What Are Democracy, the State and Government?

Three words that public debate confuses

In the news, "the State", "the government" and "democracy" appear as if they were the same thing. They are not. (In American English, "the government" often stands for the State as a whole; in the Brazilian and continental tradition, the two are kept apart.) The State is the permanent structure of organized political power. The government is whoever, at a given moment, directs that power. Democracy is a regime — an answer to the question of who should govern and how that power is legitimized and limited.

Confusing them has consequences. Criticizing a government is not attacking the State; defending the State is not supporting a government; and no government, however many votes it received, is the same as the democracy that gave it its mandate.

This third study closes the series. In the first, we examined the ideas — law, justice and legislation. In the second, the instruments — legal proceedings, contracts and powers of attorney. Now, the structures that give all of this its authority.

Part I — What is democracy?

Athens: the power of the people, with exclusions. The word comes from the Greek demos (people) and kratos (power). In fifth-century BC Athens, citizens decided directly in the assembly, and many offices were filled by lot. But "citizen" excluded women, foreigners and slaves — most of the population. The first lesson is that democracy always depends on who counts as part of the people.

Aristotle: the good forms and the corrupt ones. In the Politics, Aristotle classified regimes by the number of rulers and by their purpose: monarchy, aristocracy and politeia govern for the common good; their degenerate versions — tyranny, oligarchy and democracy, in the sense of rule by the poor in their own interest — govern for themselves. The best practicable regime would be the politeia, a mixture that gives weight to the middle class.

Rousseau: popular sovereignty. In The Social Contract (1762), sovereignty belongs to the people and is inalienable: legitimate law is the expression of the general will. It is the modern source of the idea that all power emanates from the people.

Tocqueville: the risk of the majority. In Democracy in America (1835–1840), Alexis de Tocqueville admired the vitality of American democracy but warned of the "tyranny of the majority" — the pressure of numbers on the rights and freedom of thought of minorities.

Schumpeter and Dahl: democracy as procedure. Joseph Schumpeter, in Capitalism, Socialism and Democracy (1942), proposed a minimalist definition: democracy is the method by which leaders compete for the popular vote. Robert Dahl, in Polyarchy (1971), broadened the criterion: democratic regimes combine broad participation and public contestation — free elections, freedom of expression, alternative sources of information, freedom of association.

Bobbio: the rules of the game. In The Future of Democracy (1984), Norberto Bobbio defined democracy as a set of rules establishing who is authorized to make collective decisions and by what procedures. And he recorded its "broken promises": the persistence of oligarchies, of invisible powers and of citizens poorly prepared for participation.

How democracies die. Steven Levitsky and Daniel Ziblatt, in How Democracies Die (2018), showed that, in the contemporary world, democracies rarely fall through military coups; they are eroded from within by elected rulers who capture the referees, weaken opponents and change the rules of the game. Two informal norms would protect them: mutual toleration — accepting the opponent as legitimate — and institutional forbearance — not using formal powers to their limit.

Brazilian constitutional democracy. The 1988 Constitution adopts a representative democracy with instruments of direct participation: all power emanates from the people, who exercise it through elected representatives or directly (Art. 1, sole paragraph), through plebiscites, referendums and popular initiative (Art. 14). Direct, secret, universal and periodic voting and the separation of powers are unamendable entrenchment clauses (Art. 60, § 4). It is a constitutional democracy: the majority governs, but within limits that no majority can abolish — the institutional answer to Tocqueville's warning.

Part II — What is the State?

A modern invention. Political societies have existed since antiquity, but the State in the modern sense — centralized power, a defined territory, exclusive sovereignty — is relatively recent. Machiavelli used lo stato in the early sixteenth century to designate organized political power, and the Peace of Westphalia (1648) consolidated the idea of sovereign and equal States that admit no higher authority within their territory. Hobbes, in Leviathan (1651), gave it a theoretical foundation: the State arises from the pact by which individuals exchange natural liberty for security.

The elements. Classical theory, systematized by Georg Jellinek, identifies three elements: people, territory and sovereign power. Many authors add purpose — the common good. In international law, the Montevideo Convention (1933) translated the idea into practical requirements: a permanent population, a defined territory, a government and the capacity to enter into relations with other States.

Weber: the monopoly of legitimate force. In the lecture Politics as a Vocation (1919), Max Weber defined the State as the human community that successfully claims the monopoly of the legitimate use of physical force within a territory. The decisive word is "legitimate": Weber distinguished traditional, charismatic and rational-legal authority — the last, typical of the modern State, based on impersonal rules and a professional bureaucracy.

Kelsen: the State and the law are the same. For Hans Kelsen, the State is not an entity prior to the law that later submits to it: the State is the legal order itself, considered in its unity. The thesis has an important consequence: every State is a "rule-of-law" State in the formal sense, so the expression only acquires full meaning when content is required — rights, limits, oversight.

Forms of State. As to the territorial distribution of power, a State may be unitary, with a single center of political decision, or federal, with political autonomy shared among entities. The Brazilian federation has a peculiarity: three levels of autonomous entities — the Union, the states and the Federal District, and the municipalities (Arts. 1 and 18 of the Constitution). The federal form is an entrenchment clause (Art. 60, § 4, I). A confederation, by contrast, is a union of sovereign States by treaty, with a right of secession.

From the rule of law to the democratic rule of law. The German Rechtsstaat, the English rule of law and the French État légal express, by different paths, the same achievement: power, too, is subject to law. The social State added duties to provide benefits. The democratic State under the rule of law, adopted in Article 1 of the Constitution, further requires that law be democratically produced and respect fundamental rights — a State that is limited, provides benefits and is legitimized by the people.

Part III — What is government?

State, government and administration. The State is permanent; the government is transitory. Government is the set of bodies and officials that, in a given period, exercise the political direction of the State; public administration is the apparatus that continuously carries out the decisions taken. Governments change with each election; the State and its administration remain. The distinction has concrete legal consequences: contracts, debts and obligations belong to the State, not to the government that entered into them — the principles of continuity of public service and of impersonality (Art. 37) derive from this.

Forms of government: republic or monarchy. The form of government concerns how the head of State attains office and for how long. In a monarchy, the office is hereditary and for life; in a republic, it is elective, temporary and accountable. Brazil has been a republic since 1889, but the 1988 Constitution returned the choice to the people: in the plebiscite of April 21, 1993, provided for in Article 2 of the Transitional Constitutional Provisions Act, voters confirmed the republic and presidentialism.

Systems of government.

Coalition presidentialism. In 1988, the political scientist Sérgio Abranches coined the term to describe a Brazilian peculiarity: a directly elected president, in a fragmented multiparty system, must build broad coalitions in Congress in order to govern. The model ensures governability, but at the price of permanent bargaining, distribution of posts and, in times of crisis, instability — two presidents have been impeached under the 1988 Constitution. Proposals for semi-presidentialism periodically resurface in Congress as an alternative.

Separation of powers and checks and balances. Montesquieu, in The Spirit of the Laws (1748), observed that every man who has power is inclined to abuse it, and that only power can check power. The authors of The Federalist (1787–1788) turned the idea into constitutional engineering: each branch must have the means to restrain the others. Brazil's 1988 Constitution declares the branches independent and harmonious (Art. 2) and distributes reciprocal instruments of control: the presidential veto and its override by Congress, judicial review, Senate approval of Supreme Federal Court justices, parliamentary committees of inquiry, impeachment.

Key takeaway: the form of State answers how power is distributed across territory; the form of government, how the head of State is chosen; the system of government, how the executive and legislature relate; the political regime, who holds power and how it is legitimized and limited.

Synthesis

A critical reading

The confusion among the three words is not innocent. When a government presents itself as the State itself, criticism of it comes to be treated as an institutional threat. When it presents itself as the embodiment of democracy, the opposition becomes an enemy of the people. The authors examined here — from Tocqueville to Levitsky and Ziblatt — show that it is precisely in this confusion that democracies begin to weaken, on the left or on the right.

Law is the language that keeps the three notions apart: mandates have terms, powers have limits, the State has continuity, and the will of the majority operates within clauses it cannot abolish. That is why lawyers are also institutional guardians. By demanding due process, challenging an abusive act or defending a contract against an arbitrary change of rules, they preserve, on a small scale, the same architecture the Constitution draws on a large scale.

Closing the series

The three studies form a path. The ideas — law, justice and legislation — say what is sought. The instruments — legal proceedings, contracts and powers of attorney — say how it is achieved. The structures — democracy, the State and government — say who has the authority to do so and within what limits. Knowing all three levels is what distinguishes the technician from the jurist: the first knows how to apply the rule; the second knows where it comes from, what it is for and when it ceases to apply.

References

• ARISTOTLE. Politics.
• MACHIAVELLI, Niccolò. The Prince (1532).
• HOBBES, Thomas. Leviathan (1651).
• MONTESQUIEU. The Spirit of the Laws (1748).
• ROUSSEAU, Jean-Jacques. The Social Contract (1762).
• HAMILTON, Alexander; MADISON, James; JAY, John. The Federalist (1787–1788).
• TOCQUEVILLE, Alexis de. Democracy in America (1835–1840).
• JELLINEK, Georg. Allgemeine Staatslehre (General Theory of the State, 1900).
• WEBER, Max. Politics as a Vocation (1919); Economy and Society (1922).
• KELSEN, Hans. General Theory of Law and State (1945).
• SCHUMPETER, Joseph. Capitalism, Socialism and Democracy (1942).
• DAHL, Robert. Polyarchy (1971).
• BOBBIO, Norberto. The Future of Democracy (1984).
• ABRANCHES, Sérgio. Presidencialismo de coalizão: o dilema institucional brasileiro (1988); Presidencialismo de Coalizão (2018).
• LEVITSKY, Steven; ZIBLATT, Daniel. How Democracies Die (2018).
• Montevideo Convention on the Rights and Duties of States (1933).
• Brazilian Federal Constitution, Arts. 1, 2, 14, 18, 37 and 60, § 4; Transitional Constitutional Provisions Act, Art. 2.

Advanced Studies Collection — Biblioteca Andrade & Cintra. Informational and academic content. It does not constitute legal advice and does not create an attorney-client relationship.