The recognition process of a Fundamental Right and the defense of infancy problem in Brazil

Abstract

A post-positivism point of view seams to reveal that the restrictive list of Fundamental Rights predicted in the Constitution as inadequate. This post-Second World War Jurisprudence Theory its sustained thought axiology and principles, which support the legal norm, that before was very little flexible. Nowadays, alighted of this Jurisprudence Theory, pullulates in the Brazilian society the matter
of the defense of infancy as a Fundamental Right or not. The Brazilian Constitution establish the ages under 18 is protected under the defense of infancy. As so, among the topics of social and legal discussion is the constitutionality of the defense of infancy age reduction. This controversy arises because, although not properly be
expressed in the abovementioned standard list of so-called Fundamental Rights, there is a tendency to call it as such. And, once identified as a Fundamental Right, more precisely, as an Individual Right, would not be subject to reduction. This paper has as main purpose to discuss the constitutional aspects of the defense
of infancy in Brazil, without forgetting some socio-psychological aspects of the issue, which inevitably ends up facing when the subject is exposed.