Public Security and its status in Brazilian Legal System / Segurança pública e sua nota de fundamentalidade no ordenamento jurídico brasileiro

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

Human being and his environment have to be protected, and security is State`s primary mission and reason of existence. State is obliged, with society`s aid, to concretize human and fundamental rights. As a deployment of human right to security, which was resized from Liberal State to Democratic State, there is public security, whose fundament lies in the super-principle of human dignity, and in the monopoly of state legitimate coercion, whose importance and necessity rate can vary within time and space. In Brazil, the 1987-1988 Constitution authors wanted that public security issue would be focused in a whole chapter, within Constitution text, and its meaning is what this research investigates. Although it can be conceived as right, public policy, public interest or legal asset, public security, within its legal and constitutional conception, shows to be a warrant rather than a right, mainly due to its instrumentality, as it immediately targets public order and safety of people and patrimony legal assets. Therefore, it works as a warrant to basic rights, such as life, health, freedom, property, and peace, serving as well to democracy, so that it is not unsuitable conceive it as a right/warrant. Such right, due to its importance (relevance) and content (substance), and according to fundamental rights and warrants catalog material opening clause, within 5th art., 2nd of 1988 Brazilian Constitution holds the same fundamentality of other fundamental rights and warrants. Such legal status is based on the dignifying function, principle-based nature, legitimating element role, inalienable character, imprescriptibly, among other aspects of the norm in the144 art. caput of Brazilian Fundamental Law. In fact, the principle-based nature of such right/warrant allows it to live, even often in tension, with other fundamental rights, namely the ones for freedom, since judgment weighting is a utile mode to confronting legal assets balancing. This research approaches to public security as an exigible right/warrant, stating that public policies legal control is possible in this area.

ASSUNTO(S)

seguranÇa pÚblica - dissertaÇÕes ordenamento jurÍdico - dissertaÇÕes direito constitucional direitos fundamentais - dissertaÇÕes

ACESSO AO ARTIGO

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