Princípios formais: análise da designação de competências

Abstract

This work presents a critical analysis of the factors for the designation of competences developed by Matthias Klatt based on Robert Alexy's theory of principles. For that, it was used a qualitative research through the critical and purposeful review of the pertinent bibliography, and a quantitative research through the empirical verification of the factors proposed in the qualitative research. In this pursuit, three specific objectives are aimed, two corresponding to the theoretical phase and one to the empirical phase. The theoretical analysis stage aims to differentiate the concepts of competence and procedure within the theory of principles with respect to formal principles, and critically analyse the correction of Klatt’s factors in a coordinated way. The empirical phase aims to submit the synthesis factors of this analysis to verification in the case law of the constitutional court of Brazil regarding the theme of public policies. This case law theme is relevant, as public policies correspond to a provision action by the State in relation to positive rights, which are considered an important source of conflicts of competences between the Executive and Legislative Powers, and the Judiciary one. The work concludes by deciding for the exclusion of two of Klatt’s original factors and by the refinement and readjustment of four others, all of which could be observed to a greater and lesser degree in the empirical phase of the research.