The principles of loyalty and good faith in Brazilian law: potential influences of private law over the modern Brazilian criminal procedure

Abstract

This paper initially analyzes the expansion of ethical principles related to Private Law to the field of Public Law. In this sense, it investigates whether it is possible to conceive the coexistence of the principles of loyalty and procedural good faith, as established under Brazilian Private Law, into the field of Brazilian criminal procedure, as long as another specific principles of Criminal Procedure – such as the principle of proportionality – and the adversarial principle – as established in the Constitution – are observed. The paper is based on an inductive method and the research undertaken is qualitative and descriptive. The primary focus of the study was the nature and the limits of the adversarial principle, with an analytical focus of the legal procedures. The paper concludes that the principles of loyalty and good faith enshrine patterns that are adequate to social life, in detriment of selfish and immoral wishes of the individuals. In modern criminal proceedings, even if the individual who has been charged may stay silent or lie, this does not carry the conclusion that it is legitimate for him to act this way, since the principle of good faith shall be applied to him in any aspects that are not related to the criminal prosecution.