On the application of the principle of proportionality by higher courts: how they resolve conflicts involving the collision between a fundamental right of first dimension and a fundamental right of second dimension

Abstract

Although every human right can be absolutely affirmed, fundamental rights cannot be completely protected, because the public resources used for the effective protection of one somehow prevents from protecting the other. There it is the importance of balancing and proportionality to promote protection to rights that are equally valid and therefore should be protected with same public resources. The content of fundamental rights is generally borrowed from the content of human rights and are identified as rights of first and second generation (also known as individual and social rights). At same time it is affirmed that second generation rights have same validity of first generation's, these ones have stronger protection, something that is contrary to the thesis by which both kind of rights should receive equal or balanced protection. This research intends to identify how Brazilian higher courts solve disputes involving a conflict between a first generation right and a second generation right. Methodology developed in this research is inductive and descriptive, focusing on bibliographic review and analysis of STF and STJ collegiate decisions (research terms: public policies and social rights; fundamental rights, conflict and proportionality). (AU)