Collective Injunction: Collective and Essentially Constitutional Aspects

Abstract

The theoretical, empirical and deductive method became predominant through national and international jurisprudential contributions. The Brazilian Constitution followed the international trend to broaden discussions on the jurisdictional tutelage of supra-individual rights, foregrounded on political, social and juridical suits. Active legitimating widened the promotional powers of these rights and the subject who benefitted from the definite decision. Other laws complemented and provided differentiated tutelage means of diffused, collective and homogenous individual rights. However, collective injunction is the tutelage instrument of collective interests, with high efficiency, that constitutes the constitutional guarantee and foregrounds the tutela in natura against illegal or arbitrary acts of authority, by means of a quick and special procedure. It may not be admitted that constitutional determinations on such a juridical instrument would be enacted by laws inferior to the Constitution. The Constitution is the base of the interpretative analysis of Law 12016/2009, the new injunction law. Limits foreseen by the under-constitutional legislator may not predominate when faced with the constitutional warrant to security (Art. 5, LXIX and LXX of the Constitution) which are basic rights to contain illegal and abusive State acts.