The principles of proportionality and reasonableness direct the application of the legal system so that it meets the specific situation in an adequate and proportional way.
The principles of proportionality and reasonableness ensure consistency between the application and the purpose of the law, guaranteeing its fair use. For this reason, the principles are also called principle of prohibition of excess.
The principles of proportionality and reasonableness are considered general principles of law and therefore apply to all areas. However, as they have a more recurrent application in the scope of public administration, they are more studied in administrative law.
With regard to public administration, the principles of proportionality and reasonableness are implicit in the Federal Constitution and expressly provided for in article 2 of Law No. 9,784/99, which regulates the administrative process in federal scope:
The Public Administration will obey, among others, the principles of legality, purpose, motivation, reasonableness, proportionality, morality, ample defense, contradictory, legal certainty, public interest and efficiency.
By public administration is meant the three powers (executive, legislative and judiciary) in all federal spheres, as well as indirect public administration entities (municipalities, foundations, public companies and mixed capital companies). In summary, any entity that carries out state activity must act in accordance with the principles of proportionality and reasonableness.
Is there a difference between the principles of proportionality and reasonableness?
There is no consensus in doctrine and jurisprudence on the differences between the principles of proportionality and reasonableness.
Much of the doctrine and jurisprudence treats the principles as synonymous, considering that the two terms convey the same idea of adequacy. This joint vision of the principles does not affect the understanding or application of the institutes.
There are authors who draw technical differences between the principles of proportionality and reasonableness. This aspect is also adopted by the jurisprudence. According to her, while proportionality consists of University graduate of the measure (prohibition of excess), the reasonableness takes into account analyzes of:
Adequacy: compatibility between the adopted measure and the specific case.
Necessity: enforceability of the measure given the situation.
The most obvious difference between the principles of proportionality and reasonableness is the origin. While proportionality originated in German law, reasonableness emerged in Anglo-Saxon law.
Examples of application of the principles of proportionality and reasonableness
As they are general principles, proportionality and reasonableness can be applied in all branches of law. Some examples are:
Administrative law: a health surveillance agent inspects a supermarket and finds two packages of rice that have expired for a day. Among the penalties applicable to the case, the agent applies the most serious and interdicts the establishment for 30 days. In this case, the supermarket owner can appeal the decision invoking the principles of reasonableness and proportionality.
criminal law: in criminal law, considering that the judge must follow the rules of dosimetry of the penalty, the principles of reasonableness and proportionality are more aimed at the legislator, who at the time of definition of the penalty must maintain consistency with the legal interest protected. Thus, a light crime against property should have no greater penalty than a crime against life.
labor law: in labor law, the principles of proportionality and reasonableness are manifested, for example, in cases of dismissal for just cause. The legal system provides that, for the application of such a severe penalty, the occurrence of serious misconduct is necessary. Thus, there must be proportionality between the employee's conduct and the employer's decision.
See too:
- Principles of public administration
- Constitutional principles