Constitucional block and constitutional principles: Judiciary challenges

Abstract

The Parliament sovereignty, in its 18th and 19th century model, has been substituted by the constitution supremacy. The dogma of separation of powers and the blind submission of judges to the written law has been replaced by the prevalence of fundamental rights, the expansive strength of which has been recognized by the Federal Constitution of 1988, by incorporating the constitutional block theory in its text (art. 5o, §2o). That innovation has intensified the discussion about Judiciary legitimacy to concretize constitutional principles. In that context, this paper aims to discuss how judges are facing the challenge of applying constitutional principles, which are out of the constitution, but that have constitutional hierarchy, because of the constitutional block theory. With that purpose, initially, it will be presented the constitutional block theory in France and Spain, looking to demonstrate the existence of a constitutional block in Brazilian law system. After that, it will be discussed the role of the judges to concretize constitutional principles. Finally, it will be analyzed some important jurisprudence of the Federal Supreme Court about those subjects had been analyzed.