A proporcionalidade: âmbito terminológico e estrutura lógico-normativa

Abstract

The present study aims at developing the thesis of proportionality as a rational method to solve constitutional rights collisions. For that, some steps are taken. At first place, it is developed a critical analysis of the distinction between rules and principles, especially of that tradition which advocates a difference of logical structure. Secondly, through an analysis of a basic notion of the sub-elements of the “proportionality-ought”, it is made a terminological choice in favor of the expression “proportionality rule”, and in detriment of the expression “proportionality principle”. At third place, taking as theoretical background Robert Alexy’s distinction between principles as optimization requirements and rules as definitive requirements, it is developed an advanced model for the balancing of principles, in which it is shown that balancing, as a form of legal argumentation, can be represented by a structure that can be controlled in a rational way. This structure is what can be called of “Weight’s Formula” (Gewichtsformel). Finally, it is demonstrated that this structure, in despite of being based on rational standards, does not guarantee rationality in a full sense, but only possible rationality to judicial decisions restricting constitutional rights.