Constitutional law is a branch of public law devoted to the study of constitutional norms.
Constitutional norms are the set of rules and principles that are implicitly or explicitly contained in a country's Constitution. In this sense, the Constitution is the most important document of a State as it delimits the functions, powers and organization of the political entity.
In Brazil, constitutional law studies the content of Federal Constitution of 1988, which is divided into nine titles:
- of the fundamental principles
- About fundamental rights and guarantees
- State organization
- The organization of powers
- Defense of the State and democratic institutions
- Taxation and budget
- From the economic and financial order
- of the social order
- General constitutional provisions
In addition to the literal text of the constitution, constitutional law analyzes the history of the constitutions of a country, doctrine, precedents of higher courts and any legal production that has impacts constitutional.
As it is the basis of the legal system, constitutional law works as a parameter for all branches of law, which must adapt to it, at the risk of unconstitutionality.
Principles of Constitutional Law
Principles are notions that guide the application of the law as a whole. They are present in the legal system in an implicit or explicit way and always represent the values that must be observed by law operators when applying the rules.
Fundamental principles of the Brazilian State
The fundamental principles of the Brazilian State 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.
See too: Ways to exercise citizenship.
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 processes
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 process, 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.
Sources of Constitutional Law
The sources of law are the ways in which a norm is generated and introduced into the legal system. The sources of constitutional law are: Natural Law, the Constitution, customs, jurisprudence and doctrine.
See too:
- federal Constitution
- Social rights
- Fundamental rights
- Constitutional principles