La “tutela speciale” della famiglia nell’articolo 226 della Costituzione brasiliana del 1988 e il sistema della tutela familiare

The “special protection” of the family in article 226 of the 1988 brazilian Constitution and the family guardianship system

23.10.2023

Gilberto Haddad Jabur*

Bruno José Queiroz Ceretta**

 

The “special protection” of the family in article 226 of the 1988 brazilian Constitution and the family guardianship system***

 

Italian title:La “tutela speciale” della famiglia nell’articolo 226 della Costituzione brasiliana del 1988 e il sistema della tutela familiare

DOI: 10.26350/18277942_000144

 

Summary: Introduction. Justification. Methodology and outline of article. 1. Premises of the “special protection” of the family. 2. Forms of special protection in contemporary constitutions. 3. Forms of special protection in preceding Brazilian constitutions. 4. “Special protection” in the Brazilian Constitution of October 5, 1988. 4.1. The Constituent Assembly. 4.2 The Treatment of the Constitutional Doctrine. 4.3 The System of “Special Protection” in the Legal Order. 4.3.1 Formal aspects. 4.3.2 Material aspects. 4.3.3 A complementary institution for the family protection system. Conclusions.

 

Introduction

 

Today, considerations about the family are frequent in the legal field. As a rule, its importance is endorsed. This theme entered the constitutional panorama with the introduction of the social State. The topic broke with the predominance of classical categories without, obviously, harming the existence of the first fundamental rights and demonstrates an attempt at a (re)conciliation between the methodology and the realities that have never ceased to exist and be of influence.

As stated by Luisa Velloso Jiménez, “La familia es un tema del que no suelen hablar quienes se dedican al Derecho Constitucional, por considerarlo tradicionalmente como patrimonio de los juristas que trabajan en el derecho privado[1] [“The family is a topic that those dedicated to Constitutional Law do not usually talk about, as they traditionally consider it as the patrimony of jurists who work in private law.”]  However, she reminds us of the force of the individual factor in the principle of modern constitutionalism.[2] Indeed, in these circumstances, the theme of the family has been shifted to the field of private law.

 

Justification

 

Is the “special protection” of the entity of the family, mentioned in the caput of Article 226 of the Brazilian Constitution of October 5, 1988, a rhetorical adornment? Perhaps a symbolic statement, detached from greater legal consequences? This hypothesis can be safely refuted as there are no terms disconnected from purposes, and, also therefore, from implications, in the course of constitutional literality.[3]

Providing support for understanding the legal system is one of the main tasks of scientific research in the field of Law. Although this activity has been developed in profusion – and with success, it should be added – by Brazilian doctrine over the last three decades, there are still some aspects that can be discussed in greater depth, especially  the case of the expression “special protection”.

A situation of great interest to all can be seen: to civil society, particularly to those who are protected by public policies, or, more seriously, to those who are completely vulnerable; to political representatives; to Public Administration, which operates among the population, on one hand, and the governmental field, on the other; and to the Judiciary and the legal class in general, whose responses (re)articulate – particularly at the jurisprudential level – the performance of the state complex.

However, it is not just utilitarian arguments – supported by a perspective of social benefit – that justify this study. The entity of the family represents a good in itself, with characteristics that are unique to it, and which cannot be ignored, diluted or taken over by external forces such as the State and the market.

 

Methodology and outline of article

 

The itinerary of the discussion can be described in four phases:

(i) Initially, propaedeutic elements are listed. Outside the limits of normative textuality, they promote the express reference to “special protection” in the Constitutional Charter.[4] As a starting point, the importance of the entity of the family does not derive from a circumstantial choice of the Constituent Assembly but rather from centuries-old perceptions that correspond to existential needs.

(ii) When examining constitutions in other countries, it can be seen that some of the main contemporary democracies clearly recognize the need to protect the entity of the family. A brief comparative exercise will provide parameters for a more comprehensive understanding of the state of the subject.

(iii) In the later part of the article, certain promises of protection of the  family prior to the 1988 Constitution are analyzed and previous Brazilian Constitutional Charters are summarized. This will show the relative historical longevity of the subject, dispelling the impression that the current interest is something absolutely new. In fact, it is anchored in the historical panorama.

(iv) Finally, the itinerary of the article reaches the Brazilian Constitution of October 5, 1988. The scope of the expression is discussed, and it is understood that it entails – both at the current time and in the future, considering the possibility of expansion – a set of guarantees that justify and constitute an authentic protective system.

 

  1. Premises of the “special protection” of the family

 

It is easy to overcome an initial understanding that the relationship between the family and the State has only received attention in modern or contemporary times. Precedents can be found, which are appropriate for other modes of organization, in the most archaic societies, demostrating the continuity of the subject.

The work of Fustel de Coulanges, a French scholar of ancestral societies, The Ancient City [La Cité Antique], marked the 19th century. Coulanges correlates the genesis of Greek and Roman institutions to the cults practiced at the time. He supports the precedence of the rules that arise in the family environment:

Or, une antique croyance commandait à l’homme d’honorer l’ancêtre ; le culte de l’ancêtre a groupé la famille autour d’un autel. De là la première religion, les premières prières, la première idée du devoir et la première morale ; de là aussi la propriété établie, l’ordre de la succession fixé ; de là enfin tout le droit privé et toutes les règles de l’organisation domestique. Puis la croyance grandit, et l’association en même temps. À mesure que les hommes sentent qu’il y a pour eux des divinités communes, ils s’unissent en groupes plus étendus. Les mêmes règles, trouvées et établies dans la famille, s’appliquent successivement à la phratrie, à la tribu, à la cité.

Now, an ancient belief commanded a man to honor his ancestor; the worship of the ancestor grouped a family around an altar. Thus arose the first religion, the first prayers, the first ideas of duty, and of morals. Thus, too, was the right of property established, and the order of succession fixed. Thus, in fine, arose all private law, and all the rules of domestic organization. Later the belief grew, and human society grew at the same time. When men begin to perceive that there are common divinities for them, they unite in larger groups. The same rules, invented and established for the family, are applied successively to the phratry, the tribe, and the city.[5]

The aforementioned elements – which become part of the Mediterranean cultural framework, with repercussions throughout the West – do not derive from acts of will, as if they were lucubrated in the abstract, as voluntary manifestations, or representations imposed by the strongest or most sagacious. They touch on certain aspirations and needs felt in those early times when every prospect of survival was deeply associated with the family.

Following the same line, Coulanges details the precedence of the entity of the family in relation to the political community, demonstrating how cults cemented relations and the incipient Law:

La comparaison des croyances et des lois montre qu’une religion primitive a constitué la famille grecque et romaine, a établi le mariage et l’autorité paternelle, a fixé les rangs de la parenté, a consacré le droit de propriété et le droit d’héritage. Cette même religion, après avoir élargi et étendu la famille, a formé une association plus grande, la cité, et a régné en elle comme dans la famille. D’elle sont venues toutes les institutions comme tout le droit privé des anciens. C’est d’elle que la cité a tenu ses principes, ses règles, ses usages, ses magistratures. […] Ce que nous avons vu de la famille, sa religion domestique, les dieux qu’elle s’était faits, les lois qu’elle s’était données, le droit d’aînesse sur lequel elle s’était fondée, son unité, son développement d’âge en âge jusqu’à former la gens, sa justice, son sacerdoce, son gouvernement intérieur, tout cela porte forcément notre pensée vers une époque primitive où la famille était indépendante de tout pouvoir supérieur, et où la cité n’existait pas encore.

A comparison of beliefs and laws shows that a primitive religion constituted the Greek and Roman family, established marriage and paternal authority, fixed the order of relationship, and consecrated the right of property, and the right of inheritance. This same religion, after having enlarged and extended the family, formed a still larger association, the city, and reigned in that as it had reigned in the family. From it came all the institutions, as well as all the private law, of the ancients. It was from this that the city received all its principles, its rules, its usages, and its magistracies. [...] What we have seen of the family, its domestic religion, the gods which it had created for itself, the laws that it had established, the right of primogeniture on which it had been founded, its unity, its development from age to age until the formation of the gene, its justice, its priesthood, its internal government, — carries us forcibly, in thought, towards a primitive epoch, when the family was independent of all superior power, and when the city did not yet exist.[6]

The consequences of these statements are important and cannot be ignored. As the family precedes the city, the family would seem to be a condition for the existence of the city. And a consequence is that the political community can only subsist with the family entities that are part of it. They constitute its substance, whether in the most obvious material sense, by providing demographic frameworks, or by maintaining cultural supports such as cults, the source of ancient structures.

From another angle, to the extent that Aristotle defined man as a political animal (zōon politikón), due to his sociability,[7] we can say that, by extension, before the relationships took place in external environments, in the polis and in the urbs, he is essentially domestic and therefore family based – a “family animal.”

This is the multidimensionality that characterizes the human being. He is an animal laborans as he performs concrete operative functions, a homo faber[8] as he develops his work and interaction tools, a homo oeconomicus and a homo politicus as pointed out by Aristotle.

Aristotle’s commentators summarize that “l’abolizione della famiglia (...) riduce anche l’amicizia, la filiva, che rappresenta l’unico modo per realizzare e conservare l’unità della comunità [“the abolition of the family (...) also reduces friendship, the philia, which represents the only way to achieve and maintain the unity of the community”].”[9] This subject receives greater emphasis in the Middle Ages. “To understand medieval society well, it is necessary to study its family organization. There lies the ‘key” to the Middle Ages and also its originality", states Régine Pernoud.[10]

According to Pernoud, the family constituted French nationality.[11] In Brazil, extensive comments on the role of the family in the formation of nationality are contained in the classic Casa Grande & Senzala: formação da família brasileira sob o regime da economia patriarcal, by Gilberto Freyre, a work which is frequently  revisited and discussed and which highlights the social richness and contradictions of Brazil.[12]

Two inferences can be drawn: (a) not only does society have its genesis in the family, as is evident, but the public space itself also does (with its existence recognized in different ways in Antiquity and Modernity). (b) Therefore, the family is one of the conditions of the subsistence of political power (or the State, as it is conventionally called) and thus plays a stabilizing role in maintaining political order.

 

  1. Forms of special protection in contemporary constitutions

 

Now that certain elements of family guardianship have been understood, the way in which some of the main contemporary democracies deal with the subject can be examined. The examples are listed according to the chronology of their Constitutional Texts, from the oldest to the most recent, respectively.

(a) In Italy, the State “recognises the rights of the family as a natural society founded on marriage.”[13] In a later provision, the favoring “with economic and other measures, the formation of the family and the fulfillment of related obligations, with special consideration for large families”[14] is specified.

An initial aspect should be emphasized: the importance of economic incentives, that is, of the mechanisms that transfer guardianship from the level of intentions and promises to social reality, without, it should be added, discarding “other measures”, such as public policies.

(b) In Germany, the recognition of the family can be found in a single disposition. Briefly, it states that “marriage and the family are under special protection.” Given the lack of details, the task of the legislator at the infraconstitutional level is encouraged. In addition, the education of children is referred to as a natural right of parents. Maternal protection is also mentioned.[15]

The constitutional texts of Italy and Germany, both from period after the Second World period and influenced by similar circumstances, converge. They are hallmarks of attempts to rebuild and resume the rule of law with a strong social emphasis, using the human being as a parameter.

(c) In Portugal, the entity of the family is identified as a “fundamental element of society”, which has “the right to protection by society and the State”, as well as “the implementation of all conditions that allow for the personal fulfillment of its members.”[16] There are other mentions of the family throughout the Charter, particularly with regard to paternity, maternity and childhood.[17]

(d) In Spain, it is stated that “the public authorities ensure the social, economic and legal protection of the family,” referring, in the same article, to the “complete protection of children”[18]. Although three complementary dimensions – social, economic and legal – are mentioned, in the opinion of Luisa Velloso Jiménez: “no hay en principio en la Constitución una regulación coherente de la família.”[19] [“…there is, in principle, in the Constitution, a coherent regulation of the family.”] Again, the Text is laconic. The author understands that:

En resumen la Constitución proclama como un principio rector de la política económica y social la protección de la familia en el orden social, económico y jurídico y en otros muchos artículos que deben interpretarse en relación con éste, traza alcunos caracteres de la institución familiar y perfila alguna de sus funciones.[20]

[In summary, the Constitution proclaims as a guiding principle of economic and social policy the protection of the family in the social, economic and legal sphere, and in many other articles that must be interpreted in relation to it, traces certain characteristics of the family institution and outlines some of its functions.]

In the Iberian panorama, the two redemocratizations occured in the same chronological period. The four Constitutional Texts have reciprocal differences in wording but converge in terms of their aims, illustrating how politically consolidated states recognize the components of their internal structure.

In short, the Constitution proclaims as a governing principle the protection of the family in the social, economic and legal spheres, and in many other articles that must be interpreted in relation to this, it traces certain characteristics of the family institution and profiles a number of its functions.

 

  1. Forms of special protection in preceding brazilian Constitutions

 

As mentioned before, this “special protection of the family came under scrutiny in Brazil and found support in many of the previous Constitutional Charters, demonstrating how long this subject has been of interest.

The theme was recognized in the 1934 Brazilian Constitution, which marked the transition from classical constitutionalism to social constitutionalism. The Constitution of 1824 and the Constitutional Charter of 1891, with their classical approaches, focused on procedural aspects but failed to mention protection of the family. However, the first Republican Constitution dealt with civil marriage.[21]

Internally, constitutional recognition reflected social pressures at the end of the First Republic. At the international level, the German Weimar Constitution, promulgated on August 11, 1919, was of considerable influence as it was the first to guarantee the constitutional provision of the family,[22] as did the Mexican Constitution of 1917.[23]

With the new constitutional order of 1934, other topics such as education and culture, were also examined. Title V covered the three subjects (“On the Family, Education and Culture”), with Chapter I dedicated to the entity of the family and Chapter II devoted to educational and cultural issues.

In the democratic Brazilian Constitution of 1934 the family was “under the special protection of the State”, and shortly afterwards, under the more authoritarian atmosphere of the Estado Novo in 1937, the wording was repeated, maintaining the importance of the subject and specifying that “large families will be awarded compensation in proportion to their needs.”[24]

Decree-Law No. 3,200, of April 19, 1941, dates back to that period and deals with the “organization and protection of the family.” It was signed – with no surprises – by dictator Getúlio Vargas and endorsed by Francisco Campos, Minister of Justice, Osvaldo Aranha, and Gustavo Capanema, Minister of Education, among others. The normative decree dealt with different subjects, such as marriage, succession, and family assets, with incentives for teaching, providing for the subsidy of families in a miserable situation.[25]

Similarly, in 1946, with redemocratization, it was stated that the entity of the family “will be entitled to special protection by the State”.[26] The Statute of Married Women (Law No. 4,121 of August 27, 1962), which ensured women's rights at the infraconstitutional level, dates from this period.[27] The 1967 Constitution stated that the family “shall have the right to the protection of the Public Authorities”, an expression maintained with Constitutional Amendment n. 1, of 1969, after the hardening of the military regime.[28]

The fact that the topic has remained safeguarded, despite the changes that have taken place at the heart of Brazilian society, such as the rural exodus and industrialization, corroborates, once again, the continuity of the issue. Though the instrumental means and conditions of organization may change, its constitutive importance remain unaffected.[29]

The contrast between the constitutional literalities and the Brazilian historical dynamics allows for the deepening of the focus: there seems to be a formal protection – pertinent to the presence in the Constitution – that contrasts with another dimension of, material (or substantial) protection, which does not always exist. As the Constitutional Charters have not been implemented as they should have been, the issue has repeatedly been ignored, given the difficulties that families face in general, despite certain advances. The challenge is to enable – to give life to – this “special protection.”

 

  1. “Special protection” in the brazilian Constitution of october 5, 1988

 

This phase of the article is organized into three smaller parts. First, the 1987-1988 Constituent Assembly debates are brought to light. Next, the way in which the main sectors of the doctrine interpret Article 226 of the Constitutional Charter are examined. Finally, reasons are given for a protective system of the entity of the family based on the disposition under examination.

 

4.1  The Constituent Assembly

 

The Constituent Assembly referring to the contemporary constitutional text was installed on February 1, 1987. On April 1, its Thematic Commissions were established, and on April 7, its Thematic Subcommissions.[30] The “Commission on the Family, Education, Culture and Sports, Science and Technology, and Communication” was set up, with three specialized subcommittees, the “Subcommittee on the Family, Minors and the Elderly” pertaining to the  family, as its name suggests.[31]

The terms of article that voices the “special protection”, cataloged in the final version under No. 226, were greatly debated. The inclusion of minors, the elderly and the stable union of couples were cogitated to be included in the wording. The constituent member Nelson Carneiro argued that the so-called legitimate and illegitimate families should not be differentiated. It was mentioned that Portugal and other European states guaranteed the protection of the entity of the family. A number of the considerations of normative order were discussed.[32]

Finally, only the family received special emphasis. At no time was there any discussion on how the terms would establish a permanently updated protective system. The debates focused on very concrete points such as the situation of minors, mentioned above.[33]

 

4.2 The Treatment of the Constitutional Doctrine

 

In the doctrine, as already mentioned, the expression “special protection” was not examined in the light of all its potentialities. With some effort, the notes can be classified into three groups, according to the emphases of each of the approaches.

(a) In the first set, on a general level, the importance of the family is endorsed: the entity of the family is important for the State and is formally recognized. Pinto Ferreira's thinking is illustrative:

Ela recebe uma proteção especial do Estado, pois com o seu amparo se aperfeiçoa e se aprimora a própria instituição política. O homem quando nasce é de imediato membro de uma família e pertence à unidade política de importância que é o Estado. Para efeito de proteção do Estado a família é entendida mesmo com um sentido mais amplo na Constituição de 1998.

[It [The family] receives special protection from the State as with its protection the political institution itself is perfected and improved. When a man is born, he is immediately a member of a family and belongs to the important political unit that is the State. For the purpose of State protection, the family is understood in an even broader sense in the 1998 Constitution.[34]]

The arguments described in the first part of this study are echoed in the analysis of Pinto Ferreira. We can say that this represents a classic understanding of the relationship between the family and the State.

(b) A second line chooses to reproduce the constitutional wording with the same or similar terms: “Following tradition, the Constitution states in the caput of Article 226 that the family is the 'basis of society' and is entitled to 'special protection by the State.'"[35] In other words, "the family, as defined by the current Constitution, receives special protection from the State."[36] And in addition: “the family is the basis of society and, constitutionally and legally, has special protection from the State.”[37]

(c) Finally, a third group relates “special protection” to certain rights and duties. However, it does not explicitly point to the existence of a system:

A família é uma comunidade natural composta, em regra, de pais e filhos, aos quais a Constituição, agora, imputa direitos e deveres recíprocos, nos termos do Article 229, pelo qual os pais têm o dever de assistir, criar e educar os filhos menores, havidos ou não da relação do casamento (Article 227, §6º), ao passo que os filhos maiores têm o dever de ajudar e amparar os pais na velhice, carência ou enfermidade.”[38]

[The family is a natural community composed, as a rule, of parents and children, to whom the Constitution now attributes reciprocal rights and duties, under the terms of Article 229, whereby parents have the duty to assist, raise and educate young children, whether or not they are part of the marriage relationship (Article 227, §6), while adult children have the duty to help and support their parents in old age, necessity, or infirmity.]

Dispositions whose purpose is convergent are correlated, and there is a dialogue with sectors of the legal order. An effort towards a contextualization can also be seen. In this sense:

Conforme dispõe o Article 226 da Constituição, a família é considerada como a base da sociedade brasileira e deve obter a ‘especial proteção do Estado’.

Nesse sentido, determina a própria Constituição que o casamento é civil, sendo gratuita a sua celebração, bem como que o casamento religioso tem efeito civil, neste caso nos termos da Lei dos Registros Públicos.

Para fins de receber a tutela estatal à qual se refere a Constituição, esta também reconhece expressamente a união estável entre o homem e a mulher como sendo uma entidade familiar. Também é constitucionalmente uma entidade familiar a ‘comunidade’ formada por qualquer dos pais e seu descendente ou seus descendentes.”[39]

[As provided for in Article 226 of the Constitution, the family is considered to be the basis of Brazilian society and must obtain the 'special protection of the State'.

In this sense, the Constitution itself determines that marriage is civil, its celebration being free of charge, and that religious marriage has civil effect, in this case under the terms of the Law of Public Records.

In order to receive the state guardianship to which the Constitution refers, the Constitution also expressly recognizes the stable union between a man and a woman as a family entity. The 'community' formed by any of the parents and their descendant or descendants is also constitutionally a family entity.]

This is the general overview of the debate. Despite numerous studies in the field, more than 30 years after the proclamation of the Charter, there is still an opportunity (and expediency) to go further into the subject, as noted at the beginning of this article.

 

4.3 The System of “Special Protection” in the Legal Order

 

As previously mentioned, Article 226 of the Federal Constitution, in its caput, provides the basis for the recognition of an authentic protective system for the entity of the family. Despite the analytical character of the Constitutional Text, the provision cannot provide for all the elements of the “special protection”.[40] However, there are numerous laws that today deal with different components of the family, guaranteeing them assistance. It is worth mentioning some of them, in chronological order: the Statute of the Child and Adolescent (Law nº 8.069/1990), the Statute of the Elderly (Law nº 10.741/2003), the Maria da Penha Law (Law nº 11.340/2006), the National Adoption Law (Law No. 12,010/2009), and the Early Childhood Law (Law No. 13,257/2016).

Article 226 is a rule of limited effectiveness, in light of José Afonso da Silva's classification.[41] Therefore, developments on the ordinary level are necessary. As advocated at the beginning of this article, the theme cannot slide into the terrain of declarations of intentions, in short, the loss of effectiveness. The infraconstitutional elements, in turn, need to remain concatenated, complementing each other in a reciprocal way, in the light of the guiding constitutional order, with the same risk of being ineffective.

The fact that the norm has limited effectiveness allows us to point to the existence of this system: a meaningful set of laws was edited, in different directions, with the common aim of protecting the family and its components. There is a relationship of communicability between the Constitutional Text and this legislation. We now move on to the description of the “special protection” system from two angles: firstly, its form, in other words, the tools or instruments that frame its performance; and in terms of the matter, that is, the substantive charge or content that gives life to this protection.

 

4.3.1 Formal aspects

 

As noted, all elements relevant to the broad theme of the family are connected with Article 226, whose purposes are supported by the disposition. It can be said that measures of an ordinary legislative nature stabilize guardianship and guarantee its continuity, providing parameters and indicating possible directions.

The system requires the Judiciary to act in the interpretation of protective orders, and the integrative role of the contemporary jurisdictional tool must be taken into account. For the task to occur harmoniously, in accordance with its scope of action, it cannot enter, directly or indirectly, under alternate pretexts, into the typical sphere of the legislator.

Not only does Jurisprudence perform an important integration role as this is also the mission of the federal, state and, especially, municipal public administrations, which implement normative guidelines, transforming them into responses to the citizens with whom it dialogues. This is an arduous mission as it is widely known that requests received from other spheres often do not find budgetary support.

Legislative, jurisdictional, administrative and governmental functions are part of the mission of “special protection”. It should be noted that the Constitution alludes to the guardianship of the “State”, not just the “Executive Branch”, or even the “Government”, for example. This is a task in common, and the system has no differences compared to many other issues that depart from the Constitutional Text towards the legislative, jurisdictional, administrative and governmental levels, and that require collaboration from each of the functionalities of the State.

We can extract another characteristic, as a result of the nature of the functions themselves: it is an open system, updatable, and subject to external influences. Real protection requires a response to the challenges that arise in each historical era.

 

4.3.2 Material aspects

 

As for the content, it is understood that the “special protection” imposes – for coherence – a special treatment in relation to the procedures that are standardized at the infraconstitutional level. This is the crucial point as otherwise the so-called “protection” would not be “special” but rather identical to the pre-existing protection, without any reason to be emphasized. This is a consequence that can be inferred from the contrast between the meanings of the terms involved.

This is what Decree-Law No. 3,200 of 1941 disposes: by regulating the “organization and protection of the family”, with certain different treatments, Article 124 of the 1937 Constitution was implemented. Naturally, the decree did not prescribe a set of responses to the challenges of today, which confirms, in other terms, the open nature of the system.

We can argue that the Constitutional Text recommends different legal regimes for the protection of the entity of the family, whether in social security, tax or even in certain civil matters. Again: for the protection to be “special”, the distinguishing characteristics need to be present.

 

4.3.3 A complementary institution for the family protection system

 

Finally, what can be proposed, in institutional terms, so that Article 226 has not only a formal articulation, but a real one, with more sensitive consequences? It is possible to think of setting up an advisory council for this purpose, with the presence of members of the “Três Poderes”, the “Three Powers”, the Executive, Legislative and Judiciary, and – in particular – of Brazilian families. This would be a forum to allow them to be listened to and their demands to be brought together.

The council might include families from all Brazilian states, observing the regional scenarios, with their differences and disparities. There would be nothing better than resorting to the cutting edge of social reality to understand the challenges. It would also be a thermometer of public policies and the social agenda as a whole.

Such a space could make Brazilian families permanently visible and would complement the protective system: while, in the legal system and in the state apparatus, there is an emphasis on ideal, recommended and desirable conditions, the forum would demonstrate the real qualities, the status of each of the subjects already described in normative terms.

If the family guardianship system at times appears too rigid, such a body, in a state of operating permanently, would open up space for questioning and new perspectives. It would also be an opportunity to improve the quality of Brazilian democracy. In order to do so, it would also need to be free of government interests, so that family interests would not be confused with political party interests, for example.

A number of fundamental definitions for the body can be imagined:

(a) It must have a broad composition. In other words, the presence of representatives of both the State and civil society, from different regions and from different classes and social realities, would be fundamental.

(b) It must be in operate permanently. Otherwise, the proposal loses the functionality it intends to promote.

(c) It must not be captured by one of the state Powers. Its autonomy is essential for families to be heard.

(d) It should be a bridge between civil society and the State, encouraging the former to be more widely heard and allowing, in the political field, the work of Parliament and the Government to be improved, as should happen in the jurisdictional sphere.

Naturally, the body would never intend to solve all the existing challenges. This would not even be within its scope, and it would not have constitutional legitimacy to do so. On the other hand, it might indeed expose problems and set discussions in motion, airing debates that might receive little government attention or press priority, for example, with the aim of improving the cohesion of the system – which is open, it is worth emphasizing once again – and is based on Article 226 of the Federal Constitution.

 

Conclusions

 

The issue of family protection has repercussions on social relations and has transversal effects in the public sphere. In a historic era of increasing economic and technological dynamism, such as the current time, protecting the family is even more necessary. It is no coincidence that some States with high levels of human development recognize the importance of the issue. Brazil, in turn, acted correctly by updating the way the subject is dealt with in the 1988 Constitution.

We need to extend what has already been done: to the extent that the Constitutional Charter does not only provide for rhetorical aims but also establishes determinations, implementing this protection is mandatory. To this end, the system of “special protection” passes mainly through the sphere of the legislator. It is also the mission of the jurisdictional, administrative and governmental fields to work towards its implementation. The system is open and must be updated according to the needs of each period.

As for its content, guardianship must be treated in a special way so that it is really “special”. The distinctions have a crucial economic dimension, with great importance at the tax and social security levels, as mentioned. Seen through a realistic prism, the material dimension is inseparable and needs to be considered to be a priority.

The proposed advisory council may allow for an increase in the dialogue between the State and society, fostering discussions and the exposition of the demands of families from different regions and realities of Brazil. This would ensure greater concreteness so that Article 226 does not remain merely as a problem of formal congruence between the Constitution and the rest of the legal order.

We can define “special protection” as guardianship through legislative, administrative, governmental and jurisdictional tools. All citizens participate in the system. To the extent that “individual rights and guarantees” are inscribed in the eternity clauses, numerous aspects of family protection are also safeguarded there.[42]

The 1988 Constitution brought important transformations. More than three decades after its enactment, the existence of the family protection system also deserves to be widely recognized.

 

References

 

Arendt, Hannah. The Human Condition. 2. Ed. Chicago: The University of Chicago Press, 1998.

Aristotle. La politica. Direzione di Lucio Bertelli e Mauro Moggi. Libro II (a cura di Federica Pezzoli e Michele Curnis). Roma: Istituto Italiano per la Storia Antica, 2012.

Brasil. Assembléia Nacional Constituinte. Subcomissão da Família, do Menor e do Idoso (atas de comissões). Brasília, 1987, p. 71-87. Available at: . Accessed on: Feb 1, 2023.

______. Assembléia Nacional Constituinte (1987). O processo histórico da elaboração do texto constitucional: mapas demonstrativos. Text by Dilsson Emílio Brusco and Ernani Valter Ribeiro. Brasília: Câmara dos Deputados, Coordenação de Publicações, 1993.

______. Diário Oficial. Sexta-feira, 26 de setembro de 1986. Brasília: DF, p. 49. Available at: . Accessed on:  Feb 15, 2023.

Coulanges, Fustel de. La Cité Antique. p.283-284. “Coulanges de Fustel. Paris: Flammarion. 1984. ibook 2009. English edition The Ancient City: A Study on the Religion, Laws, and Institutions of Greece and Rome. Kitchener, Ontario: Batoche Books.2001.ibook. Translator’s name not given.

Cretella Júnior, José. Comentários à Constituição Brasileira de 1988. V. 8. 2. Ed. Rio de Janeiro: Forense Universitária, 1993.

Ferreira Filho, Manoel Gonçalves. Curso de Direito Constitucional. 40. Ed. São Paulo: Saraiva, 2015.

Freyre, Gilberto. Casa Grande & Senzala: formação da família brasileira sob o regime da economia patriarcal. 43. Ed. São Paulo: Global, 2003. Translated into English by Samuel Putnam as The Master and the Slaves, Study in the Development of Brazilian Civilization. New York: Alfred A. Knopf, 1946;

Hesse, Konrad. A Força Normativa da Constituição. Tr. Gilmar Ferreira Mendes. Porto Alegre: Sérgio Antônio Fabris, 1991.

Jiménez, Luisa Velloso. La regulación de la familia en la Constitución de 1978 y su protección internacional. In: Anuario de la Facultad de Derecho Universidad de Extremadura (AFDUE), Vol. 2, 1983.

Martins, Ives Gandra da Silva; MENDES, Gilmar Ferreira; NASCIMENTO, Carlos Valder do. Tratado de Direito Constitucional. V. 2. 2. Ed. São Paulo: Saraiva, 2012.

Maximiliano, Carlos. Comentários à Constituição Brasileira. Volume III. 4. Ed. Rio de Janeiro: Freitas Bastos, 1948.

Moraes, Alexandre de. Constituição do Brasil interpretada e legislação constitucional. 7. Ed. São Paulo: Atlas, 2007.

Pernoud, Régine. Luz sobre a Idade Média. Translation by António Manuel de Almeida Gonçalves. Lisboa: Publicações Europa-América, 1997.

Pinto Ferreira. Comentários à Constituição Brasileira. V. 7. São Paulo: Saraiva, 1995.

Silva, José Afonso da. Aplicabilidade das normas constitucionais. 3. Ed. São Paulo: Malheiros, Malheiros Editores, 1998.

______. Curso de direito constitucional positivo. São Paulo: Malheiros, 2016.

Tavares, André Ramos. Curso de Direito Constitucional. 12. Ed. São Paulo: Saraiva, 2014.

Vázquez, Adolfo Sánchez. Ética. 4. Ed. Barcelona: Editorial Crítica, 1984.

 

Abstract: The main object of this study is Article 226 of the Brazilian Constitution of October 5, 1988, investigating the meaning of the “special protection” of the caput of this dispositive. The study is divided into four parts. Initially, prior to the legal analysis in the strict sense, the related anthropological motivations are examined. In the second part, the subject is dealt with at the international level, followed by the way in which the subject has historically been dealt with in Brazil, and finally the presence of the theme in the contemporary Constitutional Charter in Brazil is analyzed. Is the expression “special protection” devoid of consequences? The treatment given by the doctrine to the subject is analyzed. Positions are classified from different perspectives. The existence of a family protection system is cogitated, for which a national forum is proposed. The classical positive method is used without disregarding intersections with other complementary approaches –  as registered in the content of the first phase of the text. It is necessary that the concept of the family receives careful attention from all state sectors so that this dispositive may be implemented.

 

Key Words: social Constitutionalism. Article 226 of the 1988 Brazilian Constitution. Special protection for the family. Family guardianship system. Fundamental rights.

 


* Professor at the Faculty of Law of the Pontifical Catholic University of São Paulo (gilberto@ghj.com.br).

** Doctor in State Law at the University of São Paulo (bc@brunoceretta.com.br).

*** Il contributo è stato sottoposto a double blind peer review.

[1] Jiménez, Luisa Velloso. La regulación de la familia en la Constitución de 1978 y su protección internacional. In: Anuario de la Facultad de Derecho Universidad de Extremadura (AFDUE), Vol. 2, 1983, p. 183.

[2]  Ibidem.

[3] As a central argument, it is worth remembering the famous conference by Konrad Hesse on the normative force of the Constitution (Hesse, Konrad. A força normativa da Constituição [Normative Kraft der Verfassung]. Trans. Gilmar Ferreira Mendes. Porto Alegre: Sérgio Antônio Fabris, 1991). Hesse maintains that the Constitutional Text imprints effects on reality and is not limited to the reproduction of power dynamics. The perception of a “must-be” (and not just “being”) provides meaning to this proposed investigation.

[4] In particular, certain consecutive quotations are justified by the historiographical and literary quality with which they describe the facts.

[5] Coulanges, Fustel de. La Cité Antique. p.283-284. “Coulanges de Fustel. Paris: Flammarion. 1984. ibook 2009. English edition The Ancient City: A Study on the Religion, Laws, and Institutions of Greece and Rome. p.208. Kitchener, Ontario: Batoche Books.2001.ibook. Translator’s name not given.

[6] Coulanges, Fustel de. Op. Cit., p.70; p.219; English version: p.7; p.90.

[7] In Aristotle. La politica. Direzione di Lucio Bertelli e Mauro Moggi. Libro II (ed. Federica Pezzoli and Michele Curnis). Roma: Istituto Italiano per la Storia Antica, 2012, 1253a, 1-7, p. 49.

[8] The first two terms, animal laborans and homo faber, are aspects of the animal socialis discussed by Hannah Arendt in The Human Condition. 2nd Ed. Chicago: The University of Chicago Press, 1998, p. 22-23. The ability to produce and change reality is described by Vázquez, Adolfo Sánchez. Ética. 4. Ed. Barcelona: Editorial Crítica, 1984, p. 83.

[9] Aristotle. Op. Cit., Chapter 4. “La critica alle tesi della Repubblica di Platone: la comunanza di donne e figli come causa di problemi concreti per la città” [“The criticism of Plato's thesis of the Republic: the commonality of women and children as the cause of concrete problems for the city”], p. 203. In the same sense, his commentators state: “A partire da queste considerazioni è evidente che una famiglia, composta di diversi membri, è più autosufficiente del singolo individuo e che una città, pluralità diversificada e quindi tale permette l’esistenza di differenti relazioni tra gli individui, lo è più di una famiglia” [“Starting from these considerations it is evident that a family, made up of different members, is more self-sufficient than the single individual and that a city, a diversified plurality and therefore such, allows for the existence of different relationships among individuals, more so than a family”] (Aristotle. Op. Cit., p. 189).

[10] Pernoud, Régine. Luz sobre a Idade Média. Translation into Portuguese by António Manuel de Almeida Gonçalves. Lisboa: Publicações Europa-América, 1997.

[11] Pernoud, Régine. Op. Cit., p. 16.

[12] Freyre, Gilberto. Casa Grande & Senzala: formação da família brasileira sob o regime da economia patriarcal. 43. Ed. São Paulo: Global, 2003. Translated into English by Samuel Putnam as The Master and the Slaves, Study in the Development of Brazilian Civilization. New York: Alfred A. Knopf, 1946.

[13] According to “Articolo 29 – La Repubblica riconosce i diritti della famiglia come società naturale fondata sul matrimonio [...] (Italian Constitution promulgated on December 27, 1947).” [Article 31 - The Republic facilitates with economic measures and other provisions the formation of the family and the fulfillment of the related tasks, with particular regard to large families (Ibidem)”]

[14] According to “Articolo 31 – La Repubblica agevola con misure economiche e altre provvidenze la formazione della famiglia e l’adempimento dei compiti relativi, con particolare riguardo alle famiglie numerose (Ibidem).” [The Republic facilitates the formation of the family and the fulfillment of the related tasks with economic measures and other provisions, with particular regard to large families (Ibidem)].

[15] “Article 6. [Marriage – Family – Children] (1) Marriage and the family are under the special protection of the order of the state [...] (German Constitution promulgated on May 23,).

[16] Article 67. Família 1. “A família, como elemento fundamental da sociedade, tem direito à proteção da sociedade e do Estado e à efetivação de todas as condições que permitam a realização pessoal dos seus membros […] [“A family, as a fundamental element of society, is directed to the protection of society and the State and to the implementation of all the conditions that permit the realization of the six members […]" (Portuguese Constitution promulgated on April 3, 1976).”

[17] According to Articles 69 and 70 of the Portuguese Constitution promulgated on April 2,1976.

[18] Third Chapter. De los Principios Rectores de la Política Social y Económica [Of the Guiding Principles of Social and Economic Policy]. Article 39. 1. “Los poderes públicos aseguran la protección social, económica y jurídica de la familia […]" [“The public powers ensure the social, economic and legal protection of the family”] (Spanish constitution promulgated on December 27, 1978).”

[19] Jiménez, Luisa Velloso. Op. Cit., p. 190.

[20] Ibidem, p. 192.

[21] According to  Article 72, Paragraph 4 of the Brazilian Constitution of February 24, 1891.

[22] Jiménez, Luisa Velloso. Op. Cit., p. 187.

[23] According to Article 119 of the German Constitution of August 11, 1919.

[24] According to Article 124 of the Brazilian Constitution of November 10, 1937.

[25] According to Articles 1 to 6, 17, 19 to 23, 24, 30, 31, among others, of Decree-Law No. 3,200, of April 19, 1941. To illustrate, it was foreseen that “As taxas de matrícula, de exame e quaisquer outras relativas ao ensino, nos estabelecimentos de educação secundária, normal e profissional, oficiais ou fiscalizados, e bem assim quaisquer impostos federais que recaiam em atos da vida escolar discente, nesses estabelecimentos, serão cobrados com as seguintes reduções, para as famílias com mais de um filho: para o segundo filho, redução de vinte por cento; para o terceiro, de quarenta por cento; para o quarto o seguintes, de sessenta por cento.” [“Enrollment fees, exam fees and any other fees related to teaching, in establishments of secondary, normal and professional education, official or supervised, as well as any federal taxes that apply to daily school life, in these establishments, will be charged with the following reductions, for families with more than one child: for the second child, twenty percent reduction; for the third, forty percent; for the fourth and further children, sixty percent”] (Article 24).

[26] According to Article 163 of the Brazilian Constitution of September 18, 1946.

[27] According to Law 4.121, of August 27, 1962.

[28] According to Article 175 of Constitutional Amendment n. 1, of October 30, 1969.

[29] Carlos Maximiliano states: “Outrora o indivíduo era considerado a célula do organismo social; hoje é à FAMÍLIA que se atribui tal importância; por isto, lhe dedicam um capítulo especial as Constituições hodiernas [“Once the individual was considered the cell of the social organism; today it is the FAMILY that is given such importance; For this reason, a special chapter is dedicated to it in contemporary Constitutions]. (Maximiliano, Carlos. Comentários à Constituição Brasileira. Volume III. 4. Ed. Rio de Janeiro: Freitas Bastos, 1948, p. 211).”

[30] Brasil. Assembléia Nacional Constituinte (1987). O processo histórico da elaboração do texto constitucional: mapas demonstrativos. Text by Dilsson Emílio Brusco and Ernani Valter Ribeiro. Brasília: Câmara dos Deputados, Coordenação de Publicações, 1993, p. XXII.

[31] The expression “special protection” was present both in Project “A” and in Project “B”, as well as in the first and second substitutes (Brasil.  Assembléia Nacional Constituinte (1987). O processo..., p. 185)

[32] Brasil. Assembléia Nacional Constituinte. Subcomissão da Família, do Menor e do Idoso (atas de comissões). Brasília, 1987, p. 71-87. Available at: . Accessed on Feb 1 2023.

[33] The Afonso Arinos draft proposed “State protection” in Article 362 (Brasil Diário Oficial. Sexta-feira, 26 de setembro de 1986. Brasília: DF, p. 49. Available at: . Accessed on: 15 Feb. 2023).

[34]  Pinto Ferreira. Comentários à Constituição Brasileira. V. 7. São Paulo: Saraiva, 1995, p. 338.

[35] Ferreira Filha, Manoel Gonçalves. Curso de Direito Constitucional. 40. Ed. São Paulo: Saraiva, 2015, p. 406.

[36] Cretella Júnior, José. Comentários à Constituição Brasileira de 1988. V. 8. 2. Ed. Rio de Janeiro: Forense Universitária, 1993, p. 4527.

[37] Moraes, Alexandre de. Constituição do Brasil interpretada e legislação constitucional. 7. Ed. São Paulo: Atlas, 2007, p. 2204.

[38]Silva, José Afonso da. Curso de direito constitucional positivo. São Paulo: Malheiros, 2016, p. 871. In the same sense: “A família é uma comunidade natural composta, em regra, de pais e filhos, aos quais a Constituição, agora, imputa direitos e deveres recíprocos, nos termos do Article 229, pelo qual os pais têm o dever de assistir, criar e educar os filhos menores, havidos ou não da relação do casamento (Article 227, §6º), ao passo que os filhos maiores têm o dever de ajudar e amparar os pais na velhice, carência ou enfermidade”.[“The family is a natural community composed, as a rule, of parents and children, to whom the Constitution now attributes reciprocal rights and duties, pursuant to Article 229, whereby parents have the duty to assist, raise and educate minor children, whether or not they are married (Article 227, §6), while adult children have the duty to help and support their parents in old age, need or illness”] (Silva, José Afonso da. Curso..., p. 871).

[39] Tavares, André Ramos. Curso de Direito Constitucional. 12. Ed. São Paulo: Saraiva, 2014, p. 764.

[40] As Ives Gandra da Silva Martins summarizes: “Nenhuma sociedade pode viver sem valorizar a família. E esta depende, fundamentalmente, de vivência de valores. [...] Mais do que isto, impôs o constituinte ao Estado o dever de protegê-la de forma ‘especial’, adjetivo que dá força maior à norma” [“No society can live without valuing the family. And this depends, fundamentally, on values which are lived. [...] More than is, the constituent imposed on the State the duty to protect it in a 'special' way, an adjective that gives force majeure to the norm] (Martins, Ives Gandra da Silva; Mendes, Gilmar Ferreira; Nascimento, Carlos Valder do. Tratado de Direito Constitucional. V. 2. 2. Ed. São Paulo: Saraiva, 2012, p. 696-697).”

[41] Silva, José Afonso da. Aplicabilidade das normas constitucionais. 3. Ed. São Paulo: Malheiros, Malheiros Editores, 1998, p. 63-87.

[42] According to Article 60, Paragraph 4 of the Constitution of October 5, 1988.

Haddad Jabur Gilberto



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