Balancing, Constitutional Rights Optimization and Separation of Powers: the collision between ordinary rules and constitutional principles

• Grant number: 09/04588-7
• Support type: Scholarships in Brazil - Master
• Effective date (Start): March 01, 2010
• Effective date (End): February 29, 2012
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal researcher: Luís Virgílio Afonso da Silva
• Grantee: Rafael Scavone Bellem de Lima
• Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The implementation of constitutional rights demands a complex action from the State, based on the dialogue and cooperation of its powers. The lack of balance and coordination between their functions in regard to the process of concretization of constitutional rights jeopardizes the process itself and should be reduced.Such disequilibrium may occur - and a case-law research shows that it often does occur - in cases that involve the judicial review of legislative acts of regulation and harmonization of constitutional norms. In such cases, the divergence between Judiciary's and Legislative's conceptions on the best way to integrate constitutional norms that guarantee wide-range rights results in a problem concerning the interaction of these branches .Based on the structural classification of norms as principles - comprehended as optimizing commands - and rules - comprehended as definitive commands - the proposed research object is the judicial review of legislative acts that aim at the concretization of constitutional rights, which will be analyzed through the collision between constitutional principles and statutory rules.The definition of the research object, given its coherence with the theoretical framework of this research, is justified by the academic debate concerning this normative conflict, which is most developed in Germany. In spite of providing very important elements to analyze and to solve the problematic interaction between judicial review and legislative discretion, this debate still ongoing.The critical analysis of the positions presented on the principle-rule collision debate represents a relevant part of the research, which will be developed in a dogmatic perspective, according to its three dimensions: analytical, empirical and normative. Thus, the main juridical elements will be analyzed with conceptual purity (analytical dimension), from the standpoint of the valid law, which comprises not only the statutory law but equally the one developed by judicial activity (empirical dimension), in order to conceive normative propositions focused on the application of the law, determined by the optimization of constitutional rights and the balance between the powers (normative dimension).In this context, the main hypothesis to be tested in the proposed research consists in the enlargement of Judiciary's argumentative onus in order to overrule, through the interpretation of constitutional principles, the ordinary law. Such a requirement would be effected by means of including the formal principle of the legislative decision's competence in the process of balancing the colliding constitutional principles - taking into account both those that the judicial decision is based upon and those that support the ordinary law.This formal principle, whose structure and means of application will be analyzed in the proposed research, aims at guaranteeing the autonomy of the ordinary law by protecting legislative discretion against the judicial review.The proposed research contributes to the national academic debate on the interaction between the State's powers and the so-called judicial activism. The present hypothesis, once confirmed, can guide the development of judicial methods on the application of the law that conciliates the optimization of constitutional rights and the balance of the powers.

Academic Publications

(References retrieved automatically from State of São Paulo Research Institutions)

LIMA, Rafael Scavone Bellem de. Optimization of principles, separation of powers and legal certainty: the conflict between principles and rules. 2012. Master's Dissertation - Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) São Paulo.