The principle of isonomy is a constitutional principle that defines that everyone is equal before the law. This means that the State must treat all citizens equally, without discrimination of any kind.
This principle, however, can be put into perspective, as in some cases, simple equality before the law does not ensure equal access conditions. Thus, it is understood that "the treatment must be equal for equals and unequal for unequals, to the extent of their inequalities".
For example, if the Constitution determines the right of access to justice for all citizens, there must be assistance legal services, otherwise, only those who are able to pay for legal services will actually have access to the right.
The principle of isonomy, therefore, contemplates the imbalances that may exist in the simple application of equality and provides that inequalities are redressed fairly between the parties. Thus, balance and justice in access to rights is sought.
The constitutional principle of isonomy
The principle of isonomy is provided for in article 5 of the Constitution of 88, which deals with the fundamental rights and guarantees of individuals. The head of this article says:
All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property (...)
The search for equal rights and access is one of the bases of a democracy and was formalized as an ideal of justice in the French Revolution. Just remember the famous phrase: "freedom, equality and fraternity".
In the context of the French Revolution, equality was defended against the privileges of the clergy and the nobility and the desire for all citizens to enjoy the same rights. Since then, the principle of equality has been adopted by several Constitutions of modern States.
Discussions about equality, however, go back to antiquity. It's from Aristotle the phrase that says that equals must be treated equally and unequals unequally.
know more about constitutional principles.
Formal isonomy and material isonomy
The principle of isonomy is conceptually divided into two ways: material and formal. THE formal isonomy it refers to the idea that everyone is equal before the law and is associated with the idea of a Liberal State. In this case, isonomy is treated as absolute, without considering the inequalities to which individuals are subjected.
Material equality considers that there are social and economic inequalities and seeks to compensate for differences in access and opportunities. In this sense, the State should seek reduce inequalities and guaranteeing equal opportunities and obligations.
better understand what it is isonomy.
Purposes of the isonomy principle
The principle of isonomy must be respected by those who draft the laws, by the enforcers and also by individuals:
- O legislative, when drafting and enforcing laws must ensure that there is no differential treatment for identical persons. That is, on equal terms, the law must be applied equally to both parties.
- O judiciary, when interpreting and applying the laws, must do so equally. It must not act with discrimination or differences to make judgments and apply the appropriate sanctions.
- O particular cannot act in a discriminatory, racist or prejudiced manner.
Thus, if a law provides for different treatments for individuals, there needs to be an objective justification and reasonable, otherwise it would be an abusive and unconstitutional differentiation - for violating a principle of Constitution.
Laws that provide for differentiation and respect the isonomy principle are the ones that intend alleviate the gaps in economic and social conditions and give fairer conditions to individuals.
Principle of autonomy in areas of law
In addition to being a constitutional principle, isonomy is applied in other areas of law. Some examples are:
- Tax law: Tax Law provides that the collection of taxes must consider the financial conditions of individuals. Theoretically, the taxpayer should pay taxes according to his capacity and in this way, the tax system would contribute to the reduction of economic inequalities.
- Labor law: Labor Law prohibits wage distinction for people who perform the same function. For example, a man cannot earn more than a woman if they both play the same role.
- Civil Procedural Law: the parties to a dispute must be treated with equality, but the judge and legislator must act in a way that neutralizes inequalities. An example would be the possibility of free legal assistance for those in need.
See also the meaning of Civil Procedural Law and Constitutional right.