The defeasibility of the principles as commandments of optimization

• Autor(a) principal: Maquiné, Dillings Barbosa
• Data de Publicação: 2022
• Outros Autores: Lorenzetto, Bruno Meneses
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Direito
• Texto Completo: https://periodicos.ufv.br/revistadir/article/view/13110
• topic: Defeasibility; Exception clause; Legal norms; Principles; Rules; Cláusula de exceção; Derrotabilidade; Normas jurídicas; Princípios; Regras

This article discusses whether the principles, as a normative species, are defeasible norms when they conflict with other norms in a concrete case. In other words, it argues if principles are also optimization norms, as it happens to rules. It considers principles as optimization norms, according to what Robert Alexy defined in his theory of legal norms. At the same time, the notion of defeasibility of norms is used, a concept whose pioneering role in Law is attributed to Herbert Hart. The discussion opposes arguments against the thesis of the defeasibility of principles (Robert Alexy; Carsten Bäcker; Thomas Bustamante) and for (Ronald Dworkin; Aulis Aarnio; Klaus Günther). The approach method is deductive, while the procedure method is comparative, with a bibliographic research technique. Finally, it is stated that, as commandments optimize an end to be optimized, principles are not defeasible norms.