Open AccessON THE BALANCING OF RIGHTS AND THE PROPORTIONALITY OF JUDICIAL DECISIONS: IS IT NOT MORE FICTION THAN REALITY?
Author(s) -
Luís Renato Vedovato,
Josué Mastrodi
Publication year - 2018
Publication title -
panorama of brazilian law
Language(s) - English
Resource type - Journals
ISSN - 2318-1516
DOI - 10.17768/pbl.y5n7-8.p194-209
Subject(s) - proportionality (law) , discretion , rationality , plaintiff , political science , law , social rights , law and economics , fundamental rights , judicial opinion , human rights , sociology
This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.