A proporcionalidade no processo civil brasileiro à luz da teoria do direito de Robert Alexy e o dever de fundamentação das decisões judiciais

• Autor(a) principal: Morais, Dalton Santos
• Data de Publicação: 2011
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/2712
• topic: Direito Processual Civil; Alexy, Robert, 1945-; Direitos fundamentais.; Proporcionalidade (Direito).; Juízes - Decisões.; 340

Contemporaneously, the proportionality was created and developed as an indispensable institute to the legal systems based on normative and axiological precedence of fundamental rights or principles that, naturally, collide and need to be restricted for the maintain of this very system of essential rights. Unfortunately, this perception was not accompanied by the indispensable technical and theoretical rigor that should accompany the employment of the institute, for a great part of its applicators fell dismissed from thinking rationally and justifying its aplication under the understanding that proportionality is a material principle which by itself justifies its application. This kind of perception of the institute is very common in our doctrine and especially in our jurisprudence, has led to applications of the institute in cases that did not even need the use of complex decision-making processes for their solution and also unjustified applications of proportionality, which hinder the analysis and the control of the decision by the parties and others interested on solving the case, because the mere allegation of proportionality is not enough to "power and duty" determined by the Constitution that decisions are founded in law. Because these situations occur frequently in civil procedure and as this branch of law along with constitutional law, states that the judge is subjected to a procedural formalism which cannot be separated, we try to define the proportionality in a theory produced under and for the reality of contemporary legal systems rooted in the prevalence of fundamental rights: the right theory of Robert Alexy. In this context, we define the proportionality under its normative and procedural perspectives, because both perspectives are essential to demonstrate (i) that the institute cannot be considered a mere method of interpretation, as its normative nature imposes its use in - and only in - real cases of collisions between fundamental rights, (ii) that the institute should be implemented into a rationally justified procedure to allow that other interpreters interested in the particular case may review the applicability of the institute by the judge, (iii ) that, contrary to a great part of the Brazilian doctrine, the institute doesn’t be confused itself with the reasonableness from American law, as it has normative and methodologies criteria that are able to differentiate both institutes, and each of them must remain attached to their specific field of normative application.