O Fututo do Constitucionalismo - Caderno de Resumos [2014][l]

150 • I Congresso Internacional de Direito Constitucional e Filosofia Política
interest. The problem is that a correct balancing between interests
should count just the public interests because the personal interests
invade the ethical decisions of the people.
The second argument holds that the Greatest Happiness Principle
does not protect the citizens individually. In a situation of crises
normally the minorities are in dangerous because the majority can
produce political acts which prejudice their lives. So, the Greatest
Happiness Principle can be used has a process to legitimate a political
act against Jews or the black people, for example.
One of the alternatives in political philosophy is the Egalitarianism.
According to Ronald Dworkin, influenced by John Rawls, this
theory separates the public and the private dimension of human being.
This separation, nevertheless, is not so much strong, but wishes protect
the rights of the citizens. The principal objective of this movement is to
defend the right of the people to decide about their own lives without
the interference of the others, except with a serious justification based
on rights, not in the well-being. So, in the Justice Holmes’s example,
someone who shouts falsely fire in a crowded theater can be stopped
because the rights of the others limit such freedom of speech.
The results of this political debate in the justification of the freedom
of speech are two important theories. The first one is the instrumental
justification as a market of ideas. That theory was created by
Stuart Mill and it is based on Utilitarianism. The principal element is
the thesis that the freedom of speech is important because, as in the
economic market, the best ideas will overcome the weaks in a free public
debate. In addition, that best ideas will be the used in the government
of the community. The other element is that the market of ideas
is important to the legitimacy of the political power because everyone
could be part of the debate about the principles used in the government.
This theory can be used as justification of the freedom of press as
in the Brazilian case of the statute of press in the ADPF 130.
The other idea is based on the Ronald Dworkin’s Egalitarianism
and it defends the rights as trumps. The right is a constitutive justification
for the limits of the state. So, even a kind of discourse that the