Adimplemento de deveres fundamentais: em busca da sistematização de uma teoria geral brasileira

Abstract

The present work aims to present an approach to fundamental duties as a legal institute that, put to the test in the face of individual autonomy, calls on individuals to the duty of solidarity in favor of the realization of rights and common well-being. Starting from the premise that living in society requires the imposition of limits on individual autonomy and the exercise of the duty of solidarity for the fulfillment of fundamental duties, it makes it possible to reflect on the general theory of fundamental duties, focusing on the individual - holder of rights and subject of duties - in his relationship with the State, others and society. To this end, themes are outlined that surround the general theory of fundamental duties, starting with the study of the evolution of the concept of duty in ancient and modern philosophical thought, highlighting the contributions of thinkers such as Plato, Marco Túlio Cícero, Baron de Holbach and Immanuel Kant that influence the development of society and Law in modernity. The imputation of fundamental duties in the Federal Constitution of Brazil of 1988 and the need for infra-constitutional norms for their implementation are explored, despite the protagonism of fundamental rights with the advent of contemporary constitutionalism. Doctrinal divergences allow us to reflect on the applicability of fundamental duties, with arguments considering the immediate applicability and that mediated through legislative action. The proposal for a status of the person, based on human dignity, is inserted in this study as a paradigm to overcome the protagonism of rights and perceive the individual as the holder of rights and subject of duties, as well as awakening to reciprocity in the relationship with others, promoting social cooperation. It is proposed to systematize a general Brazilian theory of fundamental duties, as a legal institute endowed with relative autonomy in relation to fundamental rights, presenting its identification in the Federal Constitution of Brazil of 1988 and in European and Latin American Constitutions, in order to understand its essential for the realization of rights, respect for the rights of others and the foundation for social peace. Of an interdisciplinary nature, in addition to legal and philosophical aspects, the study brings a social perspective that is present in solidarity, given the individual's belonging to society and the importance of coexistence and cooperation of each person in the social body in a responsible manner. Through the deductive method and bibliographical research technique in sources such as books, scientific articles, theses and dissertations by national and international authors, as well as national and international jurisprudence from higher courts, it is possible to bring together theory and practice for a better understanding of fulfillment with fundamental duties. Finally, we seek to legitimize the imposition of limits on individual autonomy, starting from the duty of solidarity for the fulfillment of fundamental duties.