Antinomias ou contradições no direito: 5 máximas para contradições entre normas jurídicas — Transcript

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1. 0:00Antinomies in law are also an
2. 0:02interesting topic, everyone. Antinomies
3. 0:05is also a name given to contradictions,
4. 0:09right? An antinomy happens when there
5. 0:11is a contradiction between rights. And
6. 0:14stay until the end of the video because
7. 0:16I will show you that nowadays, in a
8. 0:18post-positivist view, there aren't just
9. 0:20contradictions, there are also
10. 0:21collisions of rights, okay? So stay
11. 0:24until the end and I’ll give you this
12. 0:26bonus here. Folks, antinomies occur
13. 0:30when two rights, two legal norms in a
14. 0:33complex legal system, enter into a
15. 0:35collision course. One says yes and the
16. 0:38other says no. One says it is forbidden
17. 0:40and the other says it is permitted or
18. 0:41mandatory. You know? Situations of this
19. 0:44type, class, are what characterize
20. 0:46antinomies. And how do we resolve them,
21. 0:48right? How to perform a logical
22. 0:50interpretation to solve these antinomy
23. 0:53problems, right? The doctrine generally
24. 0:56indicates three criteria, but I want to
25. 0:58point out two more, okay? Two beyond
26. 1:02those that appear in introduction to
27. 1:05legal study books. Including one of
28. 1:07these criteria that I am going to
29. 1:08introduce, okay? And it is the most
30. 1:10important one. I don't know why it
31. 1:12doesn't appear in introductory books; I
32. 1:13don't know if people just keep
33. 1:14referencing each other, right? But the
34. 1:17fact is that it doesn't appear. It is
35. 1:18the most important criterion in
36. 1:19practice today; how many lawsuits,
37. 1:21right, how many discussions are related
38. 1:22to this criterion that doesn't appear
39. 1:24in the doctrine. Anyway, nobody is
40. 1:26perfect, right? But with this video,
41. 1:28you will be up to speed on this subject
42. 1:30too, okay? The first criterion,
43. 1:33everyone, is hierarchy. This is very
44. 1:35important, okay? A hierarchically
45. 1:38superior law derogates—actually, I
46. 1:40misspoke, sorry, it doesn't derogate,
47. 1:42it applies preferentially in relation
48. 1:44to a hierarchically inferior law, right
49. 1:46? For example, a constitutional norm,
50. 1:50class, has a preferential application
51. 1:52in relation to an infraconstitutional
52. 1:55norm. Why did I mistakenly say derogate
53. 1:57before, okay? Because derogation, folks
54. 2:00, is a matter that we use only in the
55. 2:02field of modification and
56. 2:04transformation of law, right? When one
57. 2:07law revokes another. Here in an
58. 2:09antinomy, people, one law does not
59. 2:11revoke the other. In an antinomy, one
60. 2:13applies preferentially over the other,
61. 2:15because in a concrete situation, a
62. 2:17certain right might apply to other
63. 2:19situations, it just doesn't apply to
64. 2:21that specific one, understand? But it
65. 2:23can continue to be valid in other
66. 2:25circumstances, okay? I will soon give
67. 2:27examples of this in another criterion
68. 2:29that will be easier to understand, okay
69. 2:31? So this rule is a basic one, right?
70. 2:34One of the most important. There is a
71. 2:36hierarchy of laws, right? Article 59
72. 2:39provides for this hierarchy. 59 of the
73. 2:41Constitution, okay? Which sets it up
74. 2:44like this: the Constitution first, then
75. 2:47constitutional amendments,
76. 2:48supplementary laws, ordinary laws,
77. 2:50delegated laws, and so on, okay? So,
78. 2:53this hierarchy must be observed, right?
79. 2:56The higher law has preferential
80. 2:58application over the lower law. Very
81. 3:01well. The second method to resolve
82. 3:04antinomies is the temporality method.
83. 3:08The newer law, guys, has preferential
84. 3:11application over an older law, provided
85. 3:14they are on the same hierarchical level
86. 3:16, okay? See, this is interesting, right
87. 3:19? Because notice that a new piece of
88. 3:21legislation, but one that is
89. 3:22hierarchically inferior, will not have
90. 3:24this preferential application. That is
91. 3:26the case, for example, with the concept
92. 3:28of marriage in the Civil Code. The
93. 3:30Civil Code is much newer than the
94. 3:31Federal Constitution. The Federal
95. 3:34Constitution is from '88, the Civil
96. 3:36Code is from 2002, right? But you don't
97. 3:38apply the Civil Code's concept of
98. 3:40marriage just because it's newer, okay?
99. 3:42But you don't apply the Federal
100. 3:44Constitution's either, because the
101. 3:46Supreme Court gave an interpretation in
102. 3:47accordance with constitutional
103. 3:49principles, so it ended up resolving
104. 3:50this issue in another way. All right?
105. 3:53Cool. The third method, guys, is that
106. 3:57of specialty. This one is also very
107. 3:59important, right? The special law
108. 4:01applies preferentially in relation to
109. 4:03the general law. And this is where I
110. 4:06want to use an example as to why I'm
111. 4:07talking about preferential application
112. 4:09rather than derogation in cases of
113. 4:11antinomies. It's because the special
114. 4:14law does not derogate the general law,
115. 4:15do you understand? There is no such
116. 4:17thing as derogation. Because look, a
117. 4:19traffic accident. Imagine that a person
118. 4:22, unintentionally, in a negligent
119. 4:24manner—therefore, without the intent
120. 4:27to kill—hits someone and that person
121. 4:29passes away, okay? Notice, they
122. 4:32committed a homicide, a negligent
123. 4:34homicide. If the person hadn't died, it
124. 4:36would be negligent bodily injury,
125. 4:38because they didn't have the intent,
126. 4:39right? They didn't aim the car at the
127. 4:41person like, "Oh, I'm going to run you
128. 4:43over," right? It was an accident, it
129. 4:44was unintentional. So we call this
130. 4:46negligence, okay? Which is different
131. 4:48from intent, right? When there is
132. 4:49intent, right? Very well. But the fact
133. 4:53that this event, this death, happened
134. 4:55in traffic, folks, there is a special
135. 4:58law that regulates this legal
136. 4:59relationship, which is the Brazilian
137. 5:01Traffic Code. So, the Traffic Code
138. 5:04applies preferentially in relation to
139. 5:06the Penal Code, because if the Traffic
140. 5:08Code didn't exist, the Penal Code could
141. 5:10be applied. The Penal Code also
142. 5:11provides for this type of situation,
143. 5:13killing someone, article 121 of the
144. 5:14Penal Code, killing someone, see, you
145. 5:16killed someone in traffic, right? It
146. 5:18doesn't matter if it's in traffic, if
147. 5:20it's inside your house, on the street,
148. 5:21or in the park. Killing someone is
149. 5:23killing someone. Therefore, in theory,
150. 5:25the Penal Code would apply. But we have
151. 5:28a special law, specific to traffic
152. 5:31matters, right? Which will define, then
153. 5:34, look, in that case, the Traffic Code
154. 5:36applies. Did you notice? But the fact
155. 5:38that the code applies in this case does
156. 5:40not mean that article 121 of the Penal
157. 5:42Code has been revoked. Do you
158. 5:43understand? For other situations that
159. 5:45are not traffic-related, the Penal Code
160. 5:47continues to function normally, okay?
161. 5:49And that is the detail, folks,
162. 5:51regarding antinomies. When an antinomy
163. 5:54occurs, it doesn't mean that one law
164. 5:56repeals the other, it means that one
165. 5:58law will be applied preferentially in
166. 6:00relation to the other, okay? Repeal is
167. 6:03something else, right? The theory of
168. 6:05derogation, abrogation, and revocation
169. 6:08is something else. A law, once revoked,
170. 6:11leaves the legal order, okay? And in
171. 6:13the case of antinomies, you don't have
172. 6:15this exclusion from the legal order;
173. 6:16the legislation remains valid. It just
174. 6:18doesn't apply in that case because a
175. 6:20criterion of preference for other norms
176. 6:22is being applied there. Do you see,
177. 6:24folks? That's wonderful. So, if this
178. 6:27explanation wasn't as explicit or as
179. 6:29didactic as you expected, guys, put it
180. 6:32in the comments and we will explain it
181. 6:35better, okay? We'll give other examples
182. 6:38to make this much more interesting,
183. 6:40much more participatory. Very well. Now
184. 6:44I want to tell you about two criteria
185. 6:46beyond those that the doctrine brings,
186. 6:48okay? Two more criteria. The fourth
187. 6:53criterion, then, my dear friends, is
188. 6:56what I call the maxim of spatiality,
189. 6:58space, geographic unit. There are laws
190. 7:03that are not about a special and
191. 7:04general issue; it's precisely about a
192. 7:07geographic space. That is the case of
193. 7:09the Manaus Free Trade Zone here in
194. 7:10Brazil, okay? The Manaus Free Trade
195. 7:13Zone has special legislation. So look,
196. 7:16it's not that it's a special
197. 7:17legislation for there, it's not like
198. 7:20that, it's a geographic unit, and
199. 7:22anyone who is there in that geographic
200. 7:24unit is subject to this spatially
201. 7:26determined legislation, okay? This also
202. 7:30happens in conservation units here in
203. 7:32the country, okay? So, if you go to a
204. 7:35park, Itatiaia Park, Aparados da Serra
205. 7:37Park in Rio Grande do Sul, man, any
206. 7:39park you go to, you are entering an
207. 7:41area that has special legislation there
208. 7:44and. And it's legislation that isn't
209. 7:46tied to a legal relationship, it's tied
210. 7:48precisely to a geographic unit, right?
211. 7:50In these places, the legislation of
212. 7:53that space, of that geographic unit,
213. 7:55applies preferentially, okay? And the
214. 7:59fifth criterion, this is the most
215. 8:00important, this is the most important
216. 8:02one, folks, it's the competence
217. 8:03criterion, okay? How does the doctrine
218. 8:06treat this criterion? Competence, my
219. 8:11friends. Look, there was a time in the
220. 8:14past, right, when it was believed that
221. 8:19federal legislation overrides state
222. 8:22legislation, which overrides municipal
223. 8:25legislation. Nonsense. That's not how
224. 8:27it works anymore. The 1988 Federal
225. 8:30Constitution is a Constitution that
226. 8:32defined a federal form of state. What
227. 8:35is a federal form? It's a type of
228. 8:38political organization where the Union,
229. 8:41states, and municipalities are
230. 8:43autonomous entities of this federation.
231. 8:45There is no hierarchy between the
232. 8:47federal government, states, and
233. 8:49municipalities, right? As if the
234. 8:51municipality were left with the, with
235. 8:53the rest, right? of what remains of
236. 8:56legislative and executive powers. No,
237. 8:59that's not how it works, okay, folks?
238. 9:01It's much more interesting, more
239. 9:02complex, okay? What does the '88
240. 9:05Federal Constitution bring us? It
241. 9:07defines a very complex distribution of
242. 9:10legislative and administrative or
243. 9:12executive powers. And in this
244. 9:15distribution of power, it says: "Some
245. 9:17matters are the exclusive competence of
246. 9:20the Union, alright? For example,
247. 9:22criminal law, procedural law, education
248. 9:25. States and municipalities cannot
249. 9:27legislate on education, on, uh,
250. 9:29criminal law, like, a municipality
251. 9:32cannot create a municipal penal code
252. 9:34because these are exclusive matters of
253. 9:36federal legislation, that is, of the
254. 9:39federal Union. Did you catch that? So
255. 9:42there won't be a contradiction here
256. 9:44because the very competence assigned by
257. 9:46the Federal Constitution says:" Hey,
258. 9:48matters of criminal law, process,
259. 9:49education, that is federal matter.
260. 9:52States and municipalities cannot meddle
261. 9:54, right, in these matters. Very well.
262. 9:58There are other matters that are the
263. 9:59exclusive competence of the
264. 10:00municipalities, okay? It's Article 30,
265. 10:02clause one of the Federal Constitution.
266. 10:04It is incumbent upon municipalities,
267. 10:06clause one, to legislate on matters of
268. 10:08local interest. So, when it comes to a
269. 10:11matter of local interest, folks, the
270. 10:13municipal law prevails even over state
271. 10:16law and prevails over federal law,
272. 10:18right? Of course, there are some
273. 10:21exceptions, right? In environmental law
274. 10:24, for example, the application of the
275. 10:26most restrictive law is always
276. 10:27considered, the one that best protects
277. 10:29the environment, okay? So there are
278. 10:32some exceptions; this issue of
279. 10:33jurisdiction is complex, you know? And
280. 10:37there’s an article, for example, 24,
281. 10:39item 6, perhaps, of the Constitution,
282. 10:41the item...Ah, I won't remember which
283. 10:44item it is, but man, this article
284. 10:46caused so much trouble during the
285. 10:48pandemic! That discussion in the
286. 10:51Supreme Court, the fight with the
287. 10:52federal government at the time, was
288. 10:54very interesting, right? Because this
289. 10:56article says, like, it says that there
290. 10:59is a concurrent jurisdiction between
291. 11:01the Union, states, and municipalities,
292. 11:04meaning everyone can legislate on a
293. 11:06certain subject, okay? And what are
294. 11:08those subjects? One of the items says:
295. 11:10defense and protection of health.
296. 11:12That's it. There it is. And here comes
297. 11:14a case that is quite interesting. I
298. 11:17remember that during the pandemic, guys
299. 11:19, the federal government initially,
300. 11:21following the rules, the suggestions of
301. 11:24the WHO, right, it determined social
302. 11:26isolation measures, okay? So businesses
303. 11:30started closing, right, the rates of
304. 11:32hospitalizations for COVID were very
305. 11:34high, the health system was almost
306. 11:36collapsing. Then suddenly it stabilized
307. 11:41a bit and the federal government at the
308. 11:43time, right, began to relax those
309. 11:45measures and started including
310. 11:47religious services and gyms as
311. 11:49essential activities, you remember that
312. 11:52, right? It began to allow some
313. 11:55activities that wouldn't exactly be
314. 11:57essential, you know, if you think about
315. 11:59the equivalent to supermarkets,
316. 12:01hospitals, and other things that are
317. 12:04really more essential, okay? But then
318. 12:07look at the fight that happened, look
319. 12:08how interesting this antinomy is. Some
320. 12:11states and some municipalities in
321. 12:13Brazil still had very high rates. So
322. 12:16the federal government in Brasília had
323. 12:18a sort of global, panoramic view of
324. 12:20things, but those who really knew what
325. 12:22was happening in their locality were
326. 12:23the municipalities. And then you have
327. 12:26federal legislation that says: "Look,
328. 12:27now everything has to open. Now
329. 12:29businesses have to open and everyone go
330. 12:31out to the streets," contradicting
331. 12:33legislation from the municipalities and
332. 12:36states that were saying: "No, here in
333. 12:38the municipality the rate is too high,
334. 12:41we have to continue with social
335. 12:43isolation. We can't open things up
336. 12:44because otherwise it's going to get out
337. 12:46of control, many people will die." Did
338. 12:48you notice that, man? There were many
339. 12:51lawsuits of this kind, right?
340. 12:53discussing this contradiction, right?
341. 12:56And then comes the famous fight, right,
342. 12:58that started back in the pandemic
343. 12:59between the Supreme Court and the
344. 13:00federal government. The federal
345. 13:02government claiming that it was the
346. 13:04Supreme Court that wouldn't let the
347. 13:05government work, right? And the Supreme
348. 13:07Court responding on social media as
349. 13:09well, that in fact it wasn't it wasn't
350. 13:11forbidding or allowing anything. It was
351. 13:14just saying that the municipality and
352. 13:16the states can also legislate on the
353. 13:18right to health. And what is the
354. 13:21legislation that applies in an antinomy
355. 13:23of this type? Is it the federal one? Is
356. 13:25it the state one or is it the municipal
357. 13:27one? Okay? And the answer is: it is the
358. 13:29one that best protects people's health,
359. 13:31it is the one that is more restrictive,
360. 13:33right? It is the legislation that has a
361. 13:36better protective character. So, notice
362. 13:38that in this criterion of concurrent
363. 13:40competencies, okay? which can generate
364. 13:43a series of doubts, right, of
365. 13:45disagreements among jurists. These
366. 13:48criteria for solving antinomies, they
367. 13:50worked, right, in a very good, very
368. 13:52interesting way, right, for us today to
369. 13:54understand the practical importance,
370. 13:57right, of applying these criteria, okay
371. 13:59, folks? So, in summary, hierarchy,
372. 14:02anteriority, anteriority in the sense
373. 14:05that the newer law prevails over the
374. 14:08older one, right? Specialty, spatiality
375. 14:13or geographical unit and competence,
376. 14:16okay? which is today perhaps one of the
377. 14:19most important is for us to study the
378. 14:22constitution, understand which is which
379. 14:24entity of the federation has a
380. 14:26privileged competence to legislate on
381. 14:28the subject. It is this law that will
382. 14:31prevail in the specific case, okay
383. 14:32folks? Thanks guys, I hope I've helped
384. 14:35you. Best wishes and happy studying.
385. 14:37Whoever wants to, write down here in
386. 14:40the comments an example of these
387. 14:42antinomy problems that you are
388. 14:44identifying. Write it there so everyone
389. 14:47can help each other understand with
390. 14:48examples, right, with practical cases
391. 14:50that have already happened in Brazil or
392. 14:52elsewhere, okay? Of these antinomy
393. 14:55problems that are very interesting for
394. 14:57us to study, okay? Because every
395. 14:59complex legal order, as is the
396. 15:01Brazilian legal order, right? when
397. 15:03there are many laws, many legal norms,
398. 15:05right, these antinomies they happen in
399. 15:07a way that is even natural, I would say
400. 15:10, okay? It is very common for this to
401. 15:12happen in law, right? Hence the
402. 15:14importance of these criteria, right,
403. 15:16for solving antinomies in law.