consensus and dissensus beyond a dichotomist and confrontational dispute perspective as they are commonly treated. In this sense, it presents arguments showing that an adequate interpretation of Habermas' thought includes consensus in procedures and dissensus in content. On the other hand, it exposes that aversive conception of democracy goes beyond the deliberative model deconstruction presented by Mouffe and connects poststructuralist ontology with the creation of discussion’s spaces. In conclusion, these reformulations and advances inside deliberative and agonistic theories indicate that the role of consensus and dissensus in contemporary societies cannot be reduced to the dispute of the prevalence of one over the other. Beyond this dichotomy, it is necessary to put these two essentials elements in both traditions in order to promote the dialogue between institutions to overcome the dispute among powers, under which they were constructed, and exert their democratic function.

Biografia do Autor

Fernando de Brito Alves, Universidade Estadual do Norte do Paraná

Doutor em Direito pela Instituição Toledo de Ensino - ITE / Bauru-SP.


Jairo Neia Lima, Universidade de São Paulo (FD/USP).

Doutorando pela Faculdade de Direito da Universidade de São Paulo.