The principle of legality was born in France in the 18th century, more precisely at the end of the French Revolution in 1789. As we explained in the previous topic, the idea of legality appears as a counterpoint to governments in which the will of the king was the source of the law, that is, the regimes in which the king commanded and returned. The laws even existed, but they were written by the king and enforced by him, and if he did not want to follow exactly the laws he had created, that is fine, because there was no authority over him. Such was the French state before the French Revolution. The one who ruled the country was a monarchy and King Louis XVI had absolute power, meaning that the legislative, executive and judicial powers were concentrated on his person. Society was divided into three classes: the high clergy, the nobility and the bourgeoisie. The bourgeoisie was the lowest class and represented the vast majority of the population. This class supported the French state – by paying taxes – and all its privileges. When it comes to legality, the first thing we must bear in mind is the existence of a set of rules that must be respected. In a society, laws disapprove of or stimulate certain behaviours and are enforced by a competent authority.
Depending on the legality, a person`s conduct may be in accordance with the law and may be considered legal or contrary to the law and considered illegal. Now that we understand what the principle of legality is, how important it is for the security of the individual and the action of the state, we will know a little more about the evolution of this principle throughout history. The principle of legality is therefore one of the foundations of the Brazilian legal system, and all norms must respect this notion of nullity of the sentence in the absence of a prior rule. The postulate has been published since the Federal Constitution of 1988 and is part of the Brazilian Penal Code. In this case, it is up to the person to decide where they want to cross the street. He can cross the tape because he understands it`s safer, or he can get off the track. In the latter case, the police will not be able to punish them because there is no law requiring them to cross the gang. If the police decide to punish the person who has crossed the area, they act arbitrarily and can be punished, the police themselves.
Now that we know what a principle is and what legality is, we come back to what is in item II. You may have wondered: aren`t all states subject to laws? Legality comes from legal, which means the characteristic of what is in the law. Any act drafted in accordance with the law incorporates legality. 60 – The principle of legal reserve is equivalent to the principle of legality in so far as any legal order requiring specific conduct must be of one of the types provided for by the legislative procedure. Jusbrasil – The principle of legality and its contributions to Brazilian criminal law The idea from which the principle of legality emerged had already been demonstrated in Roman law, although it only took root between the seventeenth and eighteenth centuries, during the Enlightenment. With the development of society, and with it the law itself, the principle of legality became increasingly important and soon appeared in many documents distributed throughout the world, such as the Bill of Rights (England, 1689) and the Virginia Bill of Rights (United States, 1776). This point deals with the principle of legality, which is one of the foundations of a rule of law – a state of law. According to this principle, people can do whatever the law does not prevent them from doing, and the state can only do what the law allows. Sounds complicated, right? But don`t worry, politicize! He is here to help. Today, the principle of legality is widely applied in Brazilian law. It is contained in the Constitution in two stages: Article 5(II), which deals with fundamental rights, and Article 37, which deals with public administration. This was a novelty compared to previous constitutions, because for the first time legality was established as a principle of state action.
Look at what Article 37 of the Constitution says: in other words, we can say that the principle of legality is a real constitutional guarantee. By this principle, we try to protect the individual from the capacity to act committed by the state and even from the capacity to act committed by others. Thus, individuals have ample freedom to do what they want, as long as it is not an act, behaviour or activity prohibited by law. However, it is necessary to make certain distinctions between the principle of legality and the principle of legal reserve. The latter would be a «kind» of the principle of legality and should be seen as an attempt by the law itself to control the treatment of certain matters in order to be dealt with exclusively by the law. The principle of legality aims to avoid arbitrariness on the part of the State. Thus, we, Brazilian citizens, are assured to act according to our will, but of course, as long as our actions have no law or the freedom of another person. A great breakthrough in the consolidation of a democracy, isn`t it? With this definition, enshrined in the Criminal Code and the Federal Constitution, it is possible to synthesize the principle of legality in the Latin phrase: «nullum crimen, nulla poena sine lege», which means: no crime, no penalty, no previous law defining it. We therefore conclude that the scope of the principle of legality varies according to the addressee. However, it gives individuals freedom when they can do anything that the law does not prohibit, or restricts administrative action, since public administration is subject to the dictates of the law throughout its operation.
We translate this restriction of freedom x as follows: For individuals, there is an «extensive» legality. For the administration, there is a «strict» legality. Finally, it is concluded that the principle of legality is the basis of democracy itself and serves as security for all in the face of the immense power of the State and proves to be a real shield of the citizen.
