. Análise da proporcionalidade das cotas raciais em concursos públicos em face do princípio da eficiência administrativa: uma leitura da lei nº 12.990/2014 segundo a fórmula do peso de Robert Alexy

Abstract

This academic paper is focused at analyzing the peculiarities involving the compatibility of Law 12.990/2014 with the current constitutional order through the proportionality rule, spreaded by Robert Alexy as an enabler method of rational decisions of legal principles considerations. That legislation established a reserve of 20% (twenty percent) of the vacancies for the public contests of direct and indirect Administration of the Union for candidates who declared black or brown , raising a collision between the constitutional principles of materials equality and administrative efficiency, extracted from articles 3 and 37 of the Federal Constitution of 1988, respectively . Searching to achieve the main purpose of this research , the theory of principles by Robert Alexy will be exposed, which is the basis for the proportionality rule. The characterization of legal rules between principles and rules and the implications of this distinction will be demonstrated, for only then expose the explanation of the history, structure and system of proportionality rule enforcement. Subsequently, the contents of the principles of material equality and administrative efficiency will be defined to show the way that the Law 12.990/2014 restricts the last one and promotes the other one. Finally, this law will be submitted to the three proportionality rule examinations , namely the appropriateness, necessity and proportionality in the strict sense. The possibility of the commandments of Law 12.990/2014 foster the achievement of the objectives targeted by the State will be investigated; the existence of an alternative measure that is also appropriate for the achievement of these purposes, but it matters on a smaller restriction to the principle of administrative efficiency and if the allocation of this principle may be justified by promoting the principle of material equality. To answer the last question posed by the proportionality rule will be used the “weight formula”, a mechanism developed by Robert Alexy as a parameter for basis the weigh up decisions. The methodology of this work consisted of bibliographic research , documentary , statistics and legislation.