Law Department
The principle of legality and reality
"The law can only establish strict penalties and evidently
necessary, and someone may be punished under a law
established and promulgated before the offense, properly applied. "
- Declaration of the Rights of Man and Citizen , 26/08/1789.
The principle of legality enshrined in the Constitution, in Article 5 the , II, according to which "nobody is obliged to do or refrain from doing anything except by force of law. " This constitutional provision is of immeasurable importance in the Indian legal system, because it emanates, and are justified by it, several other basic principles.
The principle of legality down so fundamental legal certainty through obedience to the law, this being understood as an expression of the will of society. The State is subject to the law, as well as all members of the legal system. At first, the word "law" here refers to the formal law, drafted by the competent authority in accordance with the legislative process described in the Constitution.
The origin of the principle of legality can be found in the Magna Carta of 1215, the first English effort to restrict the power of the monarch. This paper is the following statement: "No free man shall be arrested or subject to prison, or deprived of his property, or placed outside the law, or exiled, or otherwise molested, and we will not proceed against him or arrange except by a regular trial by their peers or in accordance with the law of the country. " English kings would only have limited its strong field after many centuries, but the idea of making something abstract and impersonal law began to disturb the peaceful scene before that absolutist Europe.
Until then, the law was mainly seen as a manifestation of the will of the sovereign. Without doubt, it was essential to ensure that no one would be convicted without the existence of a previous law and without due process of law. However, it also became necessary to relieve the legislative process for a potential any whim of the monarch, and transform it according to the interests of society.
Baron de Montesquieu then redrafted and updated an old Aristotelian idea in his The Spirit Laws proposing the tripartite division of powers. The U.S. Constitution (1789) adopts a system similar to that proposed by the theory. Since then, most democratic constitutions adopted the principle of separation of powers, including Brazil.
Several approaches can be given to the principle of legality. Great French liberal thinkers have interpreted it as a guarantee of an individual's sphere of operation in which the state would not interfere. This reading is based on following logical argument: the law is the only limitation to the action of man, all that you are not prohibited by law it is lawful.
Another important offshoot of the principle of legality is the legal reserve. The principle of legal reserve is expressed in Article 5 the , XXXIX clause of the Constitution - "No crime without a previous law which defines it. There is no punishment without a previous legal imposition" - and echoed in Article 1 the law n of the 2848 December 7, 1949.
That principle is present in the first article of the Criminal Code; see at once that it is of paramount importance for the study of Criminal Law. It is a guarantee that consolidates the principle Nullum crimen, nulla poena sine lege - "there is no crime or punishment without law."
As the principle legal reserve and part consequence of the principle of legality, the doctrine is common to distinguish between them with little clarity, or even not do it. Jose Afonso da Silva, in his Constitutional Law Course Positive thus denotes this difference: "The [principle of legality] means submission and respect for the law, or acting within the scope established by the legislature. The [principle of reservation legal] consists in establishing that the regulation of certain matters is making it necessarily by formal law. " A concept pointed to by the author, citing Crisafulli, is that "It has reserves of law when a constitutional provision conferring given subject only to formal law (or similar acts, signed in the usual interpretation), subtracting it, therefore, subject to other sources, subject to that. "
; In short, the principle of legality is generic and abstract, referring to the principle behavior allowed in the sphere of activity which does not affect any provision by the market.
The absolute reservation of formal law in Article 5 the , XXXIX prohibits the legislature from transferring the task of defining the crime and establish penalties. This definition must precede the crime, since criminal law is retroactive only for the benefit of the defendant. Crime is the assumption of the sentence.
arrives then the result of an absolutely fundamental principle of legality to the Criminal Law: the typicality, adequacy of the fact type described by the legislature. Not allowed to the criminal offense is established generically, without prior definition of criminal behavior or determining the penalty. It is forbidden to use the analogy to punish someone for an event similar to another prescribed by law.
is thus established the primacy of formal law as a source of criminal law. Thomas Hobbes, an English major contractarian, states in his Leviathan that "just when the civil law, crime has also just." Therefore, the applicability of criminal law and its adaptation to social reality are indispensable.
Observing the criminal law in force today - in particular the Criminal Code - is not uncommon to find articles that are absurdly inconsistent with our lifestyle. It is expected to be so after all, the date code 1940. Clearly, the reality of crime has changed dramatically over the past sixty years. Cite the obvious example of internet crimes.
Likewise laws are unnecessary, there are a slew of loopholes in the legislation, which must be met somehow. It is almost trite to talk about amendments to the Penal Code. Criminal laws do not stop being promulgated and will be accumulating an excess of extravagant laws, creating types which define the most varied offenses.
This normalization sparse and disorganized only damage the country. You can even find a conflict between these laws, which are not produced or arranged in an orderly manner. It much needed reform of the Penal Code, not only to eliminate the wide gap between the law and the dynamics of rigid society but also to systematize usefully to existing legislation.
We must also highlight the increasing dependence of Brazilian society in relation to criminal penalties. There is always a certain quest for harsher penalties for violators, that only overcrowded prisons does not solve any problem. One can not call this solution as such, or even as palliative.
Severity is not lacking in the Brazilian Criminal Law, or at least not all of it. One might even say that lack a true ratio similar penalty, but viewed in their entirely different. The law of heinous crimes of 1990 may need to be reformulated. However, one of the country's real problems is the default state in correcting social problems, letting them get worse until it becomes necessary to intervene criminal.
The Brazilian state under jurisdiction not give her the opportunity to see realized the principle of minimum intervention, whereby the criminal law should intervene only in the latter case. Theoretically, should be prioritized extrapenais sanctions and interventions on the dynamics of society to try to prevent the occurrence of crime and worsening the already precarious social balance. In practice, new types are added to the legislation with alarming rapidity, overloading the system punitive and corrective function expecting him that much does not reach the expected result.
There are principles, such as the minimal intervention, which form the legality of an almost indivisible whole, especially with regard to Criminal Law: the principle of proportionality (there must be a proportion between the act and the sentence), the principle of humanity (there must be provision of social aid and assistance to help the convicts), the presumption of innocence (no one is guilty until the criminal sentence to sentence him) and the principle of culpability (the penalty must be imposed due to an act committed and not due to a defect of character or life style).
Other principles related to the principle of legality include "nulla poena sine judicio " which limits the power of the legislature, prohibiting him to legislate about specific cases, and "neither iudex sine lege", which establishes that the criminal law can only be enforced by a judge with power and authority to do so.
The principle of legality is the fundamental guarantee of civil liberty, and he is on a number of other principles that underlie the Federal Constitution, and thus the entire Brazilian legal system. The reality of the country is at odds with some of these principles. This fact is largely due to the state by remaining present in some areas and less active in others, preferring to relegate to the system punishing the task of reforming society.
Bibliography
Federal Constitution Brazil. 34 the . edition, São Paulo: Ed Scott, 2004.
Mirabet, Julio Fabbrini. Manual of Criminal Law. vol. 1. 18 the . edition, São Paulo: Ed Atlas, 2002.
______ interpreted Penal Code. 5 the . edition, São Paulo: Ed Atlas.
SILVA, José Afonso da. Positive Constitutional Law Course . 24 the . edition, São Paulo: Malheiros Editores, 2005.
HOBBES, Thomas. Leviathan . 4 the . edition, São Paulo: Ed Martin Claret, 2004.
Carlomagno, Ferdinand. Principle of Legality and the Legal Reserve . Available at: http://www.advogado.adv.br/estudantesdireito/damasiodejesus/fernandocarlomagno/legalidadereservalegal.htm > Accessed 02/03/2005.
SILVA, Alexandre Rezende's. Principle of Legality. London: Available at: \u0026lt; http://www1.jus.com.br/doutrina/texto.asp?id=3816 > Access: 02/03/2005.
0 comments:
Post a Comment