Fábio Medina Osório, for “O Globo”: The Limits of Public Opinion

Public opinion is one of the structural elements of a democratic state governed by the rule of law, as a kind of anonymous authority, in liberal, democratic and authoritarian strands. It is formed by increasingly plural citizens in an inclusive and participatory society, where social media acquire growing predominance, and voters form their convictions from interaction with segments that are not linked to parties.

Intellectuals, journalists, media outlets, influencers, youtubers, and actors on the political, economic, and social scene, all actively take part in the formation of a thriving public opinion.

It is not easy to define public opinion, because it is not merely the majority position of the community on certain matters in a social setting, but rather qualified references on subjects of public interest, because the general view on matters of an exclusively private nature is not classified as public opinion.

Since there is never consensus on the matters under discussion, an understanding of controversial aspects is unnecessary to characterize a majority opinion. For example, what is the view of Brazilian public opinion on corruption, on security or on abortion?

There are many elements that make up a concept of public opinion, and polling institutes attempt to measure or assess the prevailing trends. But other results end up portraying it better, because public opinion may or may not be institutionalized, it being worth stressing the importance of the phenomena of mass demonstrations as vehicles carrying demands, expectations and the will of majorities. In this sense, opinions that can be qualified as clearly majoritarian may be expressed.

It can be said that public opinion is a body that legitimizes and, at the same time, controls political power in the liberal democratic regime.

However, this supposedly majority trend can never become the main source of legislative legitimacy and of control of political power, because other bodies play that role. From a democratic perspective, public opinion must be understood in light of the rule of law and, in that sense, cannot override the normative rule and authorize illegitimate actions by the Judiciary and the Public Prosecution Service to the detriment of legality.

If they base their decisions exclusively on public opinion, judges, members of the Public Prosecution Service, government officials or legislators will be disregarding the fundamental ideal of the independence of the branches of government. Under this separation, standardized since 1748 by Baron de Montesquieu in his book “The Spirit of the Laws,” the Legislature is responsible for discussing and approving the laws that govern life in society; the Executive, for administering the common interests; and the Judiciary, for the functions essential to the task of applying the norms that regulate life in society.

Public opinion can and should express itself in an attempt to authorize certain actions by the Branches of Government. However, such conduct cannot violate legal rules, so that its legitimacy is not compromised, since the evolution of democracies completely discarded the prohibition of arbitrariness, as a logical consequence of libertarian thought.

Judges and members of the Public Prosecution Service are permanently evaluated by society in light of the quality of their performance, since one of the functions of public opinion is the moral improvement of the agents of the Three Branches, as Benjamin Constant already said.

Nevertheless, prosecutors' charges and judicial decisions can never be based on public opinion, and must necessarily find their reasons in the laws, in case law, and in the Constitution.

Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union