Exclusões diretas ou automáticas de condutas, ações e posições do suporte fático dos direitos fundamentais: limites e possibilidades

Abstract

The delimitation of the scope of fundamental rights, particularly those construed as principles, constitutes a persistent challenge in contemporary legal dogmatics, often confined to the complexities of balancing. This thesis aims to propose an autonomous theory concerning the direct or automatic exclusion of conducts, actions, and positions from the factual basis of fundamental rights. The central hypothesis is that, contrary to perspectives demanding balancing as an initial and unavoidable step, such exclusion can be effected at stages prior to the collision of principles: either through the exegesis of normative statements or at the instant of incidence between raw facts and the abstract factual basis, preceding the very constitution of the legal fact and, consequently, the requirement for any balancing. Through critical analysis and paradigmatic examples – such as the purported professional freedom of a bank robber, the act of homicide in a theatrical setting, or the concept of the 'reborn baby' – it is demonstrated that the intrinsic nature of the conduct or object can, prima facie, preclude its inclusion within the core of fundamental rights protection. The research concludes that legislative instruments criminalising specific actions (e.g., racism) inherently embed a pre-existing legislative balancing, thus operating as categorical exclusions from the guarantee scope of rights like freedom of expression. Furthermore, the imperative of reasoned justification is reaffirmed as universally binding upon all legal practitioners, irrespective of their theoretical adherence.