Ponderação de princípios formais: proposições a partir da análise de Matthias Klatt

Abstract

The balancing developed by Robert Alexy is a relevant tool in the solution of the competing principles. Some of these balancing, regarding formal principles, require particular efforts to be solved, demanding the development of factors that help their claim. This work revisits the parameters used for the collision of competences developed by Matthias Klatt in Positive Rights and from them makes new propositions. The specific objective of this work, therefore, is to perfect the parameters of Klatt with the proposition of new arguments, such as new parameters. As a general objective, we seek to contribute to the solution of the problem of judicial activism, since the improvement of these parameters inclines to contribute to a clearer and more informed legal practice. The methodology used was a bibliographical review and a deductive method. The results are divided into two stages. The first was the proposition of two new arguments to be considered within the parameters of democratic legitimacy, namely, the protection of the decision-making process and its democratic conditions and the protection of democratic legitimacy in the judicial process. The second was the proposition of a new parameter for the role of those presented by Klatt, which is the parameter of the principiological forum. It was concluded that both Klatt's parameters and those developed here are relevant from a theoretical point of view, by allowing an analytical exposition of the abstract elements involved in the balancing, and from the practical point of view, by contributing to the elaboration of judicial review without incurring in judicial activism.