The expression Vox populi, although originating from the Latin maxim Vox populi, vox Dei, transcends political rhetoric to become established in Constitutional Law and the General Theory of the State as the postulate of Popular Sovereignty. In the Brazilian legal system, it grounds the legitimacy of the exercise of state power, manifesting itself primarily through universal suffrage, the Jury Tribunal, and the instruments of direct democracy provided for in the 1988 Federal Constitution.
1. Concept, Legal Nature, and Definition
The term Vox populi (Voice of the people) represents, within the scope of Legal Sciences, the externalization of the will of the original holder of power: the people. Its legal nature is that of a fundamental principle and a prerequisite for the legitimacy of the Democratic Rule of Law. It is not a rule of isolated application, but a super-principle that permeates the constitutional system, conferring validity upon the process of creating and applying laws.
Doctrinally, Vox populi is understood under the aegis of Popular Sovereignty, which, according to the teachings of J.J. Gomes Canotilho, constitutes the foundation for the legitimation of any and all political domination. In Public Law, the legal nature of the institute is linked to the Original Constituent Power, being the primary source from which the norms of higher hierarchy and the political organization of the nation emanate.
2. Historical Origin and Evolution in Law
Historically, the expression is attributed to Alcuin of York, in an epistle addressed to Charlemagne in the year 798 AD, although the concept of popular participation dates back to the Ecclesia in classical Athens and the Populus Romanus in the Roman Republic. However, the transposition of the "voice of the people" into modern legal rigor occurred with the Liberal Revolutions of the 18th century.
The transition from monarchical sovereignty to national sovereignty (Sieyès) and, subsequently, to popular sovereignty (Rousseau) shaped contemporary constitutionalism. In Brazil, the evolution moved from the sovereignty granted in the 1824 Constitution, through the formalism of the Old Republic, to reaching its democratic peak in the 1988 Constitution, which consolidated the direct and indirect participation of the citizen as a safeguard clause for democracy.
3. Legal and Constitutional Provision
The legal materialization of Vox populi in the Brazilian legal system is enshrined in the following fundamental provisions:
- Federal Constitution (CF/88), Art. 1, Sole Paragraph: "All power emanates from the people, who exercise it through elected representatives or directly, in accordance with this Constitution."
- CF/88, Art. 14: Establishes popular sovereignty through universal suffrage and direct and secret ballot, in addition to instruments of direct democracy: plebiscite, referendum, and popular initiative.
- CF/88, Art. 5, item XXXVIII: Recognizes the institution of the Jury Tribunal, where Vox populi acts fully in the judgment of intentional crimes against life, ensuring the sovereignty of verdicts.
- Law No. 9.709/1998: Regulates the execution of the instruments of popular participation provided for in Art. 14 of the Magna Carta.
4. Practical Application and Jurisprudential Understanding
The practical application of the principle of popular sovereignty is frequently the subject of analysis by Superior Courts, especially regarding the balance between the majority will and the protection of fundamental rights (the counter-majoritarian role of the Judiciary).
4.1. Jury Tribunal and Sovereignty of Verdicts
The Supreme Federal Court (STF), in a recent and historic judgment in RE 1235340 (General Repercussion Theme 1068), established the thesis that the sovereignty of the Jury Tribunal's verdicts authorizes the immediate execution of the sentence imposed by the sentencing council. The understanding ratifies that the decision rendered by peers (representatives of the people) possesses sufficient constitutional density to mitigate the presumption of innocence in favor of the effectiveness of popular jurisdiction.
4.2. The Limit of the "Voice of the People" vis-à-vis the Constitution
The jurisprudence of the STF has consolidated the understanding that popular sovereignty is not absolute and must be subject to the limits imposed by entrenched clauses (cláusulas pétreas). In the judgment of ADI 5526, the Court reaffirmed that, although power emanates from the people, its exercise must observe due process of law and the separation of powers, preventing "public outcry" from trampling on fundamental individual guarantees.
5. Related Principles and Doctrinal Divergences
The study of Vox populi correlates with the following principles:
- Democratic Principle: Requires that the exercise of power be transparent and responsive to the citizen's will.
- Principle of Legality: Acts as a brake, ensuring that the popular will is filtered through the formal legislative process.
- Principle of Representativeness: The dialectic between the elective mandate and the will of the voters.
There are significant doctrinal divergences between Popular Constitutionalism and Legal Constitutionalism. The former argues that the final interpretation of the Constitution should reside closer to the people and their elected representatives. The latter, predominant in Brazil, maintains that the Judiciary should act as the guardian of the Constitution, protecting minorities against potential excesses of the majority (tyranny of the majority), limiting the immediate effectiveness of Vox populi in technical matters or sensitive human rights issues.
6. Contemporary Relevance and Practical Impacts
In contemporary times, Vox populi faces the challenge of the digital age and judicial populism. The pressure of social media on magistrates raises debates about impartiality and functional independence. Legally, the practical impact lies in the increasing use of Public Hearings and the figure of the Amicus Curiae in constitutional control proceedings, instances where the voice of organized civil society is integrated into the jurisdictional decision-making process.
It is concluded that Vox populi, from the perspective of Modern Law, is not the rule of the mob, but the democratic foundation that requires that every norm and judicial decision seek its ultimate validity in the common good and respect for the dignity of the human person, as agreed upon by the people in the constitutional social contract.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
- BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 1235340. Rapporteur: Justice Roberto Barroso. Decided on 09/12/2024.
- BRAZIL. Supreme Federal Court. Direct Action of Unconstitutionality No. 5526. Rapporteur: Justice Edson Fachin.
- CANOTILHO, J.J. Gomes. Constitutional Law and Theory of the Constitution. Coimbra: Almedina.
- BONAVIDES, Paulo. Political Science. São Paulo: Malheiros Editores.
