Advertisement

Borrowing Justification for Proportionality

On the Influence of the Principles Theory in Brazil

  • João Andrade Neto

Part of the Ius Gentium: Comparative Perspectives on Law and Justice book series (IUSGENT, volume 72)

Table of contents

  1. Front Matter
    Pages i-xiv
  2. João Andrade Neto
    Pages 1-32
  3. João Andrade Neto
    Pages 33-89
  4. João Andrade Neto
    Pages 91-142
  5. João Andrade Neto
    Pages 143-185
  6. João Andrade Neto
    Pages 187-232
  7. João Andrade Neto
    Pages 233-281
  8. João Andrade Neto
    Pages 283-326
  9. João Andrade Neto
    Pages 327-331
  10. Back Matter
    Pages 333-340

About this book

Introduction

The proportionality test, as proposed in Robert Alexy’s principles theory, is becoming commonplace in comparative constitutional studies. And yet, the question “are courts justified in borrowing proportionality?” has not been expressly put in many countries where judicial borrowings are a reality. This book sheds light on this question and examines the circumstances under which courts are authorized to borrow from alien legal sources to rule on constitutional cases.

Taking the Supreme Federal Court of Brazil – and its enthusiastic recourse to proportionality when interpreting the Federal Constitution – as a case study, the book investigates the normative reasons that could justify the court’s attitude and offers a comprehensive overview of its case law on controversial constitutional matters like abortion, same-sex union, racial quotas, and the right to public healthcare.

Providing a valuable resource for those interested in comparative constitutional law and legal theory, or curious about Brazilian constitutional law, this book questions the alleged universality of the proportionality test, challenges the premises of Alexy’s principles theory, and discloses more than 68 Brazilian Supreme Court decisions delivered from 2003 to 2018 that would otherwise have remained unknown to an English-speaking audience.

Keywords

Judicial Borrowing Principles Theory Constitutional Migration Robert Alexy Supreme Federal Court of Brazil Federal Constitutional Court of Germany Comparative Law Methods Fundamental Rights Structure Proportionality Test

Authors and affiliations

  • João Andrade Neto
    • 1
  1. 1.Pontifical Catholic University of Minas Gerais (PUC Minas)Belo HorizonteBrazil

Bibliographic information

  • DOI https://doi.org/10.1007/978-3-030-02263-1
  • Copyright Information Springer Nature Switzerland AG 2018
  • Publisher Name Springer, Cham
  • eBook Packages Law and Criminology
  • Print ISBN 978-3-030-02262-4
  • Online ISBN 978-3-030-02263-1
  • Series Print ISSN 1534-6781
  • Series Online ISSN 2214-9902
  • Buy this book on publisher's site