PROCEDURAL PROPORTIONALITY AND CIVIL JUSTICE: TIME OF CHANGES

Abstract

The principle of proportionality has been widely developed in Canada, the United Kingdom, Australia, New Zealand, and other countries as well. However, such principle has not been the subject of further study or regulation in Latin America. Its acclaim, development, adaptation and application in Latin American systems can be very useful to strengthen our Civil Justice. We will analyze in this work the context in which the idea of proportionality is developed, the conceptual framework of the principle, its practical applications (especially in the Canadian experience), its strengths and weaknesses, in order to generate inputs for the analysis of its eventual application in Latin America. The present study had two fundamental methodological contributions: on the one hand, an on-site analysis in Canada of the application of the principle of procedural proportionality by the judiciary and the legal profession (through interviews with judges, lawyers and lawyers) and, on the other hand, interviews with academics and doctrinal studies on the principle of proportionality, both in Canada and in other countries. It was concluded, in the end, that the use of the principle of proportionality requires a legal framework that establishes the bases of proportionality (it would be enough to have some rules added to our statutes that already regulate processes by hearing), judges committed to the role of analysis of cases, and lawyers who have incentives for a proportional and adaptable action to flexibility, adequate training, minimally rational resources and the application of management methodologies focused not only on efficiency (cost benefit), but also on the importance of case for the State Law and for the Society.