In Greek mythology, Hermes was the god of winged sandals, messenger of Zeus, who carried the message of the gods to the world of mortals. Hermes possessed the ability to understand, mediate, and reveal the message: hence the term "hermeneutics" and, later, "constitutional hermeneutics."
In Law, hermeneutics consists of the "theoretical, speculative domain, focused on the identification, development and systematization of the principles of legal interpretation".
In other words, legal hermeneutics uses specific methods and techniques to assign meaning to legal elements (text, principles, custom, jurisprudence) in order to solve problems. The goal is to give legitimacy and rationality to these legal elements.
At the end of the interpretative process, we jurists must apply the normative statement (legal text), at which point the abstract provision is converted into a concrete rule, conforming what is (reality) to what ought to be (the law).
What is Constitutional Hermeneutics?
In Constitutional Law, any conflicts or collisions between constitutionally protected rights and assets must be evaluated by the interpreter through constitutional hermeneutics.
It is incorrect to say that constitutional norms maintain a hierarchy among themselves. What we must do is "combine the letter of the text with the historical, political, and ideological characteristics of the moment" to obtain the best meaning for the legal precept, or the practical problem.
It is also important to emphasize that constitutional interpretation, or constitutional hermeneutics, impacts all positive law of the State, the entire legal order, whether public or private.
One of the reasons for pursuing constitutional hermeneutics is the presence of "vague" or "polyvocal" terms in the Magna Carta. In other words, divergent perspectives or varied interpretations can be adopted from reading the text, depending on certain political and moral values and preconceptions.
In this sense, we, as legal professionals, in order to act in the concrete solution of the problems presented to us, must ascertain the semantic content of the constitutional norm.
What are the principles of Constitutional Hermeneutics?
Now that we know what constitutional hermeneutics is, it is necessary to follow guidelines to bring more rationality to the task, reducing our level of protagonism, and greater consistency to the results.
Here are some of those principles:
Principle of the Unity of the Constitution
The Constitution is one and the same, and its interpretation must avoid contradicting its own system. We should not interpret the Constitution "piece by piece," but rather harmonize all apparent tensions, contradictions, or antinomies.
These are not isolated, scattered norms, but an integrated system. As we have said, there is no hierarchy among constitutional norms, nor is there any subordination of the text to one another, even if one is an entrenched clause and the other is not.
Principle of the Integrating Effect
In resolving legal and constitutional problems, we must prioritize criteria that favor political and social integration and reinforce political unity, while maintaining respect for the basic diversities that coexist.
Principle of Maximum Effectiveness or Efficiency
We must give constitutional norms the meaning that grants them greater effectiveness, that is, broader social impact. Today, this principle applies to any and all constitutional norms, but especially to fundamental rights.
Principle of Correctness or Functional Conformity
The highest body responsible for interpreting constitutional law (the Supreme Federal Court) is responsible for establishing the normative force of the Constitution.
Therefore, it cannot position itself to subvert, alter, or disrupt the organizational and operational scheme established by the Original Constituent Assembly, but must seek to preserve the rule of law. "In times of crisis, above all, relations between Parliament, the Executive, and the Constitutional Court must be guided by unrestricted fidelity and adherence to the Constitution."
Principle of Practical Concordance or Harmonization
We must seek the coordination and combination of conflicting legal interests in order to avoid the total sacrifice of some in relation to others. In other words, legal interests must coexist harmoniously, without one predominating over the other.
Constitutional rights are of equal value, and this absence of hierarchy prevents one from annihilating the other should they appear to conflict. We must seek to establish reciprocal limits and conditions between constitutional norms or principles in order to achieve harmonization or practical agreement between them.
Principle of the Normative Force of the Constitution
Among the possible interpretations, we should adopt the viewpoint that contributes to the greatest effectiveness, applicability, permanence, and normative updating of the text of the Constitution of the Republic;
Principle of Proportionality or Reasonableness
These are two ideals of justice, equity, common sense, prudence, moderation, fair measure, prohibition of excess, and related values in the interpretation of constitutional law and any and all legal norms.
Principle of Interpretation in Accordance with the Constitution
In the case of rules that allow for more than one interpretation, we should give preference to the interpretation that is most compatible with the constitutional content – and, consequently, the one that is not contrary to the constitutional content. Furthermore, a law should not be declared unconstitutional when it is possible to give it an interpretation in accordance with the Constitution.
Why understand Constitutional Hermeneutics?
We, as legal professionals , are, to a greater or lesser extent, enforcers of the law. The Brazilian normative system is at a stage where it is impossible to interpret sub-constitutional law in isolation from constitutional law.
From the 20th century onwards, we have seen a paradigmatic shift in which the Constitution becomes the interpretative apex of the entire legal system – especially the principle of the dignity of the human person, which is found in Article 1, III, of the Constitution of the Republic.
Endowed with supremacy, constitutional norms must be applied preferentially, and they condition infra-constitutional and supra-legal norms (international human rights treaties and conventions not approved by the qualified quorum in the National Congress).
The Constitution also contains the values and principles that guide the legal world. In this sense, principles have ceased to be a secondary source of law and have been elevated to the center of the legal system.
It is necessary that all of us, as legal professionals, whether recent graduates from universities or Justices of the Supreme Courts , have knowledge of Constitutional hermeneutics, its principles, and how to apply them.
Ultimately, the old understanding of how facts are subsumed under rules, as was taught in the past, or the understanding of the Constitution as an essentially political document, is not enough.
Today it is necessary that we have a thorough understanding of constitutional exegesis and comprehend the Constitution as the parameter of validity for all other norms of the legal system, which should not be applied if they are not compatible with it.
Conclusion
For the proper functioning of the law, it is necessary that we understand and investigate the semantic content of the 1988 Federal Constitution . This is a task not only for the Judiciary, but also for the Executive, the Legislative, the Public Prosecutor's Office, and lawyers.
Given that the Constitution simultaneously protects different goods and rights, and should they conflict, it is our duty as jurists to know how to apply the techniques and principles of constitutional hermeneutics to resolve the specific case and ensure the effectiveness and applicability of constitutional norms.
References
BAROSO, Luís Roberto. Course on Contemporary Constitutional Law. 4th ed. São Paulo: Saraiva, 2013.
LENZA, Pedro. Constitutional Law Outlined. 20th ed. São Paulo: Saraiva, 2016.
MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Course on Constitutional Law. 12th ed. São Paulo: Saraiva, 2017.
MORAES, Alexandre Constitutional Law. 30th ed. São Paulo: Atlas, 2014.