Within the legal logic, several classifications are possible listing the types of laws we have. The most common and simplest form refers to the federal constitution, in its article 59, which lists the types used within the legislative process. There are six in total, currently:
- Amendments to the Constitution,
- Complementary laws,
- Ordinary laws,
- Delegated laws,
- Provisional measures,
- Legislative decrees,
Of all the normative types provided for in article 59, the ordinary law and the complementary law are the most frequently used, as they are the most common means of innovating the legal system, that is, creating, modifying, or extinguishing individual rights and obligations.
The constitution or charter is the document that brings together the fundamental laws of structuring the state, formation of powers, forms of government, and rights and duties of the citizen of a country.
It took 18 months until the 1988 constitution was approved. It was developed based on proposals from both congressmen and the population, through public hearings with representatives of social movements.
The idea of a new constitution arose with the process of political opening. Nicknamed the “citizen constitution”, it brought significant achievements in areas such as health, social security, social assistance, consumer rights, women’s rights, children’s and adolescents’ rights, indigenous rights, and working hours.
Amendments to the Constitution
May propose amendments to the constitution:
- one-third of the members of the Chamber of Deputies,
- one-third of the members of the federal senate,
- the president of the republic,
- more than half of the legislative assemblies of the states, each one manifesting itself by the majority of its components.
The Federal Constitution can be changed through a PEC (Proposed Amendment to the Constitution), which is evaluated by the CCJ (Committee on Constitution and Justice and Citizenship) of the chamber and senate, and voted on by deputies and senators.
In the 25 years that the current Magna Carta has been in force, it has received more than 70 amendments, the first being in 1992.
It is natural for any organization to need change so that it can be in tune with internal and external social changes. Such changes may simply originate in customs, traditions, sociological or empirical changes, or even the position adopted by the country’s supreme court regarding a particular issue.
Any change must respect the foundations of the republic (Article 1 of the Constitution), as well as its objectives (Article 3). Thus, amendments must not denature the profile of the law, for the sake of its own supremacy.
The amendment to the Federal Constitution, as proposed, is considered an infra-constitutional act without any normativity, only entering the legal system after its approval, thus becoming a constitutional precept, in the same hierarchy as the original constitutional norms.
In the event of an amendment involving the precepts established by article 60 of the constitution, it will enter the legal system with constitutional status and must be made compatible with the other original norms.
International Treaties on Human Rights
As of 2004, with Constitutional Amendment no. 45, the international treaties that deal with human rights started to be incorporated into the law in a different way.
The amendment brought that international treaties and conventions on human rights that went through the process of approval by the legislature in a similar way to the Constitutional Amendments (3/5 of the votes, in 2 rounds of voting in both legislative houses), would be equivalent to the constitutional amendments.
In relation to other international treaties, the Supreme Court understands that such norms, to which is a signatory, have a “supralegal” nature, that is, they are at an intermediate level between the constitution and other laws, and their procedure for approval and the consequent integration of the Brazilian legal system is the same as the ordinary laws.
Complementary law is the normative species subject to a special legislative process and with its own subject. It serves to regulate the matters that the constituent legislator understands to be of fundamental importance.
At the same time, the content of the complementary law cannot be changed by ordinary law due to the approval criteria.
Likewise, matters reserved to the complementary law cannot be regulated by ordinary law, under penalty of unconstitutionality of the law for violating the constitutional precept that determines the reserve of competence of some matters to the scope of the complementary law.
The difference between ordinary law and complementary law resides in two aspects: the material and the formal. In the material aspect, we have matters that must be regulated by complementary law.
Ordinary law, in turn, is residual, as it deals with matters that the constitution does not require regulation by a complementary law, legislative decree, or resolution.
The second distinction is formal and refers to the quorum for approval of the complementary law, which is an absolute majority, while the quorum for approval of the ordinary law is a simple majority.
In simple majority voting, the bill is approved if it obtains a majority of favorable votes from the parliamentarians present at the session.
On the other hand, absolute majority voting considers the favorable votes of half plus one of the total number of congressmen, regardless of the number of congressmen present in that session.
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This institute addresses various matters in the criminal, civil, tax, and administrative areas, regulating almost all matters within the competence of the union, with sanction from the president of the republic.
The ordinary bill is approved by a simple majority and can be proposed by the president of the republic, deputies, senators, the Federal Supreme Court (STF), superior courts, and the attorney general of the republic.
Citizens can also propose such a bill, as long as it is signed by at least 1% of the country’s electorate, distributed in at least five states, with no less than 0.3% of voters in each of them.
Ordinary law is the typical legislative act par excellence, the primary normative act that enacts general and abstract norms. It is characterized by the generality of its content, being able to deal with almost any matter.
The exception is the matter for the complementary law and the affairs of the Congress, Chamber, and Senate (reserved for legislative decrees and resolutions). There are also the items of 1 of article 68 of the constitution that are regulated by ordinary law and are not subject to delegation.
Delegated law is a figure provided for in article 68 of the constitution. It is a normative act of the president of the republic that requires authorization from the national congress for its elaboration. The delegated law is also present at the state and municipal levels.
With it, the executive can create or increase compulsory loans and taxes under the federal government’s residual competence (the constitution prohibits the delegation of matters reserved to the complementary law).
Delegated laws cannot deal with acts of exclusive competence of Congress, on matters of complementary law, nor legislation on multi-year plans, budget guidelines, and budgets, among others.
The inspiration for the creation of provisional measures came from Italian legislation. Its predecessor was the decree-law, extinguished with the advent of the current constitution.
Provisional measures are edited by the president in cases of relevance and urgency. With the force of law and immediate effect, they lose their effectiveness if not converted into law by the national congress within sixty days, extendable for an equal period.
This instrument was created to give the president a political-administrative dynamic without being characterized as interfering in the activities of the legislative power.
The constitution, in its article 62, stipulates that in case of relevance and urgency, the president may use a provisional measure with the force of law, which must be immediately submitted to the congress, which will have a period of five days to meet, after convening extraordinary, in case it is in recess.
Upon being edited, it enters into force for 60 days, extendable for another sixty days, when the congress‘ agenda is closed and needs to be appreciated.
After this period, if the case congress does not convert the provisional measure into law, it loses its effectiveness and, thus, it will be up to congress to discipline the legal relations arising from them.
It is an act aimed at broadcasting matters under the exclusive competence of the national congress. Such matters are listed mostly in article 49 of the federal constitution.
The legislative decree also serves as an instrument for regulating legal relations arising from the period of effectiveness of provisional measures before their conversion into law.
For its validity, it must necessarily be instructed, discussed, and voted on in both legislative houses. The quorum for approval of the legislative decree is the simple majority of article 47 of the constitution, and its procedure is the same as in ordinary law, differing only at the time of enactment, made by the president of the republic.
Its approval procedure is, therefore, considered special, as it is dealt with by the Internal Regulations of the Congress and by the Internal Regulations of the two houses and because it is also exempt from the sanction of the President of the Republic.
The legitimacy for the initiative in the process of creating the legislative decree rests with the president of the republic or member or commission of the national congress. The legislative decree has an effect external to the national congress, contrary to the resolutions.
Resolution is a normative administrative act issued by a higher authority, with the purpose of disciplining matters within its specific competence. Resolutions cannot produce external effects, nor contravene regulations and regulations, but rather explain them.
Both resolutions and legislative decrees deal with matters of exclusive competence of the Legislative power.