Legislative Discretions in Constitutional Rights

• Grant number: 15/13611-3
• Support Opportunities: Scholarships in Brazil - Master
• Start date: October 01, 2015
• End date: September 30, 2017
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Luís Virgílio Afonso da Silva
• Grantee: Arthur Leão Massucato
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The author plans to analyze the definitions, the classifications and the constructions of the legislative discretions in constitutional rights according to the literature, which resort commonly to formal or procedural principles in order to explain the discretions of epistemic sort, and then to present an alternative construction, which prescinds from such principles, and content itself with material or substantive ones. In order to do this the author will present the foundations of the theory of legislative discretions in constitutional rights: the principles theory, the obligation of proportionality, the operation of balancing (relating it to the operation of subsumption) and the laws of balancing. The alternative construction will consist in considering the incorporation of epistemic variables in the operation of balancing as due to material principles, not to formal ones. Material principles have a dimension of material weight as well as one of epistemic weight. Since a material principle requires a restriction that is based on reliable or certain premises, its weight does not vary. Since it requires however a restriction that is based on unreliable or uncertain premises, its weight diminishes proportionately to the unreliability or uncertainty of the premises of the restriction that it requires. Moreover the author plans to show that the proportionality-based decision-making model is not a particularistic decision-making model that ignores rules, and that it takes rules seriously although it is perfectly willing to balance principles in order to verify the proportionality of the restriction that the rule involves. Principles are not enough however for the proportionality-based decision-making model, since they are not always decisive, which is proved by the theory of legislative discretions in constitutional rights, which admits and presupposes stalemates between colliding principles (the definition of such stalemates will constitute a central point of the research). When principles are not decisive, that is, when there is a stalemate, and the question falls into a region of discretion, so that the law nothing prescribe nor proscribe in principle for the case, only a rule (the source of which may be legislative or not) can definitively decide the question.