O CONTEÚDO PRESCRITIVO DO PRINCÍPIO DA DIGNIDADE HUMANA E O CONFLITO DE DIREITOS

Benilde Moreira

doi:10.53681/yvajzf21

Authors

Benilde Moreira Instituto Politécnico de Bragança Author

DOI:

https://doi.org/10.53681/yvajzf21

Keywords:

human dignity, conflict of rights, domestic violence, principle of proportionality

Abstract

The aim of this article is to present the criteria for densifying the principle of human dignity in cases of conflicts of rights. The problem is formulated through the normative discourse, regulating the principle of human dignity, and the discourse of practical application, resulting from the judicial decisions of higher courts, including the Constitutional Court. The analysis methodology is qualitative and uses a review of the literature and case law as a starting point for the theoretical conceptualization of human dignity, clarifying how its broad interpretation embraces the fundamental rights of citizens. Based on this conceptualization, we look at judicial decisions, reflecting on the argumentative criteria that shape the prescriptive content of human dignity. The situations analyzed refer to cases of domestic violence where it is possible to identify scenarios of conflicts of rights between the subjects, specifically those that concern the confrontation between the rights of the victim and the rights of the aggressor. For this research, it was important to understand the categories of statements justifying the judicial decision, highlighting formal and material aspects arising from the application of normative texts. It is claimed that normative interpretation, through the deductive and inductive legal method of decision-making, enables the delimitation of the prescriptive content of human dignity within the framework of conflicting rights, which in turn set different dynamics between legal principles and norms.

Author Biography

Benilde Moreira, Instituto Politécnico de Bragança

Benilde Moreira has a law degree of 5 years (1995), an internship at the Portuguese Bar Association (1997), postgraduate studies in European law (2004) and a PhD in law (2022). Her doctoral thesis deals with the gender perspective in judicial decision-making. Her thesis has the title of "Legal Argumentation or the Quest for the Holy Grail - A study on Portuguese judicial decisions in cases of domestic violence in intimate relationships". It obtained the classification of Sobresaliente Cum Laude. She is an Adjunct Professor at the Polytechnic Institute of Bragança teaching in the area of law, namely general principles of law, international law, social rights, law and ethics, and international relations. She has international teaching experience when she taught international economic law at the Federal State University of Santa Catarina. Her research activity began at Newcastle Law School in 2000, when she studied the concept of gender mainstreaming in the adoption of public policies for the public and private sectors. She has participated in activities related to the organisation of and participation in congresses, seminars and conferences. Her work has been published at various scientific events and published in ebooks and reviews. She participated in the Voices of Immigrant Woman project as a researcher. Forms of inclusion and integration of migrant women in higher education were studied, and the main difficulties and obstacles of the migration project were identified through the voice of the participating women. She was a collaborating researcher in the Transformative Schools project, which developed methodologies for interdisciplinary approaches from a gender equality perspective. Her interest in research covers the themes of public policies for gender equality, human rights, citizenship and education for development, migrations, and inclusion. Her perspective stems from an interdisciplinary approach to law, proposing that the neutrality of normative language should address the specific contextual differences between women and men which allows new forms of understanding about the substantive effect of law, application of public policies and new ways of conceiving public policies. She has published articles in the fields of law, gender equality and migration.