In tax law, the principle of legality consists of a limitation of the power to tax, which is reserved to federal bodies. According to Article 150 I of the Federal Constitution, taxes may be introduced or increased only by law. As a rule, this is encouraged by common law, but the Constitution itself stipulates that certain taxes must be created through complementary laws, such as the tax on large assets. Let`s chew up the idea so that no one has any doubts. It is as if the principle of legality were something broader than the legal reserve. In a sense, it regulates the obligation to faithfully observe not only formal laws (in the strict sense), but all kinds of normative acts and instruments that form the so-called block of legality. Read more Access: Homophobia ruling, STF does not undermine separation of powers or legality I hope you have used this content and do not forget to invoke the principle of legality whenever necessary to strengthen your legal practice! In general, the principle of legality can be summarised in article 5, II of the Federal Constitution, which provides that “no one shall be obliged to do or abstain from doing otherwise than by operation of law”. This principle protects everyone because it limits the authorities` ability to combat abuse. The doctrine is therefore overwhelmingly oriented in the sense that there is no conceptual difference between legality and legal constraint.
This is called public legality, which is based on subordination to the text of the law, so that the public administration is prohibited from acting in the face of legislative silence. The principle of legality consists in submitting to all normative types drawn up in accordance with the legislative procedure provided for by the Constitution (laws in the broad sense), while the principle of reservation of rights focuses only on certain material areas (delimited) that are subject exclusively to the treatment of the legislative power (laws in the strict sense). I hope that it has become clear that the principle of legality is the basis of the rule of law and the main pillar of our legal system, in particular for delimiting the scope of public administration and imposing limits and obligations on private relations. When we talk about the principle of constitutional legality, we must bear in mind the requirement of Article 5(II) of CS/1988, which states that “no one shall be compelled to do or abstain from doing otherwise than by operation of law”. Therefore, it is not difficult to conclude that the principle of legality is one of the pillars of the Brazilian legal system and, from its definition, it is possible to verify the first consequence of this principle: the limitation of the punitive power of the State. In this case, the understanding of the state in Montesquieu`s conception and its tripartite division of powers into: executive, legislative and judicial. Yes, these are situations in which the principle of legality can be abolished or mitigated. Certain taxes of a non-fiscal nature do not have to comply with the principle of legality and may be increased by an act of the executive (e.g. a decree) under the conditions previously provided for by the Federal Constitution. Currently, this applies to regulatory taxes (II, IE, IPI, IOF), CIDE fuel and ICMS fuel. Here we must bear in mind the idea that the public administration must submit to the will of the people. But how does this happen? Precisely by the principle of legality.
Marcelo Alexandrino and Vicente Paulo, masters of legal literature, argue that the principle of legality vis-à-vis the individual is based on the assertion that only the law can create obligations. On the other hand, the absence of a law prohibiting a particular conduct implies that it is permissible. The principle of legality in the field of criminal law Another important development for the study of the principle of legality in tax matters. The synthesis of the principle of legality would be the Latin expression nullum crimen nulla poena sine lege, which in Latin translation means that no crime is punished without law. The principle of legality corresponds to the statements of the arts. 5., XXXIX, the Federal Constitution and 1. of the Penal Code (“there is no crime without a prior law defining it, nor a penalty without prior judicial action”) and contains two different principles: that of the legal reserve, which reserves to the strict field of law the existence of the crime and the corresponding penalty (there is no crime without a law that defines it, nor a penalty without legal obligation) and that of the previous one, which requires that the law be in force at the time the offence is committed (previous law and previous commission). This is the rule of the art. Finally, the latter is the illegible reservation of the law, which stipulates that only the National Congress has the power to discuss certain matters.
On appeal, the State alleged a violation of the principle of legality, since no provision of the municipality in question provided for this method of shortening journeys. While all human conduct is subject to the principle of legality, only a few are subject to the reservation of the law, which is less far-reaching, denser or more contained, because it requires the treatment of the matter exclusively by the legislature, without the normative participation of the executive. The principle of legality defines the agenda of the rights and duties of all citizens and constitutes the matrix of action of the public administration when it has the power to legally sacrifice individual interests such as freedom and private property. These five principles are so important that, when violated, they can be considered acts of administrative dishonesty. Therefore, legality in the conduct of public administration should always be present in all federal entities. In other words, we can say that the principle of legality is a real constitutional guarantee. By this principle, we try to protect the individual from the capacity to act committed by the state and even from the capacity to act committed by others. Thus, individuals have ample freedom to do what they want, as long as it is not an act, behaviour or activity prohibited by law. The authorization to perform administrative acts expressly authorized by law, even by mere conferral of powers, since it also results from the law, is an expression of the principle of legality.
 As you may have noticed, the principle of legality plays an organising role in ensuring the proper functioning of the democratic rule of law.