The expression de jure, a Latin term designating a situation according to established law, constitutes a fundamental pillar of the General Theory of the State and Constitutional Law. Its primary purpose is to distinguish between normative legitimacy and factual efficacy (de facto), establishing the legal validity of governments, administrative acts, and subjective rights within the legal system.
Concept and Foundation
The term de jure, translated as "by law" or "by force of law," embodies the existence of a legal situation supported by current legislation. Within the scope of the Theory of the Legal System, the distinction between de jure and de facto is essential for legal certainty, as the validity of an act is not necessarily synonymous with its social effectiveness. The legal nature of the institute lies in strict compliance with the constitutional framework and the hierarchy of norms (Kelsen), establishing the formal recognition of rights, powers, or states of affairs.
Historical Origin and Evolution
The dichotomy dates back to Roman Law and was consolidated in Public International Law for the recognition of States and governments. Historically, the distinction served to separate the legitimate government (holder of the legal title) from one that exercised effective power through force. In modern constitutionalism, the extended application of the term covers the legitimacy of bodies, the efficacy of norms, and the entitlement to rights, being crucial for the stability of democratic institutions.
Legal Provision and Framework
The application of the de jure principle finds support in the 1988 Federal Constitution (CF/88), specifically in the principle of legality (Art. 5, II, and Art. 37, caput). The Brazilian legal system does not allow for the validation of acts based merely on factual situations that violate the constitutional text. De jure validity requires compliance with the due legislative process and material competence, as provided for in Art. 22 et seq. of the CF/88.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) reinforces the prevalence of strict legality over situations consolidated by time or fact, except in exceptional cases of protection of good faith and legal certainty (theory of the de facto official).
- STF: The Court has consolidated the understanding that appointment to public office must occur strictly de jure (public competitive examination - Art. 37, II, CF/88), with appointment acts that ignore the legal requirement being void, except for situations involving de facto public servants for the sake of public interest.
- STJ: Jurisprudential understanding in Civil and Administrative Law reaffirms that the exercise of real or obligatory rights must be based on a legal title (e.g., real estate registry - Art. 1,245 of the Civil Code), otherwise possession (a factual situation) will not convert into ownership (a de jure situation).
Related Principles and Divergences
The de jure principle dialogues directly with the Principle of the Supremacy of the Constitution and the Principle of Legality. Doctrinal divergence arises in the tension with the Principle of the Primacy of Reality (especially in Labor Law) and the Theory of Appearance. While classical positivist doctrine insists on the absolute prevalence of the de jure norm, contemporary currents admit that factual reality can generate legal effects in exceptional situations to avoid unjust enrichment or administrative inefficiency.
Contemporary Relevance
In the current scenario, the distinction remains vital in topics such as the legitimacy of acts by federative entities, the validity of infralegal norms, and the protection of fundamental rights. The Judiciary's resistance to accepting merely de facto situations as sources of law ensures that the Brazilian Rule of Law remains bound to the rule of law, preventing the erosion of institutions through practices that seek legality only through the repetition of conduct (contra legem custom).
Legal and Jurisprudential References
- Constitution of the Federative Republic of Brazil of 1988, Art. 5, II; Art. 37, II.
- Law No. 10,406, of January 10, 2002 (Civil Code), Art. 1,245.
- STF, RE 658.570 (General Repercussion - Theme 445): Discussion on the prevalence of de jure norms and the stability of administrative acts.
- STJ, Súmula 363: "The hiring of a public servant, after the CF/88, without prior approval in a public competitive examination, is barred by the respective Art. 37, II and § 2, only granting them the right to payment for the agreed consideration..." (Example of the distinction between a de jure situation and factual effects).
