Neoconstitutionalism, also called contemporary constitutionalism, is a doctrine of law that places the Constitution at the center of the legal order and who interprets the law from the Fundamental rights.
This current of thought is opposed to constitutionalism which, based on a positivist vision, defended a cold interpretation of the norms and gave primacy to the laws, leaving the Constitution only the function of organizing the powers of the State.
Characteristics of Neoconstitutionalism
This doctrine has as its main characteristics:
The supremacy of Constitutional Law: everything that is prescribed in the Constitution is normative. This means that even if there is no law on a given matter, what is provided for in the Constitution is valid - the Constitution is direct source of rights.
Guarantee, promotion and preservation of Human or Fundamental Rights: the Constitution provides for the guarantee of individual and political rights, economic, social and cultural rights as well as rights related to economic development, peace and environmental preservation. environment.
Normative force of constitutional principles: from the neoconstitutionalist view, constitutional principles came to be understood as legal norms.
Constitutionalization of law: neoconstitutionalism reorders the legal order placing the Constitution like central element and from which all infraconstitutional norms must be interpreted.
Extension of constitutional jurisdiction: with the expansion of constitutional jurisdiction, any judicial decision can be interpreted using the Constitution as a basis.
learn more about Constitution and Constitutional right.
history of neoconstitutionalism
As its name suggests, neoconstitutionalism is a new interpretation of constitutionalism. Constitutionalism arises in the context of French Revolution and of the North American independence, with the drafting of the Constitution in both countries.
In constitutionalism the Constitution is less important than the laws and great power is given to the Legislative. The Judiciary and Executive were only responsible for applying the rules, without considering their effects.
Based on a positivist conception, constitutionalism provided for a cold interpretation and application of laws and paid no attention to Fundamental Rights or Human Rights.
We can cite as an example the burnt offering in Nazi Germany, which allowed the extermination of 6 million Jews without contravening the country's legal norms.
Know what was the burnt offering.
With the end of World War II and the noticeable failure of constitutionalism to allow the violation of rights Humans, neoconstitutionalism emerges, which seeks to transcend positivism and suggest a new way of interpreting the Constitution.
This new interpretation is based on the universal values, with the protection, guarantee and promotion of the Fundamental Rights of individuals. The Constitutions from then on will include in their letter:
- Promoting the dignity of the human person.
- Objectives to reduce social inequalities.
- State obligations for social areas.
See the meanings of Fundamental rights, Human rights and Dignity of human person.
Functioning of neoconstitutionalism
In neoconstitutionalism, the Constitution has two functions main: the limitation of state powers and the prediction of Fundamental rights.
With the shift from constitutionalism to neoconstitutionalism, the Judiciary Branch gains an active role in decisions. Now, jurists are not only responsible for the cold application of the law, but its interpretation in light of the Constitution and in order to respond to the demands of a plural society.
In neoconstitutionalism, it is up to the Superior Courts to give the final word on the interpretation of the Constitution in concrete cases. In Brazil, this role is attributed to the Federal Supreme Court (STF).
This change in the legal system also has to do with the transition from the rule of law to the democratic rule of law. A rule of law is one that operates according to the laws, without worrying if they violate human values.
In a Democratic Rule of Law, laws must respect democratic principles, whose main objective is to build a free, fair and solidary society.
See also the meaning of STF and rule of law.