Proportionality and institutional aspects of judicial review

• Grant number: 13/23657-5
• Support Opportunities: Scholarships in Brazil - Doctorate
• Start date: December 01, 2014
• End date: September 30, 2016
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Agreement: Coordination of Improvement of Higher Education Personnel (CAPES)
• Principal Investigator: Luís Virgílio Afonso da Silva
• Grantee: Rafael Scavone Bellem de Lima
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The purpose of this theoretical research is to assess whether and how institutional arguments should be articulated in the application of the proportionality test, a method of legal argumentation widely used in contemporary constitutional law. The starting point of the proposed research is the conclusion that, despite presenting a well-defined and organized structure, imposing unambiguous argumentative burdens on the justification of judicial review decisions, the proportionality analysis focuses solely on the reasoning underlying the realization and restriction of constitutional rights and principles. The proposed research seeks to argue that, due to its exclusively right-based orientation, the proportionality test is not sufficient to deal with many cases involving constitutional issues. As shown by case law, reasons other than the extent of realization and restriction of substantive principles and constitutional rights often play an important role in judicial review decisions. In this sense, the research will show that right-based reasons must be articulated with institutional arguments, such as technical expertise, instrumental capacity and democratic legitimacy of both the organ responsible for the challenged measure and the reviewing court. This doctoral research comprehends two distinct dimensions, the more substantial of which will be dedicated to the justification of the critical thesis on the insufficiency of the exclusively right-oriented reasoning promoted by the proportionality test and, thus, to the development of a theoretical framework for the consideration of institutional elements in the justification of judicial review decisions. The implication of these theses on the structure and on the application of the proportionality test, as well as their impacts on the ability of this method to orient judicial reasoning, will be analyzed at the methodological level of the study. (AU)