Direitos materialmente fundamentais

• Autor(a) principal: Sakamoto, Fábio Meneguelo
• Data de Publicação: 2017
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/20735
• topic: Direitos formalmente fundamentais; Direitos materialmente fundamentais; Cláusula de abertura material; Formal fundamental rights; Material fundamental rights; Clause of unenumerated rights; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

Despite the vast amount of literature available on fundamental rights, both in the Brazilian Law, and in the Comparative Law, there is still a need for more studies as the society evolves and personal relationships become richer and more complex, demanding that the interpreter and judges play a role beyond the traditional logical-subsumptive method in applying the norm to a concrete case (major premise, minor premise and conclusion). Thus, it is possible that, at a certain point, there is a need to acknowledge a right that has not been pre-established as a norm, neither in the constitutional text, nor in any other normative document; we believe this has been the reason why contemporary constitutions have expressly predicted a clause of unenumerated rights, such as art. 5, §2nd, of the Brazilian Constitution, and art. 16th, n. 1, of the Portuguese Constitution, acknowledging that other fundamental rights are recognized by constituted powers, especially by the Judiciary in the exercise of their activity. Such possibility requires a definition of what can be considered fundamental from the point of view of its contents, i. e., from its essence; this is precisely the object of our study: to investigate the values which can effectively be a benchmark for the acknowledgment of rights as fundamental. We concluded that such values derive from the combination of the precepts established in art. 1st, caput, its clauses and single paragraph, in art. 2nd and in art. 60, §4th, I to IV, of the Federal Constitution; such values are mutually related and constitute a safe indication that they have been elected by the Constituent as the most legitimate ones to forge the special category of rights known as the fundamental rights. Based on this conclusion, we verified that not every mechanism contained in the Federal Constitution - including in the catalogue of art. 5th - has the necessary to be considered fundamental. On the other hand, others that do not even appear in the text are included in this special category of rights. Therefore, it is possible to mention the existence of rights which are merely constitutional and rights which are materially fundamental, or fundamental per se, which, for a didactic effect herein, we chose to call truly fundamental. The practical consequence of this differentiation is the fact that merely constitutional rights, though named fundamental, could be deleted or substantially modified through a constitutional amendment, without the problem predicted by the eternity clauses. The opposite is also true, i. e., a right outside the catalogue, but with a status of fundamental right, cannot be suppressed, nor modified in its essence. In this study, we analyzed a vast bibliography, both Brazilian and foreign; besides, we selected some paradigmatic practical cases judged by the Brazilian Federal Supreme Court and some judged by foreign courts, such as the German Federal Constitutional Court