A nova lei de abuso de autoridade à luz da ponderação de valores

Abstract

Fundamental rights, which are expressed in the form of rules or principles, foreseen by the entire Brazilian Federal Constitution and endowed with unique characteristics, aim to ensure, mainly, the values that integrate the concept of human dignity. However, in a pluralistic society that is quickly modernizing itself, the existing conflicts between these principiological nature precept are justified, which the use of subsumption proves to be insufficient. Therefore, the technique of balancing approaches is seen as a viable alternative route of solving those conflicts on the way of proportionality, because it works as a method that restricts each of the fundamental rights involved to the smallest extent as possible, without leaving to effectuate the right in the other side, which’s become a primordial factor for the maintenance of the cohesion and unity of the biggest law. By the use of the balancing, which is not restricted to the sphere of the Judiciary, such rights may prevail in certain occasions, and in others not, looking, for their application, the peculiarities of the specific case in a more detailed way than usual, which is a paradigm shift in juridical interpretation with the advent of Neoconstitutionalism.