The rule of proportionality as a constitutional rule positive

• Grant number: 11/20094-4
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: February 01, 2012
• End date: December 31, 2012
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Sergio Reginaldo Bacha
• Grantee: Ismael Guimarães da Silva
• Host Institution: Faculdade de Direito (FD). Universidade do Vale do Paraíba (UNIVAP). São José dos Campos , SP, Brazil

Abstract

The rule of proportionality is an issue extremely in vogue these days. However, due to lack of methodological rigor on the part of interpreters, it does not reach its primary goal of more accurately. Unfortunately the judges of their ancestors, as with the principle of Human Dignity, make use of proportionality as a mere resource argumentative rhetoric, without any scientific rigor requires that the institute. Especially in relation to the Supreme Court, there are several decisions that rely on the proportionality rule without any form of structural decision, as proposed by Robert Alexy.This project will seek to locate the rule of proportionality in the systematic theory of the new standards, analyzing their origin, importance to the legal interpretation and as it has its practical application by the courts and patriotic foreigners.Several lawyers who criticize the use of proportionality to the solution of so-called hard cases, highlighting among them on the national scene Leni Luiz Streck, who also criticizes the theories of legal argumentation.The main objectives of this project is the correct concept of proportionality, the demonstration of defective form in which it is applied in our legal system, and the more complex task is the critical bridge erected in the face of proportionality and its aftermath. At the end, you want to propose positivization of proportionality in the legal parental rights, as occurred in the European Community, which may perhaps be an appropriate measure, depending on the research that will be done under this project.