Propostas de desenvolvimento da ponderação: uma análise das críticas de Sieckmann sobre a teoria dos princípios de Alexy

Abstract

This essay addresses Jan-R Sieckmann's critics of Principle’s Theory and analyzes the author's proposals and their compatibility with the development of balancing. Considering the use of Alexy's Theory in doctrine and jurisprudence, especially in limiting fundamental rights and their consequences, the purpose of this research is to clarify the structure of proportionality and to contribute to an further development of Alexy’s work. This way, ensuring the efficiency and protection of the fundamental rights as well as the reduction of the Judiciary’s margin of appreciation in constitutional decisions. To do so, we proceed to the exposition of three pillars of Principle’s Theory, to then present the critics and proposals of improvement. It is concluded that the critique seek a correct answer, besides proposing methods of comparison between constitutional decisions about fundamental rights - this part compatible with Alexy's Theory. For the research, the dialectical methodology and the bibliographic research technique were adopted.