Core Principles of the Brazilian Constitution: An In-Depth Look
Core Principles of the Brazilian Constitution (Article 1 of CF/88)
The fundamental principles are rules that contain the most important values that inform the development of the Constitution of the Federative Republic of Brazil (CF/88). They have three relevant functions:
- Grounding: They establish all the basic rules, guidelines, and the entire system of constitutional norms.
- Interpretative: They allow for the understanding of the scope and true purpose of the law at the time of application.
- Supplementary: They fulfill the task of integrating the legal system. (Article 4 of the Law of Introduction to the Norms of Brazilian Law (LINDB): When the law is silent, the judge will decide the case according to analogy, customs, and general principles of law).
Violation of Principles
Any infra-constitutional standard that violates any rule, whether explicitly or implicitly stated in the CF/88, is unconstitutional and should be removed from the legal system. Violating a principle is far more serious than violating a specific legal provision, as a rule offends a fundamental informant of an entire legal system.
Difference Between Principles and Rules
Legal standards are classified into legal principles and rules. Principles are endowed with a high degree of generality and abstraction because they usually require other standards to be applied. Rules already have a lower degree of generality and abstraction and higher density regulations. The application of one rule waives the application of another. The fundamental principles are scattered throughout the Constitution, either implicitly or explicitly.
Current Name of the Brazilian State
The current name of the Brazilian state is the Federative Republic of Brazil.
Federation
It is an immutable clause (Article 60, Paragraph 4, I). A federation is an alliance of states to form a single state. In federal units, they preserve their political autonomy, as sovereignty is transferred to the Federal Government. Therefore, Brazil adopts the principle of the indissoluble federal link, so there is no possibility of secession. Thus, a member state that wants to dissociate from the Federation would be subject to federal intervention, as per CF/88, Article 60. The Brazilian federation is formed by the indissoluble union of the Union, States, Federal District, and Municipalities. Article 32 of the Constitution expressly prohibits the division of the Federal District into municipalities.
Republic
The CF/88 removed it from the immutable clauses, so there was the possibility of holding a plebiscite, where the Brazilian people overwhelmingly manifested in favor of this form of government. A republic is a form of government characterized by regular elections of the Head of State. Thus, there must be a periodic election to choose members of the executive and legislative branches through the popular will.
The state model adopted in Brazil is the Democratic Rule of Law. We can conceptualize the Democratic State of Law as the state governed by law, where the government is legitimately in the hands of representatives elected by the people, which has the maximum value of preserving human dignity.
Fundamentals of the Brazilian State
Article 1 of the CF/88 brings five foundations of the state organization; they are key figures in organizing the social and legal order in Brazil.
- Sovereignty: This means the supremacy of the state in the internal political order and independence in foreign policy.
- Citizenship: This meets both the right to vote and be voted on, as well as the effective exercise of individual rights under the Constitution, such as education, health, and work.
- Human Dignity: This is a value that reflects the absolute respect for fundamental rights, ensuring a decent existence for all.
- Social Values of Work and Free Enterprise: These are economic and social tenets that establish the capitalist mode of production in the state. The constitution aims to establish a system of harmony between capital and labor.
- Political Pluralism: This means the free formation of political currents in the country, allowing the representation of various layers of public opinion in different segments. This provision prohibits the deployment of a single-party state or partisanship in Brazil.