The role of the judge in the realization of human rights

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By FÁBIO KONDER COMPARATIVE*

Considerations on the set of norms of the human rights legal system

I propose to organize my considerations on the subject of this class into two theses, that is, propositions, to be demonstrated as traditionally done in doctoral proficiency exams in Old World Universities. It is clear that the defense of these theses – in view of the matter in question – is not a geometric demonstration, but the presentation of justifications, analogous to forensic reasoning, as befits a professor of law and former lawyer, speaking to magistrates.

First thesis: The human rights system is located at the apex of the legal system, and constitutes the bridge of integration of domestic law to international law

The first postulate of legal science is that the purpose-function or reason for being of Law is the protection of human dignity, that is, of our condition as the only being in the world, capable of loving, discovering the truth and creating beauty. .

By picking up from the North Americans the central idea that Constitution it is an act of collective will, more precisely the instrument of refoundation, on new bases, of political society, the French revolutionaries of 1789 solemnly affirmed that the institutions of the society thus constituted had the primary purpose of guaranteeing the free enjoyment of human rights. “Every society,” proclaimed the Declaration of the Rights of Man and Citizen of that year, “in which the guarantee of rights is not assured nor the separation of powers determined, has no constitution” (art. 16). The separation of powers, as defined by contemporary legal science, is nothing more than a institutional guarantee of human rights, that is, a form of internal organization of the State, aimed at preventing the abuse of power, which, since the Roman Republic and Greek democracy, has always been considered as a denial of the great values ​​of human coexistence.

Remembering this basic idea of ​​the constitutional State is of paramount importance in the present historical moment, when capitalist civilization seeks to make Law a simple technique for the efficient organization of economic life, for the benefit of the business class. In this context, the purpose of the State is technically reduced to the task of organizing market activities in a safe and efficient manner, and the Constitution tends to become a simple economic-administrative regulation, changeable according to interests and conveniences of the dominant groups.

Fortunately, it is not just this capitalist globalization that is taking place in the contemporary world. Alongside it, or rather against it, works another historical force for the unification of humanity: the awareness that there is nothing more important in the world than the human person, and that all men, regardless of their race, their sex , their patrimonial conditions, their nationality or their culture, have the same dignity. Thus, if capitalist society only obeys the principle of sovereign individualism, which is the law of the strongest, the “universal society of mankind”, already announced by Stoic philosophy more than twenty centuries ago, is based on the opposite principle: solidary communion of all, in the construction of a free, just and fraternal world.

The human rights system is closely linked to this communitarian civilization, and today, therefore, capitalism is its most fearful enemy.

What is important to say, first of all, about the human rights system, is that it represents the main element of integration of domestic law to international law, thus representing the pre-constitutive core of the aforementioned “universal society of mankind”.

In fact, the integrated system of human rights, national and international, comprises two levels: that of positive law and that of suprapositive law.

The first includes the so-called fundamental rights, that is, the human rights declared by States either internally in their Constitutions or internationally through treaties, pacts or conventions. The integration of fundamental rights into the national order, declared in international treaties or conventions, tends to become generalized today. The Brazilian Constitution of 1988, as is known, followed this trend, with the constant provision of its art. 58, § 2a.

At the suprapositive level, we find human rights that have not yet become positive, but that effectively prevail in the collective, national or international legal conscience. Two examples help us understand what these rights consist of.

At the end of World War II – when public opinion began to become aware of the atrocities practiced by totalitarian regimes, European or Asian – the conviction was established that the deliberate destruction of an ethnic, racial or religious group, promoted by government authorities as a state, constituted a crime, the seriousness of which far exceeded the typological list of crimes defined in different national laws, or traditional violations of the principles of international law. It was based on this widespread conviction, and not on the fact that the states responsible for these atrocities had lost the war, that the decision of the victorious powers to create the Nuremberg Tribunal and try some of the civil and military authorities of the Third Reich as criminals was accepted as perfectly legitimate, even if contrary to the traditional principle nullum crimen sine lege.

In 1946, the General Assembly of the United Nations twice reaffirmed “the principles of international law recognized by the statute of the Nuremberg Tribunal and by the judgment of that tribunal”. Thus, even before the approval, on December 12, 1948, of the Convention for the Prevention and Punishment of the Crime of Genocide, the international validity of the right of peoples to existence was recognized, and genocide was identified as a crime against humanity, even if the criminal action was not typologically defined nor the penalties imposed.

Another example shows us how the ethical awareness of human dignity ends up creating state responsibility, even though it is formally contrary to positive law.

One of the most disastrous practices of the military regime that imposed itself on us after the 1964 coup was that of forced disappearances (murder with corpse concealment). In 1980, the Human Rights Commission of the United Nations created a Working Group on Enforced Disappearances, which registered, until 1998, 45.000 cases. On December 18, 1992, the United Nations General Assembly adopted a Declaration on the Protection of All Persons from Enforced Disappearance.

Before leaving power, however, the military rulers voted for Law n. 6683, of August 28, 1979, which granted them, through a false connection, an amnesty for all the crimes they had committed since the years of preparation for the coup. Furthermore, under the terms of federal legislation, any compensation claim against the Union based on these crimes would be time-barred in five years.

Despite this, the pressure of public opinion, both in the country and abroad, ended up getting Law n. 9.140 of December 4, 1995, which recognized “as dead persons who disappeared due to participation, or accusations of participation, in political activities, in the period from September 2, 1961 to August 15, 1979” and awarded compensation to spouses , companions or relatives of the victims. That is, the right to life, presupposition of all rights, ended up imposing itself among us, even against express provisions of positive law.

The suprapositive human rights represent, therefore, a factor of constant progress or improvement of domestic or international law, towards a more adequate protection of human dignity.

Now, this multiplicity of levels in terms of human rights naturally entails a multiplicity of normative conflicts, which the legal system must resolve. Let's see what are the solution rules, which the authority responsible for enforcing the law in force must resort to.

Conflicts between constitutional norms and legal norms

It is necessary to distinguish, here, between the real normative conflict and the mere appearance.

In the first case, there is an insurmountable contradiction between a constitutional norm of human rights and a legal norm, in terms of the normative statement itself. The solution to this conflict is, obviously, the recognition that the legal norm has no validity, as it violates the Constitution.

In the second case, there is no such contradiction in theory between the two normative contents, but the application of the law, in the hypothesis of the concrete case, leads to an incontestable violation of the constitutional norm.

This is what happens, for example, with the prohibition of cruel penalties, determined by art. 5, XLVII, paragraph e, of the Constitution.

The cruelty of a leg cannot be measured solely in theory, as if the ethical meaning of legal models were historically immutable, that is, that a punishment considered non-cruel in the past could not be felt as inhuman or degrading in the present. This is, in a paradigmatic way, the case of the death penalty. For millennia, it was invented and applied, in all societies, for a wide variety of crimes. Gradually, its use was limited to crimes considered more serious, notably homicide. Today, the universal trend is the abolition, pure and simple, of capital punishment, considered cruel and abusive in itself. Proof of this is the provision in art. 4, paragraph 3, of the American Convention on Human Rights, establishing that “the death penalty cannot be reinstated in States that have abolished it”, as well as the fact that the United Nations approved, in 1989, the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of this penalty.

Furthermore, it is always necessary to distinguish between the penalty, abstractly prescribed in the law, and the form of its execution in practice.

This is exactly why the Constitution wisely employs, in that provision, an indeterminate legal concept, giving the Judiciary the ability to apply the norm with the necessary prudence. Indeed, it makes sense to admit that, when the criminal law speaks of the fulfillment of the custodial sentence in a closed regime, the Public Powers can, for example, decide, at their discretion, that the convicts will remain twenty-four hours a day in dungeons hermetically sealed and devoid of light?

In fact, the constitutional prohibition of cruel punishment is addressed to all organs of the State and not just to the legislature. The Executive branch also violates the Constitution, which does not provide decent prisons for the collection of convicts, as well as the Judiciary, which, aware of this culpable omission by the government, becomes its accomplice, ordering the blind and undifferentiated compliance with the legal norm.

Moreover, it would be illogical that in the system of diffuse control of the constitutionality of laws and legal acts, typical of our legal system, the judge could declare the invalidity of a law, but did not have the competence to remove its application to the dispute in court. After all, as the commonplace says, who can do more, can do less.

Incidentally, the integral consideration of the human rights system, beyond domestic law, clearly leads to the solution recommended here. “Any person deprived of their liberty”, provides for art. 10 of the 1966 International Covenant on Civil and Political Rights, ratified by our country, “shall be treated with humanity and respect for the inherent dignity of the human person”. If there are no institutional conditions for this requirement to be met, the judge must order the convict to serve the custodial sentence in an open regime, until decent prison facilities are provided.

Let us now consider the other possibility of normative conflict in terms of human rights, that which occurs between international law and domestic law.

Conflict between international law and domestic law

This question, contrary to the one referring to the collision between constitutional norm and legal norm in the concrete case, which is practically ignored by the authors, has been much debated in the doctrine and in the courts, especially in terms of civil imprisonment of the unfaithful trustee.

Article 11 of the aforementioned Covenant on Civil and Political Rights of 1966 provides that “no one may be imprisoned merely for failing to fulfill a contractual obligation”. Reaffirming this prohibition, the American Convention on Human Rights states in its art. 7, § 7: “No one should be arrested for debts. This principle does not limit the orders of the competent judicial authority, issued due to non-compliance with maintenance obligations.” Both of these international treaties have been ratified by Brazil.

Now, the 1988 Constitution, following those that preceded it, expressly exempts from the prohibition of civil imprisonment for debts the case of the unfaithful trustee (art. 5 a, LXVII).

It is obvious that the rule of integration, contained in art. 5, § 2, requires that this normative contradiction be overcome. What is the appropriate criterion for resolving the conflict?

Precisely because we are faced with a system that integrates, in the same system, domestic law and international law, the solution to this conflict of norms cannot be found based on an alleged superiority of the Constitution over international treaties, or vice versa. The interpreter is obliged to go back to the legal principle that legitimizes the system as a whole. And this supreme principle is, of course, that of the transcendent dignity of the human person.

We must therefore ask ourselves which of the two situations – the sacrifice of the depositary's freedom, or that of the depositor's economic interest – represents the solution that best respects human dignity. In general, freedom is a higher value than economic interest, as the latter constitutes the means or instrument for the preservation of the former. In addition, in our country, the depositary's delay in returning the object whose custody was entrusted to him occurs, unfailingly, not in the commercial deposit, but in the stipulations of fiduciary alienation in guarantee, such as pacts attached to bank financing contracts. It is obvious, in such conditions, that the norm that best respects human dignity is that established in the aforementioned international treaties, prohibiting the civil imprisonment of the unfaithful trustee.

At the end of the first part of this exposition, allow me to formulate the following recommendations to Magistrates: (a) As the human rights system is located at the apex of the legal order, the judge should not judge any claim before verifying the possible incidence, in the case, of the norms of that system, even if there is no allegation in this regard by the parties. (b) In the case of an integrated system of national and international norms, the judge must, in compliance with the provisions of art. 59, § 22, of the Federal Constitution, always make sure that the international treaties on human rights, to which Brazil is a party, are in force.

Second Thesis: For the correct application of the human rights system to the case under trial, the judge must take into account the different nature of the norms that compose it

The great distinction to be made, in the set of norms that compose the human rights system, is between principles and rules.[I]

To understand the meaning of this categorical distinction, it is necessary to analyze the legal norm, breaking it down into its two constitutive elements: the content and the field of application. The content corresponds to the normative enunciation, that is, to the should-be proposition. The field of application is formed by the situations of social life, to which the normative proposition refers.[ii]

Now, while in legal rules the field of application is always delimited, in principles it is never precisely defined. The principle therefore represents the prototype of the open norm, applicable to social situations that can never be specified in advance. And this indetermination of the contours of the principles necessarily has repercussions on their normative content, which is always more abstract than that of legal rules, whose main function, incidentally, is to concretize them.

Take, for example, the principle inscribed in the caput of art. 59 of the Constitution: “all are equal before the law, without distinction of any kind”. The generality of the norm is absolute, not only with regard to the subjects (“all”), but also with regard to the attribute, which is underlined by the emphatic repetition: “equal, without distinction of any kind”. It is obvious, therefore, that we find ourselves, in this example, facing an unlimited norm as regards the field of its application and, consequently, endowed with a content of maximum abstraction.

Well, in hypotheses like that, the constituent (or the legislator), fearful in doubt of the uncertainty in the application of the principle by the different branches of the State, including by the Judiciary itself, in charge of defining the right definitively, usually concretizes the normative content in in relation to some situations more sensitive to controversy, or susceptible to normative evasion. Thus, for example, in the first item of art. 58, overcoming the gender inequality that prevailed until the 12th century in all countries of the world, the Constitution specifies that “men and women are equal in rights and obligations”. In item XLI, it determines the legislator to establish the punishment of “any discrimination that violates fundamental rights and freedoms”. In the following paragraph, it declares that “the practice of racism constitutes a non-bailable and non-payable crime, subject to the penalty of imprisonment, under the terms of the law”. In art. 2, paragraph 7, the rule is set out that “the law cannot establish a distinction between native and naturalized Brazilians, except in the cases provided for in this Constitution”. In art. XNUMX, the Constitution also establishes several rules of equality in wage labor relations.

It should be noted, however, that, despite their high degree of abstraction, the principles are legal norms and not simple programmatic recommendations or political exhortations. Even more: these are legal norms of full and immediate effectiveness, dispensing with the intermediation of concrete rules. Provoked or not by the parties, the judge is always authorized to directly apply a principle to the case brought to his judgment, pursuant to the provisions of § 1 of art. 5 of the Constitution: “The norms defining fundamental rights and guarantees have immediate application”. The writ of injunction, created by art. 5, LXXI of the Constitution came precisely to give the holder of fundamental rights the legal possibility of judicially imposing on the taxable person, be it a public body or a private person, compliance with the aforementioned constitutional norm.

That way you can see how aberrant from good legal theory is the preliminary decision of the Federal Supreme Court, taken in the judgment of Writ of Injunction n. 107, of the Federal District,[iii] just over a year after the promulgation of the Constitution, which states that “the exercise (of this legal remedy) is unfeasible due to the lack of regulatory norms”; and that the requested judicial provision must be assimilated to a simple declaration, by that court, of unconstitutionality due to omission of a measure to make a constitutional norm effective. The contradiction is palpable: a guarantee of fundamental rights, created to remedy the legislative omission, is not considered in force precisely because of the lack of regulatory law...

It is also worth emphasizing that this direct and immediate effectiveness of the principles – despite the necessarily abstract content of their normative formulation – authorizes the judge to deny the validity of legal rules that seem to contradict the meaning of a principle, even when such rules have the its favor a long period of uncontested validity. Legal sensitivity can change over the years and bring about an incompatibility that was never felt in the past. This is what is about to happen, for example, as the rule contained in art. 295 of the Criminal Procedure Code, which guarantees the privilege of special imprisonment for no less than 11 (eleven) categories of citizens.

Let us now see, as we did with regard to the different normative sources of human rights, which conflicts may arise between two or more principles, or between principles and rules.

Conflict between fundamental legal principles

Here, unlike what happens in terms of conflicting legal norms, there is no revocation of one principle by another, but only the preference given by the judge to one of them over the other or others, in the concrete case.

But what criterion should guide the judge in this preference? In my view, as advocated in the hypothesis of collision between norms of domestic law and international law, the judge must go back to the legitimizing source of the system as a whole, which is the supreme value of human dignity.

Care is taken, for example, to find out whether a given law, which authorizes the breaking of bank account secrecy for tax purposes, is compatible or not with a system of fundamental rights. There is, on the one hand, the principle of the freedom of the human person, within which the right to preserve privacy is inserted, and which, by its very nature, concerns only the natural person, and cannot be extended to legal entities. . On the other hand, the principle of solidarity necessarily comes into consideration in this case, which leads to the obligatory proportional participation of all, in the civic burden of contributing, pecuniarily, to the cost of state activities. In other words, the opposition is established, in a hypothesis like this, between individuals and the community. It is up to the judge to ponder carefully (the Germans speak of Abwägung, Anglophones in balancing) all provisions of the law in question, in their direct and indirect effects, to see which of the two principles best preserves, in this case, the value of human dignity.

Conflict between principles and rules

The question is analogous to the one already examined, of the conflict between constitutional norms and legal norms. In both hypotheses, it is necessary to distinguish between the real and the apparent conflict.

When the collision is real and unavoidable, as happens with the special prison rule in confrontation with the fundamental principle of equality, the rule has no validity, since the principles are located, as has been pointed out, at the apex of the normative pyramid.

Often, however, the conflicts between principles and rules are merely apparent: although certain rules, when abstractly considered, are not contrary to the provisions contained in the principles, their application can be removed, in the concrete case, if it implies an unquestionable violation of the principle.

We can illustrate this type of solution by imagining the conflict between, on the one hand, the right of the landlord or sublessor of a collective residence building to evict the tenant in arrears in paying rents, and, on the other hand, the right to housing of the insolvent tenant, who does not have the economic conditions to settle in another place of residence. Constitutional Amendment No.o. 26 inserted the right to housing in the text of art. 6, where social rights are listed as expressions of the fundamental principle of solidarity. It is indisputable that the sacrifice of the lessor's right to recover direct possession of the property is much less offensive to his dignity as a person than would be, for the lessee, the non-recognition of the fundamental right to have a roof under which take shelter.

It is unavoidable to claim that, in such situations, the Judiciary has nothing to do, since social rights are only realized through the implementation of public policies, which fall within the exclusive competence of the Executive Branch. The allegation is unreasonable, because what the holder of the violated social right asks the judge, in this case, is obviously not the implementation of a governmental action program, but rather the satisfaction of a party's own interest, based on fundamental right. And this the Judiciary cannot refuse to give to the jurisdiction, under penalty of denial of justice.

Having thus established the distinction between principles and rules, and discussed, in the light of this distinction, the appropriate solutions for hypotheses of normative conflicts, the judicial function of effectively applying human rights is not free of difficulties. There will always remain the major problem of interpreting leaked normative provisions in semantically imprecise terms.

I have already pointed out, in this regard, the difficulty of giving practical meaning to the constitutional prohibition of cruel penalties (art. 5, XLVII, e). It is a paradigmatic example of an indeterminate or imprecise concept, according to German terminology, or a notion of variable content, as French-speaking scholars want.

At the end of the eighteenth century, on the occasion of the great bourgeois revolutions that inaugurated contemporary history, the widely proclaimed ideal was to suppress the will of the Ancien Régime, in which the law represented nothing more than the will of the monarch (quod pla cuit principi legis habet vigorem, as Ulpian, aulic of the Roman emperor, ruled). Therefore, it was necessary to prohibit the magistrate from any exegetical freedom.

The great ideological justification for this was JJ Rousseau's conception that only the people are sovereign, and that only they, therefore, would have the power to enact the law, as an expression of that supreme principle, which he called general will.[iv] As a consequence, only the sovereign people were responsible for the authentic interpretation of the law. With this, the need or even the convenience of constituting a body of independent judges in the State, responsible for saying the law in the last instance, was removed.

It is clear that this radicalism of popular sovereignty did not please the bourgeoisie at all, in the process of becoming the ruling class. It was indispensable that there was certainty in the application of the law in a certain sense, if only because the capitalist economy is entirely based on forecasts and calculations of productivity and profitability. The effect of the application of laws should be predictable, which assumed the univocity of legal norms, such as the use of technical terms previously defined by the science of law, in the form of geometric concepts.

In this conception, it was indispensable to establish a rigid separation between the fields of law and morality, a task that was carried out by the doctrinal current known under the name of legal positivism, and which had been inaugurated in the first half of the XNUMXth century by the English jurist John Austin . According to this theory, it is not up to the judge to judge the justice or morality of the legal solution, since, in the regime of separation of Powers (this is the political justification) the magistrate is not a legislator. It is only up to him to obey the legal dictate.

In anachronistic support of this opinion were cited considerations drawn from the by Legibus of Cicero (III, 1, 2): “As laws govern magistrates (in the Roman sense, that is, rulers endowed with power— powers, imperium — over the people, which included the judges, but was not limited to them), so also the magistrate governs the people, and it can be said that the magistrate is the voice of the law, and the law a magistrate without a voice (veredicipotest, magistratumlegem esse loquentem, legem autem mutum magistratum). "

What was sought to hide, however, is that the concept of lex, employed there, was of a philosophical and not political nature: it was right reason (rectaratio), unmistakable with the legal norm edited by the state authority.

Having become the ruling class and political substitute for the people, the bourgeoisie came to strictly control the exercise of legislative power, and had not the slightest intention of allowing the laws voted by the ill-named representatives of the people to be judged according to the dangerous criteria of justice, legitimacy , or even reasonableness.

Only one element was out of harmony in this new political framework: it was precisely the Constitution, whose raison d'être, as proclaimed in the Declaration of 1789, consisted of ensuring human rights and preventing the abuse of power.

But the theoretical purity of this conception was soon compromised in practice. The paradigm of all Constitutions, the North American one, was enacted without a declaration of fundamental rights. O billofrights, added to it in 1791, was written in a strictly technical style, so as to avoid, as much as possible, the use of formulas with a moralizing content, such as those contained in the Virginia Declaration of Rights.

But this refusal to use terms with a vague meaning, or with a clear axiological content, was not absolute. The Fifth Amendment to the US Constitution, for example, resurrected the medieval English formula of the due process flaw. Thanks to it, the Supreme Court of the United States was able to control the compatibility of the laws enacted by Congress, with the particular interest of the dominant classes in North American society, at first the landowners, then the industrial entrepreneurs and bankers. in the famous Dred Scott case, judged in 1857, the Supreme Court declared unconstitutional the so-called Missouri Compromise of 1820, according to which the practice of slavery was prohibited in the newly acquired territory of France, Louisiana.

In 1905, in the process Lochner v. new York, a law of this State, which established a maximum of 60 hours per week for the work of salaried bakers, was invalidated as unconstitutional. At the same time, the Supreme Court found that the clauses of the so-called yellow-dog contracts, in which employers imposed on their employees the obligation not to join any union. In Adkins v. Children's Hospital, ruled in 1923, the federal law that fixed a minimum wage for women and child workers was also declared unconstitutional. In all these decisions, the basis for deciding was the clause of due process law, whose validity the 14th Amendment also extended to the States, and which came to be interpreted substantively, that is, outside the judicial process: no one could be deprived of their assets or rights without due legal process.[v]

What to say then? The rules that contain standards, or indeterminate legal concepts, reintroduce decision-making arbitrariness in modern law, typical of the pre-constitutional era?

Not at all. What they do is attribute to the Judiciary the delicate and important function of judging, according to the great parameters of morality and justice, established by the collective ethical conscience, and expressed in the current system of human rights. Arbitrariness presupposes the subjectivism of the judgment, the setting of the judge's own will as the supreme decision criterion. But human rights, especially those already established in the internal or international order, called fundamental rights, constitute objective parameters of appreciation, which are imposed on the judge, even when they contradict the personal view that he has of the world, or the self-interest of the social class. to which he is linked, sociologically.

Furthermore, the most recent Constitutions, such as ours of 1988, already enshrine fundamental principles of a functional or finalistic nature, indicating the supreme objectives of the political organization. That's what you read in art. 3 of the Brazilian Constitution, where the fundamental objectives of the Republic are indicated: “I – ​​build a free, fair and solidary society; II – ensure national development; III – eradicate poverty and reduce social and regional inequalities; IV – to promote the good of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination.” These are constitutional requirements, not mere programmatic recommendations.

Take, for example, the norm of art. 5, item XXIV, which orders that the expropriated be awarded fair compensation. Judges and courts have been refusing to give this qualifier its evident ethical meaning, preferring to take refuge in the falsely objective criterion of the venal value of the expropriated thing. With this, they end up submitting themselves to the estimation of the evaluators, as if it were a matter of deciding a question of fact and not of law.

Now, on the one hand, the judge cannot disregard the constitutional imperative of using the power to judge to build a freer, fairer and more supportive society, as well as collaborating to reduce social inequalities, as determined by art. 3rd. On the other hand, the Constitution imposes on all property owners the fundamental duty to fulfill the social function inherent to this right (art. 5, XXIII).

If so, for the judge to fix fair compensation for expropriations, as mandated by the Constitution, he must consider, in his judgment, the person of the owner rather than the expropriated thing. If the owner has not given it its obligatory social destination, he cannot be awarded an indemnity corresponding to the price he would obtain if he decided to sell the property on the market.

If, on the other hand, the expropriated thing is, hypothetically, the small residence of a modest wage earner, or a pensioner with meager resources, the judge cannot fail to consider the full extent of the personal damage caused by the expropriation, when, for For example, the expropriated person cannot acquire, with the amount of the venal value of the thing, another house to live in in similar conditions to the one that was taken from him. Therefore, the constitutional duty of a fair indemnity obliges the judge, in this case, to set it at a value above the market price of the expropriated thing.

With this, in concluding this second part of my exposition, I would like to make the following recommendations to judges: (a) Judges cannot ignore that all norms relating to human rights, including norms of principle, are of direct application and immediately, in the precise terms of the provisions of art. 5, § 1, of the Federal Constitution. Therefore, when the judge is convinced that a constitutional principle affects the matter brought to his judgment, he must apply it, without the need for a request by the party. (b) When verifying that the application of a certain legal rule to the case submitted to trial entails a clear violation of a fundamental principle of human rights, even though the rule is not unconstitutional in theory, the judge must reject the application of the law in the hypothesis, having in view of the supremacy of principles over rules, which entails the logical need to interpret these in terms of the rule of principle.

(c) In the event of a collision between two principles for the solution of the dispute, the judge must prefer the one whose application to the case represents greater respect for human dignity. (d) In exercising their jurisdictional function, magistrates, like all other public agents, must be guided by the supreme objectives of our political organization, expressed in art. 32 of the Federal Constitution, which express the great values ​​of freedom, equality and solidarity, based on which the human rights system was progressively constituted. (e) Legal norms containing standards, or terms of evaluative sense, open to the magistrate the possibility of technically adapting his decisions to these fundamental objectives of the Brazilian State, subjecting the laws to the spirit of the Constitution, as well as the interests of each class or social group to the supremacy of the common good .

(f) The judge cannot, under the false argument that he is not a political body, refuse to ethically assess the disputes submitted to his judgment. The ultimate purpose of the act of judging is to do justice, not to blindly apply norms of positive law. Now, justice, as classical wisdom warned, consists in giving each one what is his. What essentially belongs to each individual, by its very nature, is the dignity of the human person, supreme ethical value. A judicial decision that denies, in the concrete case, human dignity is immoral and, therefore, legally unsustainable.

* Fabio Konder Comparato He is Professor Emeritus at the Faculty of Law of the University of São Paulo (USP) and Doctor Honoris Causa of the University of Coimbra. Author, among other books, of the capitalist civilization (Hail).

Lecture given at Escola Paulista da Magistratura, on January 22, 2001.

Originally published on Magazine of the Regional Labor Court of the 15th. Region, No15, 2001.

Notes


[I] On the current meaning of legal principles, see chapter 8 of the work of Professor Paulo Bonavides, Constitutional Law Course, Sao Paulo, Malheiros.

[ii] This distinction was originally made by Prof. Friedrich Müller, in his work Juristische Mettiodik, Berlin, Duncker&Humblot, already translated into French under the title Discourses of the legal method, Paris, PUF.

[iii] Quarterly Journal of Jurisprudence, vol. 113, p. 11.

[iv]A volonté generale of Rousseau, in fact, does not seem to be different from that rectaratio which Stoic philosophy always regarded as the essence of law: est enimunumius quo devincta est hominum societas et quod lexconstituit una, quaelex est rectaratio imperandiat que probibendi, said Cicero in by Legibus (1,15,42)

[v] The translation “due process of law”, which is found in art. 5th, LIV of our Constitution, is wrong. Law, in the English formula, is law and not law. Incidentally, it would be absurd for a norm on the constitutionality of laws to adopt the legislation itself as a judgment parameter.

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  • Strengthen PROIFESclassroom 54mf 15/06/2024 By GIL VICENTE REIS DE FIGUEIREDO: The attempt to cancel PROIFES and, at the same time, turn a blind eye to the errors of ANDES management is a disservice to the construction of a new representation scenario
  • PEC-65: independence or patrimonialism in the Central Bank?Campos Neto Trojan Horse 17/06/2024 By PEDRO PAULO ZAHLUTH BASTOS: What Roberto Campos Neto proposes is the constitutional amendment of free lunch for the future elite of the Central Bank
  • Chico Buarque, 80 years oldchico 19/06/2024 By ROGÉRIO RUFINO DE OLIVEIRA: The class struggle, universal, is particularized in the refinement of constructive intention, in the tone of proletarian proparoxytones
  • Volodymyr Zelensky's trapstar wars 15/06/2024 By HUGO DIONÍSIO: Whether Zelensky gets his glass full – the US entry into the war – or his glass half full – Europe’s entry into the war – either solution is devastating for our lives
  • Why are we on strike?statue 50g 20/06/2024 By SERGIO STOCO: We have reached a situation of shortage of federal educational institutions

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