SEPARAÇÃO DOS PODERES (CF/88 - Art. 2º) | EXECUTIVO, LEGISLATIVO E JUDICIÁRIO NA CONSTITUIÇÃO

Summary

The video script delves into the concept of the separation of powers, emphasizing its importance in a democratic state. It explains the historical development of the theory from Aristotle to Montesquieu, who advocated for the division of government into three branches: legislative, executive, and judiciary, to prevent concentration of power and potential abuses. The script clarifies that while the power is singular, it is exercised through various organs. It also discusses the functions typical and atypical to each branch, the mechanisms of checks and balances, and the ultimate goal of protecting citizens' rights and preventing abuses of power. The speaker invites viewers to subscribe for more content on constitutional law and encourages a deeper understanding of the 'spirit of the laws,' which is to safeguard justice, equality, and social peace.

Takeaways

• 🏛️ The concept of 'separation of powers' is a fundamental principle in democratic states, ensuring that the executive, legislative, and judicial branches operate independently and harmoniously to prevent the concentration of power and potential abuses.
• 🌐 The idea of separation of powers is not technically about dividing power into three parts, as power is considered one and indivisible, but rather about different organs exercising distinct functions.
• 📜 Historically, the theory of separation of powers was influenced by Aristotle, who identified three distinct functions of the sovereign power, although he believed they should be concentrated in one person, the sovereign.
• 👑 The concept evolved from Aristotle's ideas through Montesquieu, who argued for the division of these functions among separate, independent organs, which was a foundational idea for the French Revolution and the Declaration of Human Rights.
• 📝 The Brazilian Constitution, like many others, enshrines the separation of powers as a keystone, with each branch having its typical functions and some atypical functions that overlap with others.
• 🛠️ The system of checks and balances is a mechanism within the separation of powers that allows each branch to oversee and control the others to prevent abuses and ensure the protection of citizens' rights.
• ⚖️ The judiciary's typical function is to adjudicate and resolve conflicts arising from the application of laws, while the legislative branch's is to create norms, and the executive branch's is to apply these norms.
• 🔄 There are instances where powers may exercise atypical functions, such as the legislative function of the executive when issuing provisional measures or the judicial function of the legislative branch when judging the President for crimes of responsibility.
• 📊 The effectiveness of the separation of powers is not just about the constitutional framework but also about its practical application, which should always aim to protect citizens and prevent abuses of power.
• 🌟 The 'spirit of the laws' as described by Montesquieu and embodied in many constitutions, including Brazil's, is to protect citizens and uphold justice, equality, and social peace, which should be the guiding principle in the application of the law.

Q & A

What is the significance of the separation of powers in a democratic state?

The separation of powers is crucial in a democratic state to ensure that the executive, legislative, and judicial branches work independently and harmoniously without compromising popular sovereignty. It prevents any single branch from exercising unchecked power and allows for a system of checks and balances.

Why is it incorrect to refer to the separation of powers as tripartite?

It is incorrect to refer to the separation of powers as tripartite because power is technically one and indivisible. The term 'powers' is used in a constitutional context to describe the distinct functions exercised by different organs of the state, but the power itself emanates from the people and is exercised through these organs.

Who first proposed the idea of distinct functions of the state?

Aristotle was the first to propose the idea of distinct functions of the state in his work 'Politics', where he identified three distinct functions: creating norms, applying norms in public administration, and judging conflicts arising from the application of these norms.

How did Montesquieu's work contribute to the theory of the separation of powers?

Montesquieu, in his work 'The Spirit of the Laws', built upon Aristotle's ideas by identifying the same three functions but associated them with three distinct organs that should be independent from each other. He argued that this separation would decentralize power and prevent abuses, which was a foundational concept for the French Revolution.

What is the purpose of the separation of powers according to Montesquieu?

Montesquieu's purpose for the separation of powers was to decentralize power and prevent abuses by ensuring that each organ of the state has its own distinct function, thereby creating a system of checks and balances.

What does the Declaration of the Rights of Man and of the Citizen from the French Revolution say about the separation of powers?

The Declaration of the Rights of Man and of the Citizen asserts that a society without the assurance of rights and the establishment of the separation of powers does not have a constitution, highlighting the importance of the separation of powers as a constitutional principle.

What is the role of the legislative power according to the theory of the separation of powers?

The legislative power's role, according to the theory, is to create norms and laws. It is one of the three branches of government, each with its own distinct function to ensure a balance of power.

What is the function of the executive power in the context of the separation of powers?

The executive power's function is to apply the norms, which includes executing laws and sometimes performing acts of state leadership and government administration.

How does the judicial power contribute to the separation of powers?

The judicial power contributes by judging or resolving conflicts that arise from the application of norms, ensuring that laws are applied correctly in concrete cases.

What are the typical and atypical functions of each power according to the script?

Typical functions are those that are inherent to the nature of each power, such as legislating for the legislative power, executing laws for the executive power, and judging for the judicial power. Atypical functions are those that a power exercises that are not its primary role, such as the Senate's role in judging the President for crimes of responsibility.

What are 'mechanisms of checks and balances' and why are they important?

Mechanisms of checks and balances are controls one power exercises over another to prevent abuses. They are important to ensure the independence and harmony of powers, protecting citizens by preventing any single power from becoming too dominant.

What is the 'spirit of the laws' as mentioned in the script?

The 'spirit of the laws' refers to the underlying purpose of the laws to protect citizens and prevent abuses. It is the essence of the constitution and the guiding principle for the operation of the state's powers.