Colisão de direitos fundamentais: análise jurídica da ponderação de interesses na jurisdição constitucional.

Abstract

The present work aims to analyze the phenomenon of the collision of fundamental rights under the prism of discretion to balancing in the Brazilian constitutional jurisdiction. In this perspective, the technique of interest balancing proposed by Alexy consists of a methodological procedure for the solution of the conflict of principles which have the same hierarchical and complex axiological-evaluative status. Therefore, it is sought to emphasize the classical differentiation between rules and principles especially regarding the conception of commandments of optimization characteristic of this last normative species. However, the criticisms pointed out regarding the adoption of this technique ranging from the high degree of subjectivity to the legal uncertainty caused by its adoption were highlighted. On the other hand, we deal with aspects of the interest-weighing technique which consists of unfolding the principle of proportionality such as the law of collision and the idea of conditioned precedence corroborating with the rationalization of the weighing judgment in the legal casuistry. Under this approach, the following problem arises: does Alexy's interest-balancing technique serve as the most effective way to resolve the perceived fundamental rights dispute in the legal casuistry? And as a hypothesis, we have that the weighing judgment is the most appropriate in the treatment of conflict between principles as well as the methodological technique adopted by the Brazilian Constitutional Court. Moreover, the present work adopts the method of deductive approach using its qualitative aspect. In addition, it seeks to achieve its objectives through the techniques of bibliographical and documentary research applying also the method of historical-evolutionary procedure.