The family and the brazilian constitutions in the context of the fundamental personality rights

Abstract

Our Country, after its discovery by the colonizing people of Portugal, assumed the idea of family that was rooted in the use and custom of that people, brought to the new colony, constituted by the marriage of partners who knew each other and at the Catholic Church door. Such situation lasted during the imperial time and good part of the republican period, when just the catholic wedding remained, with an indissoluble aspect. In the first two constitutions, there were no concern with the protection of the family in the exact terms that we have today; the Constitutional Right was limited to protect the fundamental rights of the first generation. Only after the Constitutional Letter of 1934 there was some real concern with social rights and, consequently, with the family, and then we had the protection of the fundamental rights of the second generation. From this text all the following constitutions brought an annex aiming at protecting the family and its members in a very clear way, reaching a greater range with the Constitution of 1988, in which the legislator decided to replace the word family by the expression family entity. It was exactly in the 1988’s text that more emphasis to man’s fundamental rights was given, incorporating the fundamental rights of the third and fourth generations, in which we find the precepts in defense of personality rights, which, however, present clear distinctions between them. The new civil legislation of 2002 is the one that, effectively, came to embrace the institution of Personality Rights, definitely incorporating the name iuris to our positive rights.