Reflections on the application of principles and rules in the decision-making process of The Superior Electoral Court

Abstract

The purpose of this article is to examine, from the assumptions of the Theory of Fundamental Rights and the Theory of Legal Argumentation, the role of the rules and principles existing in the Brazilian legal system, especially with regard to the process of argumentation of decisions of the Court Electoral Superior (TSE) involving fundamental rights. The research problem is how the possibilities and limits of rationality in judgments dealing with such postulates in this Specialized Justice are externalized. The path taken in this explanation has as its starting point the analysis of two Consultations formulated with the TSE that involved the application of principles from the perspective of the selected theoretical assumptions. In short, we evaluate Robert Alexy’s “Theory of Legal Argument” and “Theory of Fundamental Rights,” as well as Ronald Dworkin’s thoughts on “The Rule of Law” and “A Matter of Principle”. This is a bibliographical and qualitative research. From the judgments examined, it is concluded that, in the resolution of conflicts related to the application of fundamental legal principles, the TSE uses elements based on the theory of Alexy and Dworkin, such as weighting, weighting, conditioned precedence, among others. These elements are intended to give to the proposed questions a rational solution whose support is projected at times on the prevalence of the principles of human dignity and on gender equality, sometimes on the principle of immutability of the name.