O uso da proporcionalidade no Supremo Tribunal Federal : análise dos votos do ministro Gilmar Mendes (2004-2006) / The use of proportionality in the Brazilian Supreme Court: an analysis of the decisions by Justice Gilmar Mendes (2004-2006)

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

The purpose of this paper is to analyze some instances of the use of the proportionalitys rule by members of the Brazilian Supreme Court (Supremo Tribunal Federal STF). By using the tool pesquisa livre, available in the courts web site, 81 decisions given between the years 2004 and 2006 which mentioned proportionality were located, selected, read and analyzed. The sample of relevant decisions was then defined. The choice was to analyze the 22 decisions by Justice Gilmar Mendes more profoundly, in regard to their coherence in the use of the proportionality (classified as strong, medium or weak). In addition, other elements present in the decisions by Justice Mendes (such as the identification of the prevailing interest, the area of the Legislation in which the judicial debate occurs, the decision regarding the constitutionality or unconstitutionality, the source of the questioned legal norm) were also analyzed. The conclusion was that only four of the decisions by Justice Mendes could be considered to show evidence of a strong degree of coherence in the use of the proportionality. It was also noticed that, in the decisions in which the proportionality was applied, Justice Mendes tended to declare the unconstitutionality of the federal laws and to grant the prevalence of individual rights.

ASSUNTO(S)

tribunal supremo constitucionalidade das leis decisão judicial gilmar mendes brazilian suprene court (supremo tribunal federal) coherence proportionality

ACESSO AO ARTIGO

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