Equidade e proporcionalidade: uma releitura e uma confrontação de um conceito filosófico clássico e um princípio jurídico contemporâneo

• Ano de defesa: 2007
• Autor(a) principal: Haeberlin, Mártin Perius
• Orientador(a): Freitas, Juarez
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul; Porto Alegre
• Palavras-chave em Português: FILOSOFIA DO DIREITO; HERMENÊUTICA (DIREITO); PRINCÍPIO DA PROPORCIONALIDADE; EQUIDADE (DIREITO)
• Link de acesso: http://hdl.handle.net/10923/2477

The present paper aims at studying the philosophical concept of equity and the concept of proportionality from a relational way, that from its philosophical nature, this from the nature of principle as dogmatized by Law since the 19th century. In the first chapter, in an analytic part, there is a theoretical construction of equity from its genealogy as a classical philosophic concept and, sequentially, an approach of this concept in five authors, namely Aristotle, Immanuel Kant, John Rawls, Ronald Dworkin and Amartya Sen. Also, in this part, there is a development approach of the roman aequitas, and its acceptance by contemporary Law, and of equity in common law. Later, a review of circumscriptive matters to the analytical part is made, emphasizing the possibility of a “positive sense” of equity and, at the end, a systematizing of this in a philosophical-legal and in a philosophical-political sense. In the second chapter and with a similar structure, a theoretical construction of proportionality searching of its genealogy of principle and from the approaches of it that can be found in the doctrine, notably interpretative method, restriction of the power to legislate, restriction of the power to administrate, excess and insufficient prohibition, normative postulate, rule, and the analysis of its correlates of reasonability, practical concordance and ponderation. In a critical part, some arguments are made in favor of demonstrating misunderstandings of some of these approaches and to demonstrate incomprehension of them of the transdogmatic content of proportionality. Systematizing, the proportionality is treated and conceived in the sense of rule, principle and metanorm. In the third and last chapter, a relation of equity and proportionality is made showing this one as a contemporary and minimizing rereading from that, which is made confronting both as well as a definition of equity and a jurisprudential reading of both. Finally, the idea that contemporary Law passes through two different ways is faced, one concerned with hermeneutics, other concerned with prudence.