Juridification of politics and politicization of law: the structuring route of the pluralist and universalist democracy as a public system of law

Abstract

The paper discusses the questions of judicialization of politics and politicization of law having as background the institutional and social consolidation of a fascist perspective characterized as anti-systemic, anti-institutional, anti-juridical and infralegal juridical-political personalism, which is streamlined by the implosion of judiciary from inside to outside exactly by politicization of law, with its direct link to the fratricide political-partisan war in the sphere of the political system. From this starting point, we will reconstruct the normative-institutional-procedural fundaments proper to the pluralist and universalist democracy constituted as a public system of law, which are: the original correlation and the concomitant emergence of human rights and law; the ontogenetic primacy, differentiation, autonomy, self-referentiality and overposition of law regarding to politics and moral, as well as the subsidiarity of politics and moral to law; the separation, autonomy, self-subsistence and overposition of judiciary in relation to political system; the systemic, systematic, procedural, mediated, instantial, progressive, neutral and apolitical-depoliticized condition of judiciary and political system; the strong systemic ideal of institutionality, legality, technicality, formality and depersonalization; the axiological posture of impartiality, impersonality, neutrality and apoliticity-depoliticization by judiciary and political system. These fundaments have the goal of strengthening the self-reflexive, self-controlled and self-corrective institutional production of the universality in/as/by legality and, in this sense, they implicate in the constitution of an anti-fascist, anti-totalitarian, non-fundamentalist and anti-racist democratic rule of law which fights against both anti-systemic, anti-institucional, anti-juridical and infralegal juridical-political personalism, as the politicization, partisanship and reification of law, ensuring the centrality of human rights, of pluralism, of legal process and of the law as defining principle, procedure, language and symbol of the own pluralist and universalist democracy constituted as a public system of law. Now, the reconstruction of these fundaments is a very urgent matter in order to solidify theoretically and normatively a perspective of facing and deconstruction of the fascism hegemonic institutionally and socially.