The Latin phrase stricto sensu, translated as "in the strict sense," constitutes a fundamental hermeneutic vector in Legal Science, operating as an interpretive limiter that restricts the scope of a term or institution to its most rigorous and specific technical meaning. Applied transversally across the branches of Criminal, Tax, Administrative, and Civil Law, its primary purpose is to ensure legal certainty and strict legality, preventing analogical expansions that could compromise subjective rights or exceed the original intent of the legislator.
1. Concept, Legal Nature, and Hermeneutic Distinction
Within the scope of legal exegesis, the expression stricto sensu designates the restrictive interpretation of a norm or concept. It differs from lato sensu (in the broad sense) interpretation, which encompasses all possible meanings of a word, including its metaphorical or analogical extensions. The legal nature of the institution is that of a principle of applied hermeneutics, serving as a criterion for delimiting the field of application of a legal norm.
While the broad sense comprises the genus, the strict sense focuses on the species. In doctrinal rigor, the application of stricto sensu is imperative whenever a legal norm imposes restrictions on fundamental rights, establishes sanctions, or grants exemptions, in compliance with the principle of typicality and legal reservation.
2. Historical Evolution and Contextualization in Comparative Law
The genesis of the term dates back to Roman Law, where the distinction between verba legis (words of the law) and mens legis (spirit of the law) already required jurisconsults to maintain terminological precision to avoid arbitrariness. In the Civil Law system, the maxim "odiosa sunt restringenda" (odious things, such as penalties, must be restricted) was consolidated, grounding the need for a stricto sensu interpretation for punitive norms.
In Comparative Law, the principle finds an echo in the German Rechtsstaatsprinzip (Rule of Law) and the Anglo-Saxon Due Process of Law, both requiring that legal terms with potentially burdensome effects be interpreted in a minimal and precise manner, prohibiting the interpretive uncertainty that the breadth of lato sensu could cause in matters of liberty or property.
3. Legal Provisions and Applications in Branches of Law
The stricto sensu application is not merely doctrinal but finds support in express provisions of the Brazilian legal system:
- Criminal Law: The distinction is crucial in the concept of a criminal offense. While lato sensu, a criminal offense encompasses both crimes and misdemeanors, stricto sensu, the term "crime" refers only to offenses provided for in the Penal Code and special laws, excluding misdemeanors (Art. 1 of the Law of Introduction to the Penal Code - Decree-Law No. 3.914/1941).
- Tax Law: Article 111 of the National Tax Code (CTN) establishes that tax legislation providing for the suspension or exclusion of tax credit, the granting of exemptions, and the waiver of compliance with ancillary tax obligations must be interpreted literally (and, therefore, stricto sensu).
- Administrative Law: The concept of "Public Administration" stricto sensu comprises only the bodies and entities that exercise administrative functions (Executive), distinguishing it from the broad sense, which would include the administrative bodies of the Legislative and Judicial branches.
- Civil Law: In the interpretation of legal transactions, Article 114 of the Civil Code determines that beneficial legal transactions and waivers must be interpreted strictly.
4. Consolidated Jurisprudence and Understanding of Superior Courts
The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) use the stricto sensu criterion to guide the scope of constitutional and infra-constitutional norms. In the STJ, the rigorous application of Art. 111 of the CTN stands out, preventing the Judiciary from acting as a positive legislator by expanding tax exemptions through analogy (Repetitive Special Appeal No. 1.116.620/BA).
In the scope of Criminal Procedural Law, the Recurso em Sentido Estrito (RESE) (Appeal in the Strict Sense), provided for in Article 581 of the Code of Criminal Procedure (CPP), is the classic example of legislative nomenclature. The STF's jurisprudence (HC 121.011) reiterates that the list in Art. 581 is exhaustive (numerus clausus), requiring a stricto sensu interpretation to avoid the fragmentation of the process, except for rare cases of extensive interpretation admitted by the norm itself.
Recently, the debate on the prerogative of forum (Privileged Forum) in the STF (Question of Order in AP 937) consolidated the understanding that original jurisdiction must be interpreted stricto sensu, applying only to crimes committed in the exercise of the office and by reason of the functions related to it.
5. Correlated Principles and Doctrinal Divergences
The stricto sensu principle correlates directly with the Principle of Strict Legality and the Principle of Taxativity. In doctrine, the main divergence lies in the tension between literal/strict interpretation and teleological interpretation. Authors with a more positivist bias defend the prevalence of stricto sensu as a guarantee against judicial activism. On the other hand, neo-constitutionalist currents argue that restrictive interpretation cannot empty the effectiveness of fundamental rights, suggesting that, in cases of protective norms, one should prefer the meaning that best serves human dignity (pro homine).
6. Contemporary Relevance and Practical Impacts
Precision in the use of the term stricto sensu is vital for the health of the legal system. In a scenario of legislative proliferation and normative complexity, the strict delimitation of concepts prevents administrative and judicial arbitrariness. In Digital Law, for example, the definition of "personal data" or "application providers" requires a stricto sensu technical interpretation to prevent legal obligations from being imposed on entities not provided for in the General Data Protection Law (LGPD).
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Law No. 5.172, of October 25, 1966 (National Tax Code). Art. 111.
- BRAZIL. Law No. 10.406, of January 10, 2002 (Civil Code). Art. 114.
- BRAZIL. Decree-Law No. 3.689, of October 3, 1941 (Code of Criminal Procedure). Art. 581.
- STF. Question of Order in Criminal Action No. 937. Rapporteur: Justice Luís Roberto Barroso. Judged on 05/03/2018.
- STJ. Special Appeal No. 1.116.620/BA. Rapporteur: Justice Luiz Fux. Theme 170 (Systematics of Repetitive Appeals).
