Proportionality in disenchantment: a problem about the signified of principle

Abstract

The article aims to demonstrate a problem of receiving the designation of proportionality as a legal principle due to the semantic confusion of the use of the word principle in Portuguese. As a methodological path, this work begins with the contextualization of the problem of receiving foreign theories in Brazil in the post-1988 scenario and how the narrative established by the constitutional doctrine of effectiveness carries out unfounded criticisms of legal positivism. Such rhetoric by principles generated an enchantment in the use of principles in the practice of courts that end up generating uncertainties about the applicability of rights. Finally, it is shown that designating proportionality, especially from Robert Alexy, as a principle, causes some confusion in the recipient of ideas, which feeds fetishism by principles in Brazil.