Supra-law or law endowed with supra-legal status

a standard for judicial review of constitutionality?

Abstract

"Supra-law" is a concept identified in legal scholarship that also finds support in case law, albeit with varying degrees of acceptance. Against this backdrop, the present study aims to examine the conceptual nature of supra-legal law and its application in judicial practice—particularly that of Brazil's highest court—while also investigating the possibility of subjecting original constitutional norms to judicial review based on supra-legal principles. Alternatively, the study may conclude that such judicial review is not feasible; consequently, it seeks to outline how supra-legal principles are utilized in the practical application of constitutional law and whether their instrumentalization within the legal system can be envisioned in a distinct manner. To this end, both domestic and foreign legal scholarship will be considered, with particular attention given to German case law, as represented by the Federal Constitutional Court and lower courts. The fundamental theoretical framework for this study is the scholarly work of Otto Bachof. The chosen approach is the hypothetical-deductive method, utilizing a bibliographic review as the procedural method.