Modern constitutionalism, created at the end of the 18th century, based on the Enlightenment ideals of limiting absolutist power, remained unquestioned until the mid-20th century, when neo-constitutionalism originated in Europe, leading to the flourishing of the Constitutional Rule of Law (CUNHA JR, 2012, p. 39).
This was due to the failure of the Legislative Rule of Law, through which the world witnessed one of the greatest barbarities of all time, with the genocide committed by the German National Socialist Party, causing the Holocaust that exterminated millions of Jews, between 1939 and 1945 (CUNHA JR, 2012, p. 39).
With the Second World War and the collapse of totalitarian regimes, legal doctrine recognized the need to create a catalog of fundamental rights and guarantees to prevent further abuses by the State (LIMA, 2010). In addition to guaranteeing these rights, it would be essential to make the provisions included mandatory and to provide effective means of control and respect for values (LIMA, 2010).
In this new constitutional law, we have the recognition of the normative force of principles, a situation that favors the rapprochement between law and ethics (CUNHA JR, 2012, p. 41). Neoconstitutionalism represents current and contemporary constitutionalism, which emerged as a reaction to the atrocities committed in the Second World War, so that laws are subject and subordinate to the Constitution, which in turn stipulates a series of principles and rules with which every legal system must be compatible (CUNHA JR, 2012, p. 41).
Concentration Camp of Auschwitz
Furthermore, the constitutions that in the period before the Second World War were limited to establishing the foundations of the organization of the State and Power, began to explicitly incorporate values to be safeguarded and protected, such as the right to human dignity and other fundamental rights; general policies, such as the reduction of social inequalities; and specific policies, such as the obligation of the State to provide services in the areas of education and health (CUNHA JR, 2012, p. 40).
Robert Alexy (1993, p. 90, our translation) highlights the need to establish a balance between the applicable principles, so that the one that prevails causes the least possible harm to those that did not prevail.
Finally, he further explains that principles are norms that order something to be carried out to the greatest extent possible, within the legal possibilities and the existing context, and are also optimization mandates, which can be used to different degrees, depending on the possibilities of the specific case and the existing legal norms (ALEXY, 1993, p. 86, our translation).
Luís Roberto Barroso (2005, p. 15) explains that neoconstitutionalism or new constitutional law identifies a wide range of transformations that occurred in the State and in constitutional law, and can be highlighted as: a historical landmark, since it outlines the formation of the constitutional State of law; as a philosophical landmark, post-positivism, with the centrality of fundamental rights and the rapprochement of Law and ethics; as a theoretical landmark, since it provided a set of changes that include the expansion of constitutional jurisdiction, the normative force of the Constitution, and the development of a new dogma of constitutional interpretation.
Thus, Neoconstitutionalism plays a key role in incorporating fundamental values, rights, and guarantees into the legal systems of countries around the world, which were sorely lacking during the Second World War. Principles are norms that solidify fundamental values within the legal system, which in turn provide continuity and a solid foundation for both the legislative process and the integration of law.
