Constitutional principles are values that are explicitly or implicitly present in the constitution of a country, and that guide the application of the law as a whole.
Since the constitution is the foundation of the entire legal system, it sets out several principles that must be applied in all areas of law.
Check below the most important constitutional principles applied to each branch of law.
Constitutional principles applied to constitutional law
The constitutional principles applied to constitutional law are provided for in article 1 of the Federal Constitution:
Sovereignty
Sovereignty is the capacity of a State to organize itself in all aspects (political, legal, economic, etc.) without submitting to another form of power. In the international scenario, sovereignty is the absence of subordination from one State to another.
Citizenship
Citizenship is the capacity that individuals have to participate in the political organization of the country, either directly or indirectly.
Dignity of human person
The principle of the dignity of the human person establishes that, within a democratic State of law, the government action should ensure citizens the full exercise of all social and individual.
Social values of work and free enterprise
This principle points out that the Brazilian State values the freedom of enterprise and property, characteristic of capitalist systems.
political pluralism
Political pluralism is the basis of democracy and guarantees the broad and effective participation of the population in the political organization of the country.
Constitutional principles applied to administrative law
The constitutional principles that apply to administrative law are provided for in article 37 of the Federal Constitution and are:
Legality
In administrative law, the principle of legality is the opposite of what is applied in other areas of law. While in other fields, everything that is not prohibited by law is allowed, the public administration is only allowed to act in accordance with express legal provision, even though no law prohibits the act.
impersonality
According to the principle of impersonality, the public administration must always act in the public interest. For this, it is necessary that public servants act impartially and on behalf of the public entity they represent, without personal favors and privileges.
Morality
In the search for the public interest, the acts of public administration must be based not only on the law, but also on good faith and honesty.
Advertising
Public administration must act in a transparent manner, guaranteeing the population access to its acts, decisions and reasons. Thus, the principle of publicity in administrative law ensures the supervision of the administration by the company.
Efficiency
The principle of efficiency dictates that administrative acts must fulfill their objective with society in a satisfactory and efficient manner. Furthermore, efficiency must be demonstrated in the organization and structuring of public bodies, in order to optimize the division and execution of tasks.
See more about the principles of public administration.
Constitutional principles applied to procedural law
The Federal Constitution provides for the following principles to be applied in procedural law:
Due legal process
Due legal process is based on article 5, LIV of the Federal Constitution. It is the principle that guarantees everyone the right to a fair trial, with all the steps provided for by law, including obligations and guarantees.
Due process of law also establishes that for a procedural act to be considered valid, effective and perfect, it must respect all the steps provided for by law.
Adversarial and broad defense
The principles of contradictory and broad defense are provided for in article 5, LV of the Federal Constitution and in articles 9 and 10 of the Code of Civil Procedure.
The adversary system is the right of reply guaranteed to the respondent, at all stages of the process. The full defense ensures that, in filing the response, the respondent can resort to all appropriate procedural tools.
Isonomy
Provided for in article 5, caput and I of the Federal Constitution and in article 7 of the Code of Civil Procedure, the principle of isonomy establishes that all parties must be treated equally in relation to the exercise of rights and duties in the process.
natural judge
The principle of the natural judge is provided for in article 5, LIII of the Federal Constitution and provides that no one will be prosecuted or sentenced except by the competent authority. This principle is reflected in the rules of jurisdiction, as well as determining the impartiality of the judge.
Non-removal of jurisdiction
Also called the principle of access to justice, it is provided for in article 5, XXXV of the Federal Constitution. According to this principle, any rights threatened or injured may be discussed in court.
Advertising
The principle of publicity is provided for in article 93, IX of the Federal Constitution and in articles 11 and 189 of the Code of Civil Procedure. According to him, in order to serve the public interest and ensure the inspection of justice, procedural acts must be public (except those that require judicial secrecy), under penalty of nullity.
speed
Also called the principle of reasonable duration of the process, it is provided for in article 5, LXXVII of the Federal Constitution and in article 4 of the Code of Civil Procedure. This principle establishes that the processes must be concluded in a reasonable time to guarantee the usefulness of the decision.
Constitutional principles applied to tax law
The Federal Constitution provides, in its title "On taxation and the budget", the principles that must be applied in tax law:
Legality
The principle of tax legality is provided for in article 150, I of the Federal Constitution, and prohibits any federal entity from demanding or increasing taxes without a prior legal provision.
Isonomy
Provided for in article 150, II of the Federal Constitution, the principle of isonomy provides that citizens who if they are in the same situation, they must be treated equally with regard to the payment of taxes.
Irretroactivity
Provided for in article 150, III, “a” of the Federal Constitution, administrative non-retroactivity prohibits a tax from being levied before the effective law that instituted or increased it.
Priority
The principle of priority is provided for in article 150, III, “b” and “c” of the Federal Constitution. According to him, federative entities are prohibited from collecting taxes in less than 90 days after the publication of the law that instituted them. In addition, the collection of taxes in the same financial year (in the same year) as the publication of the law is prohibited.
confiscation prohibition
Provided for in article 150, IV of the Federal Constitution, the prohibition of confiscation prohibits the tax authority, through the collection of taxes, from taking improper possession of the taxpayer's assets.
freedom of traffic
The principle of freedom of traffic is provided for in article 150, V of the Federal Constitution and prevents federal entities from limiting the freedom of citizens to come and go through the collection of taxes, except for the collection of tolls on roads maintained by the Power Public.
Contributory capacity
Provided for in article 145, §1 of the Federal Constitution, this principle provides that, whenever possible, taxes must be collected according to the economic capacity of each individual.
Selectivity
Provided for in article 153, §3, I of the Federal Constitution, the principle of selectivity provides that the taxation that is levied on a good must vary according to its essentiality. Thus, essential goods such as food and fuel should be less taxed than others such as cigarettes or alcoholic beverages.
Constitutional principles applied to criminal law
Legality
The principle of legality in criminal law is provided for in article 5, XXXIX of the Federal Constitution and provides that there is no crime or penalty without a previous law providing for its existence.
Beneficial law retroactivity
Also known as the principle of non-retroactivity of criminal law, it is provided for in article 5, XL of the Federal Constitution. According to this principle, the criminal law will never be applied to a fact prior to its validity, unless its application is beneficial to the defendant.
feather personality
Provided for in article 5, XLV of the Federal Constitution, this principle provides that no penalty may exceed the person of the convicted defendant. In the event of repair of damage or loss of assets, the defendant's successors will only respond up to the limit of the assets transferred to them.
Penalty Individualization
This principle is provided for in article 5, XLVI of the Federal Constitution. According to him, the penalties applied in convictions must be customized according to the case, taking into account the individual circumstances of the defendant and the case itself.
Constitutional principles applied to social security
The constitutional principles applied to social security are listed in the items of article 194 of the Federal Constitution:
Universal coverage and service
According to this principle, social security should serve all needy citizens, regardless of direct payment of contributions, especially social assistance and public health.
Uniformity and equivalence of benefits and services to urban and rural populations
The principle of uniformity provides that there will be no differences between urban and rural citizens in the provision of social security. Thus, any existing difference should be based on criteria such as contribution time, age, calculation coefficient, etc.
Selectivity and distributiveness in the provision of benefits and services
This principle provides that the granting of social security benefits must be selective. Thus, citizens must fulfill certain requirements in order to receive the desired insurance. In addition, considering that it is not possible to cover all events, the principle of selectivity provides that the The legislator must identify the risks and situations that deserve greater urgency and protection in order to provide coverage.
Irreducibility of the value of benefits
The principle of irreducibility guarantees citizens the right not to have the nominal value of their benefit reduced.
Equity in the form of participation in the cost
This principle establishes that all taxpayers who have the same financial conditions must contribute equally to social security.
Diversity of funding base
Provided for in article 195 of the Federal Constitution, this principle provides that social security will be financed by the entire society and with resources from all federal entities.
Sensitive constitutional principles
Sensitive constitutional principles are the values provided for in article 34, VII of the Constitution that, if violated, give rise to federal intervention in the member state responsible for violation.
Sensitive constitutional principles are:
- a) republican form, representative system and democratic regime;
- b) human rights;
- c) municipal autonomy;
- d) accountability of the public administration, direct and indirect.
- e) application of the minimum required of the revenue resulting from state taxes, including the from transfers, in the maintenance and development of education and in actions and services public health services.
See too:
- Constitutional right
- civil procedural law
- Administrative law
- Fundamental rights
- Federal Constitution
- Principles of Proportionality and Reasonableness