Applied to criminal law, the principle of legality or legal reservation allows us to say that Parliament is generally denied the creation of criminal laws that deal with facts before they are valid, characterize them as crimes or impose sentences on officers. In Brazilian criminal law, legality was already present in the Imperial Constitution of 1824 and again in the Penal Code of the Empire of 1830: “There is no previous illegal crime that defines it. There is no sanction without prior legal obligation. In administrative law, the principle of legality has certainly become the most important concept in this area, guiding the functioning of the public administration and creating the conditions for the validity of an administrative act. The main difference in the application of the principle of legality to individuals and public administration is that they can do anything that the law does not prohibit, and in the case of public administration, their members can only do what the law determines or authorizes. In the absence of a legal prohibition, the administration can act, the administrative service must be necessary in the law. In the administrative field, legality therefore has a much more restrictive content than general legality which applies to the conduct of individuals. As we have seen above, legality is for Kelsen the sufficient condition of the rule of law, also because each State is already a legal State for him. In the case of Hobbes, legitimacy is withdrawn once and for all from the interests of the individual to emerge from the state of war, 27. The principle of legality is a legal concept that departs from the fundamental rights and guarantees of individuals and stipulates that no criminal offence has been committed unless the law so provides. Legality comes from legal, which means the characteristic of what is in the law. Legality justifies the need for a law drafted in accordance with the constitutional rules of the legislative process so that it can enforce forced conduct. The term became a fundamental maxim in the legal thought of continental Europe through the famous Latin phrase repeated until exhaustion in law faculties: “Nullum crimen, nulla poena sine praevia lege poenali”.
This is the definition of the principle of legality established by Paul Johann Anselm Ritter von Feuerbach, which is part of the Bavarian Criminal Code of 1813. Similar manifestations can be found even in distant Roman law with the Baldrian law, which made the execution of the death penalty dependent on the confirmation of the people. In the Middle Ages, the British Magna Carta of 1215 guaranteed in Article 48 that “no one shall be arrested, imprisoned or deprived of his property, customs and freedoms, except by virtue of the judgment of his colleagues according to the laws of the land”. The Declaration of the Rights of Man and of the Citizen of 1789 states: “The law shall establish only severe and manifestly necessary penalties, and no one shall be punished except by virtue of a law promulgated, promulgated and applied by the law prior to the offence.” Another important development for the study of the principle of legality in the field of taxation. On appeal, the State alleged a violation of the principle of legality, since no provision of the municipality in question provided for this method of shortening journeys. The constitutionalist and indoctriator Bernardo Gonçalves, who was my professor at PUC Minas in 2011, teaches that the main purpose of the principle of legality is to limit the power of the state and prevent its arbitrary application (obstruction of the capacity to act by the concept of legality). In order to explain the application of the principle of legality in our study, I have separated some practical cases in which its proper application by the judiciary was fundamental to the assertion of rights. The Federal Constitution provides for three institutes that modify the regular functioning of the principle of legality by granting legal powers that do not exist in normal situations: Strictly speaking, the principle of legality is conventionally taken into account in Brazilian law in the following provisions of the 1988 Constitution: The principle of legality has its origins in older societies that began to write laws that were previously only oral.
and Were the result of customs and customs. Traditions (usual laws). By putting laws in writing, he creates a true identity so that there is no contrary interpretation, and establishes the subjection of each individual in his existence. 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. So come with me, because my mission here is not to exhaust the subject and fill it with learning. The intention is to bring the essential points on the principle of legality objectively and didactically, both from a theoretical point of view and through the practice of our advocacy. It should be noted that the principle of legality focuses on the individual through the rules of the public tender notice, a legal act but bound by the imposition of obligations on individuals. In this case, the disabled candidate was mistaken. When we talk about the principle of constitutional legality, we must bear in mind the requirement of Article 5(II) of CS/1988, which states that “no one shall be compelled to do or abstain from doing otherwise than by operation of law”. Any rule of law is governed by a system of norms and institutions linked to a constitution that guarantees fundamental human rights. It should be noted that the legal sphere of one community cannot be completely shared by another community, especially with regard to traditions and ancient laws that remain in time.
As a result, many societies have come into conflict when it comes to solving common problems, although international law or legality seeks to establish common norms of coexistence that can be jointly organized and resolved in accordance with the interests of all nations. 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. Surprisingly, it is not yet understood what the principle of legality is and what its scope is. This article is appropriate to try to contribute to this understanding. The principle of legality is an important part of administrative law and limits the public administration to do only what is provided for by law. According to Article 37 of the Federal Constitution, which states: Let us imagine for a second how chaotic it would be to live and develop in a society that has no legality, no rules, no justice. It would be extremely difficult and because it is not impossible to live.
Legality, that is, respect for the law, guarantees respect for civil rights, but if there is no such respect, a complaint can be filed in court to resolve the situation in question. When we talk about administrative legality, we are talking about interpreting the principle of legality from the point of view of administrative law. Indeed, the second classical conception of the norm refers precisely to its effects on the public authorities. This is the idea of so-called private legality, which is based on the autonomy of the will, where it is certain that in the face of legislative or normative silence, each subject is allowed to do what he wants (unlike what happens in public legality, as we will see later). In a sense, it regulates the obligation to faithfully observe not only formal laws (in the strict sense), but all kinds of normative acts and instruments that form the so-called block of legality. Here we must bear in mind the idea that the public administration must submit to the will of the people. But how does this happen? Precisely by the principle of legality. The idea that led to the principle of legality had already been emphasized in Roman law, although it only took root between the seventeenth and eighteenth centuries, in the Age of 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).