Concluding Remarks

Abstract

This chapter reiterates the main conclusions of the study. Recourse to foreign legal materials is prima facie prohibited because courts are not entrusted with authority to draw conclusions from legal sources that were not democratically accredited by the people on behalf of whom judges decide. So, inasmuch as the Brazilian Supreme Court (like other constitutional courts) have borrowed the proportionality test, the reasons for doing so must be sufficient to overweight the democratic objection. In order to be sufficient, justification must articulate system-dependent reasons, offered by the system of destination, and system-independent reasons, offered by a general theory in favour of migration. In the case of Brazil, system-dependent reasons are given, but none has endogenously developed there—the Brazilian Supreme Court forced changes into the local legal system to make proportionality cohere. This example contradicts Alexy’s strong thesis, according to which proportionality is logically derived from the structure of principles. An alternative reason offered by the weak theses was proven insufficient. Only the moderate thesis offers adequate and sufficient justification for borrowing the test. This leads to that the worldwide spread of proportionality is not necessary, but the result of choices made by local constitutional framers and interpreters.