Fundamental Rights of Peripheral Constitutions: a new Theoretical Approach and the Zika Virus in Brazil

Author:Wálber Araujo Carneiro
Position:Federal University of Bahia (Salvador, Brazil)
BRICS LAW JOURNAL Volume V (2018) Issue 4
Federal University of Bahia (Salvador, Brazil)
DOI: 10.21684/2412-2343-2018-5-4-61-89
This essay proposes a new theoretical model directed towards the observation of
fundamental rights present in the Constitutions of peripheral States. Parting from a critical
revision of classic perspectives oriented by the dogmatic armation of fundamental rights
and the institutional tradition derived from sociological observation, these rights perform
a dual function. They are responsible for the structuring of normative expectations and,
at the same time, they construct internal dogmatic limits within the system. Through
the contributions of phenomenology and social systems theory, this model suggests
autonomous spheres of fundamentality in contrast to the classical unity of fundamental
rights. Furthermore, the balancing schemes are substituted for an internal “law of collision.
Conict resolution undergoes a shift from the traditional method to the system’s reexive
pragmatics, contributing to the legal security and the democratic legitimacy of judicial
review. Finally, it veries how this theory could be applied to the advent of the Zika virus
which aected Brazil from 2015 to 2017. As the Zika virus crisis involves dierent spheres
of fundamentality, entailing a range of systems of law and therefore revealing dierent
collision patterns, this essay demonstrates how this new approach could contribute to
the control of solutions.
Keywords: fundamental rights; constitutional law; balance; systems theory; Zika virus.
Recommended citation: Wálber Araujo Carneiro, Fundamental Rights of Peripheral
Constitutions: A New Theoretical Approach and the Zika Virus in Brazil, 5(4) BRICS Law
Journal 61–89 (2018).
BRICS LAW JOURNAL Volume V (2018) Issue 4 62
Table of Contents
1. The Fundamental Rights of the Constitution and the Theories
of Fundamental Rights
2. Foundations of the Flow of Meanings in the Legal Constitution
2.1. Asymmetric Constitution of Practical Rationality in Partial Systems
2.2. Constitutive Structuring of Fundamental Rights
2.2.1. Social Dimension of the Meaning of Fundamental Rights
2.2.2. Temporal Dimension of the Meaning of Fundamental Rights
2.2.3. Objective Dimension of the Meaning of Fundamental Rights
3. From Balancing to the Collisions of Law
4. The Epidemic of the Zika Virus in Brazil and the Connections
Between Brazil’s Juridical System and Law in World Society
4.1. The Problem
4.2. The Structuring of Normative Expectations
4.3. The Hyper Cyclic Structuring of the Closure of the System
4.3.1. The Right to Abort
4.3.2. Prohibition of Aerial Spraying with Chemical Products
4.3.3. Control of Policies Directed Towards Victims of the Zika Virus
This introduction shares a brief diagnosis of the role fullled by legal reasoning
in Brazil. The Brazilian Constitution published in 1988 incorporated a wide selection
of normative expectations from the social environment, many of which had existed
previously in a repressed form.1 They range from corporate freedom to the dignity of
workers; economic development to preservation of the environment; from freedom
and individual guarantees to public safety; religious freedom to human dignity; from
reduction of social inequalities to freedom of competition.
The 1988 Constitution, however, was unable to foresee solutions for the conicts
that the incorporation of the expectations caused. It represented a pact that would
symbolically diminish conicts, a phenomenon that, even in the 1990s Professor
Marcelo Neves called “symbolic constitutionalization.”2 Until the mid-1990s, the
1 See Germano Schwartz, Direito & Rock: O BRock e as Expectativas Normativas da Constituição de 1988
e do Junho de 2013 (Porto Alegre: Livraria do Advogado, 2014).
2 Marcelo Neves, A constitucionalização simbólica (2nd ed., São Paulo: WMF Martins Fontes, 2007).

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