FORMAL SOURCES OF FUNDAMENTAL RIGHTS IN THE BRAZILIAN LEGAL SYSTEM

Abstract

The objective of this article is to identify and catalog the origins from which a right is qualified as fundamental within the Brazilian legal system, and to assess whether such origins correspond to the classical sources of law. As specific objectives, the study aims to conceptualize and distinguish between the formal and material sources of law, to analyze the role of legislation, costume, case law, contracts, analogy principles, internacional treaties and legal scholarship in the qualification of a norm as a fundamental right, and to discuss potential conflicts among the sources of fundamental rights. The research employs a qualitative methodology, based on bibliographic and documentary analysis. The primary method adopted is the deductive approach, beginning with concepts drawn from legal-philosophical doctrine concerning sources and fundamental rights, and applying them to the normative content of the Constitution and international treaties. Complementarily, the comparative method is used to identify correspondences among the sources of law. The findings reveal which of the classical sources of law are capable of qualifying a right as fundamental in the Brazilian legal system.