Reasonable disagreements and legislative discretion: A study based on the principles theory of constitutional rights

Abstract

This paper deals essentially with the relationship between fundamental rights, judicial review and the democratic principle in the context of so-called reasonable disagreements. The limits between legislative and judicial competence in the scope of the disagreements are problematized from a case judged by the Brazilian Federal Supreme Court that analysed the constitutionality of the crime of abortion based on a balancing inspired by the principles theory of constitutional rights, by Robert Alexy. It is argued in this paper that it is possible to seek balance in this relationship through the theory of principles and the recognition of a space of legislative discretion. To this end, some ideas of the principles theory, of the Alexy’s theory of the argumentative representation and of the public justification will be associated.