Fundamental social rights are not pinciples. A critique of the reception of Robert Alexy’s theory of principles in Brazil

Abstract

The present study is critically concerned with the reception of Robert Alexy‘s theory of principles as a model of dogma-tics for fundamental social rights in Brazil. For that, some of the fundamental characteristics of this theory of principles will be presented in its context of creation, namely, the German Law, trying to identify the problems with which it is concerned and the possible solutions it presents to such problems. In a second moment, it will be demonstrated that the contextual differences between Germany and Brazil, from the point of view of positive constitutional law, make the Alexyan model inadequate to think about the Brazilian question of fundamental social rights. It is, in methodological terms, a comparative study between German and Brazilian constitutional Laws, with emphasis on the difference in terms of positivization between the two constitutions in the scope of fundamental rights and, thus, the question about the adequacy between method (model of dogmatic) and object (positive Law).