Guarantee Theory of Fundamental Rights
DOI:
https://doi.org/10.14393/RFADIR-52.1.2024.77016.215-244Keywords:
Luigi Ferrajoli, Constitutional Guarantee, Limits to Fundamental RightsAbstract
Guaranteeism is a general theory of law outlined by the Italian Luigi Ferrajoli and can be applied to States that have rigid constitutions and protect fundamental rights, that is, Constitutional Democratic States of Law. This paper starts from the following problem: can the theory of fundamental rights, under the guaranteeist perspective, be applied to the 1988 Federal Constitution replacing the principialist theory? The specific objectives of this paper are: (i) analyze the foundations of Luigi Ferrajoli's guarantee theory as ties and limits to the exercise of state power; (ii) study the structure and functions of fundamental rights in a guaranteeist conception; (iii) verify the possibility of applying the guaranteeing theory of fundamental rights in the 1988 Federal Constitution. The deductive method was used, since the research starts from a general premise, embodied in guaranteeism as a general theory of law, until the verification of its application specifically in the Brazilian legal system through.
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