BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

It is important to draw attention to the fact that the term “principle” in Robert Alexy’s theory does not have the connotation that is very commonly attributed to doctrine, which qualifies it as a precept of greater abstraction or of greater importance than the law put, which is structural of the legal order or which serves as an interpretive guide. The theory of principles developed by Robert Alexy, as explained by Dantas and Dantas, 4 is based on the classification of the American philosopher Ronald Dworkin principles and rules as species of the norm gender, carried by a “logical-qualitative” criterion and axiologically neutral. Therefore, the idea that principle is something higher than the rule is removed. The norm of article 5, itemXXXIII, of the CRFB is a rule since it is not an optimization command, but a command that must be fulfilled in totum, except when it presents the exception itself envisaged. That is, the Administration has the duty to provide (and the private individual the right to receive) information of its own or collective interest, except in cases where the confidentiality of this information is indispensable for the security of the company or the State. From another angle, the collision between principles is resolved in a totally different way, without invalidating any of them. According to Virgílio Afonso da Silva, “what happens when two principles collide – that is – foreseeing incompatible legal consequences for the same act, fact or legal position – is the fixation of conditioned relations of precedence”. The solution is carried out by establishing in the concrete case which principle takes precedence over the other. No principle is invalidated and in a different factual situation the order of prevalence may be exactly the opposite. According to Alexy, “the purpose of this balancing is to define which of the interests – which are abstractly at the same level – has greater weight in the concrete case […]”. 5 This balancing is also carried out by the rule of proportionality, which is subdivided into three subrules: a) adequacy; b) necessity; c) proportionality in the strict sense. Another possibility of collision is between rule and principle, a theme that, according to Virgílio Afonso da Silva (2016), is very complex, but little explored in Alexy’s work. Emphasizing that resolving the collision between rule and principle by “balancing” implies denying the definition of rule as a norm that guarantees rights or imposes duties, as it could occur cases in which, in spite of being valid and applicable, it would have to be removed without losing its validity, in contradiction to the definition of something that is applicable in an “all or nothing” system. On the other hand, resolving the conflict on the plane of validity would admit that a principle, when contrasted with a rule, would have to be removed from the ordering, which is also inconsistent with the theoretical definition that the validity of a principle is not affected when its application is restricted by the application of another standard. According to the author of “Theory of Fundamental Rights”, in the event of a collision between rule and principle, an assessment must be made, not between the two, since the rule is not considerable, but between the principle in collision and the principle on which the rule is based, something that, according to Virgílio Afonso da Silva (2016), is also problematic, since 4 DANTAS, R. L.; DANTAS, D. C. L.: Theory of Principles and Weighting in Robert Alexy: Positions in Brazilian Doctrine . Public Law, Porto Alegre, v. 9, n. 51, Jun. 2013, pp. 108-130. 5 ALEXY, R.: Fundamental Rights Theory . 2 ed., São Paulo: Malheiros Editores, 2012, p. 94.

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