A intervenção estatal e a liberdade contratual: uma investigação acerca da ponderação de princípios na ordem econômica constitucional

Abstract

The current study is aimed at investigating the conflict of principles involved in private initiative and State policies, in economy. The interpretation of constitucional rules will be used as method to express the contractual liberty based on the willingness autonomy as a fundamental right. By seeking a socialization of contractual theory through the use of State interventionism, which assures justice and contractual balancing in a consumption society, the free initiative is treated not only theoretically, but under a practical base as a fundamental principle from the Federative Republic of Brazil and as an expression of social interest. The inquiry focuses on the fact that Brazilian Federal Constitution does not present an harmonic coexistence between capitalistic and social interests. Thus, the common judicial interpretation that consists in exclusion of a principle for the benefit of another will be proved useless. The aim of this essay is strongly the goods balancing, which is the contractual liberty counterbalancing the social interest. Moreover, not always it will be possible to realize compatible principles; Sometimes, it will be imperative to sacrifice one good to preserve other. On this interpretative activity, the research sustainment base will also find reinforcement in the private law constitutionalism, in the suppression of the dichotomy between public law and private law and, finally, in the ponderation of economic principles. The answer to all the problematic demonstrated will appear in each case, leading to restricting and balancing of principles, all founded in the predomination of the human being dignity, which is our starting point. Still, the theory of Robert Alexy will be used as theoretical base to investigate the constitutional “principles foundation” from its normative character, where the basic rights have character of principles. By considering the interpretation forms of basic rights, the proportionality is pointed as an instrument of balancing. The proportionality entailing to the constitutional rules will occur by means of basic rights, what will offer limitation criteria to the contractual liberty. Finally, the proportionality demands an existence of a legitimate constitutional note for a state intervention in the economic liberty. Therefore, a harmless instrument suitability must be selected in order to keep a balance between intervention transcendence and acquired utility, that is, a proportionality between means and ends.