Hierarquia e disciplina como garantias individuais e para a sociedade: fundamentos para a diferenciação do direito militar

Abstract

By means of a historical analysis of the law, we show that hierarchy and discipline not only constitute the institutional cornerstones of military forces, but also contribute to uphold individual rights and safeguard society. These aspects were even affirmed in the 18th-century texts that led to the establishment of modern-day democracy. Another fact that emphasizes the importance of these rights is their inclusion in all Brazilian constitutions and in public international law, including treaties, pacts and conventions. These laws expressly allow restrictions on the rights of the military and provide for the distinctive characteristics of military law. Such provisions are indispensable to preserve national-security interests, uphold public order, and safeguard other parties’ rights and freedoms. Case studies of major breaches of hierarchy that occurred in Brazil have allowed us to determine how these events impacted individuals and society overall. To analyze the foregoing events, we collected the necessary data for behavioral analysis of law, a methodology that can yield answers relevant to the strategies adopted to address such breaches of hierarchy, as per the framework proposed by Aguiar and Tabak; this approach can demonstrate the relationship between the actual breaches their repercussions, and the reactions to them, as well as draw conclusions about the desirability of applying statutory and constitutional provisions (as well as other rules) that impose restrictions on the rights of the military. From the conclusions thus reached, we showed that military law should be distinct from common legislation and that this is not only allowed by the constitution, but also indispensable to effectively guarantee the protections provided by the Brazilian Constitution itself.