THE BANALIZATION OF THE PRINCIPLES OF REASONABILITY AND PROPORTIONALITY IN DIFFUSION CONTROL OF CONSTITUTIONALITY AND SEPARATION OF POWERS

• Main Authors: Danilo Henrique Nunes, Sebastião Sérgio Silveira, Fernanda Morato Silva
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2019-08-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: proportionality and reasonability; separation of powers; diffuse control of constitutionality
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/37939/30286

At national level, the use of principles and rules correlated with proportionality and reasonableness has been raising a series of controversies and legal conflicts. It is observed in the Brazilian jurisprudence a wide banalization of the same ones, that are traveled of way too and in the majority of the cases being applied like synonyms, which is not allowed by the structure, methodology and origin of both proportionality and reasonableness. The present study seeks to deepen the consequences of such banalization in the scope of application of such principles in the current legal context, especially in the scope of diffuse control of constitutionality and respect for the principle of separation of powers, elements that as well as the principles of proportionality and reasonableness , sustain and guide the functioning of the Democratic Rule of Law, based on full respect for and observance of constitutional norms and principles. The study in question starts from premises involving general legal principles, as well as the principles of specific study and the diffuse control of constitutionality and the separation of powers, going from general questions to the specific question, deepening as the trivialization of such principles promotes impacts in disobedience to the constitutional principle of the separation of powers and consequently in the diffuse control of constitutionality.