Máxima da proporcionalidade e a fundamentação das decisões judiciais: um estudo empírico comparado entre o Supremo Tribunal Federal e o Tribunal Constitucional Federal alemão

Abstract

The present investigation aimed to analyze whether the Constitutional Courts of Brazil and Germany have applied the principle of proportionality in the reasoning of their decisions in accordance with the theory developed by Robert Alexy (2008). To this end, bibliographical research was initially conducted, from which the central concepts related to Alexy’s theory of principles and the principle of proportionality, developed by him as a method for resolving collisions between principles, were deductively extracted. Subsequently, an empirical investigation was carried out, based on the case law of the Supremo Tribunal Federal and the Federal Constitutional Court of Germany. This stage consisted of an exploratory analysis of decisions delivered between 1973 and 2023, with the aim of identifying how the principle of proportionality has been addressed by both courts. Through the analysis of a total of 162 decisions, it was concluded that the rulings issued by both Constitutional Courts present divergences in the application of the principle of proportionality, developed by Alexy (2008), to concrete cases. Nevertheless, it was observed that the application of the principle of proportionality by the Supreme Federal Court reveals a greater departure from the alexyan model when compared to the decision-making practice of the German Federal Constitutional Court.