Borrowing Justification for Proportionality

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.


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Ius Gentium: Comparative Perspectives on Law and Justice 72

João Andrade Neto

Borrowing Justification for Proportionality On the Influence of the Principles Theory in Brazil

Ius Gentium: Comparative Perspectives on Law and Justice Volume 72

Series editors Mortimer Sellers, University of Baltimore James Maxeiner, University of Baltimore Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L. Carey Miller, University of Aberdeen Loussia P. Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E. Hickey Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande do Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël A. Moens, Curtin University Raul C. Pangalangan, University of the Philippines Ricardo Leite Pinto, Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Economics Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, Erasmus University Rotterdam

More information about this series at http://www.springer.com/series/7888

João Andrade Neto

Borrowing Justification for Proportionality On the Influence of the Principles Theory in Brazil

123

João Andrade Neto Padre Arnaldo Janssen Faculty of Law Belo Horizonte, Minas Gerais, Brazil and Pontifical Catholic University of Minas Gerais (PUC Minas) Belo Horizonte, Minas Gerais, Brazil

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-02262-4 ISBN 978-3-030-02263-1 (eBook) https://doi.org/10.1007/978-3-030-02263-1 Library of Congress Control Number: 2018957254 © Springer Nature Switzerland AG 2018 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To the memory of my grandmother, Ana Cléria.

Foreword

Constitutional ideas migrate, and the proportionality test is an excellent example for such a process. In the emerging discipline of international constitutional law, few problems have raised as much interest as the proportionality test. Given both its pervasiveness in the world’s most developed jurisdictions and the number and severity of theoretical problems it still poses, the importance of progress in its analytical understanding can hardly be overestimated. As for proportionality’s migration across the globe, the important question arises whether and how this migration could be justified, in both theoretical and more practical terms. In light of the disparity of the institutional arrangements and constitutional settings worldwide, the universality claim raised by the principles-theoretical variant of the proportionality test poses pressing questions. The present book takes issue with these and a number of related problems that are of high relevance and complexity. It originates from a doctoral study that I had the pleasure of supervising as its main mentor, and it is hence the first English representative of the “grandchild generation” of Alexy’s principles theory. I am truly delighted to see it in print. Joao Andrade Neto’s book is the first study ever that addresses the influence of proportionality in Brazil in a systematic and analytic manner. The book can be characterized by two major achievements: First, it includes highly interesting reflective discussions of some problems in comparative constitutional law, as far as they are relevant to this study, which move far beyond the principles theory and provide fresh and controversial input to the field. Second, the study does challenge Alexy’s account on proportionality in certain respects and elaborates a well-founded and distinct standpoint that clearly contrasts with the current understanding of most principles theory scholars. Graz November 2018

Matthias Klatt

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Acknowledgements

There are a number of institutions and people I would like to acknowledge for all the help during my writing. My supervisors were a source of inestimable advice. Professor Matthias Klatt has welcomed and encouraged the project since the very beginning. He gently gave my thoughts meticulous consideration and offered his expert guidance on intricate issues raised by the principles theory. Professor Karl-Heinz Ladeur was extremely kind and solicitous. I appreciated the many pleasant talks we had about German and Brazilian case law and legal theory. Other professors also made valuable contribution to my research. In particular, I would like to thank Professors Stefan Oeter, Tilman Repgen, and Hans Heinrich-Trute, members of the governing board of the Albrecht Mendelssohn Barthody Graduate School of Law (AMBSL). I am deeply grateful to have been admitted to the first class of the AMBSL program at the Universität Hamburg (UHH) and for having been granted a scholarship that enabled me to work on this project for three years. I would also like to extend my sincere thanks to all the staff at the UHH. In particular, Eike Westermann, Jan Hövermann, and Ta-Som Yun, members of the AMBSL coordination team, Claudia Zavala, member of the department of doctoral studies of the Faculty of Law, and Andreas Knobelsdorf, law librarian, for their attentiveness and helpfulness. I was fortunate in attracting generous people who devoted time and attention to hear my ideas, read my texts, and offer critical comments: Tilman Quarch and Jan Peter Schmidt, from the Latin America Unit of the Max Planck Institute for Comparative and International Private Law, and my classmates Aydın Atılgan, Christoph Fitting, Martyna Kryžiūtė-Gineitienė, Plarent Ruka, Victor Ventura, and Xenophon Kontargyris. Other kind colleagues whose help was truly appreciated are Annalisa Morticelli, Çilem Simsek, Fuluk Liu, Julian Nowag, Philipp Siedenburg, and Shino Ibold. I can gladly say to have made some good friends among these. I have been lucky to find support from fellow Brazilians. My parents João and Gracinda, and my sisters, Juliana and Júnia, have always been a source of love and strength. Gustavo Silveira Siqueira has been a supportive friend and an inspiration

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in the academic life. My co-workers Roberta Gresta, Lara Ferreira, and Diogo Cruvinel have shared with me more than their precious thoughts. I am also grateful to Felipe Motta, Ivens Hübert, Emília Castro, Mariana Keppen, Thêmis Aragão, Filipe Corrêa, Daniele Vieira, Fábio Gosi, Gabriela Heckler, and Mariana Carpes, whom I met in Germany and have the privilege to call friends; to the members of the Grupo de Discussão sobre Temas Brasileiros (GDTB), and especially to the coordinators Ana Tereza Quintão and Cristina Francisco; to my dear friend Adriano Gomes for advice on the final English version and Felipe Balotin (B3C Int.) for the dedication and perfectionism with the proofreading. I dedicate a final and special acknowledgment to some of my foreign colleagues who became very good friends and were the main responsible for making me feel at home even while living abroad. A warm thanks to Sarah Bachmann for having opened the doors of Germany to me. And finally, my dear Adriana Pereira Arteaga, Matthias Packeiser, Nora Rzadkowski, Sezgi Sözen, Simon Kaulich, and Pipitsa Kousoula, thank you for the inestimable time we spent together. You had an impact on every page of this book.

Contents

1 Introduction . . . . . . . . . . . . . . . 1.1 Terminological Remarks . . . 1.2 Methodological Remarks . . . 1.3 A Further Contribution . . . . 1.4 Judicial Borrowings . . . . . . 1.5 The Problem of Justification 1.6 Reasons for Borrowing . . . . 1.7 Sources . . . . . . . . . . . . . . . 1.8 Structure . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . .

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2 On the Migration of Proportionality . . . . . . . . . . . . . . . . . . . . 2.1 Germany: The System of Origin . . . . . . . . . . . . . . . . . . . . 2.1.1 First Phase: Origins of Proportionality . . . . . . . . . . 2.1.2 Second Phase: Proportionality and Constitutional Decision-Making . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 Third Phase: Consolidation and Expansion . . . . . . . 2.2 Explaining the Migration of Proportionality . . . . . . . . . . . . 2.2.1 Functionalist Explanations . . . . . . . . . . . . . . . . . . . 2.2.2 Contextualist Explanations . . . . . . . . . . . . . . . . . . . 2.2.3 Naturalistic Explanations . . . . . . . . . . . . . . . . . . . . 2.3 Brazil: The System of Destination . . . . . . . . . . . . . . . . . . . 2.3.1 The Openness of Brazilian Interpretative Practice . . 2.3.2 The Ellwanger Case (2003) . . . . . . . . . . . . . . . . . . 2.3.3 Peculiarities of the STF’s Structure and Functioning 2.4 Justifying the Borrowings of Proportionality . . . . . . . . . . . 2.4.1 Weak Thesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Strong Thesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Moderate Thesis . . . . . . . . . . . . . . . . . . . . . . . . . .

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2.5 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4 A System of Rules and Principles . . . . . . . . . . . . . . . . . . . . . . . . 4.1 A Genealogy of the Distinction Between Rules and Principles 4.1.1 Legal Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 The Case Law of the BVerfG . . . . . . . . . . . . . . . . . . . 4.2 Principles According to the Principles Theory . . . . . . . . . . . . 4.2.1 The Dual Nature of Ought . . . . . . . . . . . . . . . . . . . . . 4.2.2 The Collision Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 The Optimization Thesis . . . . . . . . . . . . . . . . . . . . . . 4.2.4 The Law of Balancing . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5 Dworkin’s Alternative Model . . . . . . . . . . . . . . . . . . . 4.3 Principles in the STF’s Case Law . . . . . . . . . . . . . . . . . . . . . 4.3.1 The Additional Pay Case (2006) . . . . . . . . . . . . . . . . . 4.3.2 The Judicature Act Case (2007) . . . . . . . . . . . . . . . . . 4.3.3 The New Municipalities Cases (2007) . . . . . . . . . . . . . 4.3.4 The São Francisco River Case (2008) . . . . . . . . . . . . 4.3.5 The Judges Recruitment Cases I and II (2011) . . . . . . 4.3.6 The Chico Mendes Institute Case (2012) . . . . . . . . . . . 4.3.7 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3 The Principles-Theory Variant of Proportionality . . . . 3.1 Proportionality(-ies)? . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 A Disagreement over Phraseology . . . . . . . . 3.1.2 A Genuine Conceptual Controversy . . . . . . . 3.1.3 A Concept of Proportionality . . . . . . . . . . . . 3.2 Proportionality in the Principles Theory . . . . . . . . . . 3.2.1 The Structure of Proportionality . . . . . . . . . . 3.2.2 The Weight Formula . . . . . . . . . . . . . . . . . . 3.2.3 Proportionality and Justification . . . . . . . . . . 3.3 Proportionality in the STF’s Case Law . . . . . . . . . . 3.3.1 The Ineligibility Act Case (2008) . . . . . . . . . 3.3.2 The Arrested Defaulter Cases (2008) . . . . . . 3.3.3 The Pre-Trial-Detention Cases (2009) . . . . . 3.3.4 The Paternity Test Case (2011) . . . . . . . . . . 3.3.5 The Abortion Case (2016) . . . . . . . . . . . . . . 3.3.6 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Judging Under the Principles-Theory Influence . . . . . 3.4.1 Balancing Reconstructed . . . . . . . . . . . . . . . 3.4.2 Meeting Criticism . . . . . . . . . . . . . . . . . . . . 3.4.3 A Place for Proportionality in Brazilian Law . 3.5 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4.4 A Case Law on Principles as Optimization Requirements . . . . 4.4.1 Judging Under the Optimization Thesis . . . . . . . . . . . . 4.4.2 Principles as Optimization Requirements in the Federal Constitution? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5 A Charter of Rights with Wide Scope . . . . . . . . . . . . . . . . . . 5.1 A Dispute About Fundamental Rights and Their Limits . . . 5.1.1 Formal Approaches . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Substantive Approaches . . . . . . . . . . . . . . . . . . . . . 5.2 The Principles-Theory Approach to Rights . . . . . . . . . . . . . 5.2.1 A Theory of Rights with Wide Scope . . . . . . . . . . . 5.2.2 The Trump Model: An Alternative Approach . . . . . 5.2.3 Equality as a Fundamental Right with Wide Scope . 5.3 Wide-Scope Rights in the STF’s Case Law . . . . . . . . . . . . 5.3.1 The Public Pension Reform Cases (2004) . . . . . . . . 5.3.2 The University Placement Case (2004) . . . . . . . . . . 5.3.3 The Heinous Crimes Act Cases (2005 and 2006) . . . 5.3.4 The Opening Ceremony Case (2006) . . . . . . . . . . . 5.3.5 The Social Organizations Case (2007) . . . . . . . . . . 5.3.6 The Ex-Governors’ Pension Case (2007) . . . . . . . . 5.3.7 The Bidding Law Cases (2007) . . . . . . . . . . . . . . . 5.3.8 The Journalism Degree Case (2009) . . . . . . . . . . . . 5.3.9 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Borrowing a Particular Conception of Wide-Scope Rights . . 5.4.1 Wide-Scope Rights to Freedom and Equality in the Federal Constitution . . . . . . . . . . . . . . . . . . . 5.4.2 Unwritten Limits to Rights in the Scholarly Debate . 5.4.3 ‘No Absolute Rights’ in Case Law . . . . . . . . . . . . . 5.5 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6 A Constitutional Court Looking for Justification . . . . . . . . . 6.1 Constitutional Review and Separation of Powers . . . . . . . 6.1.1 Formal Aspects of the New Constitutionalism . . . . 6.1.2 Substantive Aspects . . . . . . . . . . . . . . . . . . . . . . . 6.2 Constitutional Review According to the Principles Theory 6.2.1 A Theory of Judicial Discretion . . . . . . . . . . . . . . 6.2.2 The Legitimacy Challenge . . . . . . . . . . . . . . . . . . 6.3 STF’s Case Law on Constitutional Review . . . . . . . . . . . 6.3.1 The Disarming Act Case I (2007) . . . . . . . . . . . . . 6.3.2 The Stem Cells Case (2007) . . . . . . . . . . . . . . . . . 6.3.3 The Political Satire Case (2010) . . . . . . . . . . . . .

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6.3.4 The Disarming Act Cases II, III, and IV (2012) . 6.3.5 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 The Principles-Theory Influence on the STF’s Self-understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 The Duty to Guard the Constitution . . . . . . . . . 6.4.2 The Duty to Enhance the Effectiveness of Fundamental Rights . . . . . . . . . . . . . . . . . . . 6.4.3 The Duty of Justification . . . . . . . . . . . . . . . . . 6.5 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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7 A Final Argument in Favour of Proportionality . . . . . . . . . . . . 7.1 Rights to Positive State Action According to the Principles Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.1 Rights to Something . . . . . . . . . . . . . . . . . . . . . . . . 7.1.2 Positive Rights and Proportionality . . . . . . . . . . . . . . 7.2 Rights to Positive State Action in the STF’s Case Law . . . . . 7.2.1 The Expropriation Procedure Case (2003) . . . . . . . . 7.2.2 The Press Law Case (2009) . . . . . . . . . . . . . . . . . . . 7.2.3 The Same-Sex Union Cases (2011) . . . . . . . . . . . . . . 7.2.4 The Prosecutors’ Investigative Power Case (2003) . . 7.2.5 The Healthcare Cases (2010) . . . . . . . . . . . . . . . . . . 7.2.6 Other Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Borrowing the Principles-Theory Account of Positive Rights 7.3.1 An Inconsistent Case Law on Protective and Procedure Rights . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Landmark Court Decisions on Social Rights . . . . . . . 7.3.3 System-Dependent Reasons for Borrowing . . . . . . . . 7.3.4 A Final Remark on System-Independent Reasons . . . 7.4 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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8 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

Chapter 1

Introduction

Courts of many countries have resorted to foreign legal materials when deciding upon hard constitutional cases, but few have actually faced the question of whether they are justified in doing so. Consider the case of the proportionality test. Proportionality has originated in Germany, where it has performed a central role in the adjudication of disputes concerning fundamental rights. From the case law of the Federal Constitutional Court (Bundesverfassungsgericht—hereinafter, BVerfG), the test departed for a worldwide migration.1 Courts in countries such as Canada,2 South Africa,3 New Zealand,4 Australia,5 United Kingdom,6 Israel,7 Portugal,8 Spain,9 Colombia,10 Peru,11 and Mexico12 have decided constitutional cases by resort to proportionality. Studies also list Brazil among the documented ports of destination for the test.13 And

1 See

Sweet and Mathews (2008), p. 73; Barak (2012), pp. 181–211; Webber (2009), pp. 55–86; Perju (2012a), pp. 334–335; Jestaedt (2012), pp. 152–153; de Búrca (1993), pp. 105–150; Cohn (2010), pp. 583–586; Grimm (2007), pp. 387–397; Harbo (2010), pp. 171–185; Pulido (2013), pp. 483–515; Schlink (2011), pp. 296–298. 2 For instance, Supreme Court (Can.), R. v. Oakes, (1986) 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., (1986) 2 S.C.R. 713; and R. v. Keegstra, (1990) 3 S.C.R. 697. 3 The landmark is S. v. Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.). 4 Taggart (2008), p. 423 ff.; Butler (2002), p. 569 ff. 5 Kirk (1997), p. 1 ff. 6 Craig (1999), p. 85 ff.; Feldman (1999), p. 117 ff.; Hoffmann (1999), p. 107 ff. 7 See e.g., HCJ 2056/04 Beit Sourik Village Council v. the Government of Israel, (2004) IsrSC 58(5) (Isr.). 8 Leão (2001), p. 1000 ff.; Silva (2013), pp. 25–31. 9 Pulido (2007), pp. 197–214; Barnes (1998), pp. 15–49. 10 Espinosa (2007), pp. 269–315; Conesa (2008), pp. 5–10. 11 Castro (2010), pp. 337–376; Pulido (2010), pp. 321–336. 12 Gil (2010), pp. 217–256; Conesa (2008), pp. 10–15. © Springer Nature Switzerland AG 2018 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_1

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1 Introduction

yet, it may come as a surprise to some comparatists that the term ‘proportionality’ does not appear in the Brazilian Federal Constitution (Constituição da República Federativa do Brasil de 1988). Nor is there a clause permitting legislative limits on constitutional rights to the extent that the essential core of these rights is not violated. This is what Article 19 (1) (2) of the Basic Law of Germany reads,14 and the BVerfG has referred proportionality to these paragraphs.15 The notable absence of specific constitutional provisions in the Federal Constitution contrasts with the repeated references to proportionality in the case law of the Supreme Federal Court of Brazil (Supremo Tribunal Federal—hereinafter, STF). Judgements by resort to the test amount to over one hundred.16 The STF has welcomed foreign legal materials in general and proportionality in particular. Nonetheless, whether its attitude is justified has not been openly discussed. This book calls into question the judicial practice of having recourse to foreign materials. The appropriation of proportionality by the STF is selected as a case study. The STF consists of eleven Justices and is responsible, essentially, for safeguarding the Federal Constitution of Brazil. The court is a paradigm of an unreflected attitude towards borrowing. A comparison with its equivalents in other countries is illustrative. STF’s openness to foreign case law and legal theories contrasts with the BVerfG’s selectiveness and U.S. Supreme Court’s resistance, for example.17 In fact, such receptiveness to and enthusiasm for foreign materials are also seen beyond courts’ bench in Brazil. Local scholars have dedicated an extensive body of literature to what is most times called the proportionality principle (princípio da proporcionalidade, in Portuguese). Proportionality and related terms, particularly balancing (sopesamento or ponderação), are now part of the specialized vocabulary legal students are expected to know in order to graduate in Brazil. Balancing actually acquired legal status in Brazil after the new Code of Civil Procedure, enacted in 2015, expressly provided for this sub-test as an adjudicative method for solving collisions between legal norms.18 Academics and judges are nevertheless aware that these are not indigenous concepts to Brazilian law—these elements have not endogenously developed within that legal system. Quite the opposite, the success of proportionality on the other side of the South 13 Benvindo (2010), p. 111; de Morais (2016); da Silva (2001), p. 23 ff.; (2010), pp. 521–523; (2006),

p. 43 ff.; de Castro (1989); Freire (2007), p. 9 ff.; Mendes (1994), p. 469 ff.; (2001), p. 4 ff. 14 Grundgesetz für die Bundesrepublik Deutschland, Article 19 (1) and (2): “Under this Basic Law,

a basic right may be restricted by or pursuant to a law … In no case may the essence of a basic right be affected.” All references in English to the Basic Law (Grundgesetz) are taken from https:// www.btg-bestellservice.de/pdf/80201000.pdf, unless it is indicated otherwise. 15 See for instance, BVerfG, Divorce Records Case, 27 BVerfGE 344, Judgment of 15 January 1970. Notably, the BVerfG has also referred proportionality to the Rechtsstaatsprinzip, the equivalent to the rule of law in Germany. See Chap. 3 for more in this respect. 16 de Morais (2016). 17 See Daly (2014), p. 7, for more on STF’s ‘openness’ to foreign legal materials; Choudhry (1999), p. 830, on the U.S. Supreme Court’s resistance. 18 Lei 13.105, de 16 de março de 2015. Código de Processo Civil. D.O.U., 17 mar. 2015, Article 489, Paragraph 2 (my translation): “In the case of a collision between norms, the judge must justify the subject and general criteria of balancing, stating the reasons that allow for interference with the norm that was set aside and the factual assumptions that substantiate her conclusion.”

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3

Atlantic is mostly due to its foreign origins. Its popularity can be largely explained by the good reputation German legal theorists have among Brazilian lawyers. Not coincidentally, it is a common thought in Brazil that proportionality and balancing are the product of German legal theory. Robert Alexy is frequently reputed to have coined the terms that courts would later appropriate. In reality, what happened was the opposite. Alexy took these concepts from the BVerfG’s case law. He clearly contributed for their global acceptance, but by referring these terms to attractive conceptions and embedding apparently incompatible ideas in an influential doctrine, for which he is fairly renowned worldwide.19 As a consequence, while in Germany Alexy is famed as the founder of a specific school of thought, and the application of proportionality (Verhältnismäßigkeit) in constitutional adjudication is known to be the result of BVerfG’s ingeniousness,20 in Brazil the test is not dissociable from his name. Hereinafter I shall refer to Alexy’s thought as the principles theory, which by no means should suggest that only his theses on constitutional principles are considered below. I actually subscribe to the view that his works form a system in which the concept of principles does occupy a central position but does not hold valid without other essential concepts.21 Considering this, I shall refer to Alexy’s account of proportionality as the principles-theory variant. So the purpose of this book can be formulated as follows: to inquire into the migration of the principles-theory variant of proportionality to the STF’s case law, and call into question whether this borrowing is justifiable. In fact, as anticipated above, Brazilian scholarship has dedicated many works to proportionality during the last decades, and particularly to STF’s appropriation of the test.22 Yet, this piece of research differs from those and other comparative studies on constitutional borrowings and migrations due to both its purpose and methodology. There is an ongoing debate in comparative law about the external influence of constitutional courts’ case law,23 judicial references to foreign legal materials in general,24 and the proportionality test in particular.25 But most scholars simply engage in descriptive enterprises and seek for no more than explanation as to why proportionality has migrated from Germany to other countries. However accurate is the 19 According to Jestaedt (2012), p. 152, for example, proportionality is “an export triumph of German

jurisprudence … in the version propounded by Robert Alexy.” Jestaedt refers to a ‘Kiel School’ that found support among authors like Klatt and Meister (2012), Borowski (2011), Sieckmann (1994). 20 Haltern (1996), pp. 2–4; Grabitz (1973), pp. 569–570; Schlink (2011), pp. 294–296. 21 See also Klatt (2012), pp. 1–26; Kumm (2004), p. 595; Pavlakos (2007), p. 1. 22 See e.g. Baracho Júnior (2003), pp. 917–918; Costa (2008), pp. 20–234, pp. 248–253; Vojvodic (2012), pp. 110–111; de Barros (1996), pp. 85–94; Barroso (1998), pp. 75–77; Barroso and de Barcellos (2008), pp. 362–363; de Barcellos (2006), pp. 49–118; Martins (2003), pp. 17–45; Mendes (1994), pp. 469–475; (2001), pp. 1–25; da Silva (2001), pp. 23–50; (2005a), pp. 175–177; (2009), p. 617; (2011), pp. 365–373; de Souza Neto (2005), pp. 207–227. 23 Harding (2003), p. 424; L’Heureux-Dube (1998), pp. 21–23; da Silva (2010), p. 518; Slaughter (1999); (2003). 24 Markesinis and Fedtke (2005), p. 17. 25 Kennedy (2002), pp. 674–678, for instance, describes it as the “third globalization.”

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description and convincing the explanation, any work of this type will necessarily fall short from the very beginning if the task is to answer whether borrowing is permitted. Courts ought to justify why they appropriate foreign legal materials because a general rule of legal argumentation reads, ‘premises that cannot be derived directly from authoritative law are to be justified.’26 By authoritative law I mean past decisions made by officers the people have accredited, whether directly, by means of elections, or indirectly, through constitutional and legislative provisions, in any case approved and put into effect by representatives of that same people. These decisions include legislative, judicial, and executive materials. In these terms, democracy poses a serious objection against judicial recourse to foreign law. The democratic principle holds that courts are not entrusted with authority to draw conclusions from legal sources that were not accredited by the people on behalf of which judges decide. Neither comparatists nor constitutional theorists have successfully tackled these and other normative issues that migrations raise.27 It is not to say that normative studies on judicial borrowings are non-existent.28 Brazilian scholars have showed particular concern about the correctness of proportionality application and how accurate have been the references to the principles theory in STF’s case law.29 And correctness is undoubtedly a normative issue. But then the fact that proportionality is not an endogenous element of the Brazilian legal system has received only scant attention in this type of inquiry, if it has been considered at all. Judicial borrowings have not found a proper space in Brazilian legal theory yet. And acknowledging that proportionality migrated from Germany has implications on the assessment of its use that a scholar should not undervalue. Firstly, as it generally happens when constitutional migrations are concerned, judicial appropriation of a foreign material does not occur without adaptation.30 It is not realistic to expect that, in the system of destination, a borrowed element will exhibit exactly the same properties or produce the same outcomes it did in the 26 The

rule as mentioned in the text rephrases Alexy (2010b), pp. 228, 230.

27 See Alford (2004), p. 641, arguing that the uncommonness of this type of inquiry is noticeable in

the field of constitutional theory; and Choudhry (2011), p. 16, indicating that normative constitutional theorists have not dedicated much effort in examining “how the migration of constitutional ideas figures into their narratives.” C.f. Waldron (2005), pp. 129–130, calling for a theory of law that is “broad enough to explain the use of foreign law in all appropriate cases.” 28 See for instance, Annus (2004); Choudhry (1999); Dammann (2002), pp. 540, 551–559; Drobnig (1999); Glenn (1987); Kommers (1976), p. 688; Koopmans (1996); Smits (2006), p. 536. Renarkably, the German scholar H¨aberle (1989) has been acclaimed as “the most prominent contemporary constitutional expert to promote comparative law as an … interpretative method.” (Markesinis (2003), p. 109). However, non-normative approaches are by far prevalent in comparative constitutional law, which led a comparatist like McWhinney (1986), v, to proclaim, “we are all, in measure, sociologists of law today.” Although it would be a mistake to reduce to legal sociology the inquiry all comparatists conduct, the image of a sociologist captures the gist of non-normative methods, as it ordinarily suggests the systematic search for relations of causality in order to explain social facts. 29 See for instance, de Morais (2016); da Silva (2001), pp. 32–41. 30 Spamann (2009), p. 43. See Wise (1990), speaking of ‘modification’; Sapir (1916), p. 32, on ‘assimilatory modification’; Frankenberg (2010), p. 575, on ‘recontextualization’; Watson (2000), p. 28, on ‘subsequent development.’

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5

system of origin. This does not necessarily point to misappropriation or misuse. It simply demonstrates that any borrowed element must accommodate to the system of destination. Secondly, treating proportionality as a borrowed element brings about questions that are also related to correctness, but anterior to any possible problem in application. These questions are about the conditions under which judicial borrowing is permitted and recourse to proportionality is normatively possible. These are the questions this study struggles with. Therefore, its contribution to Brazilian debates over proportionality derives exactly from the emphasis on the test’s foreign origins and demands for normative justification, two indissociable aspects that courts and academics have nevertheless overlooked.

1.1 Terminological Remarks Some remarks on terminology are needed. A dispute over the term that best depicts constitutional borrowings has dragged comparatists into what has been appropriately defined as a “battle of metaphors.”31 Adaptation, bricolage, cross-fertilization, engagement, influence, inspiration, irritation, mutation, reception, transfer, transmission, and transplants are examples of terms legal comparatists often use.32 The terminological struggle not always bears on genuinely conceptual controversies and is frequently a matter of pure phraseology. In fact, choosing a term matters, but all metaphors are somehow misleading, and none of them is fully satisfactory. Hereinafter, I will make use of the term ‘migration’ to refer to the moving of the proportionality test and other constitutional experiences from a parochial context to other countries, and ‘judicial borrowing’ as denoting the recourse courts have to proportionality and other foreign legal materials. I nevertheless concede that this choice is not free from objections. Comparative-law scholars like Choudhry,33 da Silva,34 and Walker35 argue for ‘migration’ as the adequate term to account for the transit of constitutional ideas among countries. It replaces ‘transplant’, the word Watson used in his seminal work.36 While ‘transplant’ suggests the moving of a well-defined element, e.g. a rule, statute, or institution, from one legal system to another, ‘migration’ better designates the voluntary transfer of intangible elements between legal cultures, such as experiences,

31 Perju

(2012a, b), p. 1306. Cf. Tohidipur (2013), defending the relevance of this debate. (1998); Bell (1998); Frankenberg (2013); Horwitz (2009); Kumm (2006), pp. 278–281; Kokott (1999); Saunders (2011); Schauer (2000), p. 21; Scheppele (2003), p. 297; Smits (2006), p. 525; Spamann (2009), p. 43; Spector (2008), pp. 130–132; Teubner (1998), p. 12; Tushnet (1999), p. 1229; Watson (1974); (1996); (2000). 33 Choudhry (2011), pp. 21–23. 34 da Silva (2010), pp. 518–519. 35 Walker (2010), p. 4. 36 Watson (1974), p. 21. 32 Allison

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ideas, and theories.37 It is a “destination oriented” term38 that turns attention to the fact that legal ideas received elsewhere after crossing national borders are subject to cultural adaptation.39 Much of the received content is reinterpreted according to different parameters, and while some of it is lost in translation, new meaning is always gained.40 Other comparatists like Perju41 and Rosenkrantz42 prefer ‘borrowing’, which seemingly became the dominant metaphor in comparative constitutional law after the most influent journal on the matter set the seal on the term.43 The meaning assigned to the term is also much broader than that of ‘transplant’ in Watson’s classical definition. ‘Borrowing’ indicates not only the transfer of norms and institutions, but also “constitutional influences of various kinds that cross jurisdictional borders,” including “transplants and adaptations, acknowledged or not, at any stage in the making of a constitutional system or in its subsequent development and use.”44 I am aware that these terms also create some difficulties. To begin with, the word ‘migration’ ordinarily describes the movement of living beings, connotes sentience or personification, and thus suggests that elements of a legal culture could move by themselves to another country, as people do. The term emphasises the transfer, but throws shadow on the participation of the recipient courts, which voluntarily look for answers to domestic questions in foreign legal systems. Furthermore, it should be used with the proviso that it is an “ecumenical concept,” which discloses a few properties of the phenomenon it names.45 ‘Borrowing’ is not free from objections either. Firstly, it suggests a voluntary, consented exchange between equals, each aware of lending or borrowing, respectively. Secondly, it implies that the borrowed good can return without modifications to its original owner after a period of time.46 Yet, judicial borrowings feature neither the consent nor the possibility of return that the common use of the word implies.47 A property that one can however retain from the common meaning of the word and apply to comparative studies of constitutions is the active aspect of borrowing: it depends much on the attitude of the borrower, who takes something from a foreign legal culture. In any case, the alternatives that comparative constitutional theorists suggest bring other problems. And the danger of misinterpretation that these metaphors pose should 37 da

Silva (2005b), p. 520. (2010), p. 330. 39 Choudhry (2011), pp. 21–22. 40 Hoffman (1990), p. 175; Wise (1990), p. 17; Watson (2000), p. 2. 41 Perju (2012b), pp. 1306–1307. 42 Rosenkrantz (2003), p. 270. 43 As Choudhry (2011), p. 20, observes, the International Journal of Constitutional Law (ICON) dedicated a symposium to ‘constitutional borrowings’. 44 Friedman and Saunders (2003), p. 177. 45 Walker (2010), p. 320. 46 Perju (2012b), p. 1307. 47 Scheppele (2003), pp. 296–301. 38 Walker

1.1 Terminological Remarks

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not be exaggerated. It is therefore advisable not to take this terminological choice too seriously. On balance, both ‘migration’ and ‘borrowing’ are more fluid metaphors meant to capture the increasing complexity of cross-constitutional influences and highlight the discursive role played by foreign legal materials in indigenous legal systems.48 Two further remarks are needed. Firstly, the phrase ‘judicial borrowing’ is sometimes narrowly used as a synonym for borrowing case law only. And that is so because foreign courts’ opinions on constitutional matters are the main source of material for judges who seek for inspiration when they find themselves before a hard case.49 Nevertheless, in this book, I use judicial borrowing to emphasize the subject who borrows (judges and courts), rather than the object borrowed (case law). In this broader sense, the expression designates the referrals a constitutional court makes to all kinds of alien sources: certainly the jurisprudence from other national or supranational courts, but also foreign constitutions, statutes, and legal scholarly writings.50 Secondly, the term ‘methodology’ and its equivalents, such as ‘method’ or ‘approach,’ appear in the literature on comparative constitutional law with two very different meanings, sometimes indistinctly in the same work and very often without notice. Methodology in comparative constitutional law may refer to the way either officers deal with foreign constitutional law, or scholars conduce their inquiries into the borrowings made by those officers.51 In the former case, comparatists are, for example, judges who make use of comparative methods for borrowing;52 in the latter, comparatists are the academics that employ comparative methods for studying constitutional migrations.53 The ‘methodology’ and ‘method’ discussed within this book is that devised by constitutional comparative scholars to analyse judicial borrowings. Therefore, hereinafter ‘comparatists’ will indicate academics that aim at achieving an accurate account of why courts incorporate elements from foreign legal systems into judicial reasoning.

1.2 Methodological Remarks In what respects comparative constitutional law, this book shall contribute to the understanding of constitutional borrowings and migrations in two different ways: firstly, by studying judicial borrowings as a normative phenomenon; and secondly, by attempting to reconcile universalism and particularism, undoing a dichotomy that has long divided comparative law. To begin with the normative approach of 48 Perju

(2012b), p. 1308; Choudhry (2011), pp. 22–23; Cohn (2010), p. 585. (1996), pp. 545, 549; Annus (2004), p. 314. 50 Drobnig (1999), p. 4; Kommers (1976), p. 685; Vogenauer (2006), pp. 892–896. 51 Rosenfeld (2012), p. 39. For an overview of comparative law methods, see Siems (2014); Adams et al. (2017). 52 See e.g., Markesinis and Fedtke (2005), p. 15; Tushnet (1999), p. 1228. 53 See in this respect, Jackson (2012), p. 54; Hirschl (2006), pp. 40–47. 49 Koopmans

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borrowings and migrations, the concept of normativity is as controversial as it is important to legal theory. Without delving deep into the controversy, I posit that normative arguments (or conclusions about what ought to be) cannot logically follow from factual arguments (or premises about what is).54 I hope that most readers can agree with this premise, for the separation between factual and normative reasons is central to the argument developed below. This essay is not a piece of research in the field of legal sociology, nor does it aim at contributing to the development of a legal realist theory on constitutional borrowings. This is not due to its subject, but rather because of the way the subject is approached. To ask whether a constitutional court can legitimately decide difficult cases by resort to foreign legal material is to quest after justification. One must advance justifying reasons to answer whether it is legally permitted, prohibited, or commanded for decision-makers to have recourse to comparative constitutional law. This is a normative question by nature and, as such, can only be answered by someone who puts herself within the legal system and tries to make sense of it from inside. The decisive factors, which in the end distinguish this research from sociological or realist ones, is that it focuses on the context of justification, inquiries into justifying reasons, and adopts the participant’s perspective.55 The first methodological refinement to consider is that, for analytical reasons, one may group the phenomena that are somehow involved with adjudication as pertaining to three contexts: justification, explanation, and deliberation.56 The context of deliberation refers to the moment of decision properly speaking, when the judge “discovers” or “finds” the legal answer for the case she has before her. The context of explanation refers to the factors that can explain how a judge came to a certain conclusion instead of another. Possible explanations range from the moral and religious beliefs of a decision-maker57 to whether she decided before or after a food break, 54 Hume (2000), p. 302, is reputedly the first to have made a case on the problematic transition from

‘is’ to ‘ought.’ Grounded in Hume’s Law, as the proposition is known, the normative thesis on the nature of law is supported by Kelsen (1970), especially Chap. 1, Hart (1994), pp. 10–13, Dworkin (2011), p. 17, and Alexy (2010b), footnote 19 at 6, for instance. Nonetheless, it is questioned by others, remarkably by authors from the legal realism school. See in this respect Green (2005), pp. 1917–2000. 55 I discussed these methodological choices in depth in Andrade Neto (2016a, b). Comparative-law methods have been deemed as normative due to the object of the inquiry, rather than the procedure academics follow or the results they aim at achieving. Most commonly, the term captures the attitude of judges that engage in borrowing rather than the methods academics use to study judicial borrowings—although they are meant to designate the latter. See for instance, Choudhry (1999), p. 828; Smits (2006), p. 525. By contrast, I submit that normative are only those approaches to judicial borrowing adopted by scholars that place themselves in the perspective of a participant to advance justifying reasons for the borrowing or assess the correctness of the justifying reasons explicitly advanced or tacitly assumed by courts. In this sense, normative approaches have not received sufficient attention from comparative constitutional scholars yet, despite the extensive literature already dedicated to judicial borrowings. 56 Baier (1966), Chap. 6. See also Atienza (2003), pp. 20–23; Golding (1986); (2001), pp. 2–6; Lenman (2011); de Paula (2016); Wasserstrom (1972), pp. 26–27. 57 Milligan (2006), pp. 1231–1240.

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for example.58 They also include the kind of legal training she had and particular constraints of the judiciary organization to which she is submitted.59 However relevant these explanations may be, and they are indeed, they are not admitted in legal argumentation as reasons apt to justify a judicial ruling. In judicial decision-making, relevant is the context of justification. For as Atienza correctly observed, courts “do not have to explain their decisions; what they must do is to justify them.”60 And a judge justifies her decision by advancing reasoning, that is, giving reasons in support of her claim that a certain ruling (embedded on a particular interpretation of the law) is legally correct. The second methodological remark is the distinction between explanatory and justificatory reasons.61 Explanatory reasons are the causal conditions that explain “why a certain event has occurred or why a certain state of affairs exists.”62 Justifying reasons, by contrast, are “the reasons for asserting a given judgement or statement to be true or correct.”63 Historical, psychological, and sociological approaches to borrowings are mainly concerned with explanatory reasons, even when their subject is the reasoning of courts. They ask “about the manner in which a decision or conclusion was reached” and are interested in relations of natural causality, that is, the “factors that led to or produced the conclusion.”64 Very different is the case of legal theorists that inquire “whether a given decision or conclusion is justifiable.”65 They regard judicial reasoning as grounded not in subjective states of mind like beliefs, but in norms, the existence of which is relatively independent of the judge. Studies of this type, like the one conduced here, must necessary set forth justificatory reasons for their conclusions.66 Finally, there is a third refinement to add when discussing the methods I employ in this book. It regards the choice of perspectives, or from which point of view one sees legal phenomena in general and judicial borrowings in particular. On the one hand, a scholar can examine a judicial decision from outside, as a social or political fact. On the other hand, a scholar can deal with a judicial decision from inside, figuratively placing herself in the position of someone who takes part in legal argumentation. These two methodological approaches correspond to the traditional distinction that legal theorists have made between participant’s perspective and observer’s 58 Danziger

et al. (2011), p. 6889. (2011), pp. 58–62. 60 Atienza (2003), p. 20 (my translation). 61 Alexy (2010b), p. 228; Atienza (2003), p. 20; Dammann (2002), p. 518; Golding (1986), p. 136; (2001), pp. 3–6; Wasserstrom (1972), pp. 25–30. 62 Golding (2001), p. 3. 63 Ibid., p. 4. 64 Wasserstrom (1972), p. 25. 65 Ibid., p. 25. 66 The context of justification can be the object of either descriptive or prescriptive studies, or even a study in which both description and prescription are employed. That judicial reasoning can be approached either way indicates that the distinction between explanation and justification is not coincidental with that between description and prescription. I have discussed this in detail elsewhere. See Andrade Neto (2016b), pp. 882–884. 59 Vidmar

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perspective.67 Distinctive of the methodological perspective of a participant is the aptitude to claim that something is legally commanded, prohibited, or permitted. The possibility to make such statements implies the aptitude to accept, challenge, or reject similar claims made by other participants, as well as to engage in an argumentative dispute about the correct meaning of normative propositions.68 It may not be too much to emphasize that ‘participant’ and ‘observer’ are not meant to designate real persons; these terms are metaphors that stand for different methodological perspectives or ways to approach legal phenomena. This carries implications for comparative constitutional law and the study being. It advances the possibility of adopting the internal point of view without being a member of the legal system under analysis. As the participant’s perspective places the scholar in the position of a judge, it allows one to assess the borrowing ‘from inside,’ so to say. Furthermore, it permits us to overcome an objection that might be addressed to the use of this methodological refinement in researching on comparative constitutional law. This objection holds that someone that is an outsider to a legal system—which is the case of the constitutional comparatist that is not a member of the legal communities under comparison—cannot answer as a participant the normative questions posed by that system.69 Yet, once ‘member’ and ‘participant’ are taken as non-synonymous terms, no theoretic objection remains in using the participant’s perspective to approach comparative constitutional law. The main question I raise in this book, whether there is justification for a particular constitutional court to decide cases with recourse to a foreign legal material, can only be answered from the perspective of a participant in the debate about what the law correctly understood commands, prohibits, or permits. From the participant’s perspective, explanations for borrowing do not (and ought not to) suffice. None of this prevents the use of explanatory reasons wherever they are needed.70 It nevertheless suffices for characterizing my approach as normative. Moreover, it allows me to make a further assumption. A judge who decides a case by resort to foreign law 67 Alexy

(2010c), pp. 35–81; Dworkin (1986), p. 14; Hart (1994), p. 56; MacCormick (1994), pp. 289–291; Raz (2002), pp. 158–159; Weber (1978), pp. 311–312. The idea that comparatists should reflect upon whether to adopt the outer perspective or the inner perspective, which I reconstruct in the text as a choice between the observer’s and the participant’s perspectives, already appeared in Samuel (2014), Chap. 3. 68 Alexy (2007), pp. 45–46; Alexy (2013), p. 9. 69 Raz (2007), p. 23. 70 To engage in a normative inquiry does not necessary mean to dispose of any method that is non-normative. Non-normative approaches can actually be valuable tools, although auxiliary, in as much as the task of answering to a normative question determines their usage, and not the contrary. In particular, a normative inquiry does not exclude or prevent description. Rather the opposite, it is quite impossible to formulate any accurate answer to the question of ‘what ought to be?’ in a certain legal system without understanding how that legal system really works, that is, how decisions that participants regard as authoritative are produced. In doing so, one has to take some descriptive steps, as an observer would do. The participant’s perspective has to appropriate some of the observer’s descriptions and subordinate them to the goals the scholar wants to reach in her normative enterprise. This conclusion can be extracted from the famous debate between Alexy (2013), p. 8, and Bulygin (2013), p. 6.

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must believe that borrowing is justifiable—definitively permitted in that case. The alternative—to admit that courts deliberately engage in borrowing although they are convinced that this is prohibited—contradicts the claim to correctness that is implicit in every judicial decision.71

1.3 A Further Contribution A second contribution this book makes consists in its attempt to reconcile universalism and particularism, undoing a dichotomy that has long divided comparative law. While universalists are enthusiasts of borrowings, particularists say that, strictly speaking, migrations are not even possible.72 In contrast with the latter, I shall claim that borrowings and migrations are a fact. Courts do quote foreign legal material when deciding on constitutional matters. This does not mean that the correct reaction to them is enthusiastic endorsement. A more sober attitude of reflexion and selectiveness is expected from constitutional Justices. Furthermore, this book opposes a premise on which universalist accounts are frequently based. It challenges the understanding shared by many legal theorists that legal concepts are universal and applicable everywhere. Legal concepts formulated in a legal system may really be applicable elsewhere, I posit, but only if the normative conditions that provide for their logical correctness are met. Chapter 2 will discuss this in detail, but I anticipate now that, in law, a proposition like ‘A is conceptually necessary’ presupposes another proposition like ‘B is normatively necessary.’ That is, the former only holds true if the latter holds valid. What follows is that an answer to the question of whether the STF is justified in borrowing the principles-theory variant of proportionality depends on whether the appropriate normative conditions are given in Brazil. The normative conditions for proportionality in the principles theory are the optimization thesis, the wide-scope conception of rights, and the idea of argumentative representation. Each will be explained in a chapter below. For now, it should be anticipated that these three conditions make proportionality conceptually necessary, Alexy postulates.73 Were they universal, so would proportionality be. Admittedly, to think of the principles theory as a theory on the universality of proportionality is not obvious. Alexy has confessedly oriented his seminal work towards analysing the fundamental rights provisions in the Basic Law and justifying the case law of the BVerfG.74 Notwithstanding his more parochial goals, proportionality has been exported to many countries in Europe and abroad, in each case more or less associated to his theory.75

71 Alexy

(2010c), p. 85.

72 For a famous objection to the very possibility of legal migrations, see Legrand (1997), pp. 111–124. 73 Alexy

(2010b), p. 24. (2010a), p. 6. See also Rivers (2010), xvii; Allan (2012), p. 132. 75 Davis (2007), pp. 181–206. 74 Alexy

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Given this scenario, it is reasonable to assume that the normative conditions under which proportionality is necessary are widespread; but there is no evidence of their universality. On the contrary, I shall claim that constitutional framers and interpreters have important choices to make. Constitutional principles do not have to be conceived of as optimization requirements. Alternative theories exist that agree with the principles theory on that principles are norms, and nevertheless deny the optimization thesis. Additionally, in the U.S., constitutional rights are not treated as wide-scope rights that can be limited to the extent that their core is not violated. Despite some myth surrounding American exceptionalism, the principles-theory variant of proportionality has not found fertile soil to grow in the U.S.76 Finally, while many constitutional courts have assimilated the culture of justification developed after World War II,77 the idea that judges represent the people in legal argumentation is far from ubiquitous. Courts have found very particular solutions for the challenges posed by democratic transitions after authoritarian regimes.78 And it is highly disputable that one could assess from outside, without considering the peculiarities of a given legal system, whether a particular attitude towards judicial review, separation of powers, and fundamental rights is justified or ought to be abandoned.

1.4 Judicial Borrowings The influence of foreign law on other countries’ constitutionalism extends to all phases of the constitutional life cycle, from the process of framing a constitution to its later interpretation.79 But this book is not concerned with constitutional migrations and borrowings in general. Rather, it examines a specific type of migration and borrowing: the export of proportionality—and the principles theory in which it is embedded—from Germany to other countries and its use as an adjudicative method by constitutional courts elsewhere—particularly in Brazil. The migrations under analysis here have peculiar properties and invite for specific classification. The borrowings are voluntary, as neither the BVerfG’s case law nor German jurisprudence are binding on the STF, and the court can only rely on the discursive properties of the legal materials its Justices borrow from German law. In fact, judicial referrals to foreign legal material may also be necessary, although the voluntary type remarkably prevails in comparative law.80 Borrowings are necessary where courts are textually commanded to apply or at least consider foreign law, whether comparative or international. In this unusual situation, alien legal sources have binding authority over national officers. The South African Constitution offers 76 Gardbaum

(2008), p. 419. and Porat (2011), pp. 463–467. 78 Ginsburg (2012), pp. 18–30. 79 Choudhry (2011), p. 13. 80 See Jackson (2005), p. 113; and Drobnig (1999), pp. 6–17, on necessary and voluntary recourses to foreign law. 77 Cohen-Eliya

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13

the most peculiar example, as Section 39 (1) (c) states that, “when interpreting the Bill of Rights, a court … may consider foreign law.”81 But that is not the case in Brazil. The STF, as many other constitutional courts, has some discretion in the choice of legal sources, which characterizes its borrowings as voluntary. The Federal Constitution does not command Brazilian Justices to have recourse to foreign law. Therefore, in the set of decisions collected for this study, the STF was by no means obliged to draw solutions and arguments from foreign case law or literature—the main foreign materials cited in the selected cases. This leads to the second characteristic of voluntary borrowings: for being nonbinding extra-national sources of law, their authority is grounded on the discursive qualities the quoted legal materials possess. Whether the extra-national elements are concrete—i.e. authoritative material, such as constitutional clauses, statutory law, and judicial decisions—or abstract—i.e. legal theories, concepts, and ideas—, they are not received as authoritative. Their institutional hierarchy and normative force in the system of origin do not determine the properties they will exhibit within the system of destination; nor do they bind indigenous authorities. What attracts judges’ attention is the discursive force foreign material may have, that is, their persuasive power.82 In a sense, all voluntary judicial borrowings are thus argumentative. Judges that opt to resort to foreign legal experiences do so by virtue of the argumentative properties the borrowed material show rather than due to its authoritativeness or another formal attribute. But in detail, borrowings may play two very different roles in legal argumentation. On the one hand, courts can borrow from foreign material an obiter dictum, an incidental remark, which is not essential to the ruling and plays an accessory or decorative role in legal argumentation. This kind of borrowing can be called nonargumentative in the narrow sense because it may contribute to the acceptance and social efficacy of decisions, and this is often the case, but without aiming at rational persuasion. On the other hand, it is sometimes the case that courts borrow foreign material that is seen as a sound and compelling argument. Judges can use these borrowings as inspiration for a ruling, which is the conclusion of legal reasoning, or as ratio decidendi, which is the reasoning that provides justification for an original solution. In these cases, even if the borrowings are not central to the decision, they are argumentative in the narrow sense and, by their very nature, aim at rationally persuading an audience.83 In fact, not all types of reasons are admitted in support of judicial decisions; only legal arguments are—or should be. Distinctive of a legal 81 Constitution

of the Republic of South Africa, Act 108 of 1996, s. 39 (1) (c). (2004), p. 315, illustrates this by observing that “courts do not refer to a foreign case as having precedential authority,” for example. For more on the persuasive nature of judicial borrowings, see da Silva (2010), p. 520; Glenn (1987), p. 261; Markesinis and Fedtke (2005), pp. 16–19; Rosenkrantz (2003), pp. 286–288; Koopmans (1996), p. 550. 83 Instead of argumentative and non-argumentative borrowings in the narrow sense, Annus (2004), p. 312, refers to ‘hard’ and ‘soft’ uses of foreign material in judicial decision-making, respectively. In both cases, the separation is based on the premise that there is “a difference between what constitutes a good legal argument and what makes a decision useful in relation to the strategic goals the court or individual justice might pursue outside of legal analysis.” 82 Annus

14

1 Introduction

argument is “its relationship with valid law, however this is to be determined.”84 Thus, to say that foreign material can be admitted in justification for judicial decisions is to claim that comparative law may be a source of legal reasons that are valid within parochial legal argumentation.85 These reasons may have been explicitly stated in the opinion or need to be assumed so that judicial reasoning makes sense. In either event, it is a mistake to confuse with arbitrariness the discretion courts have in cases of voluntary borrowings.86 From the fact that judges are not explicitly commanded to have recourse to comparative legal material does not follow that the court carries no responsibility in justifying the use it makes. It is actually the opposite. Decision-makers have to put forward especially convincing reasons for judgments if their premises cannot be directly drawn from any constitutional or statutory clause.87 Where the constitution explicitly and undoubtedly makes it obligatory to apply foreign legal material, a court does not have to offer any justification other than the valid constitutional command for relying on extra-national sources. The court’s legitimacy is however challenged, and as a consequence, Justices bear a special duty of justification if it is not clear whether borrowing is definitively obligatory, permitted, or prohibited, and relevant arguments for and against migration exist. This idea is essential to this book. The STF is prima facie allowed to borrow from foreign legal cultures, for there is no impeding clause in the Federal Constitution. But this conclusion is not definitive. After considering everything, judges can have three possible attitudes before comparative law. They may either resist the influence (resistance); be critical and selective and only engage in borrowing after considering the peculiarities of their own legal culture (selective approval); or deliberately set the course of their case law towards convergence with an international community or a widespread legal practice (convergence or enthusiasm).88 The U.S. Supreme Court exemplifies the attitude of resistance to foreign legal materials.89 In Stanford v. Kentucky (1989), the court denied that sentencing practices of other countries were relevant to determine whether imposing capital punishment on a juvenile constituted a cruel and unusual punishment under the U.S. Constitution.90 Nonetheless, except maybe for the U.S., the general attitude of judges towards judicial 84 Alexy

(2010b), p. 212. as Alexy (2010c), p. 73, noticed, “from the participant’s perspective, the reasons taken into account in … the procedure of making a decision and justifying it … belong to the procedure and thereby to the legal system.” 86 Glenn (1987), p. 264. 87 Alexy (2010b), p. 228. 88 Reference is made here to the three ways how courts deal with comparative law according to Jackson (2005), pp. 112–113: the resistance model, the engagement model, and the convergence model, respectively. 89 Choudhry (1999), p. 830. The “resistance model” is also known as “legal particularism,” “legal hegemony,” or “refusal to use comparative jurisprudence.” See Ackerman (1997), pp. 772–773, criticizing the U.S. attitude of “indifference” and referring to it as “provincialism;” and Jackson (1999), p. 583, affirming that American resistance is “ambivalent.” Cf. Schauer (1993), p. 880; and Rosenkrantz (2003), pp. 290–295, both urging courts to resist migrations. 90 Stanford v. Kentucky, Judgment of 1989, 492 U.S. 361. For an analysis of the case, see Tushnet (1999), pp. 1230–1231; Dammann (2002), pp. 528–532. It is noteworthy that in Roper v. Simmons, 85 For

1.4 Judicial Borrowings

15

borrowings varies between selective approval and enthusiasm, whether or not they admit it openly.91 In Germany, the BVerfG sometimes makes reference to the case law of alien courts and the works of legal comparatists, as in the Abortion Case I (1975) e.g., where the minority cited the U.S. Supreme Court’s decision in Roe v. Wade (1973).92 Strikingly, references to foreign material in German case law do not happen frequently enough to classify the court’s attitude as that of convergence.93 By contrast, the latter attitude prevails in the Brazilian constitutional case law. The STF systematically borrows from foreign legal sources, either authoritative or scholarly material, and although exact numbers for comparison are lacking, evidence suggests that Brazilian Justices do it more frequently than their European counterparts.94 To make it clear, judicial ‘attitude’ is not taken as a mental or psychological state here; rather, it points to a normative reason behind the subjective frame of mind that leads to a certain behaviour. If judicial recourse to foreign material amounts to more than window dressing, the relatively common use of borrowings in case law, despite the inexistence of any permissive allowance in the authoritative material, raises a question about justifiability. The STF’s case law exemplifies the attitude of convergence and enthusiasm. It is therefore pertinent to inquire whether there is implicit or explicit justification for such a general openness—or at least no resistance—to extra-national legal influence.

1.5 The Problem of Justification Normally, in civil-law countries, courts advance justifying reasons for their decisions by pointing out a statutory clause that explicitly makes it obligatory to act in a way instead of another. However, in difficult cases such clauses are not available, or it is doubtful what they really command. Where premises cannot be directly drawn from the authoritative legal material, courts have to advance especially convincing reasons Judgment of 2005, 543 U.S. 551, the U.S. Supreme Court overruled Stanford v. Kentucky. See in this respect Perju (2005), p. 464. Nonetheless, according to Waldron (2005), p. 129, “one of the frustrating things about Roper … is that no one on the Court bothered to articulate a general theory of the citation and authority of foreign law.” 91 Markesinis and Fedtke (2005), pp. 25–76; Choudhry (1999), p. 830. 92 BVerfG, Abortion Case I, 39 BVerfGE 1, Judgment of 25 February 1975. Cf. Roe v. Wade, Judgment of 1973, 410 U.S. 113. For more on the role that comparative law has played in German law in general, see Markesinis (2003), pp. 107–120; Kommers and Miller (2012), p. 74. 93 According to Mössner (1974), pp. 228–242, the BVerfG referred to foreign material in 24 decisions delivered until 1974. More recently, Cárdenas Paulsen (2009), counted 59 decisions from 1951 to 2007 with quotations to foreign courts. Markesinis (2003), p. 107, says that the number of citations of legal comparatists in the case-law of the BVerfG is ‘surprising low’ considering that Germany is “known for its willingness to cite academic works even in judgments.” 94 da Silva (2010), pp. 528–529, e.g., found 80 references to the U.S. Supreme Court and 58 to the BVerfG in the case law of the STF until 2010. For more on the STF’s practice of quoting to comparative law, see Cardoso (2010), pp. 475–478; Daly (2014), p. 2.

16

1 Introduction

for their rulings. Applied to constitutional migrations, this can be read as follows. Where judicial borrowings are voluntary, which is normally the case, courts can derive no duty or permission to borrow from any explicit clause in the constitution. This lack of an authoritative provision that is applicable to the case leads to a special problem of justification. The court of destination bears an extra argumentative burden if it is not clear whether borrowing is definitively obligatory, prohibited, or permitted, and relevant arguments exist for and against judges having recourse to comparative legal material. To this point, three parts of the argumentation as developed here may need clarification: firstly, what one may expect of such a special duty of justification; secondly, why the special duty of justification applies to judicial borrowings of nonauthoritative materials like proportionality; and thirdly, how something can be legally commanded, permitted, or prohibited if no legal clause explicitly commands, permits, or prohibits anything. Firstly, one must not expect too much from the duty of justification. Although it is desirable that courts state explicitly in their opinions all the normative premises that support their decisions, judges not always do so. It is often the case that relevant arguments are disclosed while others are assumed, and it comes as no surprise if decision-makers were actually not aware of all premises underlying their conclusions. Even when that is the case, a decision may be however justifiable since the line of legal argument that pointed to the result can be reconstructed and its tacit assumptions exposed.95 That is of special importance where constitutional migrations are concerned, for in many jurisdictions and most cases, courts’ opinions do not expose the justifying reasons on which the judicial borrowings can be grounded. These borrowings may nonetheless be justified once they are demonstrated to be non-prohibited. In what follows, a complete answer to the question, ‘was the appropriation of foreign legal material permitted?,’ depends essentially on the justifiability of the judicial borrowings at hand.96 One can extract two conclusions from the fact that the justifiability of judicial decisions is not entirely coincidental with the explicit justification judges put forward for a ruling. First, a comparatist interested in assessing the legitimacy of judicial borrowings should not circumscribe the inquiry to the analysis of the justifying reasons that courts have expressly exposed on their reasoning. Second, the same comparatist is correct in assuming that, as justification presupposes justifiability, a judge who decides by resort to foreign law must believe that borrowing is justifiable—definitively obligatory or permitted in that case. The alternative—to admit that courts deliberately engage in borrowing although they are convinced that this is prohibited—seems absurd. A judge who had recourse to foreign sources in spite of knowing that doing so is legally prohibited would “violate rules of positive law that

95 On the reconstruction of judicial arguments so as to expose tacit assumptions, see Golding (2001),

p. 3. 96 See

Alexy (1992), pp. 240–241, explaining the relation between justifiability and duty of justification; and Alexy (1989), p. 180; (2010c), p. 78, demonstrating that “the claim to correctness implies a claim to justifiability.”

1.5 The Problem of Justification

17

… obligate her to interpret prevailing law correctly.”97 Her attitude would give rise to a performative contradiction; the decisions she rendered would contradict the claim that “the law is being correctly applied,” which, as Alexy demonstrates, is implicit in every single judicial decision.98 Secondly, another issue to clarify is why and how the duty to justification applies to judicial borrowings of non-authoritative materials, such as proportionality. A constitutional court would rarely have to justify why it applies a constitutional clause or a statutory provision pertaining to its own jurisdiction, for these are authoritative sources. And the same happens with international and transnational laws that are expressly admitted as part of the legal system and are consequently binding on judges. Courts are commanded to enforce them, and that is actually the very reason for the existence of a judicial branch. Yet, with remarkable exceptions, judicial borrowings are prima facie voluntary. Since comparative law is not normally binding on parochial courts, there remains a special burden of justification for those who borrow from them.99 This conclusion is valid for either type of legal materials, whether they were authoritative in their system of origin or not. Judges ought to justify why they have recourse to foreign statutes, constitutional clauses, or case law—i.e., originally authoritative legal material. This is understandable, for appealing to the parochial equivalents of these sources can be usually justified “by showing that [they] meet the criteria of validity of the legal order.”100 A judge may personally not agree with a constitutional clause or statutory disposition; notwithstanding, she ought to apply the clause or disposition provided that it is a valid provision of her legal system. Such logic is not applicable to legal migrations. The rationale does not run when authoritative materials are applied in another system, for legal validity is not transferable. Therefore, their admission as premises of legal reasoning ought to be justified.101 In fact, a legal material, say a rule, is no longer ‘legal’ after it is borrowed, for it loses its ‘ruleness’ once it is taken from the system of origin.102 The meaning a legal proposition had for the participants within the original legal system from where it was taken is relatively dependent on, but not coincidental with its text. That being, 97 Alexy

(2010c), p. 38. p. 39. 99 Choudhry (2006), pp. 3, 8. 100 Alexy (2010b), p. 230. 101 Ibid., p. 230. 102 Legrand (1997), pp. 117–120, originally formulated this idea as a strong objection to the very possibility of legal transplants. Similarly, Hoffman (1990), p. 175, claims that, “you can’t transport human meanings whole from one culture to another any more than you can transliterate a text.” These objections can only hold true if taken with a large pinch of salt. Authors like Drobnig (1999), p. 13; Daly (2014), pp. 1–16; Gargarella (2013); Deak (1933), p. 357; Wieacker (1990), p. 5; and Kleinheisterkamp (2006), pp. 261–301, show that legal migrations actually respond for a major part of law development in South American countries. So one who denies that borrowings are possible would have to propose an alternative, satisfactory explanation for the European and North American traits found in those legal systems, which has not been done yet. Thus, I can only agree with Legrand and Hoffman if their criticism is taken as a warning against unrealistic expectations about what is a successful migration. 98 Ibid.,

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1 Introduction

meaning escapes transplantation. As the normative status a clause had within the donor system is part of its legal meaning, it cannot be borrowed. The normative status it possessed remains structurally linked to the relational position the clause bore within the donor system. Whether or not it will acquire a normative status within the receiver system is an issue that depends on inherent features of this system, and not on the previous meaning and authority the proposition had elsewhere. A question that remains is whether the situation is significantly different when judges borrow foreign materials that held no authoritative force in their systems of origins.103 Non-authoritative materials are, for instance, legal scholarship and methods. Particularly the means that courts use or devise to extract the meaning of authoritative texts, as well as other adjudicative tools and canons of interpretation are not necessarily established by law.104 They actually owe much of their development to schools of jurisprudence more than to legislation.105 Moreover, they are legally relevant due to their persuasive power, that is, the force they have as compelling arguments. And exactly because interpretative methods play an essential role in legal argumentation without however being directly drawn from the wording of the authoritative legal sources, judges ought to advance justification for why they solved a case by resort to non-authoritative foreign materials. Altogether, “courts are obliged to justify their interpretive methodologies,” notably the borrowed ones, insofar as they are under the more general “obligation to engage in a process of justification for their own decisions.”106 As a consequence, the migrations of originally authoritative and non-authoritative materials are only apparently different. In fact, they are governed by the same rule of legal argumentation that reads, ‘premises that cannot be derived directly from authoritative law are to be justified.’107 That is peculiar to all judicial borrowings that are voluntary; in these cases, courts are faced with a choice that they would not have in other circumstances, where only binding law were at play. Provided that judges are not prohibited to borrow elements from another legal culture, they can deliberately select the materials they will appropriate. This means they can freely seek for rules and precedents that support the conclusion they intend to reach and ignore those in contrary.108 Their choice must nonetheless be justifiable. The lack of an unequivocal regulation guiding judges through migration has a flip side that is not arbitrariness, but a burden of justification upon them. 103 Rosenkrantz

(2003), pp. 286–294, denies that these are real borrowings and designates them “non-authoritative uses of foreign law.” 104 Vogenauer (2006), pp. 888–889. 105 A remarkable example is Savigny’s treatise on methods of interpretation. For an analysis of “the classic catalog of statutory interpretation in Germany,” which is still used in constitutional interpretation today, see Brugger (1994), p. 396 ff. 106 Choudhry (1999), pp. 885–886, reaches the same conclusion, but offers different reasons: that “those methodologies define the institutional identity of courts.” 107 This is my reformulation of Alexy (2010b), pp. 228, 230. 108 Friedman (2011), pp. 874–875, shows special concern over what he calls “forum shopping” or “cherry-picking,” which happens whenever “a Justice determines his or her preferred policy result and simply surveys international courts to find a source to achieve the desired end.”

1.5 The Problem of Justification

19

Thirdly, some readers may find confusing the assertion that something can be legally commanded, permitted, or prohibited if no legal clause explicitly commands, permits, or prohibits it. In order to make sense of this assertion, one must differentiate prima facie commands (or permissions, or prohibitions) from definitive commands (or permissions, or prohibitions). Chapter 4 gives more details about this difference. For now, it should suffice to say that both are statements about what one ought to do. A definitive command says what one ought to do after all things were considered, including arguments in contrary, while a prima facie command still depends on a further decision on what is exactly commanded, prohibited, or permitted in the case. For the sake of simplicity, the idea can be rephrased as follows: prima facie commands are only the beginning of a process of justification from which definitive commands result. That judicial borrowings are voluntary if the authoritative material is silent about their possibility is the same as saying that borrowing is prima facie permitted—or prima facie neither obligatory nor prohibited. It is thus reasonable to assume that the STF is prima facie allowed to borrow from foreign legal cultures, for there is no impeding clause in the Federal Constitution. But by definition, a prima facie permission does not provide sufficient justification for a decision per se; it is only the beginning of a more complex process, and additional reasoning is required. It may be the case that the answer emerging after everything has been considered points to a definitive prohibition, for instance. The alternative is either a definitive permission or a definitive obligation. These deontic possibilities correspond to the normative attitudes expected from courts, as advanced above: resistance, convergence, or selective approval. Judges ought to resist the appeal of foreign legal materials if judicial borrowings are definitively prohibited in their legal system. At the other extreme, courts like the STF, which deliberately caused its case law to converge with trends they observed in foreign law, must assume that borrowing is definitively commanded or permitted. Finally, in between resistance and enthusiasm, courts like the BVerfG, which endorses the model of selective approval, only engage in borrowing after careful consideration. They do not adopt the same basic normative attitude towards all situations. On the contrary, they acknowledge that determining whether borrowing is definitively permitted, obligatory, or prohibited is a task to perform in every case where foreign experiences appear to be relevant.

1.6 Reasons for Borrowing Voluntary borrowings are normatively contentious because there are prima facie arguments both for and against them.109 The main reason against borrowing, which I call the democratic objection, will be explained in Chap. 2. For now, it suffices to call attention again to the fact that, although the legitimacy of borrowing is an issue 109 Walker

(2010), p. 316.

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1 Introduction

most judges have never explicitly tackled in their opinions, courts that engage in borrowing must implicitly claim that the reasons in favour of doing so are stronger than the democratic objection against it. Were the democratic objection to prevail over every competing argument, borrowing would be definitively prohibited, and judges expected to resist the foreign influence. Conversely, if borrowing is justifiable, there might be favourable normative reasons that prevail over the democratic objection. Scholars attempting to justify the fact that judges do appropriate from foreign materials have advanced variegated reasons, which can be grouped into system-dependent and system-independent. As I submit, any competent justification for borrowing must articulate arguments of both types. System-dependent reasons are drawn from a certain legal system to justify that a foreign idea fits within that particular normative arrangement. This type of justification accentuates the institutional character of law, or the fact that legal conventions are not the same everywhere, but formed against a peculiar background. Systemdependent reasons basically comprehend institutional arguments, “directly or indirectly supported by the authority of the positive law.”110 Systemic considerations, which are “based on the idea of the unity and coherence of the legal system,”111 are of especial relevance here. Authors who agree that judicial borrowings are subject to system-dependent justification say that “changes must be resisted as undemocratic unless … they follow the mechanisms provided for in the constitutional text” and are “according to the self-referential logic of the constitution.”112 By contrast, system-independent reasons draw attention to universalist aspects of constitutional migrations and tend to overlook features of a particular legal system. In spite of what the word ‘universalist’ may suggest, not all system-independent reasons imply that a same principle or structure is universally shared. Many scholars argue for more modest commonalities and believe that it suffices if “a transcendent principle is found within more than one legal system.”113 Accordingly, a court relies on universalist justification when judges regard themselves and other constitutional Justices as part of a common enterprise that transcends national borders. As this enterprise may be common due either to certain content or structure, it is possible to separate between content-based universalists and structure-based universalists. Content-based universalists say that judges ought to borrow from another legal system so as to fulfil a norm that both systems share. Most commonly, comparatists of this type have in mind universal sets of principles that could justify constitutional migrations. Judges who endorse this view are convinced that their own task consists chiefly in interpreting, applying, and fostering legal norms that are morally appealing and underlie more concrete institutional arrangements.114 Another version of content-based universalism advocates that legal systems do not share the same basic principles, but the same basic goal: “finding and applying the best and most just legal 110 Alexy

(1993), p. 177. p. 176. 112 Perju (2012a, b), p. 1322. 113 Choudhry (1999), p. 844. 114 Ibid., p. 870. 111 Ibid.,

1.6 Reasons for Borrowing

21

rules.”115 Since “it is likely that some [legal systems] will have succeeded earlier or more convincingly than others” in the pursuit of justice, borrowing would provide parochial officers with a shortcut to approximate their own system to this goal.116 By contrast, structure-based universalists claim that their variant of universalism rely on purely conceptual premises, such as “theoretical concepts of a universal legal language,”117 or “a deep structure of constitutional grammar that forms the basis of all different constitutional languages and cultures,”118 which make some legal arrangements conceptually necessary. If structure-based universalism is sound, the exchange of experiences between courts does not create anything new, but merely discloses structures that were possibly hidden. In sum, structure-based universalists imply that legal systems hold some essential or necessary properties “without which law would not be law.”119 These properties “must be there, quite apart from space and time, wherever and whenever law exists.”120 Hence, they are universal not due to a normative command, but by definition. Or so structure-based universalists believe. This book raises doubts about whether universalism can be exclusively grounded in conceptual premises.

1.7 Sources Let us turn attention to how the study will be conducted. The book will focus on a specific type of migrations: judicial borrowings. It departs from the largely documented fact that the STF has had recourse to the principles-theory variant of the proportionality test and asks whether these borrowings are justifiable. Accordingly, the primary sources of research are taken from case law. STF’s opinions from 1950 on are integrally available on the court’s official website since 2002.121 In spite of not being a substitute for the Brazilian Justice Gazette (Diário da Justiça—D.J.), the website has been largely adopted as a trustworthy tool for legal studies on the STF’s case law, for the data is provided by the court and updated daily. A body of clerks (Coordenadoria de Análise de Jurisprudência) is responsible for collecting information about the decisions, such as doctrine, precedents, and statutes mentioned by the full court, its panels, and Justices. The collected information is indexed in a catalogue scanned by research tools, and the results are linked to the full-text of the opinions, also available online. The judgements analysed in the next chapters were taken from this database and chosen as follows. I first selected the decisions in which Alexy was quoted from 115 Smits

(2006), pp. 528–529. pp. 528–529. 117 Choudhry (1999), p. 834. 118 Schlink (2011), p. 302. 119 Alexy (2008), p. 290. 120 Ibid., p. 290. 121 See http://www.stf.jus.br/portal/jurisprudencia/pesquisarJurisprudencia.asp. 116 Ibid.,

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1 Introduction

2003 (first references) to 2018. According to the search results on March 28, 2018, there were 91 decisions in which his name had been expressly mentioned. This set includes 68 collegiate judgements and 23 opinions rendered individually by either the Chief Justice (ten opinions) or one of the associate Justices (thirteen opinions). Only the collegiate judgements will be analysed below. They are divided in five groups according to the subject matter. Each group is expounded in a chapter, from Chaps. 3 to 7. The cases are listed in chronological order in a proper table at the end of the book. I consider that the 68 cases expounded below suffice to provide an accurate account of STF’s recourse to proportionality and other elements of the principles theory. A common difficulty one finds when analysing the STF’s case law concerns the separation of references to foreign material that implicate no more than mere referral, on the one hand, and those that carry due persuasive weight, on the other. Comparatists say that this is a line “especially difficult to draw”122 respecting the decisions of any constitutional court and that is specially the case with the STF. There is no consensus in the Brazilian literature about which directives lawyers and lower courts comply with to determine the relevance of an argument that appears in a STF’s opinion.123 Recently, de Bustamante pointed out that “the idea accepted by [Brazilian] doctrine in general,” although not necessarily explicitly, “is that we should attribute more weight to the arguments that present a greater institutional character.”124 In fact, the position an officer occupies in the institutional arrangement is an acknowledged criterion to determine how far the influence of her office extends. Thus, the magnitude of a court’s influence is easily measured when one is confronted with a divergence between courts at different levels of the judicial hierarchy. Nonetheless, it is a key question whether this criterion is helpful to assess the weight of a particular opinion that is part of a seriatim decision of a unique court. However difficult the task may be, it remains necessary to determine how important the principles theory was for a judgement. Based on the general assumption that Justices tend to trust in the rapporteur, who expectedly dedicated considerably more time to the case at hand, a rule can be formulated as follows: an argument advanced by the rapporteur qualifies as important, provided that her opinion is not a dissent.125 Nevertheless, this rule, which exclusively reflects the institutional character, applies to a few cases only, notably to easier ones, as dissenting opinions have actually been usual in judgements on difficult matters. Therefore, the methodology I employ to circumvent the problem combines two criteria: the ‘institutional character,’ which de Bustamante refers to, and the ‘persuasive character’ of an argument.126 I submit

122 Annus

(2004), p. 316. et al. (2013); de Vojvodic (2012), p. 95 ff. 124 de Bustamante (2007), p. 305. 125 For data supporting this conclusion, see Klafke and Pretzel (2014), 90. 126 de Bustamante (2007), p. 306. 123 Nunes

1.7 Sources

23

that in Brazil, lawyers combine these two criteria in order to determine the relevance of a judicial opinion, whether individual or collegiate.127 As argumentative character depends strictly on the persuasive force of an argument, which is controversial, Brazilian legal practitioners have relied on some institutional indicators that indirectly point to certain degrees of persuasiveness. The fact that an opinion simply converges with the majority indicates weak persuasiveness. A moderate indicator is the number of times an argument is repeated in further cases, or in the same case by different Justices. Finally, it is indicative of strong persuasiveness that an argument is part of the leading opinion, that is, the vote of the Justice with whom the majority has agreed. Combined, these indicators lead to a twofold classification of the references to the principles theory found in the STF’s case law. References of secondary impact have minor importance for the court’s final opinion. That is, they do not benefit much from the institutional character, nor do they have a clear argumentative force. Secondary are, thus, references in concurrence or dissent with the majority opinion. By way of contrast, a reference has primary impact if it is part of the opinion that convinced the majority and led to the final decision. Accordingly, in the next chapters the STF’s decisions in which Alexy was mentioned are separated depending on whether the impact of the references was primary or secondary.

1.8 Structure The book is divided as follows. Chapter 2 posits that judicial borrowings are normatively contentious because reasons exist for both welcoming and rejecting migration. In this chapter, I introduce the proportionality test and expose its German origins. I also analyse the first references to the principles theory made by Brazilian Justices in the Ellwanger Case (2003) and some peculiarities and institutional features of the STF’s organization and functioning. Furthermore, I discuss the democratic objection against judicial borrowings, but advance three main theses that recommend recourse to proportionality. The weak thesis holds that proportionality ought to be applied because by doing so judges enhance the effectiveness of fundamental rights. The strong thesis holds that proportionality is conceptually necessary in any minimally developed legal system and, therefore, “inevitable.”128 Finally, the moderate thesis, which this book supports, holds that proportionality is normatively necessary in a legal system if the proper conditions are met. Chapter 3 makes a central argument about the necessary connection Alexy establishes between principles (or rights) and proportionality. According to his necessity thesis, proportionality can be logically derived from the structure of constitutional 127 Actually,

in another study, Klafke and Pretzel (2014), p. 90, demonstrated that, in a significant number of the STF’s decisions, the ratio decidendi coincided with the opinion of the judge who delivered the first opinion, usually the rapporteur or “relator.” 128 Alexy (2010b), p. 20.

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1 Introduction

principles (or fundamental rights) and vice versa. The chapter posits that the necessity thesis only holds valid where principles are treated as optimization requirements, fundamental rights are deemed to have wide scope, and the participants in legal practice accept that judges represent the people in legal argumentation. Furthermore, the chapter expounds eleven cases in which the STF had recourse to proportionality and meets three critiques scholars have addressed to the way the test is employed in Brazil. Chapter 4 discusses the first normative condition for borrowing the principlestheory variant of proportionality: the thesis that principles require optimization. The chapter details Alexy’s conception of constitutional principles, based on the collision law, the optimization thesis, the law of balancing, and the dual nature of ought. His conception is contrasted with Dworkin’s, who conceived of principles as norms, but denied that they ought to be optimized. As the fifteen cases discussed in the chapter will show, the STF has resorted to the principles-theory conception and particularly to the optimization thesis. And a central statement to this model is that the proportionality test is a necessary method of adjudicating cases in which constitutional principles are at stake. Chapter 5 deals with the second normative condition for borrowing the principlestheory variant of proportionality: the wide-scope conception of rights. The chapter separates the main theories of rights into two groups according to the way theorists conceive of constitutional rights and their limits. Advocates of the model represented by the principles theory widen the scope of rights, but admit that what these rights allow is only prima facie guaranteed. External limitation is thus acceptable to the extent that the core of a right is not encroached upon. Other authors devised an alternative model in which rights are definitive trumps, the scope of which is considerably reduced but externally illimitable. The former model endorses the proportionality test; the latter rejects it. The chapter analyses fifteen decisions on the constitutional rights to freedom and equality. As the set demonstrates, the STF has borrowed Alexy’s conception of wide-scope rights, which makes a case for proportionality. Chapter 6 is dedicated to the third normative condition for borrowing the principles-theory variant of the proportionality test: the idea that courts represent the people in legal argumentation. In the principles theory, this thesis is connected to a particular conception of judicial discretion. As the chapter shows, Alexy formulated both theses of argumentative representation and judicial discretion in response to the challenges posed to courts after the erosion of the legal culture that had prevailed in Europe until World War II. Since then, judges have been frequently faced with what the chapter calls the legitimacy and operational challenges. In order to meet them, courts must justify not only particular rulings but also their very power to review. The principles theory arguably contributes to alleviate this burden of justification. The proportionality test points out what is in need of justification in a case, Alexy says. Furthermore, it indicates the occasions when judicial review is required. The fifteen cases discussed in the chapter confirm that the STF has resorted to the principles-theory thesis of argumentative representation. But even more importantly, Justices have relied on the second law of balancing, drawn from Alexy’s theory of

1.8 Structure

25

judicial discretion, to justify the court’s shift to a less deferential attitude towards the legislature. Chapter 7 presents a final argument in favour of the moderate thesis, which holds that a court like the STF is justified in borrowing proportionality because the normative conditions are present in the system of destination, i.e. Brazil. The chapter focuses on a particular category of fundamental rights: rights to positive state action. It shows that in Alexy’s view, positive rights must conform to the necessity thesis. This makes proportionality necessary whenever a positive right is at stake. The chapter will analyse eleven cases in which the STF had recourse to the conception of rights to positive state action as formulated in the principles theory. Furthermore, it will use the case law on the matter to reinforce the inadequacy of the strong thesis and demonstrate the insufficiency of the weak thesis. The necessity thesis holds true, I submit, but provided that certain normative premises are valid in a given legal system. This is certainly a reason for the spread of proportionality, but by no means an argument for its universality if ‘universal’ signifies ‘conceptually necessary everywhere.’ The following chapters will demonstrate that the STF has done more than translating to Portuguese the phraseology related to proportionality and the principles theory. Brazilian Justices appeal to proportionality as a principle that is compatible with the Federal Constitution and entails the so-called proportionality test and its three sub-tests, by means of which collisions between other constitutional principles can be solved. Particularly during the Mendes Court (2002–2012), the STF did so under the argument that it was its duty to overcome the executive and legislative inertia that hindered the application of the social rights the Federal Constitution provides for. In the view of Justice Mendes, proportionality would help to enhance the effectiveness of such rights. Notably, the court has borrowed not only the test, but also the conditions that the principles theory sets forth in support for it. Its case law offers a clear example of enthusiasm for foreign legal material, as the STF has deliberately set the constitutional interpretation towards convergence with a widespread legal practice. Of course, whether the court has succeeded in preserving the essential elements of the principles-theory variant of proportionality during its transfer to Brazil is a different issue.

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Silva S (2013) O tetralemma do controlo judicial da proporcionalidade no contexto da universalização do princípio: adequação, necessidade, ponderação e razoabilidade. https://estudogeral.sib. uc.pt/handle/10316/23213 Slaughter A-M (1999) Judicial globalization. Va J Int Law 40:1103 Slaughter A-M (2003) A global community of courts. Harv Int Law J 44(1):191–220 Smits JM (2006) Comparative law and its influence on national legal systems. In: Zimmermann R, Reimann M (eds) The Oxford handbook of comparative law. Oxford University Press, Oxford, pp 513–538 Spamann H (2009) Contemporary legal transplants: legal families and the diffusion of (Corporate) law. BYU L Rev 1813 Spector H (2008) Constitutional transplants and the mutation effect. Chic Kent Law Rev 83(1):129 Sweet AS, Mathews J (2008) Proportionality balancing and global constitutionalism. Columbia J Transnatl Law 47:68–149 Taggart M (2008) Proportionality, deference, wednesbury. N Z Law Rev 2008:423 Teubner G (1998) Legal irritants: good faith in British law or how unifying law ends up in new divergencies. Modern Law Rev 61(1):11–32. https://doi.org/10.1111/1468-2230.00125 Tohidipur T (2013) Comparative constitutional studies and the discourse on legal transfer. In: Frankenberg G (ed) Order from transfer: comparative constitutional design and legal culture. Edward Elgar, Cheltenham, UK, pp 29–35 Tushnet M (1999) The Possibilities of comparative constitutional law. The Yale Law J 108(6):1225–1309. https://doi.org/10.2307/797327 Vidmar N (2011) The Psychology of trial judging. Curr Dir Psychol Sci 20(1):58–62. https://doi. org/10.1177/0963721410397283 Vogenauer S (2006) Sources of law and legal method in comparative law. In: Zimmermann R, Reimann M (eds) The Oxford handbook of comparative law. Oxford University Press, Oxford Vojvodic A de M (2012) Precedentes e argumentação no Supremo Tribunal Federal: entre a vinculação ao passado e a sinalização para o futuro. Doctoral thesis, Universidade de São Paulo (USP), São Paulo Waldron J (2005) Foreign Law and the Modern Ius Gentium. Harvard Law Review 119(1):129–147 Walker N (2010) The migration of constitutional ideas and the migration of the constitutional idea: the case of the EU. In Choudhry S (ed) The migration of constitutional ideas. Cambridge University Press, Cambridge, pp 316–345. http://www.cambridge.org/gb/academic/subjects/law/ jurisprudence/migration-constitutional-ideas Wasserstrom RA (1972) The judicial decision: toward a theory of legal justification. Stanford University Press, Stanford; Oxford University Press, California, London Watson A (1974) Legal transplants: an approach to comparative law. Scottish Academic Press, Edinburgh, London Watson A (1996) Aspects of reception of law. Am J Comp Law 44(2):335–351. https://doi.org/10. 2307/840712 Watson A (2000) Legal transplants and European private law. Eletron J Comp Law 4(4). http:// www.ejcl.org/44/art44-2.html Webber G (2009) The negotiable constitution: on the limitation of rights. Cambridge University Press, Cambridge, UK , New York Weber M (1978) Economy and society: An outline of interpretive sociology. In: Roth G, Wittich C, Fischoff E, Gerth H, Henderson AM, Kolegar F, Mills CW, Parsons T, Wittich C (eds) Trans. Berkeley, Univ. of California Press Wieacker F (1990) Foundations of European legal culture. Am J Comp Law 38(1):1–29. https:// doi.org/10.2307/840253 Wise EM (1990) The transplant of legal patterns. Am J Comp Law 38:1–22. https://doi.org/10. 2307/840531

Chapter 2

On the Migration of Proportionality

2.1 Germany: The System of Origin Proportionality is an adjudicative method basically employed to solve collisions between principles, identify justifiable limits to the wide scope of fundamental rights, and point out what is in need of justification in judicial reasoning. This definition, however provisional and in need of clarification, shall suffice as a starting point for our inquiry. Comparative constitutional scholars traced the origins of proportionality to Germany. The complete test is performed following a strict order of analysis according to which a legal statute is conform to the constitution if it proves to be suitable, necessary and proportional in the narrow sense. By carrying out the first two sub-tests, suitability and necessity, one performs a means-ends analysis that is historically rooted in nineteenth-century German administrative law. The third sub-test, proportionality in the narrow sense, more often known as balancing, was devised in the same period, in German legal theory and private law. After World War II, the BVerfG put the three elements together and gave balancing its central role in the adjudication of disputes concerning fundamental rights. From the court’s case law, proportionality firstly expanded to the European supranational law and later to countries like Portugal and Spain, before migrating to Brazil. This chapter addresses the controversy surrounding the judicial recourse to proportionality and reconstructs the reasons for and against borrowing the test as a normative argument. This section briefly reconstructs the phases of the historical development of proportionality in Germany, giving a glimpse of the test in operation and how it has appeared in the case law of the German Federal Constitutional Court (BVerfG). Section 2.2 presents the explanatory reasons often advanced for the worldwide spread of proportionality, ranging from the functions the test allegedly performs in decision-making to certain favorable historical conditions arguably shared by legal cultures. Section 2.3 discusses the Ellwanger Case (2003), which contains the first references to Alexy in the STF’s case law, and discloses peculiarities about the court’s organization and functioning. Finally, Sect. 2.4 expounds the democratic objection against borrowing © Springer Nature Switzerland AG 2018 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_2

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and advances three theses (weak, moderate, and strong) that could justify the judicial recourse to proportionality. I submit that, whereas the principles theory implies the strong thesis and the STF seemingly justifies its borrowings with the help of the weak thesis, the moderate thesis is the correct one. However, I shall begin by providing an overview of the specialized literature on the migration of proportionality from Germany to other countries and its reception in Brazil, where it has served the STF. Constitutional comparatists have scrutinized the stages of proportionality’s journey, from its moving beyond German frontiers to reception in particular legal cultures, in attempted to uncover the reasons for its migration. The European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) were the first to borrow the proportionality test in the 1970s. A few years later, proportionality started to spread among national legal systems by initially sweeping over Western Europe and subsequently moving to North and South America, Central and Eastern Europe, Oceania, Africa, Middle East, and more recently South and Eastern Asia.1 The fact that decision-makers from all continents have judged by resort to some form of proportionality analysis made the test an essential element of the “post-war legal discourse,”2 also called “global constitutionalism,”3 or simply “new constitutionalism.”4 Given the amplitude and intensity of the migratory waves, one can wonder whether proportionality was not originally devised to be an export. Contrary to this impression, the test had a rather parochial scope in its origins and only recently became a very important tenet of comparative constitutional law. The sub-sections below endorse and expand Bomhoff’s suggestion that the historical development of proportionality in Germany can be divided into three phases.5 The first phase begins in the eighteenth century and finishes in the early 1930s, when the Nazi Party rises to power. The second phase starts after World War II, in the 1950s, and lasts until the middle 1970s. Bomhoff delimitates this journey in the “period of less than two decades, between the Lüth decision of January 1958 and, somewhat more arbitrarily, the decision in the Deutschland Magazine case of 1976.”6 The third phase initiates in the late 1970s and continues until today. The sub-sections below delineate the development of proportionality throughout these three phases in chronological order.

1 Barak

(2010), p. 182. See for instance Yi (2007), pp. 263–268. (2006), p. 89 ff.; Bomhoff (2013), p. 10 ff. 3 Klatt and Meister (2014a), p. 193 ff.; Sweet and Mathews (2008), p. 75; (2010), p. 178; Cohen-Eliya and Porat (2010), p. 264 ff.; (2009), pp. 369, 380. 4 Sweet and Mathews (2008), pp. 84–85; Kennedy (2002), pp. 674–675. 5 Bomhoff (2010), p. 123. Much of what is said below about the historical development of proportionality in Germany was also taken from Cohen-Eliya and Porat (2011), p. 465; Barak (2012a, b), pp. 178–179; Schwarze (1992), pp. 685–692. C.f. Pulido (2013), pp. 489–503, dividing the expansion of proportionality into six phases, which the author refers to as ‘migrations.’. 6 Bomhoff (2013), p. 76. 2 Weinrib

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2.1.1 First Phase: Origins of Proportionality During the first phase, the ideas that would pave the way for the proportionality test were generated in German political philosophy, legal theory, and private and public law—especially administrative law. The philosophical antecedents of proportionality go back to the late eighteenth century. Legal scholars and courts started to frame the means-ends analysis and introduced the basic concept of balancing, but these pieces were not yet integrated into a unique method for adjudicating on constitutional disputes involving fundamental rights. The means-ends analysis that is associated with the sub-tests of suitability and necessity has roots in the debates on whether and to which extent it was legitimate for a political community to sacrifice individual interests in pursuit of collective goals. Balancing, on its turn, was conceived as part of a general reaction of private law scholarship against the jurisprudence of concepts (Begriffsjurisprudenz) that prevailed in Germany up to then. Due to the work of Carl Gottlieb Svarez, the main drafter of the Prussian General Law of 1794 (Allgemeines Landrecht für die preußischen Staaten—ALR), meansends analysis became a key-element in the case law of the Supreme Administrative Court of Prussia (preußishes Oberverwaltungsgericht—OVG) in the second half of the nineteenth century.7 The OVG started to operate in 1875 and systematically invalidated acts committed by officials in the exercise of administrative police powers when their conduct was “unnecessarily intrusive” or “served none of the purposes listed in the statute.”8 Proportionality, treated as almost a synonym of suitability and necessity then, rapidly developed into a general principle of administrative law.9 It became a constitutive part of the rule of law (Rechtsstaat principle) requiring both “that the means the legislature had selected were necessary in order to attain its legitimate goal” and “the burdens the statute imposed [were] proportional to the benefits it was designed to achieve.”10 The third of proportionality sub-tests, balancing, was devised almost simultaneously by the emerging Tübingen School of legal thought, also known as jurisprudence of interests (Interessenjurisprudenz).11 The jurisprudence of interests had among its followers scholars such as Philipp Heck, Max Rümelin, and Heinrich Stoll, who criticized the formalist conception of legal science that governed the last quarter of 7 See

Svarez (1960), pp. 39–40, 485–487. Among the authors who trace the origins of proportionality back to Svarez, one can mention: Currie (1994), pp. 307–308; Sweet and Mathews (2008), pp. 98–100; Barak (2010), pp. 178–179; (2012a, b), pp. 177–178. 8 Würtenberger (1999), pp. 65, 67. 9 Lerche (1999), pp. 24–25; Hirschberg (1981), pp. 2–19; Stern (1993), pp. 168–169; Remmert (1995), p. 200; Grimm (2007), pp. 384–385. 10 Currie (1994), p. 308. Nineteenth-century German legal thought conceived of the Rechtsstaat principle as possessing characteristic elements that included “strict legality of every exercise of state power; freedom from arbitrary state action; proportionality of the means employed by the state to accomplish legitimate ends; and the comprehensive judicial control of every state action that affects the subjective rights of a citizen.” [Ledford (2004), p. 207]. 11 Barak (2012a, b), p. 177; Bomhoff (2010), p. 124. For an overview of the jurisprudence of interests, see Cohn (1950), p. 117 ff.

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the nineteenth century.12 Their reaction against the jurisprudence of concepts can be seen as continuing the work of Rudolf von Jhering.13 Following Jherings’s lead, they distinguished legal concepts into two categories: commands (analytical concepts), which provided academics with useful tools for understanding, categorizing, systematizing, and teaching law; and interests (functional concepts), which conflicted against each other and required that the legislature struck a balance between them.14 The legislation enacted in result should incorporate the weightier interest, and the laws would therefore embody a value judgment. If it was not clear whether the legislator had settled the question courts had before them, judges could uncover the underlying value judgment to determine, evaluate, and balance conflicting interests, as well.15 This notion of weighing of interests became popular in Europe in the first decades of the twentieth century, and although most courts would only incorporate balancing in their case law after World War II, a considerable number of lawyers, scholars, and judges had already contact with the idea then.16 Under the Weimar Constitution, Smend, for instance, argued for balancing as an adequate method for judicial adjudication in his work “Veröffentlichungen der Vereinigung,” from 1928.17

2.1.2 Second Phase: Proportionality and Constitutional Decision-Making The second phase, which begins after World War II, marks the constitutionalisation of proportionality, its reception in constitutional theory and case law and further development into a threefold test including also balancing.18 Rupprecht von Krauss is reputedly the first to have referred to balancing as “proportionality in the narrow sense” and defined proportionality “as a linked set of the sub-principles of suit-

12 See

Rümelin and Schoch (1948) for a selection of writings from the jurisprudence of interests. (1945), p. 71. See e.g., Jhering (1900), pp. 274–275, 287–288, 297. 14 Cohn (1950), p. 118. See Kennedy (2011), p. 194 ff., on the importance of Jhering and Heck for the development of balancing in Germany; Sartor (2010), p. 194 ff., on the connection between proportionality and goal-oriented (or teleological) reasoning, which Jhering believed to be an essential aspect of legal thinking. Interestingly, Alexy (2010a), pp. 88, 115–116, mentioned Jhering two times in A Theory of Constitutional Rights: firstly, when discussing the impossibility of deriving solutions from legal norms by means of techniques that are intended to be exclusively logical and value-free; secondly, when explaining the different types of statements one can make about rights, reasons for rights, and enforcement of rights. 15 Rümelin and Schoch (1948), p. 176. 16 Bomhoff (2010), p. 123. Cf. Currie (1994, p. 179), according to whom it is doubtful that balancing had then a majority position among judges. 17 Smend (1928), pp. 51–53. 18 Sweet and Mathews (2008), p. 98. 13 Seagle

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ability, necessity, and proportionality in the narrow sense,” in 1953.19 In Krauss’s view, it was imperative to accommodate balancing with the means-ends analysis within a more encompassing test, in order to avoid that “a quite negligible public interest could lead to a severe right infringement without being [declared] unlawful.”20 In 1961, another author, Peter Lerche, attempted to integrate proportionality to the constitutional ban on excessive means (Übermaßverbot). Lerche conceived of proportionality as a twofold analysis encompassing necessity (Erforderlichkeit or Notwendigkeit) and proportionality in the narrow sense (Verhältnismäßigkeit im engeren Sinne).21 However remarkable was the scholarly effort to bring proportionality into constitutional jurisprudence, the BVerfG was the one to take the decisive steps towards its constitutionalisation. Proportionality’s journey through the case law of the court, from the early and reticent decisions to its acclamation as an essential principle of fundamental rights adjudication, was long, tortuous, and sometimes precarious.22 The court was established in 1951, two years after the promulgation of the Basic Law in 1949. However, it took some years until Justices started to have recourse to proportionality, taken from administrative law and transferred to constitutional law. The first decisions on the limitation of fundamental rights from the early 1950s already indicated that a criterion for controlling the disproportion of legislative means to constitutional ends was at play. Frequently mentioned examples are the cases BVerfGE 1, 167 (1952)23 and BVerfGE 3, 383 (1954).24 Nevertheless, only in 1958, with the judgements on the Lüth Case25 and the Pharmacy Case,26 the mechanism the court had been operating behind the scene was brought to light. The Lüth Case (1958) has been subjected to uncountable analyses,27 and its essentials are expounded below in Chap. 3. For now, it suffices to point out that, in the reasoning, the BVerfG introduced the logic of balancing to the adjudication of fundamental rights.28 As the court stated in the opinion, “there has to be a ‘balance of interests’; the right to express an opinion must yield if its exercise infringes interests of another which have a superior claim to protection.”29 Furthermore, the decision determined that “an incorrect balancing of the factors [as performed by an ordinary 19 Ibid.,

pp. 98, 105–106; and Pulido (2013), p. 492, refer to Krauss (1955), as the pioneering work on proportionality in the narrow sense. 20 von Krauss (1955), p. 25, translated in Sweet and Mathews (2008), p. 106. 21 Lerche (1999), pp. 19–23. See the reference to Krauss in the footnote 1 at 19. 22 See Bomhoff (2010), pp. 123–124; Grimm (2007), pp. 385–386; Grabitz (1973), pp. 569, footnote 1. 23 BVerfG, 1 BVerfGE 167, Judgment of 20 March 1952, at 178. 24 BVerfG, 3 BVerfGE 383, Judgment of 6 March 1954 at 399. 25 BVerfG (First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958. 26 BVerfG (First Senate), Pharmacy Case, 7 BVerfGE 377, Judgment of 6 November 1958. 27 See e.g., Kommers and Miller (2012), pp. 60–61, 448–457, 461, 500, 503, 507–508; Currie (1994), pp. 181–188. 28 Alexy (2003a), pp. 131, 134; Bomhoff (2013), p. 72; Kommers and Miller (2012), p. 442. 29 BVerfG (First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958, translated by Tony Weir, in the website of the University of Texas School of Law.

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civil court] can violate a person’s basic right and provide the basis for a constitutional complaint to the Federal Constitutional Court.”30 A few days later, the BVerfG decided another case by resort to balancing,31 and in the following decades, rendered many other decisions based on the same reasoning developed in the Lüth Case, as the Blinkfüer Case (1969),32 for instance. In its turn, the Pharmacy Case (1958) constitutes a leading case because it was the first time the BVerfG separated the proportionality test into its constitutive steps and indicated the sequence to observe when applying these sub-tests.33 The case dealt with the limits to the occupational freedom.34 The BVerfG struck down on Article 3.1 of the Bavarian Apothecary Act because it violated “the basic right of the individual to take up any permitted activity as a vocation,” which is embedded in Article 12 (1) Basic Law.35 According to the decision, the freedom to exercise an occupation can be restricted, provided that restrictions are not “excessively burdensome” or “unreasonable.”36 The legislature could make laws respecting that constitutional right, provided that fixed boundaries were not overstepped, so as not to encroach on its essence. These boundaries were determined in accordance with proportionality, to which the court referred then as “the principle … which was developed in the decision of the 15th January 1958,” in the Lüth Case (1958).37 The BVerfG followed some steps so as to determine whether the statutory restriction had violated the fundamental right or not. Firstly, the court singled out the two competing principles (on the one hand, the occupational freedom encompassing the individual rights to freely choose and exercise a profession, and on the other, the social interests in the maintenance of the economic order). Secondly, the court examined whether the legislative act was adequate to promote the social interest at play, and thirdly, whether no less restrictive means was available. Finally, the court struck a balance between “the importance of the opposing (and possibly actually conflicting) interests,”38 and concluded that in that particular case, the individual freedom of occupation should prevail.

30 Ibid. 31 BVerfG (First Senate), 7 BVerfGE 230, Judgment of 15 January 1958, p. 234. See Bomhoff (2013), pp. 79–80, for more on the case. 32 BVerfG, Blinkfüer Case, 25 BVerfGE 256, Judgment of 26 February 1969. 33 BVerfG (First Senate), Pharmacy Case, 7 BVerfGE 377, Judgment of 6 November 1958. See Sweet and Mathews (2008), p. 108; (2010), p. 138; Kommers and Miller (2012), pp. 659, 670–672; Currie (1994), pp. 300–301; Grimm (2007), p. 385; Pulido (2013), pp. 495–496, commenting on the Pharmacy Case. 34 Grundgesetz für die Bundesrepublik Deutschland, Article 12 (1): “All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.”. 35 BVerfG (First Senate), Pharmacy Case, 7 BVerfGE 377, Judgment of 6 November 1958, p. 377, translated in the website of the University of Texas School of Law. 36 Ibid. 37 Ibid., p. 404. 38 Ibid., p. 405.

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The Pharmacy Case (1958) served as a precedent for the judgement of later complaints also concerning the occupational freedom derived from Article 12 Basic Law, such as the Medical Insurance I Case (1960)39 and the BVerfGE 13, 97 (1961).40 Yet, it gradually became clear that the BVerfG had not devised proportionality as a method for handling complaints related to freedom of occupation exclusively. The court also conducted the complete proportionality test again in a sequence of cases where the right to physical integrity was concerned, such as the Spinal Tap Case41 and the Pneumoencephalography Case,42 both from 1963. Another significant line of cases the BVerfGE decided with recourse to proportionality relate to the rights guaranteed in Article 5 Basic Law: the freedom of expression, speech, and information, freedom of the press, arts, and sciences, freedom of reporting, broadcasting, communicating, researching, and teaching, and finally the ban on censorship.43 The first of these judgements, the Schmid-Spiegel Case (1961) raised the issue of whether and to which extent the protection of individuals’ honour against defamation provided enough justification for restricting someone else’s freedom of opinion.44 The BVerfG returned to the line of argument already taken in the Lüth Case and upheld that courts of ordinary jurisdiction were required to strike a balance between conflicting interests.45 Five years later, in the Spiegel Case (1966), the BVerfG made it clear that balancing was a tool to solve conflicts between any type of interests that fell under the scope of constitutional protection, and not only disputes between individuals.46 This aspect is worth noting, for until then one could maintain that balancing was not inherent to constitutional adjudication as such but peculiar to some legal fields like private law, for instance.47 39 BVerfG,

Medical Insurance Case I, 11 BVerfGE 30, Judgment of 23 March 1960, pp. 42, 45.

40 BVerfG, 13 BVerfGE 97, Judgment of 17 July 1961, p. at 104. The cases are mentioned by Grimm

(2007), p. 385. 41 BVerfG, Spinal Tap Case, 16 BVerfGE 194, Judgment of 6 October 1963, pp. 201–203. Kommers named the decision ‘Spinal Tap Case’ and commented on it in Kommers and Miller (2012), pp. 418–419. See Grimm (2007), p. 385; and Pulido (2013), pp. 495–496, for analyses of the case. 42 BVerfG, Pneumoencephalography Case, 17 BVerfGE 108, Judgment of 25 July 1963. The name was given in Kommers and Miller (2012), p. 419. 43 It is beyond my scope here to exhaust the BVerfG’s case law on conflicts related to freedom of speech. The cases below were selected due to their remarkable contribution for the development of the proportionality analysis in general and balancing in particular, and yet, the selection could have included many others, as the BVerfG, Lebach Case, 35 BVerfGE 202, Judgment of 6 May 1973, for instance. See Michael (2001), pp. 654–659, for more decisions of the BVerfG on freedom of speech and other subject-matters that made reference to proportionality or one of its subtests—suitability, necessity, and balancing. 44 BVerfG, Schmid-Spiegel Case/Volga Artikel Case, 12 BVerfGE 113, Judgment of 25 January 1961. For more comments on the case, see Kommers and Miller (2012), pp. 453–454, 464–465, 476, 498; Bomhoff (2013), p. 80; Currie (1994), pp. 190–192. 45 BVerfG, Schmid-Spiegel Case/Volga Artikel Case, 12 BVerfGE 113, Judgment of 25 January 1961, translated in (1998), pp. 26–27. 46 BVerfG, Spiegel Case, 20 BVerfGE 162, Judgment of 8 May 1966. For more on the case, see: Bomhoff (2013), pp. 83–84; Bernstein (1967), pp. 547–561. 47 Bomhoff (2013), p. 84. In this respect, see also Bernstein (1967).

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The BVerfG proceeded likewise in the Mephisto Case (1971), which involved a clash between the right to artistic freedom and the right to privacy.48 The peculiarity of the Mephisto Case is that artistic freedom finds no explicit limit in the wording of the Basic Law that one could interpret as an invitation to balance. The constitutional provision for this right differs from provisions for others related, such as the freedoms of expression, opinion, and speech. Article 5 (1), which proclaims the latter freedoms, is followed by a specific limitation clause introduced by Article 5 (2), reading, “these rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”49 Despite the lack of a similar limitation clause, the BVerfG upheld that the right to artistic freedom must be “balanced against other possible constitutional interests.”50 Furthermore, in the Mephisto Case the BVerfG defined for the first time its role in reviewing cases involving collisions between fundamental rights. The BVerfG adopted then a “deferential approach to ordinary courts judgments”51 that prevailed in the judgements from the beginning of the 1970s. From Mephisto to the DeutschlandMagazine Case (1976), the court refrained from overruling the substantive evaluation that ordinary civil courts had carried out. That is, the BVerfG settled for a narrowscope review, in which the court’s task was to verify whether the lower decisions had either “failed to recognize that it [was] a case of balancing” or “based [their] judgment on a fundamentally false view of the importance, and especially the scope, of either of those rights.”52 The Deutschland Magazine Case (1976), which also dealt with freedom of speech,53 marks the end of the second phase with the introduction of what Alexy would later name “the second law of balancing.”54 The case represented a shift from the deference with which the BVerfG had been treating ordinary-court judgements since Mephisto. Noticeably, instead of returning to the more intrusive standards set in Lüth, Justices came to the conclusion that the intensity of review “[could] not be rigidly and consistently drawn” in abstract, meaning that it should adjust to particularities of the case.55 In adjusting its review to the case, “of particular importance is the intensity of the impairment inflicted on fundamental rights,” the court continued.56 As affirmed in the BVerfG’s opinion, “the more a civil court’s decision 48 BVerfG (First Senate), Mephisto Case, 30 BVerfGE 173, Judgment of 24 February 1971. For more on the case, see Currie (1994), pp. 192–198; Quint (1989), pp. 290–318. 49 Grundgesetz, Article 5 (2). 50 Quint (1989), pp. 313, footnote 209. In the same passage Quint speaks of ‘imperialism of balancing.’. 51 Kommers and Miller (2012), p. 461. 52 BVerfG (First Senate), Mephisto Case, 30 BVerfGE 173, Judgment of 24 February 1971, p. 197, translated by J. A. Weir, in the website of the University of Texas School of Law. 53 BVerfG, Deutschland Magazine Case, 42 BVerfGE 143, Judgment of 5 November 1976. For comments on the case, see Kommers and Miller (2012), pp. 461, 484–485; Quint (1989), pp. 318–330. 54 Alexy (2010a), p. 418. 55 BVerfG, Deutschland Magazine Case, 42 BVerfGE 143, Judgment of 5 November 1976, p. 148 (my translation). 56 Ibid., p. 148 (my translation).

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encroaches upon the sphere of protected rights, the more searching must the Constitutional Court’s scrutiny to determine whether the infringement is constitutionally valid.”57 In cases where the degree of interference with a fundamental right was especially high, “the civil courts’ assessment [might] be even substituted for the constitutional court’s own judgement.”58

2.1.3 Third Phase: Consolidation and Expansion The third phase marks the consolidation of proportionality in German domestic law, accompanied by a change of focus at the sub-tests level and the expansion of its scope of influence, inside and outside Germany. Additionally, the court filled some gaps in conceptualization left open in the previous phase and resolved some doubts about the wide-scope conception of rights that lay behind expressions such as ‘essential core’ and ‘proportionate interference.’ The uncertainty that surrounded the references to proportionality in the BVerfG’s early case law was dispelled in a 1978 judgement, in which the court formulated the test in simple and clear terms: “the intervention must be suitable and necessary for the achievement of its objective. It may not impose excessive burdens on the individual concerned, and must be reasonable in its effect on him.”59 In subsequent decisions, the terms ‘excessive burden’ and ‘reasonable’ were replaced by the concept of ‘proportionality in the narrow sense,’ requiring “that the seriousness of the intervention and the gravity of the reasons justifying it are in adequate proportion to each other.”60 The Cannabis Case (1994) provides a good example of the complete test in operation.61 The BVerfG’s second senate affirmed then that “the principle of proportionality was … the general constitutional test for deciding to what extent the right to freedom may be limited.”62 The court firstly acknowledged that rights have an “inner core” to which the Basic Law “accorded absolute protection and [which is] thus withdrawn from interference by public authority.”63 Secondly, the BVerfG asserted that proportionality applies “outside the core of the general right,” in the surrounding 57 Ibid.,

pp. 148–149, translated in Kommers and Miller (2012), p. 462. p. 149 (my translation). 59 BVerfG, 48 BVerfGE 396, Judgment of 20 June 1978, p. 402, translated in Schwarze (1992), p. 687. On the ‘uncertainty’ sourrounding the court’s early case law on proportionality, see Scharpf (1966), pp. 686–687; Hirschberg (1981), p. 23 ff. 60 BVerfG, 61 BVerfGE 126, Judgment of 19 October 1982, p. 135, translated in Schwarze (1992), p. 688. 61 BVerfG, Hashish Drug Case/Cannabis Judgement, 90 BVerfGE 145, Judgment of 3 September 1994. Concerning the case’s name, whereas Grimm (2007), p. 388, and Sullivan and Frase (2009), p. 29, call it the ‘Cannabis Case’, Kommers and Miller (2012), p. 399, refers to it as the ‘Hashish Drug Case’. 62 BVerfG, Hashish Drug Case/Cannabis Judgement, 90 BVerfGE 145, Judgment of 3 September 1994, p. 172. 63 Ibid., p. 171. 58 Ibid.,

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area that “is subject to the limits placed on it in accordance with the constitutional order (Basic Law).”64 Finally, the BVerfG separated measures that encroach on the core of a right from those that interfere somehow with the right without affecting its inner core. In the court’s view, while the former constitute an infringement to the same right and therefore cannot be tolerated, the latter may be acceptable, depending on whether the interference is proportional (justifiable). The case threw light on the sub-tests that comprise proportionality and how they operate. According to the BVerfG, the sub-test of suitability requires that “a statute which limits fundamental rights must be … suitable for achieving the purpose to which it is directed.”65 The second sub-test, necessity, stipulates that a statute “is necessary if the legislator could not have chosen a different means which would have been equally effective but which would have infringed on fundamental rights to a lesser extent or not at all.”66 Finally, the third sub-test, balancing, leads to that suitable and necessary statutes may nevertheless be unconstitutional if they are disproportional in the narrow sense, that is, if “the resulting limitation of the affected individual right clearly outweighs the increased protection of legal interests which the measure attains.”67 Furthermore, in the Cannabis Case, the BVerfG spoke more clearly of a “general right to liberty” against which “the protection of others or of the public interest” could be balanced. Conceived as a right to do or not to do whatever one pleases in the court’s case law, the general right of freedom was the source of several specific rights that included almost all individual interests, actions, and states of affairs.68 For being included in the scope of a constitutional right, these interests, actions, and states of affairs were prima facie under constitutional protection. Accordingly, in the BVerfG’s view, freedom encompassed such “mundane things” as the right to ride a horse in a wooded area or feed pigeons in public squares, for instance.69 Along with the typology of general rights as opposed to specific rights, the BVerfG differentiated between rights to negative acts derived from the constitutional provision on freedom (also called negative rights or defensive rights) and rights to positive acts derived from equality (also known as positive rights or entitlements). Initially, proportionality was seen as structurally connected to negative rights only, providing for the legal parameters to assess whether the general freedom of action could be restricted without violation. Only in the 1980s the court started to widen the scope of the test as to include positive rights as well, particularly equality and social rights.70 64 Ibid.,

p. 171. p. 172. 66 Ibid. See Bilchitz (2014), p. 43 ff., for an analysis of the concept of necessity that he derives from the Cannabis Case. 67 Ibid., p. 146. The case also raised issues about the intensity of review the BVerfG ought to perform. See in Chap. 6. 68 Kumm (2007), p. 141; (2004a), pp. 582–584; Cremer (2014), pp. 59–62; Borowski (2011), pp. 581–582. 69 See Kumm (2007), p. 141, mentioning these and other decisions. 70 Baer (1998), pp. 258–267; Borowski (2011), pp. 582–583. Social rights are discussed in Chap. 7 below. 65 Ibid.,

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An example of proportionality applied to a positive right is the Tax-Free Subsistence Minimum Case (1990), in which the court decided for the right to a “subsistence minimum … insuring to each person in need of assistance the material prerequisites that are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.”71 The spread of proportionality “into a number of different rights areas” was accompanied by a shift of focus at the level of its sub-tests.72 When compared to the preceding phase that lasted until the middle 1970s, the means-ends analysis performed in the two initial sub-tests (suitability and necessity) lost importance relatively to the third sub-test (balancing or proportionality in the narrow sense). According to a quantitative study conducted by Petersen, from 1951 to 1977, the BVerfG frequently used balancing to review lower court decisions, but only in four judgments the court actually struck down laws for being disproportionate in the narrow sense.73 This number contrasts with the fact that, “in the 35 years from 1978 to 2012, the Court based about one-third of its decisions in which it overturned a piece of legislation on balancing considerations.”74 The author identifies in the biennium 1978–1979 the turning point in German constitutional case law, “when the [BVerfG] used balancing in four judgments—i.e., exactly as many as in the 27 years before.”75 The consolidation of proportionality in German constitutional law happened simultaneously to its expansion to European supranational law. This comes as no surprise, given that not only was Germany an original signatory to the European Union treaties, but the country has built a leading position in the continent as well, which reflects on its political influence and intellectual respectability.76 Differently from constitutional courts that borrow proportionality, European supranational courts engage in a dialogue with the BVerfG that is not metaphorical, but real.77 As a result of the treaties and conventions to which Germany is a signatory, the decisions of both the ECtHR and the ECJ reverberate in German law to variegated degrees.78 Therefore, it is reasonable to assume that, while the jurisprudence of European supranational 71 BVerfG, Tax-Free Subsistence Minimum Case, 82 BVerfGE 60, Judgment of 29 May 1990, p. 85,

translated in Kommers and Miller (2012), p. 623. Proportionality is mentioned in the case at 101. 72 Petersen (2015), p. 57; Sweet and Mathews (2010), p. 138; Cohen-Eliya and Porat (2010), p. 285. 73 It

is worth noting that Petersen (2015), p. 69, focused on decisions concerning freedom rights only. 74 Ibid., p. 59. 75 Ibid., p. 64. A more favourable political environment, due to the reduced governmental pressure over the decades, along with the goodwill and credibility the BVerfG gained among citizenry and political parties, may be a reason for the shift of focus towards balancing. See in this respect, Kommers (1976), pp. 255–303; Baldus (2005), pp. 237–248; Lembcke (2006), pp. 151–161; Häußler (1994), pp. 22–74; and Vorländer and Brodocz (2006), pp. 259–294. 76 Cohen-Eliya and Porat (2009), pp. 380–381, speak of a “weighty influence of German constitutional law” on Europe and the Western world in general. Particularly about the influence of the principles theory on European law, see Menéndez (2004), pp. 159–199. 77 Kühling (2006), p. 535 ff. 78 See Sweet (2000), pp. 163–178, on the relationship between the ECJ and national courts of the member states in general; and Petersen (2009), p. 21; Mayer (2006), p. 295 ff.; Garlicki (2008), p. 518, on what they call a ‘paradigm of cooperation’ among courts.

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courts helped in the migration of proportionality analysis to other member states, it had the effect of reinforcing the doctrine in Germany, where it was already being applied.79 Since the 1970s, the ECtHR has referred to proportionality to ascertain whether states have breached the European Convention of Human Rights.80 The court made the test a central element of its case law by building around proportionality the socalled margin of appreciation doctrine, which is intended to determine the space of discretion member states have to interpret the convention.81 Also in the 1970s, the ECJ took the first steps towards incorporating proportionality in its case law.82 Differently from the BVerfG, however, the ECJ has placed the sub-test of necessity, instead of balancing, in “the heart of the analysis.”83 An example is the Case 11/70, judged on January 29, 1970, which in the view of many scholars constitutes the first reference to proportionality in the ECJ’s case law. In the judgement, the court submitted a governmental measure designed to implement an agricultural policy to a means-ends analysis.84 Further references to proportionality have appeared in the jurisprudence of the ECJ in judgements involving the review of community 79 Schwarze

(1992), p. 692 and 696, respectively, gives some examples, two of which are worth mentioning: Italy and United Kingdom. Respecting the former, Schwarze says, “in Italy, the proportionality principle has come to prominence under this designation only as a result of the case law developed by the European Court of Justice;” concerning the latter, “under the influence of European Community Law, in particular the case law of the ECJ, the proportionality principle has recently been introduced into English law.” Similarly, according to Cohn (2010), p. 585, the pre-existing method for invalidating administrative action in the U.K., unreasonabless review, “was transformed in the late 1980 s to accommodate pressure from Strasbourg,” and proportionality was then “transposed onto British law under British obligations under European Community law.” See also Rivers (2004), pp. 148–163. 80 Sweet and Mathews (2008), p. 146 ff.; Schwarze (1992), p. 705. A candidate for the post of the earliest case the ECtHR decided by resort to proportionality is Handyside v. the United Kingdom, App. No. 5493/72, Judgment of 1976, 1 Eur. H.R. Rep. (ser. A, No. 24) 737. It is nevertheless disputable whether this was really the first time the court had recourse to the test. See in this respect, Eissen (1993), p. 126. 81 Pulido (2013), p. 497. See also Zhordania T (2012). The problems relating to the margin of appreciation doctrine under the European convention on human rights. Europa-Kolleg, Institute for European Integration, p. 15 ff.; Greer (2000), p. 20; (2003), p. 409 ff.; McBride (1999), pp. 23–36; Letsas (2006), p. 711 ff.; Arai (2002), pp. 14 ff., 186 ff.; Matscher (1993), pp. 63–81; Gerards and Senden (2009), p. 645. The relevance proportionality has assumed in the ECtHR’s case law led Letsas (2006), p. 711, to comment: ‘the principle … is by far the most important and most demanding criterion for whether the limitation of a right was permissible under the [European] Convention [of Human Rights].’. 82 There is no consensus about which decision was the first to refer to proportionality in the ECJ’s case law. While some authors regard the Case 11/70 as having inaugurated a line of judgments by resort to proportionality, Schwarze (1992), p. 677, says that the ECJ already had recourse to proportionality before 1970, but the “principle made … an occasional and insubstantial appearance” then and “has acquired an extremely important role in the judicial review of administrative decisions and rules since 1970.”. 83 Sweet and Mathews (2010), p. 107. See also Jans (2000), p. 240; and de Búrca (1993), pp. 105–150. 84 Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Judgment of 29 January 1970, 1970 E.C.R. 1125. For comments, see Hartley

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legislation85 and subject matter such as the free movement of goods, labour, capital, and services, and indirect sex discrimination.86 Finally, the Treaty of Lisbon, signed in 2007 and in force since 2009, added provisions to the Treaty on European Union on “the principle of proportionality” that governs “the use of Union competences.”87

2.2 Explaining the Migration of Proportionality As a comparatist wrote, “the debate on the migration of constitutional ideas is complex and contentious both empirically and normatively.”88 This statement is valid for constitutional migrations in general and the migration of proportionality in particular. The spread of proportionality can also be grasped empirically, as a social fact that defies explanation, which in fact many authors have attempted to do. Although the main goal of this study does not consist in explaining the successful export of proportionality, a brief overview of the literature dedicated to understanding why the test has proliferated so fast and reached so many countries, including Brazil, may be helpful for readers that are not familiar with the phenomena or aware of Brazilian openness to foreign legal materials. I group the explanatory theories on the migration of proportionality into three categories: functionalist, contextualist, and naturalistic.

2.2.1 Functionalist Explanations Functionalist theories affirm that the proportionality test serves specific functions that make it useful or important enough to motivate the borrowings.89 In the view of many authors, decision-makers have recourse to the test either due to the benefits it brings to society as a whole, or because it furthers interests of individuals or par(2003), p. 152; Sweet and Mathews (2008), p. 140; Barak (2012a, b), p. 185; Schwarze (1992), pp. 708–709. 85 Jans (2000), pp. 240, footnote 3. 86 Sweet and Mathews (2008), pp. 140–141; Schwarze (1992), pp. 726–853; Tridimas (1996), pp. 98–99. 87 Treaty on European Union [TEU], Article 5 (1). 88 Walker (2010), p. 279. 89 Zweigert and Kötz (1998), p. 34, observe that the functionalist approach has been for long deemed as the dominant and “basic” method of analysis in comparative constitutional law, although subjected to severe criticism as well. Generally speaking, scholars conducting functionalist inquiries “identify one or more functions performed by constitutions or constitutional institutions or doctrines in some societies, and analyse whether and how that function is performed elsewhere,” Jackson (2012), p. 62, says. Another possibility is that comparatists employ this method to discover problems shared by different legal systems and compare how each of them attempted to circumvent or solve the same issues, Michaels (2006), p. 346, notices. See Tushnet (1999), pp. 1238–1269, for an account of functionalism as serving not as a method for scholars, but for courts seeking for answers in foreign legal systems.

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ticular social groups. That is, functionalists emphasise the properties of the moving element that arguably explain migration.90 According to the literature, borrowing the proportionality test would fulfil any or some of the following functions: save the costs of trial-and-error experimentation with other adjudicative tools that have not been tested elsewhere91 ; alleviate the coercion that inheres every judicial ruling92 ; help judges to show a higher degree of responsiveness to all parties’ interests93 ; sustain the illusion that decision-making is rational, objective, impartial, and not arbitrary94 ; release judges from certain institutional constraints,95 pacify pressure groups with interest in the contest96 ; minimize political disruptions in pluralist societies97 ; and bring gains in the reputation of the legal system as a whole or increase judges and courts’ respectability and prestige both nationally and internationally.98

2.2.2 Contextualist Explanations In contrast, contextualist theories argue that the spread of proportionality is understandable as part of a broader process, whether historically or culturally grounded.99 On the one hand, the historical explanation more often advanced for the success of proportionality connects it to the distrust in elected authorities that marked the process of re-democratization after the fall of dictatorial regimes in many countries. Propor-

90 For

a definition of ‘transmissibility,’ see Wise (1990), p. 17. (1986), p. xiii; Miller (2003), p. 845. 92 Perju (2012a), pp. 335–337; Sweet and Mathews (2008), p. 83; Pavlakos (2014), p. 107. 93 Barak (2012a, b), p. 749; Beatty (2004), p. 162; Schlink (2011), p. 302; Sweet and Mathews (2008), pp. 88, 89. 94 Annus (2004), p. 304; Cohen-Eliya and Porat (2011), p. 466; Perju (2012b), p. 1318. 95 Luhmann (2009), p. 144; Schauer (2005a), pp. 49–69; (2005b), pp. 29–56; Tremblay (2014), p. 887. 96 Sadurski (2009), pp. 136–137; Sweet and Mathews (2008), pp. 88–89. 97 Cohen-Eliya and Porat (2011), p. 466. 98 Cohen-Eliya and Porat (2010), p. 263; (2013a, b), pp. 134–135. For more on the reputationbuilding function of legal borrowings and migrations motivated by the prominence of the foreign system, court, or academic work from which the object was taken, see Graziadei (2006), p. 456; Choudhry (1999), p. 888; Epstein and Knight (2003), p. 210; Law (2008), pp. 1343–1349; Schauer (2000), pp. 11–18; Smits (2006), p. 531; Rosenkrantz (2003), p. 269 ff.; Perju (2010), pp. 348–349; Slaughter (1999), pp. 120–123; Watson (1974), pp. 51–52, 88–94; (1978), p. 327. Miller (2003), p. 854, explains that developing countries like Brazil often emulate constitutional models from the U.S. and Europe in support of their institutional arrangements, which would lack legitimacy otherwise. 99 For more on the contextualist approach, see Jackson (2012), p. 67; McWhinney (1986), vi (foreword). In which concerns the historical approach, since Watson’s seminal work, historically based analysis has been a common method for explaining constitutional migrations and borrowings. See Watson (1974), p. 7, arguing that comparative law approximates to legal history; and Gordley (2006), pp. 754–775, discussing the role of legal history in comparative legal studies. 91 McWhinney

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tionality would be part of a broader reaction against authoritarianism.100 Particularly concerning its presence in Brazil, the historical processes related include the emergence of a new constitutionalism in Germany after and in response to World War II,101 the following waves of constitutionalisation that swept over Europe and South America in the second half of the twentieth century,102 and Brazilian re-democratization in the 1980s and subsequent judiciary reform in the 1990s.103 In the view of researchers like Daly, Brazil’s new democratic beginning explains the country’s recent openness to foreign sources other than U.S. Supreme Court’s case law, which until recently had almost solitarily supplied the STF with comparative material. The “perceived success” of European constitutionalisation after World War II inspired the Federal Constitution, Daly affirms.104 The STF was particularly affected, as the new institutional arrangement placed it closer to the Kelsenian model of judicial review that had inspired most European courts. This particular scenario pushed Brazilian Justices “to look beyond the American example for guidance and models.”105 American case law and jurisprudence could not offer much help for constitutional adjudication in a transitional context, for the U.S. did not experience any interruption in its democratic polity during the twentieth century. In fact, a well-documented historical explanation for the Brazilian borrowing of proportionality includes the large influence of German constitutionalism in the postdictatorial constitutions of Portugal and Spain.106 From the Iberian countries, these ideas migrated to Brazil.107 The committee of jurists that assisted the parliamentary commission in drafting the Brazilian constitutional text looked abroad for inspiration and found it especially in countries with similar cultural and linguistic background.108 100 Ackerman (1997), pp. 778, 795–796; Beatty (2004), pp. 2–3; Schlink (2011), p. 301. C.f. Robert-

son (2010), pp. 29–30, according to whom the explanation for borrowing proportionality does not have to lie in something of impact such as democratization after a violent dictatorship. Canada, for example, has adopted a variant of the test without having faced such a dramatic break in policy—although it is true that the Canadian Charter of Rights represented “a dramatic break from an English-style history of parliamentary supremacy.” Furthermore, he says, if a transition in the political regime was sufficient explanation for the new principle-based approach on rights, “the Italian Constitutional Court should have been as effective as the German court, for they were created at roughly the same time in very similar historical contexts.” Differently from what has been observed in Germany, however, constitutional review has been regarded as “half-hearted and limited” in Italy, he observes. 101 See, for instance, Weinrib (2006) and Chap. 6 below; Hirschl (2007). 102 See Sweet and Mathews (2008), p. 87, and Chap. 6 below. 103 See Vieira (2008), pp. 447–450, and Chap. 6 below. 104 Daly (2014), p. 8. 105 Ibid., pp. 7–8. 106 Freire, p. 5. See Martins (2003), pp. 20–21, on the reception of proportionality in Portugal, which he qualifies as “partial and insufficient.”. 107 Sarlet (2009), p. 74; Daly (2014), pp. 7–8; Rosenn (2010), p. 443; Neves (2013), p. 113. 108 Cittadino (2009), pp. 41–43, 60–64. Actually, the Federal Senate provided the members of the constitutional assembly with a compilation of translated constitutions from “more than thirty-six countries, including Germany, Italy, Japan, Spain, and the United States.” [Rosenn (2010), p. 443]. As a result, clauses of the Federal Constitution entirely reproduce the text of their foreign equivalents.

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Brazilian constitutional scholarship welcomed with particular enthusiasm the ideas of José Canotilho, from Portugal,109 and Pablo Lucas Verdú, from Spain.110 These and other authors had already succeeded in adapting to their respective countries salient features of German new-constitutionalism, such as a principle-based interpretation of law, a wide-scope conception of fundamental rights, and the shift towards justification in the constitutional courts’ case law. On the other hand, the cultural explanations contextualists advance for the worldwide spread of proportionality are of two types. The one departs from the premise that the same conditions that favoured the development of proportionality in Germany must be present wherever it has been borrowed. These essential attributes of German political culture are communitarianism and an organic conception of state, Cohen-Eliya and Porat say.111 And in fact, Brazilian scholar Cittadino has argued for the strong influence of communitarian ideals on the framers of the Federal Constitution.112 Another cultural approach focuses not on the context where proportionality was devised, but on the cultural commonalities that the countries of destination allegedly share. Comparatists have described “the emergence of a general global constitutional culture,”113 which some term ‘culture of justification,’114 ‘new constitutionalism’ or ‘postwar constitutional paradigm.’115 This transnational constitutional trend would foster a broad conception of rights, favour value-based arguments to the detriment of more traditional authoritative sources of interpretation, trust the judiciary to deliver rational decisions, and promote a deliberative conception of democracy.116 In general, these features are present in countries that borrowed the proportionality test, like Canada and Israel.117 The set of decisions analysed within next chapters confirms that to a great extent it is also the case with Brazil.

109 Canotilho

(1981); Canotilho (1982). (1984). 111 Cohen-Eliya and Porat (2009), pp. 387–395; (2011), p. 103; (2013a, b), pp. 46–49. See Kommers and Miller (2012), pp. 46, 353, discussing the influence of communitarianism on the Basic Law and German philosophical tradition that draws “no clear distinction between state and society,” which has supported the state’s deeply commitment “to an objective order of values.”. 112 Cittadino (2009), p. 43. 113 Cohen-Eliya and Porat (2013a, b), p. 103. 114 Mureinik (1994), p. 32; Cohen-Eliya and Porat (2010), pp. 272–275; (2011), pp. 485–486; (2013a, b), pp. 5–7, p. 103; Kumm (2009), p. 8; Dyzenhaus (1998), pp. 35–36; Gardbaum (2014), pp. 261–266. 115 Sweet and Mathews (2008), p. 85 ff.; Weinrib (2006), p. 89 ff. 116 Cohen-Eliya and Porat (2013a, b), p. 122. 117 Ibid., pp. 139–148. 110 Verdú

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2.2.3 Naturalistic Explanations Naturalistic theories attempt to explain the migration of proportionality with the help of some inherent attribute of decision-making that could make the test an inescapable element of judicial adjudication and thus universal by definition. Beatty, for example, believes that “proportionality is a universal criterion of constitutionality” and “an essential, unavoidable part of every constitutional text.”118 Interestingly, Alexy says something similar: “balancing is inevitable and unavoidable.”119 One can interpret this assertion in two different ways. The first is as a statement about what is legally commanded (what ought to be). One who defends this reading infers that the word ‘unavoidable’ in Alexy’s sentence is actually to mean ‘legally necessary.’ In which follows, the term would not allude to how decision-makers actually act, but rather to what a decision-maker ought to do if she is to decide in conformity to the law. This interpretation shall be put aside for now; it will be dealt with below when the discussion advances to the strong thesis in Sect. 2.3. What is of interest now is the second interpretation. That is the reading of Alexy’s statement as a statement of fact (what is). In this sense, ‘unavoidable’ means ‘empirically necessary.’ This would turn Alexy’s words into an assertion about the nature of decisions in general and legal decisions in particular. Under this interpretation, the universality of the proportionality test, or at least its last step, balancing, would be deeply grounded. Its ultimate explanatory cause would be physically compelling. That is, either the way our thinking is built, perhaps due to structural patterns absorbed in education, or even maybe the biology of our brains concerned with decision-making and argumentation would impel judges to see constitutional rights as principles whose collisions are inevitable and inevitably requires balancing.120 This is counterintuitive, to say the least. Strong arguments against it are the facts that, firstly, only after the second half of the twentieth century constitutional courts started to employ the proportionality test, and secondly, even today no empirical evidence supports the claim that all courts do so.121 Furthermore, as in any attempt to describe how judges actually make their decisions, one who says that proportionality is empirically necessary enters the context of discovery or deliberation. And Alexy expressly affirmed that his principles theory is concerned with another con-

118 Beatty

(2004), p. 162.

119 Alexy (2010b), p. 20. See also Alexy (2003a), p. 131, referring to balancing as “indispensable.”. 120 Alexy

(2003a), p. 136. fact, not all constitutions textually provide for the proportionality test as an adjudicative method—only a minority of constitutions actually do—, nor do data support the belief that all courts across the world engage in some kind of proportionality analysis. Beatty (2004), for example, has only devoted close attention to examples from Germany, Canada, Israel, South Africa, Japan, Hungary, Australia, and the European Court of Human Rights. As Posner (2005), p. 301, correctly pointed out, “Beatty cites decisions from only 15 of [the world’s] 193 nations (plus decisions of one United Nations and two European tribunals), and 11 of the 15 are former British possessions. His sample of world judicial opinion, therefore, is hardly representative. He has not demonstrated that ‘proportionality’ is a universal legal norm.”.

121 In

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text: justification.122 Finally, if the assertion that balancing is empirically necessary were true, it would be useless for legal scholars and judges to discuss or even criticize the method. The debates, were it the case, would be transferred to the fields of psychology, neuroscience, or legal education. Particularly the main argument made in this book, about the conditional universality of the proportionality test, would be pointless. I therefore assume that the naturalistic explanation is false.

2.3 Brazil: The System of Destination The Federal Constitution does not contain any provision that unequivocally refers to proportionality. The test has nevertheless become a common feature of Brazilian interpretative practice. The phrase ‘interpretative practice’ refers to two types of interpreters, whether authoritative (e.g. the constitutional court) and non-authoritative (e.g. scholars and citizens), and the meaning both assign to the constitution. This meaning is only relatively dependent on the constitutional text. It actually owes much to the activity of officers and academics that take part in the public debate about what law correctly understood commands, prohibits, or permits. Judges may incorporate the debates into their opinions, which visibly happens in the U.S. and is also “prominent in German judgments.”123 Even if this is not the case, and judicial opinions do not explicitly refer to non-authoritative interpretation, the activity of both authoritative and non-authoritative interpreters is crucial for the understanding of what legal clauses mean. Comparative constitutional studies provide valuable lessons in this respect.124

122 Alexy

(2010a), p. 14; (2010b), p. 228. and Fedtke (2005), pp. 16–17. 124 See an example in Kommers and Miller (2012), p. 374. The authors analysed the legal treatment that Germany and the U.S. gave to abortion. They compared the provisions in the Basic Law and the U.S. Constitution, and the different conclusions to which the BVerfG and the U.S. Supreme Court arrived at in the Abortion Case I and Roe v. Wade, respectively. The BVerfG ruled in the Abortion Case I that “the state has a constitutional duty to protect the life of the unborn child, and must criminalize abortion” [39 BVerfGE 1, Judgment of 25 February 1975, translated in Kommers and Miller (2012), pp. 374–383]. The U.S. Supreme Court held in Roe v. Wade that “the right to choose an abortion is within a woman’s fundamental right of privacy, invalidating a state law that criminalized abortion.” (410 U.S. 113, Judgment of 1973). Kommers (1997), p. 689, observed that the German judgment “stands in sharp contrast to the doctrinal analysis contained in the seminal American case,” although “there [was] nothing inexorable” about abortion in either German or American authoritative legal material. A conclusion is that, unless for the difference in each court’s understanding, both decisions “might have gone the other way.”. 123 Markesinis

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2.3.1 The Openness of Brazilian Interpretative Practice In this book I offer another example of how determinant the interpretative practices are for successful constitutional migrations. The idea may sound obvious once one recalls that judicial borrowings are at stake. However, less noticeable is the role that legal scholarship plays in accommodating alien elements within the pre-existing set of conceptions embedded in a constitutional culture. Constitutional comparatists have documented that, generally speaking, “the tradition of taking into account foreign constitutional doctrine varies from country to country,” but noticeably, “scholars as well as judges from countries with young constitutional systems are more eager to know and to learn about other constitutional systems.”125 Particularly respecting the migration of proportionality, while Alexy developed the principles theory in attempt to make sense of the BVerfG’s case law, Portuguese and Brazilian scholars took upon themselves the task of translating and adapting the theory’s basic concepts to their parochial realities.126 The influence of German constitutional thought in Portugal is readily discernible, for “Portuguese constitutionalists quote and integrate German scholarly works into their treatises on constitutional law.”127 As anticipated above, José Canotilho, professor at the University of Coimbra, was a leading figure in the reception of the principles theory in Portuguesespeaking countries. Due to the academic respectability that Canotilho’s works had achieved in both sides of the Atlantic, it was a matter of time until the appreciation he expressed for Alexy’s ideas captivated the curiosity of scholars in Brazil.128 The historical moment was favourable, firstly, as the framers of the Federal Constitution looked for inspiration abroad, especially in Europe, and later, as academics, lawyers, students, and citizens in general took part in the discussions about how to interpret the principled-based clauses that the text recently promulgated provided for. Any comprehensive explanation for the STF’s recourse to proportionality should consider a set of the functionalist and contextualist explanations expounded above in Sect. 2.2. We cannot ignore that the test carries the BVerfG’s prestige, the reputation of German scholarship, and its long-lasting legal tradition. Nor can we overlook the fact that the usage of proportionality as an adjudicative method in developed countries counts as a proof of its excellence and thus contribute to its adoption in others. Brazil, similar to many other developing countries, have historically showed openness to European and North-American ideas. We cannot disregard the fact that “ideologically and culturally Brazil has long perceived itself as part of the West;” therefore, reference to foreign courts’ case law “makes sense when they are viewed as

125 Kokott

(1999), p. 77. (2012a, b), pp. 200–201. 127 Kokott (1999), p. 77. 128 Sarlet (2009), p. 74. 126 Barak

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‘Western’ courts.”129 The phenomenon actually goes beyond the bench, impacts the constitutional cycle from its framing to later interpretation, and has deeper roots.130 The expressive number of German scholarly works that have been translated to Portuguese is a reflex of the prestige that German legal thought has in Brazil. Equally noteworthy is the elevated number of Brazilian lawyers and academics that have studied in Germany. That was the case of Gilmar Mendes, who “has been particularly conspicuous for bringing insights from comparative law to bear upon the decisions of the court.”131 Mendes has been an unusually prominent Justice since his nomination, in 2002, and for at least a decade the STF’s case law fell under his influence and leadership. I shall refer to this period, which lasts from 2002 until 2012, as the Mendes Court.132 It is not a coincidence that he had attained a doctoral degree after researching on comparative constitutional law in the University of Münster. Brazilian lawyers seem to be mesmerized by the authority of German constitutional law in general and the BVerfG’s findings in particular. In any case, explanations for Brazilian noticeable openness towards foreign legal ideas range from positive to negative traits of the country’s legal culture. A natural curiosity about contemporary legal debates would be an example of positive trait that has helped the country to cope with political and social difficulties. A study on comparative private law traced Brazilian general enthusiasm for foreign legal ideas back to the “Law of Good Reason,”133 originated from the Enlightened reform in eighteen-century Portugal. That was the idea that judges could resort to legal sources other than the national statutory text and particularly to the laws of nations regarded as civilized. According to Herzog, this inherited tradition created ample opportunities for legal migrations, as judges and courts felt encouraged to welcome foreign ideas that they considered to be rational and well founded.134 Nonetheless, Brazilian openness to foreign legal materials has also less noble roots. According to Neves, “references to foreign constitutional texts, doctrine, and jurisprudence” have figured in courts’ opinions mainly “as proof of erudition,”135 for Brazilian legal culture is based on credentialism, or the excessive reliance on academic qualifications as indicating the quality of an argument. Similarly, in Montoro’s view, Brazilian lawyers’ enthusiasm for foreign legal ideas illustrated “colonialism or cultural dependence,” rather than an autonomous and self-oriented choice.136 This reflects in the fact that, very often, quotations to foreign legal material are not intended 129 Rosenn

(2010), p. 443.

130 Daly (2014), p. 15. See also Gonçalves (2012), pp. 22–25, in this respect; and Dammann (2002),

p. 521, on “authority-based comparisions.”. (2006), p. 299. 132 The expression was taken from Ferreira and Fernandes (2013); Mariano Silva (2016). 133 Herzog (2013), p. 174 (my translation). 134 Ibid., pp. 174, 182–183. 135 Neves (2013), p. 113. 136 Montoro (1973), p. 4. Accordingly, Benvindo (2010), p. 380, noticed that, in some judgements, the STF seemly implies that it performs its destiny by appropriating from the principles theory and German proportionality, as if “this new approach was the consequence of the irreversible evolution of Brazilian democracy.”. 131 Kleinheisterkamp

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to play more than a windows-dressing function in legal argumentation. They rather cover the lacks in decision-making reasoning than actually supply Justices with reasons for deciding one way or another. It is not always like this, however. Next sub-section will offer an example of judgement in which STF’s Justices referred to the principles theory akin to solve a problem they had before them. In either event, the case will also illustrate other problems that one who wants to study the STF should be aware of.

2.3.2 The Ellwanger Case (2003) The first time Alexy was mentioned by a Justice of the STF was on June 26, 2003, during the judgement of the Ellwanger Case, which is considered one of the most controversial cases the Court has ever decided.137 The case involved a writer and publisher who had been convicted for racism by an appellate court, for having published, sold and distributed anti-Semitic material. The petition of habeas corpus pleaded for the review of the appellate decision. The petitioner argued that, since Jews are members of a religion and do not constitute a biological race, the more severe restrictions that the Federal Constitution establishes for convicts of racism did not apply to his case.138 Nonetheless, the majority of the Court agreed on that the crime of racism is committed by whoever discriminates people departing from social stigmas that are commonly considered to be racial, regardless of whether human races really exist in a biological sense. Therefore, the petition for writ was denied. Alexy was mentioned in Justice Gilmar Mendes’ opinion. According to Justice Mendes, the principle of proportionality as presented by Alexy establishes “the last limit to the possibility of legitimately restricting a certain fundamental right.”139 Proportionality would be a “principle” and would offer “a general method for solving conflicts between principles.”140 Endorsing Alexy’s distinction between rules and principles, Justice Mendes affirmed that, differently from rules, a conflict between principles “is solved … by balancing the relative weight of each of the norms which are a priori applicable and able to justify decisions pointing toward opposite directions.”141 Justice Mendes also stated that proportionality and the three sub137 STF, Ellwanger Case, HC 82424/RS, Judgment of 17 September 2003, Relator (acórdão): Min. Maurício Corrêa, D.J. 10 Mar. 2004. The judgement was controversial in the view of da Silva (2013), p. 572, e.g. For in-depth analyses of the case, see Benvindo (2010), pp. 19–29, 298–404; and Freire (2007), pp. 9–10. 138 Constituição da República Federativa do Brasil de 1988, Article 5, XLII: “the practice of racism is a non-bailable crime, with no limitation, subject to the penalty of confinement, under the terms of the law.” All the translations of the Federal Constitution hereinafter are taken from Chamber of Deputies (2010), unless indicated otherwise. 139 STF, Ellwanger Case, HC 82424/RS, Judgment of 17 September 2003, Relator (acórdão): Min. Maurício Corrêa, D.J. 10 Mar. 2004 (my translation). 140 Ibid. 141 Ibid.

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principles it encompasses—suitability, necessity, and proportionality in its narrow sense—should be applied to the case. He considered that convicting the petitioner was a suitable means to guarantee the principles that rule Brazil in its internal and external relations, such as human dignity, social pluralism, and repudiation of racism. Additionally, the conviction was necessary in his view, for there was no less intrusive means admitted by the Federal Constitution. Finally, he considered that it was also proportional in a narrow sense because the conflicting principle, the freedom of expression, did not protect racial intolerance or incitation to violence. In conclusion, he voted with the majority for denying the petition for writ. Justice Marco Aurélio also departed from elements of the principles theory, but came to a different conclusion. He acknowledged that collisions between principles are to be solved according to Alexy’s approach of balancing, largely adopted by other constitutional courts. He affirmed, however, that the material brought to the Court with the case did not illustrate the perpetration of hate speech or incitation of racism. Referring to the three sub-principles of the proportionality test, he stated that the appellate decision that convicted the applicant to prison was unsuitable, unnecessary, and disproportionate in the narrow sense. With regard to the latter, Justice Marco Aurélio considered that forbidding the convict of publishing books that were not evidently racist would import a severe restriction to his freedom of expression. Hence, the Justice voted with the minority to accept the petition for writ.

2.3.3 Peculiarities of the STF’s Structure and Functioning The Ellwanger Case is illustrative of STF’s practice in many ways. For example, it reveals a high tendency of personalization in the court’s judgements and particularly that Justice Gilmar Mendes played the role of a protagonist in the migration of the principles theory-variant of proportionality from Germany to Brazil. As next chapters will demonstrate, although other Justices had direct recourse to proportionality as well, the impact of their votes—and therefore of the references in the opinions—was only secondary in the first decade after Ellwanger. Notably, Justice Marco Aurélio, who also mentioned Alexy in the judgement, delivered a dissent and his vote was not followed by any other Justice. Besides that, the Ellwanger Case can also offer a starting point for us to understand the peculiarities of STF’s structure and functioning and the institutional framework within which the court operates. In fact, the institutional framework of the country of destination is as important for the justification of constitutional migrations as the constitutional text and the interpretative practice of judges and scholars. The institutional framework encompasses the basic structures that conform a country’s polity, as well as more detailed rules about the functioning and authority of the constitutional court, for example. Concerning the migration of proportionality, it is doubtful whether a legal system where neither rights “enjoy the highest rank in the hierarchy of norms” nor “their enforcement is governed by a constitutional court” could coherently accommodate

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the test.142 The minimal institutional conditions that allow for borrowing proportionality correspond in general terms to what an author has called “the basic formula of the new constitutionalism,” namely the combination of “(a) a written, entrenched constitution, (b) a charter of rights, and (c) a review mechanism to protect rights.”143 Indeed, these conditions are present in all the countries to where proportionality has migrated, with the notable exceptions of the U.K. and Israel, which do not have a codified constitution, but written charters of rights instead.144 One can therefore agree on that both a written charter of rights and a constitutional court empowered to review legislation in the light of that charter are part of the minimum institutional arrangement required by proportionality; yet, they do not suffice. Besides not offering enough justification for borrowing, these elements do not explain the U.S. exceptionalism,145 for instance. Respecting Brazil, next chapters illuminate other aspects of the institutional framework from which one can infer normative reasons that justify the borrowings. Particularly in Chap. 6, I shall demonstrate that the institutional framework also helped the STF to submit to the application of proportionality legal issues that were not historically under the court’s authority. For now, however, I should highlight the elements in the parochial arrangement that may not impede the migration completely, but certainly defies its adaptation. Two characteristics that one can perceive from the brief analysis of the Ellwanger Case offered above determine the form of written opinions in Brazil and have impact on the case-law analysis as presented here. The first is the mitigated influence of the continental European tradition on the court’s organization. This mitigation is a reflex of the mixed judicial systems that prevail in Latin America,146 and its main consequence is a lack of features often found in constitutional courts from civil-law countries, namely specialisation, collegiality, and anonymity.147 The second characteristic is the range of possible outcomes of STF’s final judgements. Four different rulings have been delivered on judicial review. Combined, the two characteristics—the incomplete reception of civil-law procedures for decisionmaking and the relatively open range of possible rulings—result in very long written decisions that encompass the votes of all Justices, including their dissenting and concurrent opinions. This makes it difficult to separate, on the one hand, a Justice’s isolated arguments from the court’s collective reasoning, and, on the other, 142 Klatt

(2012), p. 7. and Mathews (2008), p. 85. 144 Rivers (2010), xvii, says that the Human Rights Act, 1998, c. 42 (Eng.), is now “the prima locus of constitutional rights in the United Kingdom.” Concerning Israel, the rights are listed in the Basic Law: Human Dignity and Liberty (5752-1992), S.H. 1391; and the Basic Law: Freedom of Occupation (5754-1994), S.H. 1454, 90. According to Barak (2007), p. 370, Israeli courts have been interpreting the “Basic Law: Human Dignity and Freedom” as including the principle of proportionality. The vastly documented fact that more and more countries are adhering to a constitutionalist model that favours judicial review led Shinar (2014), p. 195, to sarcastically ask: “if non-constitutionalist regimes are so great, why are countries getting rid of them?”. 145 Weinrib (2006), p. 84 ff. 146 Navia and Ríos-Figueroa (2005), pp. 191–195. 147 McWhinney (1986), pp. 23–34. 143 Sweet

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a decision’s dictum from its ratio decidendi. On account of the impact they have in the court’s opinions, these particularities of STF’s structure and functioning are discussed hereinafter.

2.3.3.1

Mitigated Reception of Civil-Law Courts’ Features

The mitigated influence of the European tradition is discernible in both the STF’s composition and authority.148 Respecting the composition, although Brazilian legal institutions have inherited Romano-Germanic features from their Portuguese origins, the U.S. Supreme Court was the model largely adopted for establishing the prerogatives of court officers and the manner of filling their seats. Similarly to their North-American counterparts, Brazilian Justices are appointed by the President of the Republic, after the Federal Senate has confirmed their nomination. Once appointed, they enjoy life tenure, among other guarantees, which shall only be forfeited by resignation, impeachment, or compulsory retirement at the age of seventy.149 A Chief Justice, elected by the court among its judges, is responsible for conducing plenary sessions and announcing the results of full-Court judgements. Decisions on certain matters, however, are rendered by the STF’s two panels, each of them encompassing five associate Justices. Only by the vote of the absolute majority of STF’s plenum or panels, in each case, the court may declare unconstitutional a law or a normative act of the Government.150 Regarding its authority, as the BVerfG, the STF is the guardian of the constitutional order, but, unlike Germany, Brazil does not apply important aspects of judiciary organization generally found in civil-law countries. Based solely on the continental European tradition of specialisation, collegiality, and anonymity of constitutional courts,151 one would have difficulty to demonstrate the historical Portuguese origins of Brazilian legal practices.

148 The

mitigated filiation to civil-law traditions is also discernible in the authority given to some courts’ decisions. de Bustamante (2007), p. 293, points out that Brazil is a ‘qualified civil-law country’ because “there is a corpus of formally binding decisions from the Supreme Federal Court, the Higher Electoral Court, and the Higher Labour Court. The authority of such decisions derives from statutory law itself, and neither from a practice nor from the naked authority of the judge, as expounded in the most persuasive accounts of Common Law doctrine.”. 149 Constituição da República Federativa do Brasil de 1988, Article 95, I, and Article 101, Main Body and Sole Paragraph. See Harding and Leyland (2009), for a comparative study on appointment rules for supreme and constitutional courts from Africa, Asia, Europe, and Latin America; Comella (2009), for an European perspective; and Landfried (1988), pp. 147–151, particularly about the nomination of judges to the BVerfG. 150 Constituição (1988), Article 97; Regimento Interno do Supremo Tribunal Federal, Article 2, Sole Paragraph, and Articles 3 and 4. 151 McWhinney (1986), p. 23.

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Specialization Considering first specialisation, in the model that prevails in Europe, constitutional courts are “special institutions that are separate from the rest of the judiciary.”152 From such a model, one can derive two typical features of continental Europe’s courts: centralisation and subject-matter jurisdiction. Both features are mitigated in the STF’s structure and functioning. First with regard to centralisation, the term is ideally understood as “a monopoly on the power to invalidate infra-constitutional legal norms, including statutes, as unconstitutional”153 granted to a constitutional court, with the consequence that “the ‘ordinary’ courts … are prohibited from doing so.”154 Although the degree of centralization varies considerably within Europe between the two poles represented by the French and German models,155 some consensus exist in that “constitutional review of legislation is a special task—one that cannot be ascribed to ordinary judges.”156 Provided that such a monopoly is a distinctive feature of centralisation, Brazil cannot be exactly ranked “among those civil-law countries with a centralized system of judicial review.”157 Brazilian constitutional adjudication combines some features of continental Europe with features of U.S. courts, where judicial review is decentralized—“all courts may declare laws unconstitutional”158 —, and the Supreme Court retains jurisdiction as a final appellate tribunal. In Brazil, lower courts and judges are also entrusted with authority to review the constitutionality of legislation. In the Federal Constitution, there is no equivalent provision to Article 100 (1) Basic Law, which ensures exclusivity of constitutional review to the BVerfG.159 The STF may exert judicial review in two different ways—concretely or abstractly—, depending essentially on how a case comes before the court. The review is concrete if it arises from an ordinary lawsuit and comes to the STF by means of an appeal, and it is abstract if vindicated in proceedings specially designed to provoke the court to declare whether a statutory clause is in accordance with the constitutional provisions as correctly interpreted.160 152 Comella (2011), p. 265. For more on specialization, see: McWhinney (1986); Michelman (2011);

Comella (2009), pp. 3–9; Ginsburg (2003), pp. 9–105; Sweet (2012), pp. 817–820. (2012), p. 818. 154 Ibid., p. 818. 155 Ferejohn and Pasquino (2003). 1682. 156 Comella (2011), p. 268. 157 Kommers and Miller (2012), p. 3. 158 Ibid., p. 3. 159 ‘If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained … from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law.’ (Grundgesetz für die Bundesrepublik Deutschland, Article 100 (1)). 160 On the differences between concrete and abstract judicial review, see: Sadurski (2005), pp. 65–74; Sweet (2012), p. 823; concerning the jurisdiction of both German Federal Constitutional Court and the United States Supreme Court, see: Kommers and Miller (2012), pp. 13–15. 153 Sweet

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On the one hand, the STF is the highest court of appeals on constitutional matters in Brazil. For the court is granted appellate jurisdiction, it holds the power to overrule lower courts’ judgements. If a constitutional matter arising from a judicial decision is submitted to STF’s appreciation by means of an appeal, the review is said to be concrete, i.e., at least a priori limited to the boundaries of the case. Constitutional appeals are normally labelled ‘extraordinary’ (recursos extraordinários—RE), and, in order to have an extraordinary appeal examined by the court, the appellant must demonstrate the general repercussion of the constitutional issues argued in the case. Moreover, there are also ‘ordinary appeals’ (recursos ordinários—RO) on writs that have been tailored to protect fundamental rights, especially the writs of security (mandados de segurança—MS)161 and habeas corpus (HC). These ordinary appeals in petitions of constitutional writs should be examined by the STF independently of having general repercussion.162 On the other hand, the court also holds original jurisdiction, i.e., it is the first instance for specific legal proceedings and trials. The Federal Constitution empowers some public authorities and boards of officers—as well as the Federal Council of the Brazilian Bar Association, confederations of labour unions, and qualified political parties and professional associations—to file certain actions directly with the court. These proceedings include ‘direct actions of unconstitutionality’ (ações diretas de inconstitucionalidade—ADI), ‘declaratory actions of constitutionality’ (ações declaratórias de constitucionalidade—ADC), and ‘allegations of disobedience of fundamental precept’ (alegações de descumprimento de preceito fundamental—ADPF). In these actions, the petitioner seeks not that judicial decisions be reverted, but that federal and state laws or other normative acts be declared either constitutional or unconstitutional. The review here is thus said to be abstract. Final decisions on merits pronounced by the STF in such cases shall have force against all, as well as binding effect with regard to governmental bodies and lower courts and judges.163 Still concerning specialisation, another of STF’s peculiarities relates to the content of the cases it decides. According to the tradition with origins in continental Europe, the jurisdiction of a constitutional court is defined by its subject matter, which means that, at least ideally, the issues its Justices deal with have exclusively constitutional content. The STF’s, however, apart from having competence for con161 In the Brazilian legal system, a ‘writ of security’ is the suitable lawsuit to be filed by an applicant

who claims for protection against illegal actions and abuse of power, whenever the party responsible for the abusive act is a public officer or an agent of a governmental entity, and since the violated right is not protected by other constitutional actions—namely, habeas corpus and habeas data. Although the writ of security has been commonly translated as ‘writ of mandamus,’ the two terms are not equivalents. In Brazilian law, the writ of security is the appropriate action for situations in which petitions of writs other than the mandamus would be suitable in the Anglo-American system—especially, the writs of certiorari and injunction. Because of this, I have opted for a literal translation from the Portuguese ‘mandado de segurança.’ For more details, see: Marchant (1945); Rosenn (2011), pp. 19–23; Meirelles et al. (2013). 162 Constituição da República Federativa do Brasil de 1988, Article 102, II, III, and Paragraph 3. 163 Constituição (1988), Article 102, I, Paragraphs 1 and 2, and Article 103.

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stitutional review, also holds original jurisdiction to decide some nonconstitutional issues—cases relating to rules or principles other than the Federal Constitution. The catalogue of cases under the court’s original jurisdiction comprises, for example, petitions for the writs of security when the respondent is the President of the Republic, the directing boards of the Chamber of Deputies and the Federal Senate, the Federal Audit Court, the Attorney-General of the Republic, and the STF itself.164 As in these and other cases the jurisdiction is personal, held over the defendant’s office, rather than over the subject-matter of the lawsuit, nonconstitutional issues can be brought to the court.

Collegiality Besides specialisation, a second feature of constitutional courts under the civil-law approach to judiciary organisation is their collegiality, which could also be hardly found in the Brazilian practice. As defined by McWhinney, collegiality “involves the Court’s functioning as a group for purposes of decision-making, and also for opinion-writing in rationalisation or restatement of the grounds of the Court’s final decision.”165 Due to that, collegiality is normally connected with per curiam opinions, rendered as the result of a collective deliberation, without identifying the individual opinions behind it or even the single judge who wrote the decision for the plenary. As opposed to this model, the STF hands down seriatim decisions. All opinions, including dissenting and concurring votes, are read and later published. Once a petition is brought to the court, whether an appeal or a direct pleading, an associate Justice is appointed rapporteur for the case. The Justice rapporteur delivers both a report and her opinion. “The report constitutes a condensed description or synopsis of the case. … The second document, the opinion or rapporteur’s vote, is the solution the rapporteur proposes for the case, i.e., whether the statute should be considered constitutional or unconstitutional and on what grounds.”166 During a session of judgement, following the rapporteur, each of the Justices reads her opinion, which consists in a written statement explaining her vote. The Chief Justice thus pronounces the STF’s final determination after a mere aggregative decision-making process.167 The majority opinion is obtained by counting the votes independently of the reasoning individually provided by the voting Justices in their written opinions. Hence, the opinion of the court encompasses all Justices’ votes, including dissenting and concurring ones, and a memorandum disposition that is normally delivered by the rapporteur.

164 Constituição

(1988), Article 102, I, d. (1986), p. 23. 166 da Silva (2013), p. 569. 167 Ibid., p. 568. 165 McWhinney

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Anonymity As a result of its seriatim mode of making decisions, the STF lacks the third typical characteristic of the continental European tradition: anonymity. In civil-law derived countries, as McWhinney explains, “the Court’s collegial decision is rendered per curiam, on behalf of the whole, without even the rapporteur or rapporteurs identified.”168 This practice is regarded as both a guarantee of the constitutional court’s collective responsibility and a safeguard of its individual members’ independency. In Brazil, by contrast, judges’ nominal contributions are traditionally made public. Actually, the exposition of the STF’s Justices and their opinions has been more than tolerated, but promoted through the court’s official media channels, on internet and even television, with remarkable impact on the public opinion.169 Besides that, another personalistic feature of Brazilian constitutional case law is that both dissenting and concurring opinions are fully permitted and not discouraged. This differentiates STF’s practice from what has been done by the BVerfG. In Germany, dissenting opinions have been not so common, “nor exercised with other than a prudent judicial self-restraint as to language and styling,” in spite of “some public expression of the internal disagreements” being allowed “as a contribution to intellectual clarity in its decisions and opinions.”170 In detail, neither the façade of unity that usually covers supreme courts’ collective deliberations, nor the ideal of their decision-making as “an orchestral work, rather than a series of individual, solo performances,”171 are found in Brazil.

2.3.3.2

Relatively Open Range of Possible Rulings

Considering now the possible outcomes of judicial review, the STF can come to four different conclusions on deciding on the merits of whether a law, a constitutional amendment, or a governmental act was in accordance with the Federal Constitution. Firstly, the court can agree without reservations on the constitutionality of the act or any of its clauses. Secondly, the same act or clause can be considered constitutional with reservations. In such cases, the STF “resorts to such formulas as ‘the statute is constitutional, provided it is interpreted this or that way…’ or ‘the statute is constitutional, under the condition that this or that…’”172 Thirdly, the court can hold that a particular reading of the act or clause is unconstitutional and all the other

168 McWhinney

(1986), p. 26. See Markham (2006), arguing for the anonymity of the dissents of the U.S. Supreme Court. On anonymity in the American model, see Markham, “Individually Signed Judicial Opinions,” 923–951, arguing against individually signed judicial opinions in the U.S. Supreme Court’s case law. 169 See in this respect, da Silva (2012), p. 16 ff. 170 McWhinney (1986), pp. 24–25. 171 Ibid., p. 23. 172 da Silva (2013), pp. 573, footnote 49.

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interpretations remain valid. Finally, it can declare the act or clause unconstitutional without reservations. Whereas the first ruling does not cause additional difficulties, the three other scenarios open a range of possibilities that Justices ought to settle. The second scenario imposes an extra burden on the judges’ duty of justification: before announcing which interpretation of an act is in accordance with the constitution, the court presumably exhausted the analysis of all alternative readings. Moreover, in the cases a legal act or some of its interpretations are declared unconstitutional (third and fourth scenarios), the court should also decide whether some effects it has produced are valid, and since when the act is to be considered null and void—i.e., since its enactment, or since any other date. This relatively open range of outcomes gives the court considerable discretion as how to perform judicial review.

2.3.3.3

Peculiarities of Written Decisions

Both peculiarities of STF’s structure and functioning—on the one hand, the mitigated influence of the continental European tradition on the court’s organization, and on the other, the open range of rulings on judicial review—shape its decisions and consequently reverberate on their analysis. Due to the seriatim model adopted in Brazil, every opinion of the court encompasses the opinions of all Justices who have voted in that judgement. Each of these written votes frequently brings its own reasoning and ruling. Moreover, as personal performances are hardly restrained, Justices have often delivered long opinions and expressed no concern over the lack of a uniform writing style. An ostentatious tendency is also noticed in the often-pedantic language and the excessive reference to legal scholars and specialized literature. An immediate, discouraging, but bearable consequence of this arrangement is decisions difficult to read. Three other consequences of such practice, however, have considerable impact upon the analysis of the STF’s case law as performed here. Firstly, a problem about coping with STF’s decisions is the attendant difficulty that one experiences in separating the opinions’ dicta from their rationes decidendi. Whereas the dictum is a non-essential statement, which was not required to solve the legal issue, the ratio decidendi refers to the rule of law on which the decision was founded. As a result of blurring these distinctions, ascertaining what the majority has exactly held in some difficult cases has remained under dispute among lawyers and lower-court judges for years until further judgements settle the questions. The selected decisions expounded in the next chapters will demonstrate that the STF used the borrowed material in either ways, although their use as part of the opinion’s ratio decidendi slightly prevailed. In fact, Justices have not completely abandoned their flowery style of writing, still marked by long obiter dicta, several incidental remarks, and salient gaps in justification. Notwithstanding, it is noteworthy that alien sources have contributed substantially to the decisions, now more often than before. Secondly, it is not always clear to which extent an isolated opinion coincides with what the full-court has decided. It may happen that each Justice voting with the majority does so based on roughly coincidental arguments. In detail, different,

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sometimes conflicting theories, interpretations, or schools of thought support each individual written opinion. When these opinions are brought together, they compose a “multi-valenced” decision that aggregates eclectic viewpoints without necessarily cohere.173 Admittedly, the overlap of interpretative approaches is not an exclusivity of the STF; the phenomenon has affected other constitutional courts as well.174 At any rate, such a variety of interpretive methods that compete with each other within the same opinion jeopardizes the chances that one will succeed in distinguishing between the approaches only adopted by a specific Justice and those endorsed by the majority. Thirdly, lawyers and judges are not always aware of the criteria they actually employ to determine the importance each individual opinion had for the court’s final ruling. Nor do they agree on which route they ought to follow to ascertain the weight of collective and individual decisions. As a matter of fact, a “fully articulated theory of precedent … still does not exist in Brazil.”175 Given these problems, an observer might be tempted to conclude that Brazilian legal practice provides no method for analysing case law. A participant, however, would regard this conclusion as absurd. As in any legal system, Brazilian lawyers, judges, scholars and citizens who cope with judicial rulings develop ways to interpret the decisions and assign weight to opinions of courts and individual Justices. Nonetheless, sometimes these methods are tacitly accepted without much resistance or further reflexion and remain being regarded as a matter of intuition until they become the object of systematic investigation.

2.4 Justifying the Borrowings of Proportionality The previous sections opened path for the normative discussion about judicial borrowings. In spite of the voluminous body of literature already dedicated to the migration of proportionality, researchers have generally paid scant attention to the normative issues that judicial recourses to a foreign legal idea raise. Few works have focused on aspects of borrowings such as the argumentative role they play in judicial reasoning. Particularly pertinent is the question of whether courts are justified in relying on an adjudicative method that had been originally drawn from an extraneous constitution. The case law of the BVerfG, from where proportionality proceeds, derives from the Basic Law, which is not a valid legal source outside Germany. Generally speaking, foreign legal material is an alien source to parochial courts because it has never been acknowledged as authoritative by the peoples on behalf of whom these judges decide. Therefore, the migration of proportionality to Brazil puts forward implicit demands of justification, whether or not the courts that engaged in borrowing recognize it.

173 Jackson

and Greene (2011), p. 600. p. 599. 175 Bustamante (2007), p. 304. See Leal (2015), criticising the STF for referring to its precedents often in a too general and imprecise way. 174 Ibid.,

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The functionalist and contextualist theories expounded above propose credible explanations for the migration of proportionality. Nevertheless, neither is able to offer reasons that justify the quasi-universalization of the test and the normative conditions that support its application in Brazil. However satisfactory an explanation is, it does not obviate the need of justification. If no convincing reasons could be put forward for borrowing, the unjustified use of a foreign legal element would sparkle a crisis of legitimacy in the system of destination. The judicial borrowings would threaten the maintenance of the court’s authority in the long run and undermine the social efficacy of its decisions. To the participants in the public debate about what the law commands, prohibits, or permits, no explanation suffice—and ought not to.176 From the participant’s perspective, judicial borrowings necessarily pose a normative question—i.e., they ask for legal justification. A sufficient answer must necessarily show that borrowing is in accordance with the law, or that it is normatively commanded or permitted, and thus not prohibited, that judges have recourse to proportionality. This is also true the other way around. One who demonstrates, firstly, that there are convincing normative reasons for judges to appeal to extra-national sources, and secondly, that these reasons prevail over the reasons against borrowing, justifies that courts have recourse to foreign law. On the one hand, the main counter-argument to judicial borrowings is drawn from the principle of democratic legitimacy.177 The objection consists in that courts hold their authority to interpret and apply the laws that have been enacted by the representatives of the people on behalf of the that people; judges would have no authority to apply the laws that had been enacted by the representatives of other peoples on behalf of those peoples.178 The democratic principle prohibits judicial borrowings, but this is a prima facie, not a definitive prohibition. That is, after the reasons in favour of borrowing are also considered, the conclusion may be that borrowing is definitively permitted, but whether or not this is the case is a matter of justification. The court that acts against what is prima facie prohibited carries the burden of justification: it is incumbent upon judges to put convincing arguments forward for acting differently from what one would expect from the common reading of the democratic principle. On the other hand, many authors have attempted to disclose the normative premises that make a case for borrowing and must be presupposed if judicial decisions are to be justifiable. These premises vary considerably according to the element that has been borrowed, but with regard to the proportionality test, they can be grouped in three theses.179 The strong thesis says that proportionality is necessary because it is implied by the very structure of principles. The moderate thesis reads that proportionality is necessary depending on certain normative conditions. Finally, the weak thesis claims that proportionality offers the best means to reach certain normative 176 Choudhry

(2011), p. 10. (2009), pp. 658–661; Walker (2010), p. 321. 178 Choudhry (2011), pp. 9–13. See also Alford (2004), pp. 709–710, detailing four fundamental ways in which “comparativism is inconsistent with political democracy’.”. 179 For an alternative approach, see Pulido (2013), p. 503 ff. 177 Sitaraman

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goals. The three theses have something in common. They set out practical reasons for borrowing the proportionality test and argue that these reasons ought to overcome the democratic objection, if not always, at least under certain circumstances. They are however different due to the type of practical reasons each mobilizes, and the importance each gives to system-dependent or system-independent reasons. The type of practical reason each thesis mobilizes determines its normative strength. Both the strong and the moderate theses deploy typically deontological arguments, which “express what is legally right or wrong without looking at the consequences”180 and “derive their strength solely from being of correct content.”181 By way of contrast, the weak thesis is grounded in teleological arguments, which “look at the consequences of an interpretation and are based on an idea of what is good.”182 The theses also attach weights to two types of reasons in distinguishable ways. The strong thesis gives little importance to system-dependent reasons, on which the weak thesis focuses, while the moderate thesis sheds light on both system-dependent and system-independent reasons. Each of these theses is expounded below.

2.4.1 Weak Thesis According to the weak thesis, judges ought to apply the proportionality test because it is the best means to reach other socially desirable, normative goals. The weak thesis is goal-oriented and advances a normative argument by saying that something ought to be done so as to fulfil a norm. Comparatists and courts that endorse this thesis must suppose the existence of a means-end relationship between the proportionality test and a certain substantive principle. In contrast with the strong and moderate theses, the weak thesis does not postulate the existence of any norm that directly commands the use of proportionality and can be immediately fulfilled when the commanded action is performed. It makes the weaker claim that norms are indirectly fulfilled by borrowing the proportionality test, for performing the test contributes to the achievement of a goal that was made desirable or commanded by those norms. An inescapable conclusion is that, if another suitable means that could promote the same state of affairs more effectively or at less cost is available, proportionality ought not to be applied. For being based on teleological arguments, the weak thesis is only able to offer a second-order type of normative justification.183 Furthermore, the weak thesis implies that the foreseeable consequences of borrowing the proportionality test are altogether desirable. By choosing to employ the proportionality test as an adjudicative method, a court accepts the validity of an empirical assumption as follows: “certain positive consequences result from the fact 180 Alexy

(1993), p. 176. p. 177. 182 Ibid., p. 176. 183 On first- or second-order normative justification for proportionality, see Gardbaum (2010), pp. 88–89. 181 Ibid.,

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that courts engage in this balancing.”184 But which normative assumption do courts accept as valid in order to access whether those consequences are positive? The answer varies. For instance, in Gardbaum’s view, judges appeal to proportionality because they are convinced that it favours the democratic principle.185 This is a highly counterintuitive claim, considering that courts that rely on the test are frequently accused of dismantling the pillars that support representative democracy. As Chap. 6 will demonstrate, that the democratic principle conflicts with other fundamental rights, at least prima facie, is an underlying premise of the proportionality test in the principles-theory variant.186 Due to this, authors like Pulido187 believe that judges ought to resort to the proportionality test because it enhances the effectiveness of fundamental rights. And in fact, as Chaps. 6 and 7 will also show, the STF shares the same belief.

2.4.2 Strong Thesis The strong thesis claims that judges ought to have recourse to proportionality because the test is necessarily implied by the very structure of any legal system. In the view of authors like Alexy, Beatty, and Schlink, proportionality is “inevitable,”188 “unavoidable,”189 “indispensable,”190 or will “come to the surface sooner or later—everywhere.”191 Using the terminology of Alexy’s principles theory, we can decompose the strong thesis into three postulates: the incorporation thesis, the identity thesis, and the necessity thesis. The incorporation thesis says, “every legal system that is at least minimally developed necessarily comprises principles.”192 The identity thesis reads, “constitutional rights are principles.”193 Finally, the necessity thesis announces, “there exists a necessary connection between constitutional rights and proportionality.”194 It follows from the combination of these that either proportional184 Annus

(2004), p. 313. (2010), pp. 88–93. 186 Alexy (2010a), p. 417. 187 Pulido (2013), pp. 511–512. 188 Alexy (2010b), p. 20. 189 Ibid., p. 20; Beatty (2004), p. 162. 190 Alexy (2003a), p. 131. 191 Schlink (2011), p. 302. 192 Alexy (2010c), p. 71. 193 Alexy (2010a), p. 388. The identity thesis undermines the difference between the relation of proportionality to principles, on the one hand, and to fundamental rights, on the other; difference which Borowski (1998), pp. 61–63, introduced. For this reason, the present study will not endorse the division of the necessity thesis into a ‘first necessity thesis’ on the connection between principles and proportionality and a ‘second necessity thesis’ on the connection between fundamental rights and proportionality. Alexy (2014), p. 57, suggested this sub-division in reply to Borowski. C.f. Klement (2008), p. 761, objecting the identity between principles and fundamental rights. 194 Alexy (2012a), p. 333. 185 Gardbaum

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ity is part of a legal system or the legal system in question is not minimally developed. Furthermore, in a legal system that is above the minimum threshold of development, courts are expected to resort to the test. If proportionality is not applied in a system alike, constitutional framers might have failed in not dedicating a constitutional provision to it; yet, constitutional courts certainly fall short of their duty by not applying the test despite the inexistence of such a permissive provision. The principles theory inescapably points to these conclusions, albeit implicitly. I submit that Alexy is a universalist, which may come as a surprise to many.195 Indeed, one could raise two objections against doing so. The first is easier to overcome. It claims that Alexy is not a constitutional comparatist. No evidence demonstrates that he had the migration of constitutional ideas in mind when he formulated his account of the proportionality test. Thus, it would be intellectually dishonest to infer from his works a conclusion he has never stated and may not agree with.196 Nonetheless, whether it is true that the principles theory was not conceived of as a piece of comparative constitutional law, the objection does not hold valid. The argument is clearly intentionalist and based on the misguiding idea that a theory should only be assessed in terms of its author’s intentions. As such, it blurs the distinction between contexts of explanation and justification discussed above. If an interpretation of the principles theory does not convince, it must be due to its argumentative defects—maybe the premises are false or the conclusion contradicts another part of the theory that is arguably more important—, but not because it goes against Alexy’s intentions.197 The second objection says that the interpretation suggested distorts Alexy’s words by attaching to the necessity thesis a normative connotation it did not carry originally. The objection reads: the principles theory differentiates between normative necessity and conceptual necessity and claims that the connection between proportionality and principles is rather conceptual than normative.198 Indeed, Alexy affirms: “there has to be a strict distinction between normative and conceptual necessity.”199 195 However, some authors had already identified such potential in the principles theory. See Jestaedt

(2012), p. 159, affirming that ‘the doctrine of balancing … claims to be … an idea with potentially universal explanatory value’; Rivers (2010), p. xviii, saying that “from the perspective of the Theorie der Grundrechte, many of the distinguishing features of different constitutions are contingent, and transferability between systems is at least plausible”. See also Pulido (2013), p. 505 ff.; Poscher (2009), p. 443; Klatt and Meister (2013), pp. 62–63; (2014b), p. 23. 196 Some excerpts of the principles theory raise doubt about its universalist pretensions. For example, Alexy and Dreier (1990), p. 12: “it is an open question whether general normative statements in this sense [of universally valid statements] can be justified or whether they are always relative to the cultures the legal systems in question are based upon.” Cf. Alexy (2012a), p. 332: “the doctrine of balancing as summarized in the weight formula is the basis of a comprehensive, universal theory of fundamental rights;” and Alexy (2007a), p. 162): “courts are not only participants in a parochial enterprise where they have special authority to establish what the law actually is, they are also participants in an universalistic enterprise, where they have no special authority to decide what is legally correct.”. 197 For a critique of intentionalism as a method of interpretation, see Dworkin (1986), pp. 53–65. 198 Klatt (2012), p. 8, footnote 40. 199 Alexy (1989), p. 169, footnote 4.

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As he explains, “something being normatively necessary means no more than its being obligatory,” and the distinction between normative and conceptual necessity consists in that “the validity of an obligation can be denied without committing a contradiction, but the existence of a conceptual necessity cannot.”200 The question is, thus, whether the necessity thesis implies an exclusively conceptual necessity and is incompatible with a normative necessity. The answer must be negative, as next sub-section demonstrates.

2.4.2.1

Conceptual and Normative Necessity

Legal concepts are very different from other concepts whose validity depends essentially on the logical structure of the premises and conclusion. Besides logical correctness, legal concepts necessarily mobilize arguments concerning authoritative issuance and social efficacy, and the validity of a legal proposition depends on how these three elements articulate.201 In practice, this means that a legal solution that would be conceptually correct under other conditions can be invalid due to unfavourable authoritative and social factors.202 What follows is that legal concepts carry not only conceptual implications, but normative and social ones as well.203 Alexy opted for focussing on the conceptual aspects of the necessity thesis by formulating it as a conceptually necessary connection between proportionality and principles.204 That does not prevent one from unveiling the normative arguments his construction mobilizes. By claiming the existence of a conceptually necessary connection between principles and proportionality, Alexy expressed certain normative convictions, whether he admits it or not, for “a ‘normatively necessary connection’ … is nothing other than a normative argument on behalf of a certain conceptually necessary connection,” as Borowski noticed.205 Trying to uncover those normative convictions, Bomhoff pointed out that Alexy’s account of proportionality makes an appeal to two values: “(1) rationality and rational decision making, and (2) fairness, as a dominant conception of justice.”206 Indeed, Alexy derives proportionality from the claim to 200 Ibid.,

p. 169, footnote 4. (2010c), pp. 3–4. 202 Or “a legal assertion that is true (or correct) in one legal system need not necessarily be true (or correct) in another legal system” [Golding (1963), p. 57]. Interestingly, Alexy ( 2010d), p. 289, acknowledges that authoritative issuance and social efficacy interfere with legal correctness, for he says that: “the claim to correctness [which is constitutive of legal discourse] … does not relate to whether or not the normative statement in question is absolutely rational, but rather only to whether it can be rationally justified within the framework of the valid legal order.”. 203 Consequently, a change in a legal concept has normative consequences. Curiously, Alexy’s theory includes an example in this respect. See the implications that arise from ‘incorporating into the concept of law the concept of validity’ in Alexy (2010c), p. 24. 204 See Pulido (2013), p. 483, for a similar approach. 205 Borowski (2011), p. 588. 206 Bomhoff (2008), pp. 573, 575. 201 Alexy

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correctness, which in his view is an essential element of law, and argues that the test produces effects that are intrinsically rational and prevent the sacrifice of fundamental rights.207 Given the fact that, were the proportionality test completely irrational or embedded in a wicked theory, one could not argue a case for its universality, some assumptions have to be made in order to develop the argument further.

Rationality Rationality is an essential element for the justification of any adjudicative method, which includes proportionality. As it is incumbent upon judges to render reasonable decisions based on convincing arguments, were the test irrational or unable to produce rational outcomes, its use would be unjustifiable. Alexy and his followers claim that proportionality provides for greater rationality in constitutional adjudication, and courts are thus correct in having recourse to it.208 This claim has been the subject of a long-standing scholarly controversy, in the centre of which is the sub-test of proportionality in the narrow sense or balancing. Alexy affirms: “there is no other way to decide controversial cases.”209 Many authors disagree.210 Without joining the controversy whether or not more rational methods are available, it is reasonable to assume that proportionality is rational enough, or not completely irrational.211 A strong argument in this sense is that all the controversy raised by legal theorists has not prevented proportionality from spreading all around the globe. In fact, the rationality of balancing may be a controversial issue for legal theorists, but not for the many courts that introduced the test in their decision-making practice. It is not to say that legal theorists have to uncritically bend to the ‘overwhelming’ presence of constitutional courts.212 It is however advisable to recall that any competent and minimally detailed legal theory has to be capable of explaining or justifying the actual practice of courts to some extent. Except for very extreme circumstances, such as that of wicked legal systems,213 a theory that was intended to be useful for a particular jurisdiction, but either disregarded the entire case law of the corresponding constitutional court or declared that it was altogether gravely mistaken, would not be a suitable theory for the legal system in question.214 207 Alexy

(2004), p. 47. (1992a), pp. 149–151; (2000), p. 298; (2003a), p. 131 ff.; (2003b), pp. 433–439; (2004), pp. 46–50; (2009), pp. 8–11; (2010b), pp. 26–32; Klatt (2012), p. 10. See also Beatty (2004), p. 169. 209 Alexy (2010a), p. 74. 210 See Habermas (1996), pp. 258–259; Schlink (2001), p. 460; Webber (2013), pp. 3–4; (2010), pp. 194–198; Torre (2004), pp. 84–88, for examples of this kind of criticism; and Alexy (2014), p. 63, referring to this as the ‘rationality objection’. 211 Or as ‘rational as possible.’ [Alexy and Peczenik (1990), pp. 145–146]. 212 See Schlink (1995), p. 1237, on the critique that ‘constitutional legal scholarship’ was “still overwhelmed by the Court’s [BVerfG] presence, even after its forty-year existence.” 213 Alexy (2010c), pp. 35–68. 214 Dworkin (1986), p. 99. 208 Alexy

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By saying that, I do not intend to masquerade arbitrariness as rational decisionmaking or extract normative conclusions from a factual state of affairs. Indeed, whether proportionality is the most rational method for adjudicating on fundamental rights remains a controversial issue. Yet, few actually claim that the test is absolutely incapable of producing rational outcomes.215 Even authors who argue that the test per se does not grant a minimum standard of rationality to legal argumentation can agree that, by itself, proportionality does not compromise it either.216 In sum, considering that courts ought to have good reasons for relying on an adjudicative method, it is safe to assume that proportionality is not absolutely irrational, and that at least in some cases, “the balancing of colliding principles provides for a result in a rational way.”217 Based on this assumption, I submit that, for the purposes of the present inquiry, proportionality is rational enough. Remarkably, the argument holds valid with regard to different adjudicative methods employed by other constitutional courts as well, for example the U.S. categorization.218 Therefore, I cannot endorse the proposition that proportionality is the only rational method available, either. Both assumptions that proportionality is rational, but not the only rational method, point to a conception of practical rationality, which can be summarized as follows: every legal theory is fraught with practical problems, and once the consideration of practical problems is concerned, there will necessarily be “a loss of exactness,” which is tolerable “as long as a minimum standard of rationality is guaranteed.”219

Justice The second of the more abstract normative assumptions made by the principles theory concerns justice. According to Bomhoff, Alexy explicitly appeals to a procedural conception of justice, but tacitly relies on a substantive conception of fairness, as well.220 In fact, the principles theory mirrors a discursive conception of justice based on a procedural conception of justification, which Alexy admits.221 More controversial is the question of whether the principles theory implies any particular conception of substantive justice. Alexy denies it; he says that the proportionality test is not in 215 See,

for instance, Habermas (1996), p. 259, saying that “there are no rational standards for … weighing,” but not that judgements by resort to proportionality are irremediably and necessarily irrational. Rather, in his view, “the danger of irrational rulings increases” as a consequence. 216 See Greer (2004), p. 433, lamenting that “the balance metaphor has been used by the European Court of Human Rights in ways which would, prima facie, confirm Habermas’s worst fears,” but conceding that, “subject to certain modifications, Alexy’s theory can, nevertheless, be applied to its judgments.” 217 Alexy (2007b), p. 14. 218 On the U.S. categorization, see Barak (2012a, b), pp. 752–754, and Chap. 4 below. 219 Alexy and Dreier (1990), p. 3. 220 Bomhoff (2008), pp. 576–578. 221 Alexy (2012a), p. 352.

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a position to answer questions “of substantive moral and political theory”222 and can thus accommodate a relatively wide range of moral and political conceptions. Nevertheless, it is always possible to ask which moral or political commitments are required by the procedural conception of justice that he explicitly endorses.223 Even a procedural theory could not “totally do away with substantial elements” because “independent standards are needed for securing a fair process,” at least.224 As a matter of fact, Alexy acknowledges that his theory expresses some “distrust in the democratic process,” typical from proceduralist accounts,225 along with the ideas of freedom and equality that discourse-theoretic conceptions of fundamental rights presuppose.226 Respecting democracy, he asserts that “the democratically legitimated legislature should take as many important decisions for society as possible,”227 but simultaneously conceives of fundamental rights as “so important that the decision to protect them cannot be left to simple parliamentary majorities.”228 This reveals a lack of confidence that democratic representation can guarantee per se the fairness and justice of the outcomes it produces.229 Concerning equality and freedom, the argumentative theory Alexy advances is built on the premises that everyone has “the right to participate in discourse” and all participants are free and equal.230 At any rate, to identify the ultimate conception of justice that lies behind the principles theory is far beyond the task of this research. For the purpose of the present inquiry, a more modest approach should suffice. It is reasonable to accept that Alexy is not being insincere when he says that democracy and constitutional rights “are the main elements of democratic constitutionalism.”231 And it is equally reasonable to posit that these two elements receive sufficient attention within his theory. The principles theory does not promote a wicked conception of justice, after all.232 Starting from this assumption, along with the assumption that proportionality is sufficiently rational as explained below, the argument can go further. Next sub-section shifts the focus of the discussion, from more abstract postulates of rationality and justice to more concrete normative propositions advanced by the principles theory.

222 Alexy

(2007c), p. 341. instance, Lafont (2012), pp. 294–297. 224 Eriksen (2004), p. 103. 225 Alexy (2004), p. 38. 226 Ibid., pp. 42–43. On conceptions of substantive justice that underlie the idea of procedural justice, see Gargarella (2012), p. 336 ff. 227 Alexy (2010a), p. 417. 228 Alexy (2004), p. 38. 229 Alexy (2012b), p. 289. 230 Alexy (1992b), p. 238; (2012b), pp. 290–291. 231 Alexy (2010e) p. 177. 232 Kumm (2004b), pp. 222–224, 228–233. 223 For

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More Modest Normative Assumptions

Alexy postulates that a necessary connection exists between constitutional principles and proportionality. This is the so-called necessity thesis. As explained above, he conceived of such a connection between principles and proportionality as conceptually necessary: “the nature of principles implies the principle of proportionality and vice versa.”233 Notwithstanding, I submit that this thesis expresses certain normative convictions and can be read as a proposition about a normative necessity, whether admittedly or not. On this account, it is possible to identify three normative assumptions without which the necessity thesis would not be intelligible as a normative proposition. Alexy started to delineate one of these normative assumptions when he attempted to decompose his conception of legal principles into two commands. Principles first appeared in Alexy’s theory as “optimization requirements.”234 That is the so-called optimisation thesis, which Chap. 4 explains below. Yet, in a later work, Alexy suggested that this definition could be refined. Principles could be more precisely described as “commands to be optimized” to which correspond “commands to optimize,” he conceded.235 Although Alexy did not assert it clearly, it is reasonable to suppose that this ‘command to optimize’ is addressed to decisionmakers.236 Another point left open is where this command comes from precisely. The very existence of such a command must be supported by normative justification that the principles theory does not explicitly provide. At any rate, important here is the idea that attached to the conception of principles as optimization requirements must be a normative command addressed to judges: a command to optimize. By the same token, it is plausible to expect that normative obligations will follow from the other two conceptual elements that are distinctive of the principles theory: the wide-scope conception of fundamental rights and the argumentative conception of representation.237 Chapters 5 and 6 detail the normative commands that each of these conceptions implicate. Roughly speaking, they put forward the following propositions: any interference with the scope of a fundamental right ought to be justifiable, and judicial decisions ought to be correct, respectively.238 Important for now is to recognise that, together, those three concepts—optimisation requirements, widescope rights, and argumentative representation—conduce to a normative conclusion that makes proportionality “inevitable.”239 As Alexy summarized, “to accept princi-

233 Alexy

(2010a), p. 66.

234 Ibid., p. 47. For more details about Alexy’s conception of principles as optimization requirements,

see Chap. 4 below. (2000), pp. 300–301. 236 See e.g., Alexy (1992a), p. 148, arguing that “fundamental rights should be furthered by legal practice.” 237 See Alexy (2010a), pp. 210–217, on the wide-scope conception of fundamental rights; Alexy (2005), p. 572, on argumentative representation. 238 Alexy (2014), pp. 58, 63. 239 Alexy (2010b), p. 20. 235 Alexy

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ples in a legal system means to conceive of courts as both empowered and obligated to decide, in hard cases, on the basis of balancing principles.”240 On the whole, the necessity thesis points to a conceptually necessary connection between fundamental rights and proportionality that has normative implications.241 To recapitulate, Alexy admits that, from his conception of principles as optimization requirements arises an obligation to optimize that judges ought to comply with. Similar consequences can be expected from the two other basic ideas from which the principles theory stems: that fundamental rights possess wide scope and judges represent the people in legal argumentation. As a result, constitutional courts ought to apply the proportionality test, as the necessity thesis implies. The identity thesis, which affirms that fundamental rights are principles,242 and the incorporation thesis, which postulates that every legal system comprises principles,243 extend the command to constitutional courts of all ‘minimally developed’ legal systems. These three theses make proportionality necessary everywhere, not merely as a concept but normatively. They voice a deontological argument and convey a definitive command addressed to judges. The principles theory is thus an example of a strong thesis on the universality of proportionality. Roughly speaking, it treats the test as a matter of all or nothing: if a court does not make use of proportionality, it fails in its duty to deliver correct (rationally justifiable) decisions.

2.4.3 Moderate Thesis The moderate thesis says that the proportionality test is conceptually and normatively necessary provided that certain premises are found in a given legal system. It is more modest than the strong thesis because it pays due respect to system-dependent reasons. The proportionality test ought to be applied given certain conditions that are not present everywhere—and the absence of which is not necessarily a sign of legal underdevelopment. Yet, once these conditions are met, judges are commanded to resort to proportionality. They ought to do so because a legal duty is directly addressed to them. The moderate thesis mobilizes normative arguments that are deontological, thus stronger than those advanced by the weak thesis, which relies on purely teleological arguments. The normative conditions were already mentioned within the last sub-section: that principles are deemed as optimization requirements, fundamental rights as possessing wide scope, and judges as argumentative representatives of the people. The moderate thesis claims that these conditions required by proportionality are contingent on a legal culture and particularly dependent on the constitutional text, interpretive practice (which includes legal scholarship and courts’ self240 Alexy

(2012a), p. 329. p. 333. 242 Alexy (2010a), p. 388. 243 Alexy (2010c), p. 71. 241 Ibid.,

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understanding), and institutional framework (which determines the actual authority of a constitutional court, for example). Chapter 4 demonstrates that alternative accounts conceive of principles as constitutional norms without however connecting the idea of optimisation to them. Similarly, Chap. 5 expounds that in a legal system such as the American, which one could hardly consider as under-developed, constitutional rights are treated as possessing narrow scope. Furthermore, the same chapter indicates that the international debate about which model is the best, whether German or American, is far from coming to a conclusion despite the extensive literature it has ensued. Finally, as Chap. 6 shows, it has been generally accepted that constitutional courts ought to expose the legal reasoning of their opinions, but this incumbency has received variegated interpretations affected by history and geography. These reasonable alternatives, debates, and variations indicate the existence of basic choices that every community makes when framing and interpreting its legal system, choices that will conform to a great extent individual norms and future legal decisions which judges and other officers are responsible for.

2.4.3.1

Compatibility

Another argument in favour of the moderate thesis is its compatibility with current theories on comparative constitutional law. Remarkably, it is compatible with the idea of a dialogical interpretation. Choudhry believes that judges may engage in borrowing not because they rely on arguably transcendent principles, as do universalists, but rather because they admit that their legal practices are “contingent and circumstantial.”244 Thus, they would seek for inspiration in other legal culture “in order to better understand their own constitutional systems and jurisprudence.”245 From the comparison, a court may reach the conclusion that the legal systems under analysis are either similar or different, and be able to justify this similarity or difference. In any event, there remains an interpretative choice: either to reject or embrace the constitutional differences and similarities. Nonetheless, “in cases of constitutional similarity, … dialogical interpretation grounds the legitimacy of importing comparative jurisprudence and applying it as law.”246 Even the principles theory is not necessarily pre-emptive of the moderate thesis; one can extract from Alexy’s works arguments in support of it. That is true the other way around as well. The moderate thesis does not reject the incorporation thesis, the identity thesis, and the necessity thesis categorically; it can actually incorporate these with certain qualifications. Particularly concerning the necessity thesis, the moderate thesis can concur with the existence of a necessary connection between fundamental rights and proportionality, provided that, in the legal system under analysis, funda244 Choudhry

(1999), p. 836. It is noteworthy that the dialogical approach was originally conceived of as a method that comparative constitutional scholars can adopt for studying judicial borrowings, while here the dialogical interpretation is intended to provide judges with justification for borrowing. 245 Ibid., p. 836. 246 Ibid., p. 858.

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mental rights are regarded as possessing wide scope, wide-scope rights as principles, and principles as optimization requirements. Hence, the moderate thesis does not deny the possibility that a necessary connection between constitutional rights and proportionality exists; it claims instead that this connection is dependent on specific conditions that may not be present everywhere. Furthermore, the moderate thesis recognizes the prima facie priority of institutional arguments over substantial arguments, which Alexy postulates.247 Finally, the moderate thesis also accords with the principles theory in that legal decisions raise a more limited claim than to be rationally justifiable: “that of being rationally justifiable within the framework of a valid legal order.”248

Constitutional Culture and the Institutional Character of Law The moderate thesis acknowledges the constitutional diversity deriving from the basic choices that every community makes when framing and interpreting its legal system. This diversity is a fact that comparative constitutional lawyers need to consider. Different legal cultures and institutional arrangements have their own peculiarities. This does represent a challenge to the possibility of successful migrations and creates a burden of justification that comparatists (in both senses of the term) have to overcome. The justification of a borrowing is therefore system-dependent and requires the search for normative conditions in particular legal systems. Importantly, the moderate thesis endorses neither an extreme cultural relativism nor a rigorous positivism,249 which would be a consequence of an indulgent multiculturalism.250 It does not claim “that the question whether constitutional rights are connected with proportionality depends exclusively … on the decisions of [the constitution] framers.”251 Rather, it maintains that the conditions for borrowing proportionality, whether established by the constitutional framers or not, are to be seen as cogent by the participants in legal disputes within the system of destination.252 As a consequence, one who argues for the borrowing of proportionality must demonstrate that the legal features that allow the test to endogenously develop in a legal system are present elsewhere.253 So profound is the impact of system-dependent reasons, that judges may see the foreign influence as no more than an inspiration 247 Alexy

(1993), p. 177. See also Alexy (2014), p. 62. et al. (1981), p. 275. 249 See Alexy (2014), p. 61, on the ‘positivity thesis’ about the connection between proportionality and fundamental rights. 250 Gonçalves (2012), p. 25. 251 Alexy (2014), pp. 60–61. 252 In this sense, I agree with Beatty (2004), p. 176: “for the judges, proportionality is grounded in the word and structure and purposes of constitutional texts, not in the jurisprudence they write.” Nonetheless, differently from what he concluded, it does not follow from this that “proportionality is a constitutive, immutable part of every constitution.”. 253 See McWhinney (1986), pp. xiii–xiv, speaking of “indigenous precursors,” rooted in the influenced country’s “own special, indigenous constitutional and general legal history”. 248 Aarnio

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for a solution that they could eventually come up with by their own means and with recourse to parochial sources only. It is strikingly illustrative that in a country like Canada, the Supreme Court applies a formula altogether similar with German proportionality without however referring “to foreign antecedents.”254 In the view of analysts, this attitude suggests that “the court wishes to present proportionality as a reasoned and sensible approach to the particular problem posed by Charter rights.”255 By contrast, if the normative conditions are not present in the system of destination, the authority engaged in borrowing must imply the existence of normative reasons to change the institutional background in order to accommodate the test. This signifies that constitutional framers and judges could deliberately take decisions that directed the development of their legal systems towards proportionality. Such occurrences in constitutional drafting are not unknown to the literature on comparative law. South Africa is an exemplar case in which the constitutional text was partially modelled on the Basic Law of Germany, particularly upon the clause protecting the core of fundamental rights, which contributed to the migration of the German conception of wide-scope rights to that legal system.256

Institutional Constraints and the Role of Constitutional Courts While constitutional framers designing a new constitutional system enjoy great freedom to decide whether or not to borrow and from where to do so, the discretion that constitutional courts have is considerably more limited. Without a doubt, judges can interfere with the development of the legal system, but only with the corresponding legal permission or in compliance with a legal obligation, and up to certain limits.257 Even an enthusiast of the idea that courts carry the duty to interpret the constitution so as to make the legal system the best it can be258 must concede that law has an institutional character. Given this pressing fact, there are factual and legal constraints a decision-maker must operate within without compromising the system as a whole and the very source of her own authority. While courts can regard certain individual norms and previous decisions as legally defective, they cannot renounce to recognize the authority of the system as a whole or a substantial part of it.259 Cases where a legal system is so irremediably compromised that it forfeits legal character are rare and result from very severe factors, such as extreme injustice.260 This is another way to say that in ordinary circumstances, 254 Sweet

and Mathews (2008), p. 118. p. 118. 256 Davis (2003), pp. 187–190; Gardbaum (2011), p. 390. 257 The requirement of a corresponding legal permission or command is a consequence of being the judge ‘legally bound even in the open area of the positive (issued and efficacious) law.’ [Alexy (2010c), p. 69]. 258 Reference is made here to Dworkin (1986), p. 220. 259 This is a conclusion that one can derive from Alexy (2010c), pp. 35–68. 260 Ibid., pp. 62–68. 255 Ibid.,

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judges ought not to overstep the boundaries posed by the legal system, which do not necessarily impede, but certainly limit the possibilities of judicial borrowings. The moderate thesis recognizes this limitation by subjecting the successful migration of proportionality to particular normative conditions that must be present in the system of destination, whether they had endogenously developed there, or resulted from previous borrowings that in their turn must be justifiable.261

2.4.3.2

The Correct Thesis

This study endorses the moderate thesis and demonstrates that the appropriation of proportionality is justifiable under normative conditions that may result of the correct interpretation of a legal system. These conditions are the optimization thesis, the wide-scope conception of rights, and the idea of argumentative representation. Chapters 4, 5, and 6 show that they are found in Brazil at least since the 1990s, as the process of framing the Federal Constitution happened under strong influence of German constitutional ideas that had reached Portugal and Spain.262 As a result, one can find in the text of the Federal Constitution references to a positive order of values (or principles), a system of fundamental rights with wide scope, and a constitutional court entitled of concretely defining those principles.263 Nevertheless, these references do not irrevocably point to the adoption of the principles theory, and the STF had a considerable margin of choice in assigning a meaning to the constitutional wording, as next section starts to portray. The validity of the moderate thesis as a justificatory reason for the migration of proportionality depends on that the three normative conditions that support the test in the principles-theory variant are present in the system of destination. Were the optimization thesis, the wide-scope conception of fundamental rights, and the idea of argumentative representation inconsistent with the legal tenets of the system of destination, there would be strong normative reasons against the migration and none in favour of borrowing. One can only affirm that these normative conditions are present in a certain legal system after examining its legal culture, which results chiefly from the constitutional text, interpretive practice, and institutional framework.264 The STF has been resorting to proportionality since the 2000s. Accordingly, it is reasonable to assume that the Brazilian Federal Constitution, interpretative practice

261 Comparative

constitutional lawyers have documented that “borrowing often feeds on itself” [Wise (1990), p. 17]. That is the case if a court “[feels] especially compelled to follow foreign interpretation of [a] statute or constitution” that had migrated from a foreign legal system in the past [Annus (2004), p. 335]. The court responsible for the interpretation of a borrowed clause may “look to the ‘parent’ constitution and its interpretation in resolving constitutional problems.”. 262 Barak (2012a, b), pp. 200–201; Martins (2003), pp. 20–21. 263 Cittadino (2009), p. 43. 264 On constitutional culture, see Goldsworthy (2012), p. 683 ff.; Schlink (1992), p. 711 ff. C.f. Perju (2010), pp. 343–344, on the concept of “constitutional imaginary;” and Jacobsohn (2011), p. 129 ff., on “constitutional identity.”.

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(including scholarship and case law), and institutional framework can accommodate the test.

2.5 Results The chapter demonstrated that the proportionality test has origins in the German legal system, and its historical development can be divided into three phases. The first phase lasted from the eighteenth century until the 1930s and marked the blossoming of the ideas that would pave the way for the test. While the means-end analysis that led to the sub-tests of suitability and necessity first appeared in Prussian administrative law, a cost-benefit analysis altogether similar to balancing was formulated by Jhering and the jurisprudence of interests. These pieces were integrated into a unique method for adjudicating on fundamental rights in the second phase, which lasted from the 1950s until the judgment of the Deutschland Magazine Case (1976). This period marked the constitutionalisation of proportionality in Germany, and its reception in constitutional theory and the case law of the BVerfG. The third phase initiated in the late 1970s and continues until today. The BVerfG consolidated proportionality as a threefold test. Successive decisions helped to dispel doubts about the wide scope and nature of the rights subjected to the test. In parallel to this, proportionality expanded into European supranational law with significant impact on the jurisprudence of the ECtHR and ECJ. In what respects the spread of proportionality, comparatists have advanced explanations for its migration which are functionalist, contextualist, or naturalistic. Functionalist theories claim that courts have borrowed proportionality because the test performs some functions that are socially desired. By contrast, contextualist theories provide historical and cultural explanations for the migration. Historicists say that proportionality is an essential element of any country’s re-democratization after periods of dictatorship and part of a historical reaction against authoritarianism. Culturebased approaches affirm that proportionality is rooted in Germany’s communitarian tradition and intrinsically connected to the culture of justification embraced by many legal systems after World War II. Finally, naturalistic theories suppose that proportionality is an inevitable part of decision-making and, thus, empirically necessary. However credible some of these explanations are, they all fail to respond to the exigency of justification that judicial borrowings demand. A judge who decides by resort to foreign law must think that borrowing is justifiable. The alternative is to assume that courts act deceitfully and deliberately engage in borrowing when they are convinced that doing so is prohibited. And no evidence supports this assumption of fraudulent behaviour. Therefore, courts must implicitly claim that borrowing the proportionality test is either definitively commanded or permitted. This does not mean that judicial borrowings are not normatively contentious. Indeed, arguments exist both for and against migration. The main counter-argument derives from the democratic principle. Courts would go far beyond their jurisdiction to appropriate of an adjudicative method that does not derive from the material

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acknowledged as authoritative by the people on behalf of which judges decide. In short, it follows from the democratic objection that borrowing is prima facie prohibited. Some readers may reasonably wonder whether the democratic objection also applies to the migration of legal methods, concepts and argumentative schemes, like proportionality. It actually sounds odd to many to speak about the “borrowing” of a legal idea or argument. They tend to reserve the term only to migrations of legal rules and institutions, which much of the literature in comparative constitutional law is dedicated to. Coherently, they believe that only foreign uses of authoritative legal materials, which were officially recognized as law, need to be justified. This is nevertheless a mistake. Firstly, the standard methods courts employ in adjudication are an important part of the legal practice of any community, and as such they are part of its law, although they may have never been the subject of legislative regulation. Secondly, even when authoritative rules and other more concrete legal institutions migrate, they lose their normative status, as their legal properties were linked to the relational position they bore within the system of origins. And finally, rules and other legal materials are borrowed simply due to their argumentative properties, that is, because they are sound arguments. Therefore, borrowings of authoritative and non-authoritative materials are only apparently different. They are both governed by the same rule of legal argumentation that reads, ‘premises that cannot be derived directly from authoritative law within the system of destination are to be justified.’ The democratic objection also applies to adjudicative methods, like proportionality, and is thus a strong argument against its borrowings. Conversely, the reasons that aim at justifying the migration of proportionality can be grouped in three theses. The weak thesis says that judges ought to apply the proportionality test because this is the best means to realize a certain substantive principle. This thesis is weak because the arguments it mobilizes are teleological. That is, it does not postulate the existence of any norm that directly commands the use of proportionality and is immediately fulfilled when the commanded action is performed. It assumes instead that performing the test contributes to the achievement of a state of affairs that was made desirable by another norm. In fact, the weak thesis provides second-order justification for the migration, and whether or not the reasons it gives are valid depend on that beneficial consequences actually follow from the borrowing. From where judges stand, they can only assume that the borrowed element will produce the expected effects. By contrast, the strong thesis relies on deontological arguments to claim that proportionality ought to be adopted everywhere. It affirms that the test is necessarily implied by the very structure of any minimally developed legal system. The principles theory endorses the strong thesis, albeit implicitly. Alexy postulates that a necessary connection exists between proportionality and fundamental rights. That is the socalled necessity thesis.265 Two other theses extend the postulate to all minimally developed legal systems. They are the identity thesis, which assumes that fundamen-

265 Alexy

(2010a), p. 66, p. 333; (2010b), p. 24.

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tal rights are principles,266 and the incorporation thesis, which argues that every legal system comprises principles.267 Combined, these three theses make proportionality “unavoidable.”268 As the chapter demonstrated, it is possible to single out three normative assumptions without which the necessity thesis would not be intelligible. These normative assumptions are attached to the optimization thesis, the wide-scope conception of fundamental rights, and the idea of argumentative representation. The optimization thesis reads that principles address to decision-makers a command to optimize. The wide-scope conception of fundamental rights implies that any interference with the scope of a fundamental right ought to be justifiable. Finally, the idea of argumentative representation implicates that judicial decisions ought to be correct. Altogether, these three assumptions conduce to a normative conclusion that makes proportionality unavoidable: if a court does not make use of the test when applying constitutional principles, it fails in its duty to deliver correct (rationally justifiable) decisions. The last thesis that aims at justifying the migration of proportionality is more modest. The moderate thesis, as I called it, claims that the proportionality test ought to be applied given certain conditions that are system-dependent. These are the same conditions implied by the principles theory: the optimization thesis, the wide-scope conception of fundamental rights, and the idea of argumentative representation. However, neither are they present everywhere, nor is their absence necessarily a sign of legal underdevelopment. According to the moderate thesis, these normative conditions that proportionality requires are contingent on borrowings because judicial decisions do not claim to be universally valid; what they claim is to be rationally justifiable within the framework of a certain legal order. One who argues that borrowing proportionality is justifiable in the sense that the moderate thesis suggests assumes the existence of a normative necessity that is contingent on system-dependent reasons, rather than present anywhere. Such a normative necessity exists where the participants are correct to draw from the parochial legal culture a command that points to proportionality. From the participant’s perspective, the comparatist can determine whether the constitutional text, interpretive practice, and institutional framework point to the presence of the three normative conditions aforementioned. A migration is justifiable if these sources provide the constitutional court in question with the conditions to borrow, that is, if one can derive from the legal culture at hand justifying reasons that prevail over the democratic objection. For the case being, it is indifferent whether the conditions favouring the migration of proportionality have endogenously developed within the system of destination or proceed from previous borrowings. Some features of Brazilian constitutional text, interpretative practice, and institutional framework were anticipated within this chapter. As expounded above, the Federal Constitutional does not make any explicit reference to proportionality. Despite the absence of a corresponding textual provision, the STF has decided constitutional 266 Alexy

(2010a), p. 388. (2010c), p. 71. 268 Alexy (2010a), p. 73. 267 Alexy

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cases by resort to the test. Additionally, with varying degrees of success, Brazilian scholars have engaged in the task of making the principles theory accommodate to their parochial reality. Furthermore, basic institutional preconditions, such as a charter of fundamental rights and a court in charge of constitutional review, are part of the country’s current polity. They make the reception of proportionality possible, despite the challenging peculiarities in STF’s structure, functioning, and decision-making procedure. The Ellwanger Case (2003) analysed above illustrates that borrowing the principles-theory variant of proportionality is both viable and challenging. In any manner, whether a participant has convincing reasons to claim that the aforementioned normative conditions for the migration are present there—that is, whether having recourse to proportionality is not definitively prohibited—is an issue to be tackled below in Chaps. 4, 5, and 6. Beforehand, next chapter expounds the principles-theory variant of proportionality and how it has appeared in the STF’s case law.

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Markesinis B, Fedtke J (2005) The judge as comparatist. Tulane Law Rev 80:11 Markham J (2006) Against individually signed judicial opinions. Duke Law J 56(3):923–951 Martins L (2003) Proporcionalidade Como Critério de Controle de Constitucionalidade: Problemas de Sua Recepção Pelo Direito e Jurisdição Constitucional Brasileiros. Cadernos de Direito, Editora Unimep 3(5):15–45 Matscher F (1993) Methods of interpretation of the convention. In: Macdonald RSJ, Matscher F, Petzold H (eds) The European system for the protection of human rights. M. Nijhoff, Dordrecht, Boston, pp 63–81 Mayer FC (2006) The European constitution and the courts. In: von Bogdandy A, Bast J (eds) Principles of European constitutional law. Hart, Oxford; Portland, Or, pp 281–334 McBride J (1999) Proportionality and the European convention on human rights. In: Ellis E (ed) The principle of proportionality in the laws of Europe. Hart Pub, Oxford; Portland, Or, pp 23–36 McWhinney E (1986) Supreme courts and judicial law-making: constitutional tribunals and constitutional review. Martinus Nijhoff Publishers, Dordrecht; Lancaster, UK; Hingham, USA Meirelles HL, Wald A, Mendes GF (2013) Mandado de segurança e ações constitucionais, 35th edn. Malheiros, São Paulo Menéndez AJ (2004) Some elements of a theory of European fundamental rights. In: Menéndez AJ, Erik OE (eds) Constitutional rights through discourse: on Robert Alexy’s legal theory-European and theoretical perspectives. Arena, Oslo, pp 159–199 Michael L (2001) Grundfälle zur Verhältnismäßigkeit. In: Juristische Schulung: Zeitschrift für Studium und Referendariat. Verlag C.H. Beck, München and Frankfurt a.M., pp 654–659 Michaels R (2006) The functional method of comparative law. The Oxford handbook of comparative law, pp 339–382 Michelman FI (2011) The interplay of constitutional and ordinary jurisdiction. In: Ginsburg T, Dixon R (eds) Comparative constitutional law. Edward Elgar, Cheltenham, UK; Northampton, MA, pp 278–297 Miller JM (2003) A typology of legal transplants: using sociology, legal history and Argentine examples to explain the transplant process. Am J Comp Law 51(4):839–885. https://doi.org/10. 2307/3649131 Montoro F (1973) Filosofia do direito e colonialismo cultural. Revista de informação legislativa 10(37):3–20 Mureinik E (1994) A bridge to where: introducing the interim bill of rights. South Afr J Hum Rights 10:31 Navia P, Ríos-Figueroa J (2005) The constitutional adjudication mosaic of Latin America. Comp Polit Stud 38(2):189–217. https://doi.org/10.1177/0010414004271082 Neves M (2013) Transconstitutionalism. Hart Publishing, Oxford; Portland, Oregon Pavlakos G (2014) Between reason and strategy: some reflections on the normativity of proportionality. In: Huscroft G, Miller BW, Webber GCN (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, NY, pp 90–122 Perju V (2010) Cosmopolitanism and constitutional self-government. Int J Const Law 8(3):326–353. https://doi.org/10.1093/icon/moq028 Perju V (2012a) Constitutional transplants, borrowing and migrations. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 1304–1327 Perju V (2012b) Proportionality and freedom—an essay on method in constitutional law. Global Const 1(02):334–367. https://doi.org/10.1017/S2045381712000044 Petersen N (2009) The reception of international law by constitutional courts through the prism of legitimacy. In: Preprints of the Max Planck institute for research on collective goods, vol 39. Retrieved from http://www.coll.mpg.de/pdf_dat/2009_39online.pdf Petersen N (2015) Balancing and judicial self-empowerment: a case study on the rise of balancing in the jurisprudence of the German federal constitutional court. Global Const 4(01):49–80. https:// doi.org/10.1017/S2045381714000173

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Schlink B (2011) Proportionality in constitutional law: why everywhere but here. Duke J Comp Int L 22:291–302 Schwarze J (1992) European administrative law. Office for Official Publications of the European Communities, Luxembourg; Sweet & Maxwell, London Seagle W (1945) Rudolf von Jhering: or law as a means to an end. Univ Chic Law Rev 13(1):71–89. https://doi.org/10.2307/1597562 Shinar A (2014) The end of constitutional law? Const Comment 29(2):181–209 Sitaraman G (2009) The use and abuse of foreign law in constitutional interpretation. Harvard J Law Public Policy 32(2):653–693 Slaughter A-M (1999) Judicial globalization. Va J Int Law 40:1103 Smend R (1928) Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer: VVDStRL; 4. In: Rothenbücher K, Smend R, Heller H, Wenzel M (eds) Das Recht der freien Meinungsäusserung: Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu München am 24. und 25. März 1927. Mit einem Auszug aus der Aussprache. De Gruyter, Berlin Smits JM (2006) Comparative law and its influence on national legal systems. In: Zimmermann R, Reimann M (eds) The Oxford handbook of comparative law. Oxford University Press, Oxford, pp 513–538 Stern K (1993) Zur Entstehung und Ableitung des Übermaßverbots. In: Badura P, Scholz R (eds) Wege und Verfahren des Verfassungslebens: Festschrift Peter Lerche. Beck, Munich, pp 165–175 Sullivan ET, Frase RS (2009) Proportionality principles in American law: controlling excessive government actions. Oxford University Press, New York Svarez CG (1960) Vorträge über Recht und Staat. In: Conrad H, Kleinheyer G (eds) köln: VS Verlag für Sozialwissenschaften. Retrieved from http://nbn-resolving.de/urn:nbn:de:1111201211281748 Sweet AS (2000) Governing with judges: constitutional politics in Europe. Oxford University Press, Oxford; New York Sweet AS (2012) Constitutional courts. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 816–830 Sweet AS, Mathews J (2008) Proportionality balancing and global constitutionalism. C J Trans Law 47:68–149 Sweet AS, Mathews J (2010) All things in proportion-American rights review and the problem of balancing. Emory L J 60:797 Torre ML (2004) Nine critiques to Alexy’s theory of fundamental rights. In: Menéndez AJ, Erik OE (eds) Constitutional rights through discourse: on Robert Alexy’s legal theory-European and theoretical perspectives. Arena, Oslo, pp 77–93 Tremblay LB (2014) An egalitarian defense of proportionality-based balancing. Int J Const Law 12(4):864–890. https://doi.org/10.1093/icon/mou060 Tridimas T (1996) The principle of proportionality in community law: from the rule of law to market integration. In: McAuley F, O’Keefe D (eds) The Irish jurist, vol XXXI. Round Hall Sweet & Maxwell; University College Dublin, Bublin, pp 83–101 Tushnet M (1999) The possibilities of comparative constitutional law. Yale Law J 108(6):1225–1309. https://doi.org/10.2307/797327 Verdú PL (1984) Curso de Derecho Político, vol 4. Ed. Tecnos, Madrid Vieira OV (2008) Supremocracia. Revista Direito GV 4(2):441–463 von Jhering R (1900) Scherz und Ernst in der Jurisprudenz: eine Weihnachtsgabe für das juristische Publikum, 8th edn. Breitkopf und Härtel, Leipzig von Krauss R (1955) Der Grundsatz der Verhältnismäßigkeit. In seiner Bedeutung für die. Notwendigkeit des Mittels im Verwaltungsrecht. Hamburg, Appel Vorländer H, Brodocz A (2006) Das Vertrauen in das Bundesverfassungsgericht. In: Vorländer H (ed) Die Deutungsmacht der Verfassungsgerichtsbarkeit. VS, Verl. für Sozialwiss, Wiesbaden, pp 259–295. Retrieved from http://link.springer.com/chapter/10.1007/978-3-531-90350-7_11 Walker N (2010) The migration of constitutional ideas and the migration of the constitutional idea: the case of the EU. In: Choudhry S (ed) The migration of constitutional ideas. Cambridge Uni-

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Chapter 3

The Principles-Theory Variant of Proportionality

3.1 Proportionality(-ies)? Last chapter introduced a provisional concept of proportionality and three theses that could justify its migration from Germany to Brazil. Although much was adduced about constitutional migrations and borrowings in general and about the theories that attempt to either explain or justify the worldwide spread of proportionality in particular, little has been said about what proportionality really is and what exactly means to say that the STF has made use of the principles-theory variant of the test. The fact is that, despite being largely used worldwide, ‘proportionality’ has no unique meaning. In reality, so widespread is the disagreement over the meaning of proportionality that scholars cannot even agree on the nature of the debate they are engaged in.1 These issues are tackled in this chapter. ‘Proportionality’ is a word vastly used in law and may refer to diverse concepts depending on the legal system and the legal field of that system. For example, in constitutional law proportionality separates justified infringements to a fundamental right from violations to the same right, while in criminal law it requires that any punishment should be in proportion to the crime.2 Furthermore, even when the term is employed to designate the same idea, the concept it names is normally so open to interpretations that there may be almost as many different conceptions of proportionality than the number of interpreters who have focused on it. For instance, authors claim that courts elsewhere have recourse to methods of constitutional adjudication that are very similar in purpose to the BVerfG’s approach to fundamental rights without however naming it proportionality.3 In fact, whereas some scholars are 1 See Dworkin (1986), pp. 43–48, distinguishing ‘semantic disagreements’ from ‘genuine disagree-

ments’ in law. Balmer (2008), p. 784, on the proportionality of crime with punishment. C.f. Schlink (2012), pp. 719–722, suggesting that the separation between proportionality in issues of punishment and proportionality in constitutional adjudication is not so sharp. 3 Law (2004), pp. 693–694. 2 See

© Springer Nature Switzerland AG 2018 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_3

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engaged in some purely terminological dispute, others are in a genuine conceptual controversy. On the one hand, authors like Bomhoff affirm that proportionality and especially balancing represent a “form of language” rather than a “scientifically controlled method for deciding cases,” which turns the disagreement over the use of proportionality into a matter of phraseology.4 Bomhoff believes that the documented spread of balancing across the globe may actually signal a tendency towards uniformity in the use of legal language rather than the world convergence towards similar principles or methods of adjudication. He warns that terms such as ‘balancing’ and ‘weighing’ may serve as an umbrella accommodating completely different concepts, which have caused many to erroneously assume that comparatists discuss about the same phenomenon, when they may actually observe completely different things. In his view, scholars disagree not because they cannot agree on which of the competing conceptions suits the concept better, but because each of them works with dissimilar concepts that share no more than the same name.5 On the other hand, a majority of authors seem to be convinced that the scholarly debate about proportionality constitutes a genuine controversy about the meaning and usage of that concept. For instance, Law believes that despite the differences, the various approaches to proportionality share a common denominator.6 In his view, the test “consistently … implies both identification and weighting of the relevant conflicting interests, and evaluation of the extent to which the conflict may be minimized by careful choice of means.”7 This study proposes that the debate surrounding proportionality encompasses some cases of phraseological disagreements and other cases of genuine conceptual controversies. By way of example, some theorists trying to grasp the main features of proportionality have referred to it as a test,8 a checklist,9 a tool,10 a technique,11 a doctrine,12 a paradigm,13 a requirement,14 a methodology,15 a framework,16 a form of analysis,17 a legal construction,18 a decision-making procedure,19 or an analytical structure.20 Nonetheless, their terminological choices 4 Bomhoff

(2010), pp. 110, 138. p. 109; Bomhoff (2008a), p. 555. 6 Law (2004), p. 697. 7 Ibid., p. 698. 8 Kumm (2004), p. 579; Cohen-Eliya and Porat (2010), p. 265; Urbina (2012), p. 49; Klatt (2012), p. 8; Klatt and Meister (2012a), p. 7; Kommers and Miller (2012), p. 67. 9 Kumm (2012), p. 13. 10 See Möller (2014), p. 32; Barak (2012a, b), p. 131; Kommers and Miller (2012), p. 67. 11 Sweet and Mathews (2008), p. 72. 12 Cohn (2010), p. 607; Cohen-Eliya and Porat (2009), p. 371. 13 Bomhoff (2013), pp. 190–191. 14 Kumm (2004), p. 593. 15 Cohen-Eliya and Porat (2009), p. 371. 16 Sweet and Mathews (2008), p. 90. 17 Law (2004), p. 694; Kumm (2004), p. 576. 18 Barak (2012a, b), p. 131. 5 Ibid.,

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seem to carry no deeper implications. Other authors, however, discuss about the nature of proportionality, whether it is a rule21 or a principle,22 for instance, which ensues further consequences. Accordingly, Sect. 2 shows that from the case law of the BVerfG, Alexy derived a particular conception of proportionality, which he embedded in an encompassing theory that postulates the conceptual necessity of the test and thus makes a strong case for its universality. Section 3 details a set of decisions in which the STF or one of its Justices or panels have recourse to the principles-theory variant of proportionality or its sub-tests. Section 4 meets critiques often addressed to the use Brazilian Justices have made of the test: that the STF performs an inaccurate imitation of proportionality analysis, mistakes the concept of proportionality for something else, and resorts to no adjudicative method whatsoever. Finally, I start to affirmatively answer the question of whether there can be a place for the principles-theory variant proportionality in the Brazilian law, regardless of the absence of a corresponding clause in the Federal Constitution . But first the two types of argument that have surrounded the concept of proportionality and the studies on its migration are expounded below.

3.1.1 A Disagreement over Phraseology There are cases indeed where the scholarly disagreement over proportionality was triggered by a mere phraseological coincidence. An example in comparative constitutional literature is the debate on the use of proportionality in the U.S., a significant part of which departs from the fact that both the terms ‘proportionality’ and ‘balancing’ have been documented in the Supreme Court’s case law.23 The language may be familiar to both Germany and the U.S., yet the words are used in America to mean something different from their European equivalents. In the U.S. Supreme Court’s case law, the expression “rough proportionality” designates a standard applied to adjudicative decisions on land use only,24 clearly non-coincidental with the proportionality test devised by the BVerfG. With respect of balancing, however, differentiating between the meanings the term is assigned in each country is a task admittedly more difficult to perform. One who takes the idea of balancing at a higher level of abstraction simply as “an open-ended mandate to … make the best decision on the ‘balance of reasons’” will certainly conclude for the presence of balancing in both sides of the Atlantic.25 Nevertheless, a closer look reveals two significant dissimi19 Sweet

and Mathews (2008), p. 75. pp. 75–76. 21 Alexy (1992), p. 149. 22 Kommers and Miller (2012), p. 67. 23 See Porat (2014), p. 401 ff., for an overview of the debates concerning balancing in U.S. constitutional law. 24 Reznik (2000), pp. 242–282. 25 Schauer (2010), pp. 36–37. 20 Ibid.,

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larities between the actual practice of both countries. Firstly, balancing is supported by contrasting paradigms of rights and judicial decision-making that are particular to each legal culture. Secondly, the treatment balancing received from courts and scholars differs considerably in each legal system. In the U.S., balancing neither designates the final step in a structured test like proportionality nor is it anchored to a conception of rights as possessing wide scope, for these are two particularities of Germany and other legal systems that borrowed from German law.26 In the 1950s, the Supreme Court adopted a form of balancing in a line of cases that fell under the First Amendment to the U.S. Constitution.27 The court employed a method that consisted in striking a balance between the “competing interests involved in the particular case”28 to determine whether the constitutional provision on freedom of speech had been violated. While the U.S. Supreme Court and the BVerfG “invoked the same weighing metaphor … virtually contemporaneously,”29 a structured proportionality test has never evolved to embrace weighing in the U.S., and rights are still deemed as narrowly tailored there.30 These peculiarities contrast American and German legal paradigms.31 Furthermore, the theoretical treatment that some idea of weighing rights, interests or principles deserved from judges and scholars differs enormously from one legal system to another. In the U.S., judges have “generally assigned a more residual and instrumental role” to it in constitutional adjudication,32 and having recourse to it remains a controversial possibility that attracts fierce criticism from constitutional scholarship.33 By contrast, balancing “stands front and centre as a constitutional doctrine” in Germany.34 In fact, although the weighting language was similar to both countries in the mid-twentieth century, the U.S. Supreme Court’s discourse “was seen very differently by contemporary commentators” when compared to the BVerfG’s.35 As a consequence, whereas in Germany balancing evolved to become

26 See Möller (2012a), pp. 17–20, on the particularities of the U.S. model of rights; and Schauer (2010), p. 37, saying that ‘the typical proportionality inquiry is structured …, and it is this structure of burdens and presumptions that explains why it is a mistake to treat a proportionality inquiry as equivalent to an open-ended decision on the balance of all reasons and all facts’. 27 Frantz (1961), p. 1424; Aleinikoff (1987), p. 943; Huscroft et al. (2014), p. 1. 28 Frantz (1961), p. 1424. 29 Bomhoff (2008b), p. 122. 30 Möller (2012a), pp. 17–18. 31 Bomhoff (2013), pp. 190–234. Not all comparatists notice this difference, which has led to some erroneous conclusions. To illustrate that, we can mention Aleinikoff (1987), who is commonly deemed as referring to balancing in the German sense (the final step of the proportionality test), when in fact he deals with the U.S. Supreme Court’s approach only. 32 Cohen-Eliya and Porat (2009), p. 399. 33 Cohen-Eliya and Porat (2010), p. 265. 34 Cohen-Eliya and Porat (2009), p. 399. 35 Bomhoff (2008b), p. 122.

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“a constitutional obligation” rather than “a discretion or an option,”36 in the U.S. it remained “the exception rather than the rule.”37 It is noteworthy that other authors make a strong case for proportionality in the U.S. and turn the disagreement into a genuine conceptual controversy.38 Huscroft, Miller, and Webber argue that terminological differences aside, the “various levels of scrutiny adopted by the U.S. Supreme Court are analogous to the standard questions posed by proportionality” in Germany.39 Cohen-Eliya and Porat claim that German proportionality and American balancing are “analytically similar,” “perform similar functions,” and only received different treatments in their systems of origins.40 Yowell41 sees similarities between the approach developed by the U.S. Supreme Court in Lochner v. New York (1905)42 and the use of proportionality made by the BVerfG in the Pharmacy Case (1958).43 Nonetheless, one can reasonably ask whether these similarities are not intrinsic to constitutional review in general, rather than actual points of convergence between these two particular adjudicative methods. What is more, theoretical dissimilarity should not be overlooked. The U.S. approach is not grounded in any wide-scope conception of rights, which is distinctive of German constitutionalism and an essential element of the proportionality framework. Chapter 5 below expounds the differences between narrow-scope and wide-scope rights. It can be anticipated now that a major consequence ensues from this variance: one conception invites courts to channel their efforts into defining the right, the other asks them to carefully consider the justification offered for any infringement. Let us follow Möller’s suggestion that fundamental-rights adjudication can be separated in two stages for analytical purposes. The first is the definitional stage, which asks “whether the measure interferes with a right;” the second is the proportionality stage, which “examines the justification for the interference” and asks whether “the measure interfering with the right is proportionate.”44 Admitting that the twofold separation holds true, one concludes that the U.S. Supreme Court’s case law focuses on the former, rather than on the latter.45 In view of that, the U.S. approach has been named ‘categorical’.46 By contrast, the approach that prevailed in Germany espe36 Ibid.,

p. 124.

37 Cohen-Eliya

and Porat (2009), p. 402. See Porat (2014), pp. 413–415, classifying the role of balancing in European-based systems as ‘strong,’ and in the U.S. as ‘weak’. 38 See Sweet and Mathews (2010), pp. 117–140; Sullivan and Frase (2009), pp. 53–66. C.f. Pildes (1993), p. 711; (1998), p. 725, arguing for the presence of proportionality in the U.S. law. 39 Huscroft et al. (2014), p. 1. 40 Cohen-Eliya and Porat (2010), p. 265. 41 Yowell (2014), p. 111. 42 Lochner v. New York, Judgment of 1905, 198 U.S. 45. 43 BVerfG (First Senate), Pharmacy Case, 7 BVerfGE 377, Judgment of 6 November 1958. The case was discussed in Chap. 2 above. 44 Möller (2014), p. 31. 45 McCrudden (2014), p. 20. 46 Webber (2010), pp. 199–200; Sullivan (1992), p. 293; Schauer (1981), p. 265; Barak (2012a, b), pp. 752–754; Tushnet (1999), p. 1278. For a complete study on the U.S. categorical conception

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cially since 1976 is mainly concerned with finding justification for any interference with a fundamental right.

3.1.2 A Genuine Conceptual Controversy As aforementioned, there are cases in which the disagreement over proportionality constitutes a genuine conceptual controversy.47 Most scholars and courts are convinced to be referring to the same legal concept when they employ the term proportionality, although they may disagree about its nature, normative justification, constitutive elements, and so on.48 The controversy may centre on whether proportionality is really a principle or a rule,49 or which order its constitutive steps follow,50 for instance. As a result, variants of the test have been documented in the literature.51 Some theorists argue for a completely developed variant of proportionality embracing four prongs (legitimate ends, suitability, necessity, and balancing) instead of three.52 Others claim that an alternative version is preferable in which balancing is either removed from the test53 or significantly constrained.54 Some foreign courts have either developed their own alternative versions or appropriated one of those available. The Supreme Court of Canada is a noteworthy example. Based on the text of the Charter of Rights and Freedoms, which reads that rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,”55 the Supreme Court of of rights, see Gardbaum (2008), p. 32 ff. Curiously, Gardbaum resists the idea of an American exceptionalism and argues that ‘the United States shares the same deep structure, conception, and analysis of constitutional rights as other modern Western democracies’. 47 See Dworkin (1986), p. 46, on genuine conceptual controversies, in which ‘the competing interpretations are directed toward the same objects or events of interpretation’. 48 See for instance Rivers (2006), p. 176, distinguishing the optimising conception, which “sees proportionality as a structured approach to balancing fundamental rights with other rights and interests in the best possible way,” and the state-limiting conception, which “sees proportionality as a set of tests warranting judicial interference to protect rights.” At p. 179, he also reports on ‘the tendency of British, and it would seem, Canadian and South African courts, to treat “necessity” as the final stage of proportionality review and to suppress the language of balancing’. 49 Alexy (1992), p. 149. 50 Particularly concerning the sub-test of legitimate aims, it is controversial whether it should precede or operate within balancing. See Andrade Neto (2015). 51 See Möller (2014), pp. 31–40, for an overview on the competing versions theorists and courts have suggested to proportionality; Möller (2012a), pp. 137–140, mapping four different concepts of balancing. 52 Kumm (2004), p. 579; Rivers (2006), p. 181; Sweet and Mathews (2008), p. 76; Klatt and Meister (2012a), p. 7; Grimm (2007), p. 16; Webber (2009), p. 71; Urbina (2012), p. 57; Barak (2012a, b), p. 742. 53 Schlink (1976), p. 76 ff.; Böckenförde (1999), p. 83. 54 von Bernstorff (2014), p. 66 ff. 55 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, C. 11 (U.K.).

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Canada has developed and applied the so-called Oakes test, with two components: legality and proportionality.56 Proportionality in Canada is a three-prong test very similar to its German equivalent.57 Notwithstanding the structural similarity, authors have pointed out that a “striking difference” exists between them: “the high relevance of the third step of the proportionality test in Germany and its more residual function in Canada.”58 As Grimm observed, when compared to the BVerfG, the Supreme Court of Canada has put more emphasis in the least-restrictive-means analysis, i.e. the sub-test of necessity, when applying its Oakes test.59 As a result, “the proportion of laws failing at the second step [in Germany] is … far smaller than in Canada.”60 And Canada does not constitute an isolated case. The ECJ’s attitude towards proportionality is similar to the Canadian Supreme Court in this respect, as the previous chapter advanced.61

3.1.3 A Concept of Proportionality Only from the perspective of an observer that aims at describing judicial decisionmaking, the instrumental, process-related metaphors among those mentioned above in the beginning of this section should suffice. That is, from the observer’s perspective, proportionality is indeed a test, a method, or a methodology, in the sense that it is an argumentative scheme that organizes legal reasoning.62 Furthermore, “it does not entail a substantive commitment” to any moral or political theory of justice, at least not explicitly,63 nor does it say much about the substantive content of the rights and principles it helps courts to apply. The commitment proportionality entails, at least in the principles-theory variant expounded below, only concerns the structure of rights and principles, and the function of constitutional courts in a democracy. Additionally, from the observer’s perspective, it is also correct to refer to proportionality as a doctrine or framework, if by doing so one intends to emphasize that the test is embedded in a particular theory about the structure of rights and principles and the role of a constitutional court, i.e. the principles theory. Nevertheless, from the observer’s perspective one cannot take part in the discussions about the legal nature and source of the method or the correctness of its underlying theory. Only from the participant’s perspective, one may answer questions such as whether balancing

56 R.

v. Oakes, 17550, Judgment of Can., [1986] 1 S.C.R.. See Grimm (2007), p. 383. (2010), p. 83. 58 Grimm (2007), p. 393. 59 Sweet and Mathews (2010), p. 107. 60 Grimm (2007), p. 389. 61 See also Sweet and Mathews (2010), p. 107. 62 Kommers and Miller (2012), p. 67. 63 See Chap. 2 above for a brief discussion about the conception of justice that underlies the principles theory. 57 Gardbaum

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is really an alternative to subsumption,64 and whether the principles theory offers a rational method for legal argumentation and judicial decision making, for example.65 Furthermore, from the perspective of a participant, judicial recourse to such an adjudicative method and the theory in which it is embedded need to be justified. As it happens with legal theory in general, the justification authors and courts put forward for using proportionality is dependent on and inevitably connected to the meaning they assign to it.66 Thus, from the participant’s perspective, it does make a difference to claim that proportionality is a principle derived from the rule of law (Rechtsstaatsprinzip), as does the BVerfG in some decisions,67 or a rule deduced from the very nature of constitutional rights and principles, as does Alexy.68 Hence, in order to participate in the debate about the nature of proportionality and its normative source and express his opinion about these issues—stating whether proportionality is a principle or a rule, and whether it derives from the rule of law (Rechtsstaatsprinzip) or Article 19 (2) of the Basic Law,69 for instance—one must adopt the participant’s perspective. Accordingly, I have been referring to proportionality generally as a test, an adjudicative method, or a form of analysis when explaining its migration or historical development, for example. Proportionality will continue to be referred to as such unless the context demands otherwise. By contrast, the participant’s perspective is adopted when analysing the justification theorists and courts offer for the borrowings, for example. Next section will expound the principles-theory variant of proportionality. Conceived as such, proportionality is a rule connected to the optimization thesis, the wide-scope conception of fundamental rights, and the idea of argumentative representation, as Alexy postulates.70 The set of decisions collected from the STF’s caseload and expounded in the subsequent section demonstrates that the court has borrowed the principles-theory variant of the test.

64 See

for instance, Alexy (2003b), p. 433; Alexy (2010f), p. 9. C.f. Schauer (2010), pp. 40–45. for instance, Rivers (2010), p. xvii. C.f. Habermas (1996), p. 259. 66 Dworkin (1986), pp. 52, 65–68. 67 See Cohen-Eliya and Porat (2009), footnote 87 at 389, observing that “the German fundamental concept of the Rechtsstaat —‘a state governed by law’—differs from the common law concept of rule of law, in that it is tied to an organic conception of the state that seeks to integrate state and society.” 68 Alexy (1992), p. 149. 69 Grundgesetz für die Bundesrepublik Deutschland, Article 19 (1) and (2): “Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law …, the law must specify the basic right affected and the Article in which it appears;” and “[i]n no case may the essence of a basic right be affected.” The controversy over the normative source for proportionality is mentioned in Currie (1994), p. 309. 70 See Alexy (2010b), pp. 66–69, 214, on the connection of proportionality with the optimization thesis and the wide-scope conception of rights, respectively; and Alexy (2005), p. 578, on its connection with the thesis of argumentative representation. 65 See

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3.2 Proportionality in the Principles Theory Alexy and his principles theory gave an important contribution to the development, consolidation, and expansion of proportionality. Chapter 2 above demonstrated that in the 1980s, proportionality had already acquired a central role in German constitutional law.71 However, one could difficultly find room for the test among the traditional methods of interpretation that informed German legal theory since the nineteenth century.72 In fact, the widely held view of judicial decision-making as an exercise of subsumption had prompted fierce criticism from some schools of thought since the previous century, and the expressions of disapproval were intensified in the 1960s.73 Nonetheless, the opinion that judicial application of law consisted in subsuming facts under rules still prevailed among academics and lawyers back then.74 With the help of the principles theory, this image of judicial decision-making would slowly change, certainly not without criticism,75 to accommodate balancing as well. In the centre of the principles theory is the Theorie der Grundrechte, originally published in 1994 and translated into English as A Theory of Constitutional Rights in 2002.76 Alexy’s admitted purpose was “to develop a general legal theory of the constitutional rights of the Basic Law,”77 with which commentators concurred.78 The enterprise had an “empirical-analytical character” because “its most important subject-matter [was] the case law of the Federal Constitutional Court,”79 but it strived for a more ambitious goal than simply providing a plain description of the court’s jurisprudence. Alexy was also “guided by considerations of correct decision and rational justification,”80 which consequently gave the principles theory “a normativeanalytical character.”81 Authors have pointed out that Alexy’s main contribution for German legal theory was to structurally link the proportionality test as employed by the BVerfG to a conception of constitutional principles that suited both the Basic Law and the case law of the court.82 His “ingenious idea,” Borowski affirmed, “was to establish a connection between (1) the distinction between rules and principles, developed in the 71 Borowski

(2011), pp. 579–580. (1994), pp. 396–398. 73 Kaufman and Hassemer (1969), pp. 484–486. 74 Borowski (2011), p. 580. 75 See e.g., Poscher (2003), pp. 80–81; (2009), p. 438 ff. 76 Klatt (2012), p. 7; Borowski (2011), p. 579. 77 Alexy (2010b), p. 5. 78 Rivers (2010), p. xvii; Kumm (2004), pp. 574–575. 79 Alexy (2010b), pp. 13–14. 80 Ibid., p. 14. 81 Ibid. 82 Schlink (1992), p. 718, says: “the Bundesverfassungsgericht does not speak expressly of principles as rules of optimization. However, constitutional scholarship correctly observes that a relative conception of fundamental rights as rules of optimization harmonizes well with the conception of them as objective principles.” 72 Brugger

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debate on the concept of law in legal philosophy, and (2) the principle of proportionality in constitutional law.”83 In Kumm’s words, Alexy’s “highly original” idea can be summarized as: “constitutional rights are principles, and principles are demands for optimization that must be applied on the basis of a proportionality analysis.”84 The propositions that constitutional rights are principles and that principles must be applied on the basis of a proportionality analysis correspond to the so-called identity thesis and necessity thesis, respectively, both advanced in Chap. 2. The remaining proposition that principles are optimization requirements is known as the optimization thesis and is delineated in Chap. 4. For now, it suffices to notice that in the English translation of A Theory of Constitutional Rights, proportionality first appeared as a principle.85 One who recalls the criteria based on which the principles theory separates rules from principles is nevertheless forced to conclude that proportionality differs from other principles in an essential aspect. Principles are to be optimized, that is, realized to the greatest extent possible given factual and legal possibilities, Alexy says. Proportionality, however, is not subjected to the optimization thesis, but consists exactly in the method of optimization to be followed when other principles, particularly substantive ones, are at stake. Thus, proportionality is similar to rules in that the application of its sub-tests does not involve optimization nor does it require balancing; “rather, the question is whether [they] are satisfied or not, and their non-satisfaction leads to illegality.”86 Alexy is aware of the terminological problem. In a footnote, he remarked, “the principle of proportionality is not actually a principle … .Suitability, necessity, and proportionality in the narrow sense (balance) are not balanced against other things … .Thus the three sub-principles are actually rules.”87 In a later writing, he introduced the expression “rule of proportionality” and confirmed that it comprised “three subrules.”88 Nevertheless, it is noteworthy that Alexy referred to proportionality.89 There are good reasons to infer that this word choice is based essentially on phraseology and most probably constitutes a response to both internal and external demands for terminological coherence. After all, proportionality had been referred to as a ‘principle’ in the English translation of Alexy’s seminal and most famous work, and the BVerfG has repeatedly alluded to a principle of proportionality (Prinzip der Verhältnismäßigkeit).90 In either event, I submit that this word choice is not intended to have any genuine conceptual implication.

83 Borowski

(2011), p. 580. (2004), pp. 575, 576. 85 Alexy (2010b), p. 66. 86 Ibid., pp. 66–67, footnote 84. 87 Ibid. 88 Alexy (1992), p. 149. 89 For instance, Alexy (2004), p. 45; (2010c), p. 24; (2014a), p. 512. 90 For instance, BVerfG, Child Welfare Case, 22 BVerfGE 180, Judgment of 18 July 1967, p. 199. 84 Kumm

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3.2.1 The Structure of Proportionality Following the formula developed in the case law of the BVerfG, Alexy affirms that the proportionality test encompasses three sub-tests: suitability, necessity, and proportionality in its narrow sense (or balancing).91 These sub-tests ought to be applied conform to the established sequence, in a manner that the measure under analysis should be only admitted to the next sub-test once it passed the immediately preceding one. Suitability and necessity are concerned with means-ends analysis and express the idea of Pareto-optimality, according to which “situation A is to be preferred to situation B, ‘if in moving from B to A, none of the participants are placed in a worse position, and at least one [is] in a better position’.”92 In sum, in pursuing for suitable and necessary measures, the decision-maker is required to avoid “avoidable costs.”93 These two first sub-tests have raised much less controversy than the third one, proportionality in the narrow sense (or balancing).94 Balancing requires cost-benefits analysis and the comparison of very abstract entities, such as principles, which has led some academics to doubt the rationality of this sub-test. The first of proportionality sub-tests is suitability. A measure is considered as suitable means to realise a constitutional principle if it promotes the state of affairs to which the principle points. In Alexy’s words, means are unsuitable and thus ought to be excluded if they obstruct “the realisation of at least one principle without promoting any principle or goal for which they were adopted.”95 The second of proportionality sub-tests is necessity. A measure is necessary for the realization of a constitutional principle if it uses the least intrusive means to promote the state of affairs to which the principle points. The decision whether a means is more or less intrusive depends on the intensity of interference with another principle. In Alexy’s words, “of two means promoting [a principle] Pi that are, broadly speaking, equally suitable, the one that interferes less intensively in [a competing principle] Pj ought to be chosen.”96 The measure under analysis is necessary, provided that the least intrusive means among those available was chosen, even if at some cost to the opposing principle. Whenever costs are unavoidable, either because the necessary measure still affects the competing principle negatively, or because it affects a third principle, balancing has to take place.97 According to the principles theory, a measure that is suitable and necessary is only justified (and thus conform to the constitution) if it is also proportional in the narrow sense, that is, if it passes the sub-test of balancing. Let us imagine that a legislative act enacted to promote the constitutional principle Pi affects negatively the principle Pj . Let us further suppose that the measure in question 91 Alexy

(2010b), p. 66. (1977), p. 77, translated in Alexy (2010b), pp. 105, footnote 222. 93 Alexy (2014a), p. 513. 94 Alexy (2010c), pp. 27–28. 95 Alexy (2003a), p. 135. 96 Ibid., pp. 135–136. 97 Ibid. 92 Kirsch

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is really suitable and necessary, i.e. there are no doubts that it promotes the principle Pi and makes use of the least intrusive means to do so. The means-ends analysis performed as such is sufficient to prevent avoidable harms to the affected right, but until now nothing was said on whether any harm to the principle Pj should be tolerated. That is a task for the sub-test of balancing to perform. In view of this subtest, a measure is disproportionate in the narrow sense, or unbalanced, if the costs for the opposing principle overweight the benefits of taking the measure (or the concrete importance of the results it is designed to achieve).98 In practice, this means that the higher the degree of interference with one principle, the greater the importance of satisfying the other. As Chap. 4 will show, that is the socalled law of balancing.99 Departing from this maxim, Alexy explains that “balancing can be broken down into three stages.” 100 First, the official in charge of balancing, a judge for example, ought to establish “the degree of non-satisfaction of, or detriment to, the first principle.”101 Secondly, she ought to indicate “the importance of satisfying the competing principle.”102 Finally, she ought to answer “the question of whether or not the importance of satisfying the competing principle justifies the detriment to, or non-satisfaction of, the first.”103 At the end, the outcome of balancing must be a conditional relation of priority between competing principles. The relation is conditional because it depends on the concrete circumstances of a case or group of cases and “the weight of counter-arguments.”104

3.2.2 The Weight Formula In order to express the law of balancing, Alexy developed the weight formula.105 Wi,j 

Ii × Wi × Ri Ij × Wj × Rj

The formula has been modified more than once since its introduction, and the one above illustrates the complete version.106 This study does not aim at going into 98 Alexy

(2010b), p. 411. (2003a), pp. 135–136. 100 Alexy (2010c), p. 28. 101 Alexy (2003a), pp. 135–136. 102 Alexy (2010b), p. 401. 103 Alexy (2003a), pp. 135–136. 104 Alexy (1994), p. 227. 105 Alexy (2007), p. 25. 106 Alexy (2014a), p. 514. An ongoing debate about balancing concerns how one can allocate formal principles within the weight formula by connecting it to the variable R, which stands for the ‘reliability of the empirical assumptions concerning what the measure in question means for the non-realization of the one principle and the realization of the other principle’. As it happens with the treatment Alexy reserves to formal principles in general, this part of the principles theory has 99 Alexy

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details in the equation. Many authors have scrutinized it and there is a voluminous body of literature in its respect.107 In what is of interest here, Alexy explained that, by translating the law of balancing into mathematical language, he did not attempt to “substitute balancing as a form of argument by calculation,” but rather to highlight the elements one ought to consider in balancing by depicting each of them as a variable in a mathematical equation.108 The elements in the formula point out what is in need of justification when a conflict between principles leads to balancing. The variable I in the dividend represents the importance of satisfying a principle (I i ), and in the divisor, the degree of interference with the other (I j ). Additionally, W stands for the importance of each abstract principle, and R the degree of reliability. The quotient of the operation W i,j indicates the concrete weight of the principle Pi under the circumstances of the case in which it opposes Pj .109 The formula ought to be filled by assigning values to each variable. Alexy endorses the use of either comparable grades out of a triadic scale or numerical values to be assigned to the variables within the formula.110 Respecting the interference with the principle or right I i , for example, one could either determine its degree by means of the grades ‘light’ (l), ‘moderate’ (m), and ‘serious’ (s), or the quantities 20 , 21 , and 22 —i.e., 1, 2, and 4—, respectively.111 The same is possible with the competing reasons, or the importance of satisfying the opposing principle I j . If one uses the triadic scale, reason and competing reason should be compared to each other. By contrast, in the weight formula they are divided by each other. The same is to be done with the other variables: W i (abstract weight of a principle) and W j (abstract weight of the opposing principle). It is noteworthy, however, that “many constitutional principles do not differ in their abstract weights,”112 and it is frequently the case

been discussed, criticized, and revised, but doubts persist, and the debates seem to be far from a satisfactory conclusion. 107 See for example, Alexy (2003b), pp. 443–448; (2014a), pp. 512–524; Borowski (2011), pp. 578–586; (2013), pp. 1413–1416; Klatt and Meister (2012a), pp. 11–13, 56–58; (2012b), pp. 694–700; Klatt and Schmidt (2012a), pp. 71–77; Pavlakos (2007), p. 13; Pulido (2004), pp. 129–140. 108 Alexy (2009a), p. 9. 109 Alexy (2010b), p. 409. 110 ‘The problem of scales’ or the discussion on the commensurability/incommensurability of the elements that ought to be considered in the balancing test according to Alexy is the subject of an intense academic controversy. See Alexy (2003a), p. 136; (2003b), pp. 440–442; (2010b), pp. 10–11; (2010b), p. 32; Barak (2010), pp. 15–16; Huscroft et al. (2014), pp. 11, 14–17; Jackson (2004), pp. 833–834; Khosla (2010), p. 299; Klatt and Meister (2012a), pp. 58–66, 72–73; (2012b), pp. 695–699; Möller (2012b), pp. 719–723, 728–729; Rivers (2006), pp. 199–203; Rivers (2007), pp. 179–180, 185; Schauer (2010), pp. 35–36; da Silva (2011), pp. 273–301; Tsakyrakis (2009), pp. 471–475, 482; Urbina (2012), pp. 57–74, 80; Webber (2010), pp. 187, 191–198; Endicott (2014), pp. 311–342; Allan (2014), p. 222; Somek (2006), pp. 135–136. 111 Alexy (2007), p. 11; (2003a), p. 136. Interestingly, Alexy (2007), p. 15, says that “‘l’ stands not just for the common term ‘light,’ but also for other expressions such as ‘minor’ or ‘weak,’ and ‘s’ stands for ‘high’ and ‘strong’ as well as for ‘serious’.” 112 Alexy (2007), p. 15.

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that “the abstract weight of colliding principles is equal.”113 In such occasions, the variable W “can be disregarded” for playing “no role at all” in balancing.114 In either event, the principle Pi takes precedence if the comparison between grades leads to the results s/l, s/m, or m/l, or the quotient of the division is higher than 1. It nevertheless yields to the opposing principle Pj “under the circumstances s/l, s/m, and m/l,” or if the quotient is lower than 1, for these results mean that the measure under analysis is unbalanced or disproportional in the narrow sense.115

3.2.3 Proportionality and Justification The variables in the weight formula indicate what is in need of justification when a conflict between principles leads to balancing.116 The value assigned to each variable “needs to be justified by argument,” Alexy says, and “all legal arguments can be used to justify such propositions.”117 Furthermore, as he affirms, judges must “share his discoveries in the simplest and most familiar words possible.”118 This suggests that he sees the formula as a helpful analytical tool, not necessarily as a something that courts have to display in the opinions they render.119 The very idea of proportionality is thus deeply connected to that of justification in the principles theory. The basis for understanding how they link to each other is the necessity thesis, according to which “the nature of principles implies the principle of proportionality and vice versa.”120 As introduced in Chap. 2, stated in more formal terms, the necessity thesis says that a necessary conceptual connection exists between constitutional principles and proportionality, that proportionality can be deduced from principles, or that “the principle of proportionality with its three sub-principles of suitability, necessity, and proportionality in the narrower sense follows logically from the definition of principle, just as the definition of principle follows from the principle of proportionality with its three sub-principles.”121 That is to say, according to Alexy, the structure of proportionality can be drawn from the structure of principles,122 with the logical con-

113 Ibid.,

p. 15.

114 Ibid. 115 Alexy

(2010b), p. 410. If the quotient is equal to 1, one is before a stalemate, which received special treatment in the principles theory for leading to a case where the legislature is granted discretion to deliberate. See Chap. 6 below. 116 Ibid., p. 107. 117 Klatt (2012), p. 20. 118 Alexy (2010b), p. 407. 119 Klatt and Meister (2012a), p. 57. 120 Alexy (2010b), p. 66. 121 Alexy (2010c), p. 24. See also Alexy (2000), p. 297; (2007), p. 10. 122 Alexy (2010c), p. 24; (2010b), p. 66; (2012), p. 333

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sequence that proportionality is present whenever principles are concerned, whether the decision-maker is aware of it or not.123 The actual nature of the connection between principles and proportionality, whether purely conceptual or also normative, was discussed in the previous chapter as well, but the reader had to take the necessity thesis for granted there. Until now, not so much information has been given about why principles and proportionality are connected, and in which terms they are mutually implicated. Chapter 4 will detail the four properties that are predicated of principles in Alexy’s view, which should further the comprehension of the intricate connection he sees between constitutional principles and proportionality. For now, since the nature and structure of proportionality are concerned, it shall suffice to anticipate one of those properties, the optimization character of principles, in order to make sense of the necessity thesis.

3.2.3.1

Proportionality and Principles

Alexy postulates that “principles are optimization requirements,”124 which is the same as to say that they demand “that something be realized to the greatest extent possible, given the factual and legal possibilities” in a given case.125 The proportionality test is exactly the means a decision-maker has to identify the extent to which a principle ought to be optimized and what is factually and legally possible under the circumstances of the case, or review whether a previous decision on the matter had correctly established it.126 The first two sub-tests, suitability and necessity, determine what is factually possible, while the third sub-test, proportionality in the narrow sense or balancing, indicates what is legally possible.127 Noticeably, Alexy believes that the connection between proportionality and principles goes beyond the optimization thesis. Particularly balancing would be connected to other properties of constitutional principles, such as the fact that they convey prima facie commands, collide against each other, and have to be weighted.128 These properties conform to other tenets of the principles theory, namely the thesis of the dual nature of ought, the collision law, and the law of balancing, all expounded in Chap. 4 below. In what interests here, the fact that proportionality can be deduced from the very structure of principles “provides a justification for the principle of proportionality out of constitutional rights norms,” Alexy affirms.129 The same applies to the connection between proportionality and fundamental rights, for the princi-

123 Borowski

(2011), p. 580. (2010b) , p. 67. 125 Alexy (2005), pp. 572–573. See also Alexy (2000), pp. 297–298. 126 C.f. Poscher (2015), p. 74, opposing the optimization thesis, thus rejecting the connection between proportionality and principles as optimization requirements. 127 Alexy (2000), p. 298; (2003a), p. 135; (2010b), p. 67. 128 Alexy (2000), p. 298; (2010b), p. 102; (2010e), p. 174. 129 Alexy (2010b), p. 69. 124 Alexy

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ples theory postulates the identity between principles and rights, as next sub-section demonstrates.

3.2.3.2

Proportionality and Limitations of Rights

Another tenet of the principles theory advanced in Chap. 2 was the identity thesis, according to which “constitutional rights are principles.”130 From the postulate that constitutional principles are fundamental rights, it follows that the optimization thesis, in view of which principles are optimization requirements, must find a parallel that respects the structure of rights.131 This parallel is the wide-scope conception of fundamental rights.132 It may be a terminological matter, but Alexy does not claim that fundamental rights are commands to optimize; he rather says that they possess wide scope. Nevertheless, exactly as with principles, decision-makers ought to provide “justification for not realizing them [fundamental rights] to the full extent of their scope,” and “the criterion by which such a realization is measured is that of proportionality.”133 The wide-scope conception of rights is detailed below in Chap. 5. It should suffice to emphasise now that the proportionality test has a constitutive role to play when rights are conceived as possessing wide scope. When a constitutional right like freedom of action, for example, is given wide scope in legal interpretation, it becomes a plenipotentiary license to do whatever pleases an individual, unless certain boundaries are established.134 Judges responsible for setting these boundaries need a criterion to separate justified limits, which only prima facie infringe on the right, from illegitimate interventions with the same right, which really violate it. Alexy maintains that such a criterion is provided with the help of the proportionality test. According to his theory, only by means of proportionality may one determine whether a supposed infringement is actually justifiable or arbitrary135 —in other words, whether or not the core of the right was encroached upon and the right violated.136 To put it briefly, the conception of rights as possessing wide scope endorsed by the principles theory makes proportionality a constitutive element of legal adjudication and furthermore an essential part of the task constitutional courts are entrusted with.

130 Ibid.,

p. 388. Klement (2008), p. 761, rejecting the identity between fundamental rights and principles, thus objecting the identity thesis and the necessary connection between fundamental rights and proportionality. 132 Alexy (2010c), pp. 23–24. 133 Barak (2012a, b), p. 131. 134 See Kumm (2004), pp. 582–584; (2007), p. 141; Cremer (2014), pp. 59–62; Borowski (2011), pp. 581–582. 135 Alexy (2014b), p. 58. 136 Alexy (2010b), p. 76. 131 C.f.

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3.2.3.3

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Proportionality and the Role of Constitutional Courts

As the previous subsections have made clear, the principle theory holds that judges are assigned the duty to optimize constitutional principles to the greatest extent possible given factual and legal possibilities. To this ‘command to optimize’ corresponds the need to set limits to the wide scope of fundamental rights on account of the concrete circumstances of a case. Therefore, both optimization thesis and widescope conception of rights justify that courts have resource to proportionality. They make a strong case for the use of the test, and vice versa. Provided that the criterion for not realizing a principle any further or tolerating some interference with the scope of a right is the justifiability of the measure at hand, the proportionality test becomes an indispensable device of constitutional review because it points out what ought to be justified. According to the principles theory, however, the connections between proportionality and justification go beyond these more concrete aspects of judicial decision-making and reach precisely the cause and purpose of judicial review. As Chap. 6 expounds, Alexy affirms that courts are argumentative representatives of the people and the very condition for the legitimacy of constitutional review is that judges can offer satisfactory reasons in justification for their decisions.137 The thesis of argumentative representation, that will be dealt with further below in the next sub-sections, casts some light on more concrete aspects of the connection between proportionality and justification that is a tenet of the principles theory. Two aspects are expounded below. First, Alexy differentiates between internal and external justification, and second, he proclaims that, while subsumption provides internal justification for the application of rules, the sub-test of balancing and the weight formula provide for the application of principles.

External and Internal Justification Alexy believes that the justification of legal decisions involves two different kinds of rationales.138 “Internal justification is concerned with the question of whether an opinion follows from the premises adduced as justifying it,” he explains.139 The simplest and most known form of internal justification is that of a legal syllogism, which consists in deducting a conclusion (ruling or judgment) after subsuming the facts of a case into a norm, whether “expressed in a statute or arrived at by the judiciary.”140 Where subsumption is concerned, the inference of a conclusion from its premises can be reconstructed with the help of deontic logic. By contrast, external 137 Alexy

(2005), p. 578.

138 Alexy based his conception of external/internal justification on Wróblewski (1992), pp. 209–264;

(1985), pp. 288–291. See Borowski (2011), p. 578, on the influence of Wróblewski’s ideas on the principles theory; Klatt and Schmidt (2012a), p. 74; and (2012b), p. 13, on how proportionality (and particularly balancing) relates to the internal justification/external justification dichotomy. 139 Alexy (2010a), p. 221. 140 Alexy (2003b), p. 434.

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justification deals with the correctness of the premises from which the conclusion was inferred in the course of internal justification. Roughly speaking, legal premises can be externally justified by resort to all kinds of arguments respecting normative validity, social efficacy, and logical and moral correctness that are normally accepted in legal reasoning.141 Where proportionality is concerned, however, “the question of internal justification can be answered by looking to the formal structure of balancing as described by the weight formula,” and external justification must consist in “giving reasons for the values plugged into the weight formula.”142

Balancing and Subsumption Alexy submits that internal justification can be provided in three forms: subsumption, balancing, or analogy.143 Analogy is not relevant for the purposes of the present inquiry; hence, it can be put aside. In what interests here, Alexy sees balancing as a counterpart to the deductive scheme of subsumption.144 Whereas internal justification ought to follow the course of subsumption if rules are concerned, it ought to follow the course of proportionality if principles are at stake. As Klatt summarized, “rules are applied by means of subsumption, principles by means of balancing. … While subsumption follows a deductive scheme, unfolding according to the rules of logic, balancing follows the weight formula, which should be understood in accordance with the rules of arithmetic.”145 Balancing differs from subsumption because “in the weight formula the premises are represented by numbers.”146 They are nevertheless similar in that these numbers “stand for judgments,” Alexy says, and these judgments ought to be justified with the use of external justification.147 The argumentative processes involved in the external justification of a conclusion reached through balancing are more complex than those mobilized by subsumption. This should come as no surprise, for balancing is required exactly when judges are faced with difficult cases, in which they have “to engage in contested moral and political considerations.”148 To recognize the complexity of the arguments involved in the external justification of a conclusion obtained with the proportionality test is not the same as to say that balancing is unstructured or irrational. It is nevertheless a consequence of Alexy’s account of principles that proportionality includes

141 Alexy

(2010a), pp. 221, 230–231; (2010d), pp. 35–94. and Schmidt (2012a), p. 74. 143 See Alexy ( 2010f), pp. 9–18. See also de Bustamante (2012), pp. 59–71; Duarte (2015); Bro˙ zek (2008), pp. 188–201. 144 Alexy (2010c), p. 29. 145 Klatt (2012), p. 20. 146 Alexy (2010c), p. 32. 147 Ibid., p. 32. 148 Klatt (2014), p. 898; Alexy (2010d), p. 69, refers to those as ‘doubtful cases’. 142 Klatt

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subsumption, but the contrary does not hold.149 Next chapter will discuss the collision law, according to which principles collide one against another, and a rule of precedence results from each collision.150 As with rules in general, this derivative rule applies to the conditions of the case by means of subsumption.151 However, differently from other rules, its application is the culmination of a previous line of argument that departed from principles and followed the proportionality scheme. Thus, before reaching this point, one ought to derive the rule from the collision in the way indicated by the weight formula, which mobilizes arguments that are not typically deployed in subsumption. “Judges must justify externally that, for instance, the intensity of an interference with a right was ‘serious’ or that the weight of a competing principle was ‘light,’” Klatt explains.152 These evaluations do not find exact correspondence in subsumption.

3.3 Proportionality in the STF’s Case Law The previous section expounded the main tenets of proportionality in the principlestheory variant and how it relates to constitutional principles, the limits to fundamental rights and the specific role that, in Alexy’s view, a constitutional court plays in legal argumentation. In order to show that the STF has appropriated the principlestheory variant of proportionality in its case law, eleven cases that mentioned Alexy are presented below. The set encompasses opinions of the full court, its panels, and Justices dealing with several matters. Multiple legal fields were affected by the rulings, including criminal law, electoral law, and family law. The impact that the citations to the principles theory had for the majority ruling was separated in secondary or primary, in accordance with the criteria introduced in the first chapter. The references made to the principles theory can be considered of secondary impact in five cases, four of which will be detailed. In the Ineligibility Act Case (2008),153 Pre-Trial Detention Cases I and II (2009),154 and Paternity Test Case (2011),155 the relevance of principles theory-based arguments for the court’s final rulings is secondary because the Justices who quoted Alexy did not deliver the 149 Alexy

(2012), p. 356, highlights that “each instance of balancing begins with at least two subsumptions.” Yet, as I explain in the text, it is also correct to say that balancing ends with a subsumption. 150 Alexy (2010b), p. 53. 151 Ibid., p. 85. 152 Klatt (2014), pp. 898–899. See also Klatt and Schmidt (2012a), p. 74. 153 STF, Ineligibility Act Case, ADPF 144/DF, Judgment of 6 August 2008, Relator: Min. Celso de Mello, D.J.e. 35, 26 Feb. 2010. 154 STF, Pre-Trial Detention Case I, HC 84078/MG, Judgment of 5 February 2009, Relator: Min. Eros Grau, D.J.e. 26 Feb. 2010; STF, Pre-Trial Detention Case II, RHC 93172/SP, Judgment of 12 February 2009, Relatora: Min. Carmen Lúcia, D.J.e. 84, 6 May. 2011. 155 STF, Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011.

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leading vote and only adhered to the majority opinion. As discussed in Chap. 2, this is common in the STF’s case law and also happened with the Ellwanger Case (2003), in which two Justices quoted Alexy, Justice Gilmar Mendes and Justice Marco Aurélio, but the former followed the majority and the latter delivered a dissenting opinion.156 In comparison, six cases were selected due to the primary impact principles-theorybased arguments had for the STF’s final rulings; three of which will be analysed in depth below: the Arrested Defaulter Cases I and II (2008)157 and the Abortion Case (2016).158 In the Arrested Defaulter Cases I and II, the court ordered that a convict was released from prison after declaring that the laws on which his conviction was based were disproportionate. These two judgments illustrate the first phase of the principlestheory influence over the STF’s case law. In the Mendes Court era, which lasted from 2003 to approximately 2012, the opinions of Justice Gilmar Mendes had, in general, a decisive impact for the final ruling delivered by the court. Justice Mendes was also the responsible for the court’s first references to the principles theory. By contrast, the Abortion Case (2016) exemplifies the next phase, which begins in 2013, with Justice Roberto Barroso’s nomination, and lasts until today. In this second period of influence, the references to Alexy are less concentrated. Justice Mendes’ quotations to the principles theory are outnumbered by other Justices’, particularly Justice Barroso and Justice Luiz Fux, who have had a growing influence in the court’s case law as well. As the exposition below shall make clear, more than simple engaging in decorative borrowings, the STF really decided most cases by resort to the proportionality test. The sub-sections below detail eleven cases in which the references had primary or secondary impact. The cases are exposed in chronological order, beginning with the Ineligibility Act Case (2008). Subsequently, I will offer an overview of other cases in which STF’s Justices also quoted to the principles-theory variant of the proportionality test.

3.3.1 The Ineligibility Act Case (2008) The Ineligibility Act Case (2008) concerned the requirements for candidature the Federal Constitution imposes on citizens who intend to run for elections at any governmental level.159 Article 14 of the Federal Constitution sets out conditions that apply to the registration as a candidate. Apart from these enumerated requirements, 156 STF, Ellwanger Case, HC 82424/RS, Judgment of 17 September 2003, Relator (acórdão): Min. Maurício Corrêa, D.J. 10 Mar. 2004. 157 STF, Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009; STF, Arrested Defaulter Case II, RE 466.343/SP, Judgment of 3 December 2008, Relator: Min. Cezar Peluso, D.J.e. 104, 5 Jun. 2009. 158 STF (First Panel), Abortion Case, HC 124306/RJ, Judgment of 9 August 2016, Relator (acórdão): Min. Roberto Barroso, D.J.e. 52, 17 Mar. 2017. 159 STF, Ineligibility Act Case, ADPF 144/DF, Judgment of 6 August 2008, Relator: Min. Celso de Mello, D.J.e. 35, 26 Feb. 2010.

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paragraph 9 makes it incumbent upon the legislature to enact a law laying down new conditions of eligibility and thus restricting the right to run for public positions in order to guarantee the probity of those who will take office. Among the criteria the statute ought to take into consideration, the Constitution expressly mentions “the previous life of the candidate” (Article 14, Paragraph 9). In response to the constitutional command, the National Congress passed the Complementary Law 64/90. The statute is known as the Ineligibility Act, for it prohibited the election of individuals who were proved guilty of certain crimes and lawless conducts and so declared by unappealable judicial decisions.160 The Brazilian Magistrates Association (Associação dos Magistrados Brasileiros—AMB) filed a petition with the STF claiming that the Ineligibility Act obstructed the due enforcement of the constitutional provision it was expected to regulate by making it dependent on unappealable decisions. Such a formal condition would impair the effectiveness of checking candidates’ previous life and consequently conspire against the probity the Federal Constitution attempted to guarantee. As the petitioner argued, administrative morality is a self-enforceable principle and commands the judiciary to deny registration as candidates to those convicted of crimes regardless of any pending appeal. Nevertheless, the arguments did not convince the STF. A majority of Justices understood that the Ineligibility Act conformed to the Federal Constitution and that upholding the petition was contrary to the constitutional wording. As the court declared, to deprive convicts of the right to register as candidates before their appeals had been heard would violate the presumption of innocence as stated in the Federal Constitution.161 Justice Gilmar Mendes voted with the majority. He affirmed, firstly, that it was contrary to the Federal Constitution to admit new clauses of non-eligibility that had not been enacted by the legislature. Secondly, he asserted that by employing the proportionality test, one could demonstrate that interpreting public morality as a selfenforceable principle, as the petitioner argued for, would annihilate a fundamental right that commanded the opposing solution: presumption of innocence. In Justice Mendes’s view, the case raised the question of whether the principle of public morality and the duty of probity addressed to candidates to governmental offices would prevail over the presumption of innocence that the Federal Constitution granted to all individuals. He explained that public morality and probity collided against the presumption of innocence, inasmuch as the latter interfered with the former. Justice Mendes asserted that, as it happens when rights collide, it was the court’s task to determine whether the statute was proportional in its narrow sense. Quoting Alexy, he maintained that it ought to be done in accordance with the law of balancing, which

160 Lei

Complementar 64, de 21 de maio de 1990, Brazil, D.O.U., 21.05.1990, Article 1, d, e, g, h (repealed 2010). 161 Constituição da República Federativa do Brasil de 1988, Article 5, LVII: “No one shall be considered guilty before the issuing of a final and unappealable criminal sentence.” All references in English to the Federal Constitution are taken from http://bd.camara.gov.br/bd/bitstream/handle/ bdcamara/1344/constituicao_ingles_3ed.pdf, unless it is indicated otherwise.

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reads: “the greater the interference with a fundamental right, the greater must be the reasons given to justify such interference.”162 Justice Mendes considered that in the case at hand, one could grant protection to public morality by less restrictive means, that is, means which would impose lighter restrictions to the rights of candidates standing for election. These means would be rather political than legal, as he had in mind filters such as the individual vote and the internal structure of political parties. Justice Mendes explained that, in a representative democracy, it was mainly incumbent on the people to evaluate by voting whether the candidate was suitable to occupy a public office. Furthermore, the political parties would be equally responsible for controlling whether an individual possessed the characteristics expected from candidates. As removing the limits posed on the legislature by the constitutional presumption of innocence would imply a heavier interference with individuals rights than trusting on these political mechanisms of control, Justice Mendes asserted that the Ineligibility Act was proportional and, thus, conformed to the Federal Constitution.

3.3.2 The Arrested Defaulter Cases (2008) The main issue the Arrested Defaulter Cases I and II (2008) raised was whether the Federal Constitution must conform to human rights treaties.163 Article 7.7 of the American Convention on Human Rights (ACHR) stipulates that “no one shall be detained for debt” and makes one single exception to the prohibition. Judicial authorities are allowed to issue orders for the detention of defaulters due to “nonfulfillment of duties of support.”164 Brazil is a member of the Organization of the American States (OAS) and a signatory to the ACHR, ratified in 1992. The Federal Constitution, promulgated in 1988—thus, before the ratification—, bans civil imprisonment for debt, but exempts cases of default on the payment of alimony obligations, as does the ACHR. Notwithstanding, Article 5, XLVII, of the Federal Constitution goes further and makes a second exception, against the text of the Convention: it allows the arrestment of defaulters who fail to account for a thing that they hold as trustees.165 Furthermore, the Civil Code commands the imprisonment of official receivers under 162 Alexy (1986), p. 146, quoted in STF, Ineligibility Act Case, ADPF 144/DF, Judgment of 6 August

2008, Relator: Min. Celso de Mello, D.J.e. 35, 26 Feb. 2010. Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009; STF, Arrested Defaulter Case II, RE 466.343/SP, Judgment of 3 December 2008, Relator: Min. Cezar Peluso, D.J.e. 104, 5 Jun. 2009. For more on the cases, see Varella (2014), pp. 146–147; Daly (2014), pp. 12–13; Santos (2013), pp. 27–40; de Morais (2016), p. 140. 164 Organization of American States, American Convention on Human Rights, Article 7, Paragraph 7. 165 Constituição da República Federativa do Brasil de 1988, Article 5, LXVII: “There shall be no civil imprisonment for indebtedness except in the case of a person responsible for voluntary and inexcusable default of alimony obligation and in the case of an unfaithful trustee.” 163 STF,

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the same circumstances,166 and another statute extends the command to trustees who neglected their fiduciary duties.167 The Arrested Defaulter Case I was filed with the STF as an extraordinary appeal against a lower court decision that had released a fiduciary from prison. The appellant claimed that the arrestment of the fiduciary was in accordance with the infraconstitutional legislation, which in its turn had been enacted in conformity with Article 5, XLVII, of the Federal Constitution. Conversely, the appellee argued for the lawlessness of the prison that breached Article 7.7 ACHR. Two of the three Justices who voted immediately after the STF heard the case agreed with the appellant that the prison was lawful. They based their opinions on the court’s case law, which had long maintained that international treaties entered the Brazilian legal system as ordinary laws only and, as such, could not contradict the wording of the constitution. No exception was made to human rights conventions.168 Nevertheless, these Justices would later change their votes in the same judgment after Justice Gilmar Mendes laid down his opinion. Justice Mendes presented a powerful case against arresting defaulters due to their failure in accounting for things they had been entrusted. As Justice Mendes affirmed, human rights treaties to which Brazil is a signatory only rank as constitutional norms if they pass through the formal procedures for amending the constitution; nevertheless, they do not rank as ordinary law either. In his view, human rights treaties enter the Brazilian legal order in an intermediary position between the Federal Constitution and ordinary laws. Having supra-statutory status, clauses of international treaties on human rights that Brazil ratifies would override the ordinary laws that contradicted what they command or prohibit. Applying this proposition to the case at hand, Justice Mendes concluded that ordinary laws and other legal acts that allowed the imprisonment of defaulters who failed in their duties as trustees were null and void vis-à-vis Article 7.7 ACHR. Furthermore, Justice Mendes presented arguments particularly against the imprisonment of fiduciaries in default. According to him, both the Civil Code provision and the statute that extended its command to fiduciaries were null and void not only because they violated the ACHR, but rather because they were disproportional as well—and thus unconstitutional. From where Justice Mendes stood, the court was required to determine whether the constitutional principle of proportionality in its narrow sense had been violated. Quoting Alexy, he explained that “the requirement of proportionality in its narrow sense can be formulated as a law of balancing whose simpler rule, oriented towards fundamental rights, says: ‘the greater the interference with a fundamental right, the greater must be the reasons given to justify such interference’.”169

166 Código

Civil, Lei 10.406, de 1o de outubro de 2002, D.O.U., 11.01.2002, Article 652. 911, de 10 de janeiro de 1969, D.O.F.C., 03.10.1969, Article 4. 168 See in this respect, Santos (2013), pp. 24–25. 169 Alexy (1986), p. 146, quoted in STF, Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009. Identical quotation had been 167 Decreto-Lei

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Justice Mendes invited the other Justices to perform the proportionality test by striking a balance between “the trustee’s individual freedom and the beneficiary’s right to claim the thing (deriving from her right to property and also from the requirement of legal certainty).”170 As he anticipated, the outcome of balancing would point to the precedence of individual freedom over the right to property. Justice Mendes compared the two exceptions to the constitutional ban on debtors’ prison: the default on paying alimony and the neglect to duties as a trustee. He advocated that the former exception was justified due to the higher importance of “other constitutional values or goods that demanded more protection in a concrete case, as, e.g., the value of the assistance to family in cases of imprisonment for nonfulfillment of duties of support;” by contrast, the latter exception was indefensible: “[imprisoning the trustee] would not be justified in cases aiming for the mere fulfilment of the beneficiary’s patrimonial claim,” he said.171 Hence, means that are less restrictive to the trustee’s freedom than imprisonment ought to be used so as to guarantee the beneficiary’s property right. So strong were Justice Mendes’s arguments that he convinced all the other Justices that the court should change its case law in two relevant points. Firstly, the STF should reform the understanding about human rights treaties it had been holding since 1977.172 Secondly, the court should abandon the view on the constitutionality of statutory provisions that allowed the imprisonment of trustees due to their default, view that Justices had been sustaining since 1995.173 As a result, the STF delivered a unanimous decision maintaining the lower court’s order that released the appellee from prison, and Justice Mendes was appointed as rapporteur to write down the court’s opinion. The same arguments and ruling were repeated in the judgment of the Arrested Defaulter Case II.174

3.3.3 The Pre-Trial-Detention Cases (2009) The Pre-Trial Detention Cases I and II (2009) raised the question whether it was conform to the Federal Constitution that persons charged for criminal offences remained in detention during the judicial proceedings before a final verdict of guilty had been

used before in STF, Ineligibility Act Case, ADPF 144/DF, Judgment of 6 August 2008, Relator: Min. Celso de Mello, D.J.e. 35, 26 Feb. 2010. 170 STF, Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009 (my translation). 171 Ibid. 172 The first decision on the matter is STF, RE 80004/SE, Judgment of 1 June 1977, Relator: Min. Xavier de Albuquerque, D.J. 29 Dec. 1977. 173 See STF, HC 72131/RJ, Judgment of 23 November 1995, Relator: Min. Marco Aurélio, D.J. 1 Aug. 1995. 174 STF, Arrested Defaulter Case II, RE 466.343/SP, Judgment of 3 December 2008, Relator: Min. Cezar Peluso, D.J.e. 104, 5 Jun. 2009.

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pronounced.175 In Brazil, federal statutes admit pre-trial detention when pressing reasons justify the preventive custody, e.g. when there is a risk the defendant will commit another crime, but also when actual risks are lacking. A peculiar example of the latter is ‘post-appeal’ detention. Article 637 of the Code of Criminal Procedure commands that criminal defendants be held in official custody once they issue an extraordinary appeal against a condemnatory sentence, whether or not they have threatened to scape, posed any risk of harm, or violated the law while awaiting trial.176 Since the promulgation of the Federal Constitution, the STF’s had delivered several decisions confirming the constitutionality of statutory laws that prescribed pretrial detention.177 The prevailing opinion was that a defendant should be kept in custody until her appeal was heard even when he was accused of offences that were not described in the Criminal Code and to which the law did not expressly prescribe preventive detention.178 In view of this, the Pre-Trial Detention Cases I and II signified a striking change in the court’s case law. A majority of Justices upheld the applicants’ plea for writs of habeas corpus and put forward in justification the argument that it was constitutionally prohibited to maintain a defendant in custody without a final and unappealable judicial decision. Exception was made to preventive detention, if the defendant had threatened to scape, posed risk of harm, or violated the law while awaiting trial. Justice Mendes voted with the majority. He affirmed that the STF’s previous understanding, which upheld the constitutionality of statutory provisions on pretrial detention, conflicted with the Federal Constitution. More specifically, it would breach the presumption of innocence in Article 5, LXVI, which reads, “no one shall be considered guilty before the issuing of a final and unappealable penal sentence.” According to Justice Mendes, post-appeal detention was particularly disproportional. There would be no justification for making appellants wait in prison for the hearing of their appeals in cases where there was no pressing reason for anticipating the custody. In his view, the pre-trial detention imposed a serious limitation on the individual’s right of freedom, and there were less restrictive means to achieve what the legislature had envisaged with the enactment of such statutes. Justice Mendes acknowledged that the cases brought to light a collision between two constitutional principles—the social interest in the effectiveness of criminal proceedings, on the one side, and the individual right to be treated as innocent until guilt was proved, on the other. Referring to the principles theory, he asserted that it was the court’s task to employ the proportionality test to delineate the core of the presump175 STF,

Pre-Trial Detention Case I, HC 84078/MG, Judgment of 5 February 2009, Relator: Min. Eros Grau, D.J.e. 26 Feb. 2010; STF, Pre-Trial Detention Case II, RHC 93172/SP, Judgment of 12 February 2009, Relatora: Min. Carmen Lúcia, D.J.e. 84, 6 May 2011. 176 Código de Processo Penal, Decreto-Lei 3.689, de 3 de outubro de 1941, D.O.F.C. 13.10.1941, Article 637. 177 For instance, HC 72.366/SP, HC 72.366/SP, Judgment of Brazil, Relator: Min. Néri da Silveira, 13 Sep. 1995, D.J. 26 Nov. 1999 (1995). 178 In a series of previous decisions, the STF had extended the pre-trial detention to heinous crimes, for instance. See e.g., STF, HC 70634/PE, Judgment of 9 November 1993, Relator: Min. Francisco Rezek, D.J. 24 Jun. 1994.

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tion of innocence. Up to this line, he said, the restrictions that criminal proceedings imposed on the individual right were authorized; conversely, an interference that trespassed the line constituted a violation against that right. Justice Mendes explained that the proportionality test encompassed three subtests: suitability, necessity, and proportionality in its narrow sense. And he argued that a general permission for pre-trial detention that did not take into account real threats to the effectiveness of criminal proceedings would not pass the proportionality test; it would actually fail the second of its sub-tests, that of necessity. As he affirmed, no accused had to be held in custody before a final verdict, unless a concrete case presented a strong motive for the contrary, such as an actual threat of harm or escape. The law had already contemplated these exceptional occasions, to which preventive detention was prescribed, and additional exceptions remained yet unjustified, Justice Mendes concluded.

3.3.4 The Paternity Test Case (2011) The Paternity Test Case (2011) addressed a conflict between a person’s right to identity and the safeguard of res judicata.179 The Federal Constitution recognizes the res judicata, also known as claim preclusion, by stating that no law can interfere with matters that have been adjudicated in definitive by a judge or court.180 Accordingly, Article 468 of the Code of Civil Procedure in force then said that a final judgement disposing of all or some issues in litigation has force of law and settles the controversy and the rights of the parties in the limits of what has been decided.181 The Paternity Test Case threw light on the problems raised by applying such clauses when the barrier against litigating a second lawsuit on the same claim seemingly prevents the enforcement of a fundamental right. A plaintiff in a Paternity Action had its petition of a paternity order denied because a genetic test was needed to confirm the parentage of the presumed father, but the petitioner could not afford for it. Due to the absence of proof, the first instance judge closed the case and issued a declaration of non-paternity. However, as a state law passed twenty years later commanded the state to pay for genetic tests in behalf of poor people, the plaintiff filed a second Paternity Action. The second suit was initially admitted, but the case was brought to the court of appeal, which decided on the non-admission. The court affirmed that a declaration of non-paternity is a

179 STF,

Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011. 180 Constituição da República Federativa do Brasil de 1988, Article 5, XXXVI: “The law shall not injure the vested right, the perfect juridical act and the res judicata.” 181 Código de Processo Civil, Lei 5.869, de 11 de janeiro de 1973, D.O. 17.01.1973, Article 468 (repealed 2015).

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judgment on the merits even if based on the absence of proof; as such, it foreclosed the plaintiff from requesting identical paternity order once again. The plaintiff lodged an extraordinary appeal to the STF in order to reverse the lower court’s decision. He claimed that the constitutional provision on human dignity entails a person’s right to identity and, hence, the right to know his or her own biological origins. The appellant succeeded in his extraordinary appeal, and the STF rendered an opinion reversing the decision of the court of appeal. A majority of Justices agreed with a memorial rendered by the General-Attorney of the Republic as the legal basis for the appellant’s claim. In the piece, the General-Attorney suggested that, as the result of applying the principle of proportionality to the case, the individual right to identity should prevail over the formal constrains placed by res judicata.182 Justice Luiz Fux upheld the vote of the majority. He observed that the case law of superior courts pointed to the impossibility of removing the formal barriers posed by res judicata, even when new methods of proof developed afterwards had not been available at the time the controversy was settled. As Justice Fux conceded, by safeguarding the claim preclusion the Federal Constitution envisioned the longterm benefits that legal certainty brings to social life. In his view, however, it was a mistake to consider the res judicata in isolation, for in concrete situation it could conflict with constitutional rights. That being the case, Justice Fux continued, the decision-maker had to do as Alexy suggested: to establish a conditional relation of precedence between the colliding norms, a relation that indicated which norm ought to prevail and the limits of enforcing it in a given case.183 For Justice Fux, the constitutional provision on res judicata was a rule commanding that laws were declared as null and void if they trespassed the limits of claim preclusion. But Justice Fux explained that behind such a rule lied the constitutional principle of legal certainty, and the court ought to strike a balance between this principle and the right to identity. Quoting Alexy, Justice Fux asserted, “balancing must be conducted by means of examining (i) the abstract weight of the colliding principles, (ii) the intensity of interference in the opposite principle … and (iii) the reliability of the empirical premises, on which one bases the assertions about whether the fundamental norm has been violated or enforced.”184 Having this in mind, Justice Fux declared that, although he was aware of the risks of weakening the effects of res judicata, the appellant’s right to know his own origins would be liquidated if legal certainty was to prevail in the given case. Conversely, the interference with legal certainty would be bearable if the appellant was given the opportunity to file another lawsuit to confirm the parentage of his presumed father. For this reason, Justice Fux voted with the majority that upheld the appeal.

182 STF,

Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011. 183 Alexy (1993), p. 92, paraphrased in STF, Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011. 184 Alexy (2003b), paraphrased in STF, Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011.

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Justice Ricardo Lewandowski, who voted right afterwards, also mentioned the principles theory in his opinion. He agreed with Justice Fux that the court “faced a case in which distinct constitutional principles or values collide and, thus, require … balancing according to the well-known formula of the German scholar Robert Alexy.”185 Additionally, Justice Lewandowski affirmed that “principles are requirements of optimization that permit an axiological balancing, always in face of a concrete case, and in conformity with three criteria: first, suitability; secondly, necessity; thirdly, proportionality.”186 He, however, conceded that the proportionality test did not provide any substantive criteria for adjudicating difficult cases. In his view, it was the judge’s task to evaluate the colliding principles and decide in favour of one of them. As Justice Lewandowski agreed with the outcome reached by the majority, which gave more importance to the right to identity, he upheld the appeal.

3.3.5 The Abortion Case (2016) In the Abortion Case (2016), a majority of Justices of the STF’s First Panel held that women had a fundamental right to interrupt their pregnancy up to the end of the first trimester and this right could not be restricted by the Criminal Code, which criminalizes abortion in general, the only exceptions being the cases of rape-related pregnancy or risk to the mother’s life.187 The panel granted the habeas corpus and issued an order to release physicians and clerks who worked in a clandestine clinic and had been arrested pursuant to Article 126 of the Criminal Code. Justice Roberto Barroso delivered the leading vote on the case and was nominated the rapporteur of the panel’s opinion. He affirmed that the criminalization of abortion severely interfered with women’s fundamental rights, such as individual autonomy, physical and psychological integrity, sexual and reproductive health, and gender equality. In his view, the measure impacted poor women even more harshly, for they could not afford for a safer procedure in private clandestine clinics, as healthier women could. Justice Barroso asserted that in difficult judgments such as the one Justices had before them, proportionality was a necessary tool to structure legal reasoning and decision-making. Following Alexy’s version of the test, he said that it was doubtful whether the criminalization of abortion was an adequate means to protect fetuses’ life, as no evidence showed that the number of abortions was higher in countries where the practice is legal. Justice Barroso added that the criminalization was not necessary either, as the state could adopt means which were less restrictive to women’s freedom in order to assist their pregnancy and protect the fetus’s life. Finally, he stated that the criminalization of abortion in the initial phase of pregnancy was disproportional 185 STF,

Paternity Test Case, RE 363889/DF, Judgment of 2 June 2011, Relator: Min. Dias Toffoli, D.J.e. 238, 16 Dec. 2011, my translation. 186 Ibid. 187 STF (First Panel), Abortion Case, HC 124306/RJ, Judgment of 9 August 2016, Relator (acórdão): Min. Roberto Barroso, D.J.e. 52, 17 Mar. 2017.

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in the narrow sense. Comparing the laws of countries like the U.S., Germany, United Kingdom, France, Italy, Portugal, Holland and Australia, and rulings of the U.S. Supreme Court, the BVerfG, and the Supreme Court of Canada, Justice Barroso conformed the reading of the Criminal Code provisions on abortion to the Federal Constitution, so as to conclude that the consented interruption of pregnancy up to the end of the first trimester was not a crime.

3.3.6 Other Cases The cases analysed above do not exhaust the list of judgements in which the STF, its panels, or Justices quoted to the principles-theory variant of proportionality. For instance, in the Anencephaly Case (2012), Justice Rosa Weber performed the complete proportionality test and even disclosed the weight formula in her opinion.188 The judgement preceded in four years the decision in the Abortion Case and, differently from it, was delivered by the full court and not one of its panels. The STF decided then that, contrary to the Criminal Code literal rule, pregnant women had a fundamental right to abortion in cases where the fetus was diagnosed as anencephalic.189 That was the unique case in which the weight formula appeared in an opinion of the court. In either event, the impact of the principles theory on the court’s decision was only secondary. Justice Weber voted with the majority in that judgement, which does not allow us to conclude that her reference to Alexy had any significance for the STF’s final ruling. However, other cases exist in which the influence of the principles theory for the STF’s final ruling was primary. The Sugarcane-Straw-Burning Case (2015), for example, dealt with municipalities’ authority to legislate on environmental protection.190 The municipality of Paulínia had passed a statute prohibiting farmers from burning sugarcane straw before or after harvesting. This provision conflicted with the state statute on that matter, which did not ban that agricultural practice once and for all, but provided for its gradual reduction through the years. The STF declared that the municipal statute was unconstitutional because municipalities only held competence to legislate on local issues concerning environmental protection. Justice Luiz Fux was the rapporteur and delivered the court’s opinion. In his vote, he had recourse to the principles-theory variant of proportionality to conclude that the municipal law had imposed unnecessary burdens upon growers and producers. According to him, the state statute could reach the same degree of environmental protection with minor restrictions to farmers’ economic rights.

188 STF,

Anencephaly Case, ADPF 54/DF, Judgment of 12 April 2012, STF, Relator: Min. Marco Aurélio, D.J.e. 80, 30 Apr. 2013. 189 Ibid. 190 STF, Sugarcane-Straw-Burning Case, RE 586224/SP, Judgment of 5 March 2015, Relator: Min. Luiz Fux, D.J.e. 85, 8 May 2015.

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On its turn, the Intellectual Property Management Case (2016) was about the new statutory law on the collective management of intellectual property and related rights.191 In 2013, the National Congress passed a provision requiring that nongovernmental associations responsible for managing copyrights publicly disclosed their data. In response, some musicians’ associations filed a petition with the STF, complaining about what they saw as an unjustified violation of their members’ rights to privacy. The petition was nevertheless rejected. In the judgement, the rapporteur, Justice Fux, submitted the statutory provision to the complete proportionality test. Quoting Alexy, he held that the new requirements of transparency the statute had stablished were adequate and necessary to promote the constitutional right of access to information and also proportional in the strict sense, for it did not impose serious infringements to the authors’ privacy. Finally, the Treasury Debt Update Case (2017) dealt with the interest rates and other costs that applied to Treasury debt liabilities held by the public after confirmation by court decisions.192 Justice Fux was also the case rapporteur. In his vote, he put the statutory provisions on the matter to the principles-theory variant of the proportionality test and ruled that they were inadequate means to reach some of the goals they allegedly pursued. Following his opinion, the STF confirmed the extraordinary appeal and declared that part of the statutory provisions respecting the interest rates applicable to Treasury debt liabilities were null and void.

3.4 Judging Under the Principles-Theory Influence The set of cases expounded above demonstrates that the STF appropriated the proportionality test and has applied it as an adjudicative method for either reviewing lower courts’ decisions or striking down statutory laws that do not conform to the Federal Constitution. The selection also evidenced what I had anticipated, that Justice Gilmar Mendes was the protagonist in the migration of the principles-theory variant of proportionality from Germany to the case law of the STF. He was responsible for the first reference to Alexy in an STF’s decision and played a decisive role in the judgements the court delivered in the first phase of its case law on proportionality (2003–2012). The impact of his opinions grew progressively since the Ellwanger Case (2003) to reach its peak a decade later. To recall, in Ellwanger, Justice Mendes applied the complete test as devised by Alexy, but adhered then to the majority opinion, which had neither quoted to the principles theory nor made use of proportionality.193 In later cases, Justice Mendes 191 STF,

Intellectual Property Management Case, ADI 5062/DF, Judgment of 27 October 2016, STF, Relator: Min. Luiz Fux, D.J.e. 134, Jun. 21, 2017. 192 STF, Treasury Debt Update Case, RE 870947/SE, Judgment of 20 September 2017, STF, Relator: Min. Luiz Fux, D.J.e. 262, Nov. 20, 2017. 193 STF, Ellwanger Case, HC 82424/RS, Judgment of 17 September 2003, Relator (acórdão): Min. Maurício Corrêa, D.J. 10 Mar. 2004.

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mentioned the test again, but his votes only followed the majority, as in the Ineligibility Act Case (2008)194 and the Pre-Trial Detention Cases I and II (2009).195 Notwithstanding these mentions, the influence of the principles theory on the STF’s case law achieved a climax in the Arrested Defaulter Cases I and II (2008).196 In these judgements, Justice Mendes convinced the majority to reverse a long-lasting understanding of the court about the legal status of international treaties and did so by recourse to proportionality and the principles theory. These cases set a benchmark for future references. In the second phase of its case law on proportionality, the STF confirmed the importance of the test in the Sugarcane-Straw-Burning Case (2015)197 and the Treasury Debt Update Case (2017),198 in which the court struck down statutory provisions that failed the sub-tests of necessity and suitability, respectively. Justice Fux was the rapporteur of both cases and would have recourse to the complete test later in the Intellectual Property Management Case (2016).199 Justice Barroso did the same in the Abortion Case (2016),200 but this time his opinion would cause intense commotion in the legal community and attract both praise and criticism. On the one hand, the STF for the first time granted to all women the right to abortion up to the end of the first trimester, regardless of any other special condition, such as an anencephalic fetus or a rape-related or life-threatening pregnancy. On the other, however, many critics expected that a panel deferred to the full court a decision on such a controversial matter. Having said that, let us turn attention to the Arrested Defaulter Case I (2008), because it can help us to identify some problems in the STF’s reasoning that pose difficulties to the justification of borrowing. The case raised two questions. The first regarded the position of international conventions on human rights in the hierarchy of laws in the Brazilian legal system. The STF decided that, unless the National Congress followed the special procedure for constitutional amendment, human rights conventions ranked below the Federal Constitution, but above federal legislation. Particularly with respect to the American Convention on Human Rights (ACHR), 194 STF,

Ineligibility Act Case, ADPF 144/DF, Judgment of 6 August 2008, Relator: Min. Celso de Mello, D.J.e. 35, 26 Feb. 2010. 195 STF, Pre-Trial Detention Case I, HC 84078/MG, Judgment of 5 February 2009, Relator: Min. Eros Grau, D.J.e. 26 Feb. 2010; STF, Pre-Trial Detention Case II, RHC 93172/SP, Judgment of 12 February 2009, Relatora: Min. Carmen Lúcia, D.J.e. 84, 6 May. 2011. 196 STF, Arrested Defaulter Case II, RE 466.343/SP, Judgment of 3 December 2008, Relator: Min. Cezar Peluso, D.J.e. 104, 5 Jun. 2009; STF, Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009. 197 STF, Sugarcane-Straw-Burning Case, RE 586224/SP, Judgment of 5 March 2015, Relator: Min. Luiz Fux, D.J.e. 85, 8 May 2015. 198 STF, Treasury Debt Update Case, RE 870947/SE, Judgment of 20 September 2017, STF, Relator: Min. Luiz Fux, D.J.e. 262, Nov. 20, 2017. 199 STF, Intellectual Property Management Case, ADI 5062/DF, Judgment of 27 October 2016, STF, Relator: Min. Luiz Fux, D.J.e. 134, Jun. 21, 2017. 200 STF (First Panel), Abortion Case, HC 124306/RJ, Judgment of 9 August 2016, Relator (acórdão): Min. Roberto Barroso, D.J.e. 52, 17 Mar. 2017.

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the court established that it was lex superior and thus abrogated statutory provisions in contrary. The second question was whether the imprisonment of defaulters who failed in their duties as trustees was lawful. The STF answered that it was not. The first reason for the unlawfulness was formal: the statutory clauses regulating the matter had been tacitly repealed by the ACHR, which ranked higher than federal statutes. The second reason was rather substantive. The STF declared that detaining someone for debt was a disproportional, and therefore unconstitutional measure, unless the detention was due to failure or negligence to fulfil alimony obligations and similar duties to support. Next sub-section reconstructs this proposition of the court with the help of the weight formula in order to unveil the line of argument underlying the reasoning.

3.4.1 Balancing Reconstructed The Arrested Defaulter Case I called into question the constitutionality of a statutory clause that provided for the imprisonment of defaulters who failed in the fulfilment of their civil obligations.201 Let us initially stipulate that the measure was both suitable and necessary in the court’s view, and assume further that the principles at play according to Justice Gilmar Mendes, individual freedom and property, had the same importance when considered in abstract. That is to say that the variables W i and W j , which stand for the abstract weighs of the colliding principles, do not need to be considered. Furthermore, no doubt was raised about the certainty of the empirical assumptions made in the case, which justifies that the variables Ri and Rj are put aside as well. Therefore, the different outcomes the court obtained in considering that imprisonment for nonfulfillment of duties to support was proportionate, on the one hand, and imprisonment for nonfulfillment of other civil debts was disproportionate, on the other, must be due to an unbalance between the degree of interference with one principle (I i ) and the importance of satisfying the other (I j ). Imprisoning a debtor would either seriously or moderately affect an individual’s freedom. The STF did not disclose or put arguments forward for this choice, but one can concede that freedom is moderately affected in cases of civil imprisonment if compared to criminal imprisonment, which normally represents a serious infringement to the same right. Hence, the degree of interference with the opposing principle can be designated as moderate, which corresponds to the rate (m) or the value 21 in the divisor of the weight formula.202 Whether the degree of interference with the debtor’s freedom is the same regardless of the nature of the debt, the importance of guaranteeing the creditors’ property rights is significantly lower where ordinary civil debts are concerned. It is therefore reasonable that the dividend is rated as (l) or assigned the value 20 . In what follows, in the case of imprisoning a debtor due to 201 STF, Arrested Defaulter Case I, RE 349.703/RS, Judgment of 2 December 2008, Relator: Min. Carlos Britto, D.J.e. 104, 5 Jun. 2009. 202 Alexy (2007), p. 21.

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nonfulfillment of ordinary civil debts, the fraction would be l/m or 1/2, which stands for a disproportionate measure. By contrast, where duties to support are concerned, the importance of guaranteeing creditors’ property rights is higher and thus rated as (s) or assigned the value 22 . In this case, the fraction would be s/m or 4/2, which stands for a proportionate measure. As demonstrated, the weight formula allows one to reconstruct the decision and the argumentative line that led the court to differentiate between duties to support and ordinary civil debts. The STF upheld that the former justifies imprisonment for nonfulfillment, while the latter does not, which reflects the different results obtained when balancing the importance of implementing the measure against the severity of the restrains it imposes on freedom. Nonetheless, our brief exercise shed light on some problems in the STF’s reasoning. Many assumptions had to be made in order to assign values to the variables, and no argument could be found in Justices’ opinions that justified the corresponding rate. Some questions left open were, for example, whether the court attaches equal importance to individual freedom and private property in abstract, whether Justices really deem civil imprisonment as a moderate, instead of a serious restriction to freedom of movement, and whether the colliding rights were only property and freedom, or other principles ought to be considered, too, particularly if duties to support children and disabled people were at stake. Noticeably, an important issue yet to be settled concerns the abstract weight of principles. In 1996, the STF decided that there was no hierarchy between the constitutional norms that were part of the Federal Constitution as originally promulgated, which includes most fundamental rights.203 Nevertheless, this decision was made almost a decade before the Ellwanger Case (2003), the first judgment in which the court expressly adhered to the principles theory. Therefore, one can ask whether the previous understanding still holds valid, and that being the case, whether it must to be read as asserting that all constitutional principles have the same abstract weight in the Brazilian legal system.204 To resume, what the exercise above made clear was that the main problem about the use the STF has made of the proportionality test lies in the insufficient external justification Justices put forward for their decisions.205 This contradicts the objection against borrowings often voiced in Brazilian scholarship. Proportionality has faced fierce criticism from constitutional scholars in Brazil, but critics have primarily focused on, as they say, the court’s inaccuracy in replicating the method. Many affirm that, altogether, the use the STF makes of the proportionality test falls short of the method actually applied by the BVerfG and the model provided by the principles theory.206 These scholars conclude that, in spite of what Justices may believe, propor-

203 STF, ADI 815/DF, Judgment of 28 March 1996, Relator: Min. Moreira Alves, D.J. 10 May 1996. 204 According

to Sarmento (2003), pp. 37–40, two conceptions of hierarchy of constitutional principles fit the Brazilian legal system: static and dynamic. 205 da Silva (2001), p. 31, maintains similar opinion. 206 See e.g., de Morais (2016); Sarlet (2009), p. 397.

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tionality was not really applied in the decisions.207 In these critics’ view, the court’s attitude towards the test is either a purely rhetorical strategy or simply mistaken. In the following sub-sections, I explain why this criticism may be partially rejected.

3.4.2 Meeting Criticism Many authors seem convinced that the STF has based its decisions on a wrong interpretation of Alexy’s works. Martins says that the court has an “imprecise comprehension” of proportionality.208 Sarmento notices that Brazilian judges have adhered with peculiar “euphoria” to the principle theory without however taking the corresponding constraints imposed by this methodology seriously enough.209 da Silva warns that “the invocation of proportionality [in the STF’s case law] is, not rarely, a mere recourse to a topos and has a simply rhetorical and non-systematic character.”210 de Morais affirms that the court has not integrally followed the principles theory and that the proportionality test to which the court has had recourse is a “sui generis” version of the original.211 It is nevertheless pertinent to ask whether it prevails among Brazilian scholars an erroneous view of how foreign courts dialogue with their fellow legal theorists, and in particular, how the BVerfG deliberates and how much space its decisions dedicate to legal theory. The image of German case law and scholarship is often idealized in Brazil, which is most likely a reflex of the reverence Brazilian academia holds towards Germany. In order to illustrate my point, I shall dedicate a closer look to a recent piece of research about proportionality in Brazil.

3.4.2.1

A First Critique: An Unsatisfactory Imitation

de Morais conducted a work whose hypothesis, objective, and material are partially coincidental with mine. His study aimed at assessing how the STF has made use of proportionality in its judgements. The conception of proportionality he had in mind was that of Alexy and the principles theory. Attempting to demonstrate how inaccurately Justices have been applying the test in Brazil, de Morais collected from the STF’s database the impressive set of 189 decisions in which the word proportionality was mentioned. After analysing the judicial opinions, he concluded that there was no correspondence between proportionality in the STF’s jurisprudence and in Alexy’s works. “What one sees in the STF’s case law is only a simulacrum of Robert Alexy’s theory,” de Morais affirmed.212 Nonetheless, his research is fraught with problems 207 da

Silva (2001), p. 34. (2003), p. 21. 209 Sarmento (2006), pp. 198–204. 210 Silva (2001), p. 31 (my translation). 211 de Morais (2016), pp. 249–253. 212 Ibid., p. 249. 208 Martins

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that weaken this conclusion. At least two of the premises that led de Morais conclude that the STF had not really borrowed the principles theory are highly debatable. The first concerns the use of the principles-theory terminology; the second respects the structure of proportionality and its sequential sub-tests. de Morais called attention to the lack of uniformity in the terminology the STF used in reference to the elements in conflict. The court referred sometimes to “principles,” other times to “values,” “interests,” “goals,” or “fundamental rights,” which in many cases were not treated as “optimization requirements,” de Morais remarked.213 This would indicate that Justices had only partially appropriated the principles theory. Indeed, de Morais shed light on a serious problem in the STF’s decision-making practice: the scant attention the court devotes to the readability of its decisions, which are frequent victims of poor word choices, misused synonyms, and terminological inconsistencies. Nonetheless, the terms selected from the set of cases de Morais analysed neither adequately exemplify the problem, nor necessarily indicate that the court has only simulated adherence to the principles theory. Initially, it is important to recall that Alexy does propose the identity of principles and fundamental rights214 —proposition I referred to as the identity thesis. Thus, it is not conceptually incorrect to use these terms interchangeably. Concerning the other arguably misused terms, as advanced in Chap. 2, the terminology related to proportionality was surrounded with uncertainty in the early case law of the BVerfG as well. Furthermore, Chap. 4 will show that “values,” “goals,” and “principles” are often taken as synonyms in both the BVerfG’s case law and principles-theory scholarship, and similar treatment is given to the terms “right” and “interest.”215 The diversity of terms does not reflect a plurality of concepts in these cases, but rather a matter of phraseology. Furthermore, although some critics see in the lexical uncertainty a first indication of error, few infer from the phraseological misuse any intractable problem in the principles theory,216 as does de Morais with respect to the STF’s case law. Additionally, de Morais brings up the fact that the STF mentioned the optimization character of principles only in few occasions. Yet, were the express mention to the optimization thesis a criterion to determine whether or not a court endorses the proportionality analysis, one would have to conclude that there was no proportionality in Germany, for the BVerfG has never made express reference to it.217 This conclusion would be absurd. Even an author like Schlink, who criticized the indulgence that German scholarship showed in respect of the BVerfG’s rulings and methods,

213 Ibid.,

p. 243 ff. (2010b), p. 388. 215 In fact, Alexy conceives of a right as something distinct of an interest, but not all the principlestheory enthusiasts adhere to this differentiation. See Klatt and Meister (2012a), Chap. 3, for a discussion in this respect. 216 See Webber (2009), pp. 5–6, for instance. 217 Schlink (1992), p. 718. 214 Alexy

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conceded that the optimization thesis coheres the court’s case law with the Basic Law regardless of the fact that it is not explicitly referred to by German judges.218 Besides pointing out terminological problems in the Brazilian quotations to the principles theory, de Morais observed that the STF had not applied the sequence of sub-tests suggested by Alexy to any judgement. In de Morais’s view, the court solved its cases either declaring that a measure failed one of the two first sub-tests, suitability and necessity, or anticipating the sub-test of balancing without performing the preceding ones. From where he stands, both results indicate that, “strictly speaking, no decision followed Robert Alexy’s model in what respects the subsidiary analysis of the sub-tests of suitability, necessity, and balancing.”219 de Morais is however mistaken. Firstly, his analysis only encompassed the first decade of STF’s decisions on proportionality and ended in 2012,220 exactly the period when the court was still reticent about its own role in interpreting and applying the Federal Constitution. Marks of this initial phase are the secondary impact of the principles theory for the court’s rulings, the decorative use of borrowings as obiter dicta, and some lack of coherence with the theoretic premises in which proportionality is grounded. It is not to say that these problems disappeared completely in the second phase, but it is noticeable that the primary use of the principles theory has grown with time, more Justices have had recourse to it in their opinions, and the proportionality test and its sub-tests are more accurately applied now than before. The Abortion Case (2016) expounded above is a good example of the complete test in operation. Secondly, de Morais is also wrong in assuming that Alexy recommends performing the complete proportionality test in every case. On the contrary, according to the principles theory, a measure that fails the first sub-tests ought not to be balanced.221 That is to say, an unsuitable or unnecessary measure is unconstitutional and ought to be declared as such, no balancing being needed. As a consequence, in many cases the STF was correct in interrupting its analysis before reaching the last sub-test. The Sugarcane-Straw-Burning Case (2015) and the Treasury Debt Update Case (2017) exemplify this situation. Admittedly, one may actually disagree with the substance of the court’s judgement, but cannot deny that it has unequivocally followed the proportionality analysis as formulated by Alexy. Furthermore, as comparative constitutional scholars have noticed, balancing is not frequently performed in many countries that borrowed the proportionality test from Germany. For example, most legislative acts that the Supreme Court of Canada has struck down failed the sub-test of necessity.222 Yet, Canadian reservations over balancing are not treated as evidence against the presence of proportionality there, but rather as a case of adaptation.223

218 Schlink

(1992), p. 718; (1995), p. 1237. Morais (2016), p. 248 (my translation). 220 Ibid., p. 121. 221 Alexy (2010b), p. 66. 222 Grimm (2007), p. 393. 223 Gardbaum (2010), p. 83. 219 de

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To be fair, de Morais is not the only scholar to criticize the STF for not showing a deep commitment to following the sequential structure of the test as devised by Alexy. da Silva demonstrated that in at least two cases, the Electricity Rationing Case (2001) and the Gas Cylinders Case (2008), the STF performed a loose proportionality analysis, which did not exhaust the sub-test of necessity before applying the sub-test of balancing, among other problems.224 da Silva concluded that the court’s flawed performance in these judgments is incoherent with the declared importance of proportionality for the solution of collisions between principles, affirmed by Justices in several opinions.225 In fact, one cannot affirm that the STF’s use of the test is always accurate. Yet, that is not to say that all references to proportionality constitute pure exercise of rhetoric. de Morais and da Silva are right in demanding that the STF should deal explicitly with the sub-tests of suitability and necessity before performing the sub-test of balancing. Alexy affirms that the three sub-tests ought to be applied conform to the established sequence, in a manner that the measure under analysis should only be admitted to the next sub-test once it had passed the immediately preceding one. Nevertheless, from the fact that Justices have not dedicated enough space to the preceding sub-tests in cases where the requirement of balancing was more or less evident, it does not follow that the STF has not borrowed and applied the principles-theory variant of proportionality. Although it is desirable that courts state explicitly in their opinions all the normative premises that support their decisions, it is known that judges not always do so. To a certain extent, a decision may be notwithstanding justifiable since the line of argument that pointed to the result can be reconstructed and its tacit assumptions exposed. A fundamental task of legal scholarship is exactly to unveil the premises tacitly assumed by judges and reconstruct judicial argument. Therefore, STF’s silence on the suitability and necessity of measures that are submitted to balancing does not indicate (or at least not always) that the measures were not suitable and necessary, nor that the sub-tests were not tacitly performed. In either event, it does indicate a lack of commitment to the quality of justification. The Arrested Defaulter Case I provides an example in this sense. As demonstrated above, the line of argument the court adopted could be reconstructed with the help of the principles theory, despite the fact that the STF did not advance explicit arguments for either the suitability or necessity of the measure. In sum, the lack of an explicit mention to the first two sub-tests clearly indicates a problem in the court’s reasoning; nonetheless, it does not suffice to support the conclusion that proportionality was not present there.

224 STF, Electricity Rationing Case, ADC 9/DF, Judgment of 13 December 2001, Relator (acórdão):

Min. Ellen Gracie, D.J. 24 Apr. 2004; STF, Gas Cylinders Case, ADI 855/PR, Judgment of 6 March 2008, Relator (acórdão): Min. Gilmar Mendes, D.J.e 59, 27 Mar. 2009. See da Silva (2001), pp. 36–41, for an analysis of how the STF applied the proportionality test to these cases. 225 da Silva (2001), pp. 44–45.

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A Second Critique: A Conceptual Mistake

There is another critique regarding STF’s borrowings of proportionality. Some critics believe that the court quotes to the terminology suggested by Alexy without actually having recourse to the concepts that lie behind the wording. Again, an emblematic example of this kind of criticism is found in the interesting piece of research carried out by de Morais. To recapitulate, he selected and analysed the significant number of 198 decisions that mentioned the word ‘proportionality’ and concluded that the meaning given to the term in the STF’s case law was not uniform.226 As I submit, de Morais is correct in saying that Justices labelled as ‘proportionality’ very different things, but not in extracting from this fact any evidence of a serious conceptual problem. One could easily anticipate de Morais’s results that the use the court gave to the word proportionality is not uniform. Indeed, the term has not been uniformly employed in Brazil, yet not necessarily because it is misused—as de Morais suggests—, but rather because it really denotes distinct, incomparable things. ‘Proportionality’ (proporcionalidade) has been part of the specialized terminology used in Brazilian law since long before acquiring the current meaning of a method for constitutional decision-making.227 And it has been used in different legal fields, as well, in each of them referring to a different concept.228 For instance, proportionality is used in criminal law as a criterion for determining the correct duration of the imprisonment, and in tax law for fixing the correct value of the fine to be imposed on defrauders. In none of these cases, judges and lawyers that use the term have in mind Alexy, the principles theory, or the BVerfG’s case law. That is to say, in none of them proportionality was meant to be a method for solving collisions between principles either. To put it another way, the same word means completely different things in different decisions, but this plurality of meanings does not support any conclusion about the incorrectness of the treatment the STF has dedicated to the proportionality test, here understood as the method for adjudicating on fundamental-rights disputes that Alexy extracted from the BVerfG’s case law. As Sect. 3.1 in this chapter demonstrated, proportionality has been the subject of debate in Germany and abroad, but contrary to what the participants in the discussions think, many debaters do not actually engage in a genuinely conceptual controversy; the disagreement is very often triggered by pure phraseology. The same happens with de Morais’s critique, which only reached the court’s word choice, when it actually intended to penetrate the conceptions at play behind phraseology. Nevertheless, another of de Morais’s objections to the court’s case law is more difficult to refute. As he observed, in many cases where Justices seemingly had in mind the German method of constitutional adjudication, proportionality was referred to as

226 de

Morais (2016), p. 248. pp. 248–253. 228 Barros (1996), p. 88. 227 Costa,

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a synonym for due process of law.229 In other cases, the court equated proportionality with reasonableness (razoabilidade) in the interpretation of a clause, normally a rule.230 Similarly, da Silva noticed that ‘proportionality’ and ‘reasonableness’ have been indistinctly and interchangeably used not only in courts’ opinions, but also in the specialized literature.231 These situations point to something different than a pure disagreement over phraseology; they throw light on a conceptual controversy. In fact, some academics claim that assessing whether a measure is proportionate is basically the same as assessing its reasonableness.232 Were only phraseology concerned, their claim would touch on a minor issue, but it carries considerable implications provided that these authors have in mind a conceptual resemblance.233 These scholars suppose that there are substantial similarities between the proportionality test originated in Germany and the reasonableness originated in the Anglo-American system.234 Yet, differently from what da Silva says,235 what is at play here is more than a simple case of conceptual confusion. As I submit, although prominent representatives of the scholarship do not ignore that historical and practical differences remain between the concepts, they nevertheless tend to emphasize the common rationale that proportionality and reasonableness share in order to facilitate the integration of the former within the Brazilian legal system.236 Guided by Roberto Barroso, formerly an influential constitutional lawyer and currently a STF’s Justice, important scholars maintain that proportionality and reasonableness are converging ideas.237 Both concepts refer essentially to “what is conform to the reason …; what is neither arbitrary nor capricious; what corresponds to … the values in force in a given place and moment,” Barroso says.238 In summary, 229 Morais

(2016), pp. 248–249. e.g., STF, HC 76060/SC, Judgment of 31 March 1998, Relator: Min. Sepúlveda Pertence, D.J. 15 May 1998. 231 da Silva (2001), pp. 28–31. See also Stumm (1995), p. 159; Costa (2008), footnote 2 at 15, and 248–253. 232 Barroso (2009), p. 230, for example. Ávila (2012), p. 182, affirms that proportionality and reasonableness are not identical, but concedes that the former comprehends the latter. 233 See Barroso (2009), p. 230: ‘the scholarship and case law in Europe as in Brazil usually refer to the principle of proportionality, concept that in general lines bears a relation of fungibility to the principle of reasonableness’. (my translation). 234 See for instance, Cohn (2010), p. 585, pointing out that, behind the difference in wording, proportionality as developed in Germany shares basic similarities with the unreasonableness review in the U.K. 235 da Silva (2001), pp. 28–31. 236 Legal comparatists refer to the phenomena as assimilatory modification. See Wise (1990), p. 17: “[Borrowing] need not result in exact replication of the borrowed model. Cultural elements are rarely copied in precisely their original form; they usually undergo ‘assimilatory modification’ or ‘functional shift’. Borrowing itself is a highly creative, selective process;” Sapir (1916), p. 32: “almost invariably … a new idea or activity borrowed from outside falls in line with already existing ideas or activities.” 237 Barroso and de Barcellos (2008), pp. 362–363. See Barros (1996), p. 125; Sarmento (2003), p. 87. 238 Barroso (2009), p. 231. 230 See

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this school of legal thought attempts to derive from both the proportionality test and reasonableness analysis a principle commanding that judges apply the fundamental rights clauses entrenched in the Federal Constitution taking into account what is reasonable to expect given the circumstances of a case.239 The attempt to reconcile German and Anglo-American traditions is understandable if one considers the historical development of Brazilian constitutionalism in the twentieth century. Up to the 1980s, the U.S. was the prevailing source of influence on the Brazilian constitutional system and not surprisingly on the case law of the STF as well. As the Federal Constitution promulgated in 1988 and the subsequent reforms in the judiciary branch sent the Brazilian constitutional system into the Continental European orbit,240 the STF borrowed from the German legal system the proportionality method, but had to integrate it into the practices still in force. As I submit, the more familiar concept of reasonableness, grounded on the clause on the due process of law, which the Federal Constitution reproduced from the U.S. Constitution, was the adequate conceptual bridge available in some Justices’ view.241 Remarkably, however, Justice Gilmar Mendes, the leading figure in the migration of proportionality to Brazil has seemingly tried to build his opinions on basis that come closer to the German traditions.242 More time is necessary in order to answer whether the STF will completely direct its case law towards Germany, thus abandoning the idea of reasonableness, or whether the court will definitively merge both concepts, creating its own variant of proportionality.243 Nonetheless, strong evidence suggests that the STF has devoted considerable effort to converging to a culture of justification based on a conception of proportionality with roots in Germany. Notably, as the following chapters demonstrate, the court has borrowed from Alexy’s works the normative conditions that provide for the principles-theory variant of proportionality—namely, the optimization thesis, the conception of fundamental rights as possessing wide scope, and the thesis of argumentative representation. 239 Curiously,

similar conception of reasonableness as a regulative idea deriving from practical rationality is not strange to Alexy’s theory, judicial decision-making in general, or the case law of the BVerfG in particular. See Alexy (2009b), pp. 7–9, on the connection between reasonableness and balancing; MacCormick (2005), p. 168, on different meanings of reasonableness in law including the requirement that a judicial decision should be reasonable; and Schwarze (1992), on the notion of reasonableness in the early case law of the BVerfG. 240 For more on the mixed influence of U.S. and European law on Brazilian constitutionalism, see Chap. 2 above on the peculiarities of the STF’s structure and functioning, and Chap. 6 below on the constitutional text and STF’s duty to guard the Federal Constitution. 241 Constituição da República Federativa do Brasil de 1988, Article 5, LIV: “No one shall be deprived of freedom or of his assets without the due process of law.” This wording is altogether similar to the U.S. Const. amend. V: “No person shall be … deprived of life, liberty, or property, without due process of law.” See Barros (1996), pp. 122–123, on the influence of the U.S. constitutionalism in Brazil; and Sarmento (2003), pp. 91–93; and Mendes (1996), pp. 14–16, on how the concept of reasonableness is familiar to the Brazilian legal practice. 242 See Mendes (2001), p. 2, e.g. 243 Constitutional comparatists have documented other cases in which the idea of reasonableness and proportionality appeared together, but in common law systems. See Cohn (2010), pp. 625–626, for an example of a British judgement.

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A Third Critique: Lack of Method

A third type of critique addressed at the use the STF makes of proportionality does not deny that the court borrowed the test, but objects the outcomes of its application. Critics are particularly concerned with the fact that two Justices presumably applying the proportionality test may reach different conclusions to the same case. Freire, for example, observes that both Justices Gilmar Mendes and Marco Aurélio declared to have recourse to the principles-theory variant of proportionality in the Ellwanger Case (2003), and yet they rendered “disparate decisions.”244 “How can the application of the principle of proportionality by distinct judges generate such disparate decisions? Has anyone been mistaken in applying the mentioned principle? Or is it an unreliable one?,” Freire asks.245 In his view, the existence of different, possible conflicting decisions indicate either a lack of accuracy in following a legal method or a flaw in the method itself. He and other critics believe that the decisions only formally followed a method and, substantially speaking, the case results were more or less arbitrary. Freire assumes that if two judges apply a legal method to the same case, they ought to reach identical conclusions. If they did not, that is either because they failed in following what the method recommends or because the method actually recommends too little. This simplistic accusation ignores that, as every legal method, proportionality can actually lead to different results even when the test is correctly performed. Neither is there a legal method that “in each case [leads] to one single answer,” nor is balancing able to “prescribe any result” per se, Alexy says.246 The values a judge assigns to the variables determine the quotient of the weight formula, but are not determined by it; they depend on external justification and admit a comprehensive range of legal arguments in their favour. Nevertheless, this “possibility of divergent results” does not allow anyone to conclude that “the whole theory or at least the concept of weighing is worthless,” Alexy continues.247 From the impossibility to “obtain a method which provides a definitive solution to each hard case” does not follow that no method was at play; but instead, that no legal method provides the interpreter with more than “rational structures of reasoning.”248 Let us recall the four interpretative methods traditionally applied in both Germany in Brazil, namely grammatical, systematic, historical, and teleological.249 However familiar these methods have become to interpreters, whether judges or scholars, their ubiquity has not prevented legal controversy.250 Different courts and judges 244 Freire

(2007), p. 11. p. 11. 246 Alexy (1991), p. 77; (1992), p. 150. 247 Alexy (1992), p. 150. 248 Ibid., p. 150. 249 Freire (2007), p. 1; Barroso (2009), pp. 128–145; Brugger (1994), p. 396. 250 This does not come as a surprise. As Alexy (1991), p. 74, realizes, the uncertainty of legal methodology is only one reason for the existence of disputes in legal interpretation; others are the openness of law and the possibility of divergences about rightness or justice. 245 Ibid.,

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still deliver disparate decisions by resort to them, although no one would use this as an argument against their pertinence. Of course, the chance of error in operating any method still remains and most likely will not be eliminated, although it could certainly be reduced. Either way, the main problem in the STF’s reasoning is not in the internal justification of its decisions that resort to proportionality, nor is it in the non-observance of the sequential structure of the test. Reinforcing what was said above, next sub-section approaches the central problem in STF’s reasoning: the insufficient external justification.

3.4.3 A Place for Proportionality in Brazilian Law Differently from what many critics say, the main problem respecting the application of proportionality in Brazil is not the terminological inconsistence found in the judicial opinions, the lack of commitment to the fixed sequence of sub-tests, the association of proportionality with reasonableness, nor the divergent results Justices render when they have recourse to the test. What really can impair the success of borrowing in this case are the insufficient reasons the court has offered in justification for both its recourse to proportionality and the concrete value-judgements it makes when performing the test. To be precise, the insufficiency of external justification is an undoubtedly grave problem that affects the court’s decision-making as a whole, thus occurring regardless of the application of proportionality in a particular case. The low quality of STF’s reasoning has stirred scholars to devote closer attention to the legal argumentation Justices disclose in their opinions, and a growing literature has been written on the matter.251 Interestingly, Brazilian academia has demanded that Justices abandon their flowery style of writing in benefit of a simpler, yet bettergrounded reasoning. The poor justification offered for the weights assigned to the variables in balancing is a manifestation of this puzzling scenario and unequivocally a pressing issue. It is nevertheless on the former problem, the lack of justification for borrowing proportionality that this study focuses on. As Chap. 2 anticipated, no provision in the Federal Constitution stipulates that courts have to decide by resort to the proportionality test the cases brought before them; no clause prohibits it either. To make use of comparative constitutional law language, borrowing is not necessary, but rather voluntary in this case. Needless to say, a voluntary borrowing is not the same as an arbitrary one. Justices are under the obligation to justify their decisions and particularly the controversial arguments they put forward for a ruling. They ought to justify especially (but not exclusively) the arguments that cannot be directly drawn from the authoritative legal material, which includes borrowed methods for decision-making. Respecting proportionality, the STF does not deny that the test has origins in the German legal system and is thus exogenous to the Brazilian legal system. Justices expressly admit to borrow 251 da

Silva (2013), pp. 569–584; de Chueiri (2012), pp. 1–11; de Baracho Júnior (2003), pp. 509–520; Rodriguez (2013).

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the principles-theory variant of proportionality, but offer no satisfactory reason for doing so. This attitude has challenged scholars who in attempt to make proportionality cohere with other elements of the Brazilian legal system, have struggled specially to identify its nature and find an adequate legal source for it. Respecting its nature, proportionality is predominantly referred to as a principle in Brazilian literature. This contradicts Alexy’s warning that the test is actually a rule. Even an advocate of the principles-theory distinction between principles and rules, like da Silva, concedes that, given the widespread habit, the “ambition of making uniform use of the term ‘principle,’” so as to preserve the distinction between principles and rules in the way Alexy suggests, is “naïve.”252 Indeed, some scholars refer to proportionality as one of the cornerstone values of the constitution.253 Others believe that proportionality is an unwritten principle of the Federal Constitution,254 which “implicitly permits the legislature and the judiciary branch to restrict fundamental right by means of the principle of proportionality.”255 A minor group, following the very influential work of Ávila, who has been reputed the first scholar to study proportionality in Brazil, believes the test is neither a principle nor a rule, but a “postulate.”256 With regard to the source of proportionality, Justice Gilmar Mendes and other authors point out in academic works that it can be derived from the rule of law or the ‘legal state principle’ (princípio do Estado de Direito), the equivalent in Brazil to the German Rechtsstaatsprinzip.257 By contrast, with support of some influential scholars,258 the STF has referred the “principle of proportionality” to the provision on due process of law in Article 5, LIV, of the Federal Constitution.259 Finally, da Silva claims that the search for a normative source for proportionality in positive law is “destined to be unfruitful.”260 He seemingly subscribes to the necessity thesis as formulated by Alexy, that is, as a thesis about the mutual, conceptual implication between the structure of principles and proportionality. In the same article, however, he says that courts, the STF included, have a choice as to adhere to the principles theory—and therefore to proportionality—or not. He concludes that once it has manifestly opted to do so, Justices ought to comply with the chosen model.261 252 da

Silva (2001), p. 26. (2009), p. 396. 254 Sarmento (2003), p. 53; Barros (1996), p. 87. 255 Leiria (2008), p. 168. 256 Ávila (2012), pp. 182–184. 257 See Mendes (2001), p. 2; Barroso (1998), pp. 75–77; Barros (1996), pp. 93–94; Sarlet (2009), p. 396. 258 Barroso (2009), pp. 374–375; Stumm (1995), p. 173. 259 See STF, ADI 1.407 MC/DF, Judgment of 7 March 1996, Relator: Min. Celso de Mello, D.J. 24 Nov. 2000, for an example of a decision that derived proportionality from this clause. See also da Silva (2001), p. 32; Sarmento (2006), p. 164; Costa, p. footnote 2 at 15; and Mendes (2012), pp. 76–79; (2001) p. 18, on the connection between proportionality and due process of law in Brazil, particularly in the case law of the STF. 260 da Silva (2001), p. 43. 261 Ibid., pp. 45–46. 253 Sarlet

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I disagree with da Silva that applying or not the proportionality test is a matter of pure choice if choice is to mean the same as unjustified option. And although no particular provision in the Federal Constitution commands the STF to resort to the test, it ought to do so once the normative conditions that make proportionality necessary are met. Borrowing proportionality is indeed not necessary in the sense constitutional comparatists use the phrase ‘necessary borrowings’—i.e., as denoting quotations to foreign law that are expressly required by domestic authoritative legal material. On the contrary, it is rather voluntary, at least prima facie, because no authoritative clause provides for it. But as anticipated before, this is not to say that the choice is arbitrary. I endorse neither which would be an extremely weak thesis on constitutional migrations, that makes the decision on borrowing dependent on judges’ unfettered convenience, nor the strong thesis on constitutional migrations, which justifies the universality of borrowings by resort to conceptual connections. As I submitted in Chap. 2, it is possible to conceive the existence of a necessary connection between principles and proportionality without subscribing to the necessity thesis as Alexy postulated. To recall, it is a tenet of the principles theory that a conceptually necessary connection exists between principles and proportionality, for the former can be logically deduced from the latter, and vice versa. As I posit, there is also and more importantly a normative connection between these elements. Therefore, the necessity thesis only holds valid where the normative conditions underlying it are found. Once these conditions are found, however, proportionality is normatively necessary, and thus not subjected to arbitrary choice, as da Silva suggests.

3.5 Results The academic debates about what proportionality really is are almost as conspicuous as the worldwide references to the test. Scholars have been embroiled in the dispute over the meaning of proportionality in a way that does not allow them to agree even on the nature of the debate they are engaged in. They cannot agree on whether the real source of disagreement simply reflects terminological misuse or a genuine conceptual controversy. On the one hand, the scholarly disagreement over proportionality is a matter of pure phraseology where authors actually have in mind different institutions and concepts despite making use of the same wording. On the other hand, many authors do engage in genuine conceptual controversies about proportionality by offering different conceptions for the same concept. Particularly salient are the debates about the nature, legal source, and structure of proportionality. In spite of disagreeing about these particulars, many authors do refer to the same concept: an adjudicative method originally devised by the BVerfG as a threefold test encompassing the sub-tests of suitability, necessity, and proportionality in the narrow sense (or balancing). Trying to grasp the essentials of the method underlying the BVerfG’s case law, Alexy gave a decisive contribution to the development, consolidation, and expansion

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of proportionality. The principles theory helped to accommodate proportionality and particularly balancing in fields such as constitutional law and legal theory. Alexy succeeded in linking the proportionality test to a conception of constitutional principles that suited both the Basic Law and the BVerfG’s case law. Indeed, according to the principles theory, the proportionality test serves specific purposes: to solve collisions between principles, to identify justifiable limits to the scope of fundamental rights, and to point out what is in need of justification in judicial reasoning. What is more, Alexy postulates that the structure of proportionality follows logically from the structure of principles, and vice versa, with the consequence that proportionality is present whenever principles are concerned, whether decision-makers are aware of it or not. In this chapter, I showed how the STF has made use of the principles-theory variant of proportionality. The selected set of cases encompasses opinions of the full court, its panels, and Justices on several cases. The references to Alexy’s works appeared in the court’s case law with variable degree of importance and accuracy, but it was possible to devise a difference between the first decade (2003–2012) and the subsequent phase of case law on proportionality. In the early decisions, the impact of the quotations was mainly secondary, but this changed from 2013 on. Particularly in the Abortion Case (2016) its influence was considerably higher. Furthermore, confirming what the last chapter anticipated, I demonstrated that Justice Mendes occupied a prominent role in the first phase of the principles-theory influence on the STF’s case law. Although other Justices had direct recourse to proportionality as well, their votes had noticeably lower impact. This would only change in the second phase, when Justice Barroso and Justice Fux assumed a prominent role. Other conclusions could be drawn from our exercise of balancing that allowed for the reconstruction of the Arrested Defaulter Case I (2008) through the weight formula. Most importantly, it became clear that, contrary to the opinion several critics share, the main problem in the STF case law did not concern the inaccurate use of proportionality. Many Brazilian commentators have expressed harsh criticism about terminological and structural problems in the court’s approach, which would indicate an unsatisfactory imitation of the German test. Some have pointed out that the court mistook a different adjudicative principle, reasonableness, for proportionality. Others accuse the Justices of arbitrariness for formally quoting to a method, yet substantially deciding without recourse to any method at all. Nevertheless, careful analysis indicated that these critics sometimes confused phraseological problems with conceptual issues, departed from questionable interpretations of Alexy’s theory, idealized the dialogue between the BVerfG and scholarship in Germany, ignored that judicial borrowings commonly invite to assimilatory modification, or held disproportionate and unrealistic expectations about the results any adjudicative method is able to deliver. Indeed, this chapter demonstrated that the major problem in the set of decisions that mentioned proportionality consists in a deficient external justification. Justices put insufficient reasons forward for either having recourse to the test or attaching a certain weight (instead of another) to each of the controversial arguments in conflict. The poor justification the STF offered for the concrete judgements that proportionality demanded is unequivocally a pressing issue. The proportionality test was

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conceived to structure legal argumentation by pointing out what ought to be justified. Balancing in particular was devised as an alternative to subsumption—a formal structure that provides for internal justification only; thus, judges are still required to provide external justification. Basically, courts have to put convincing arguments forward for the values they assign to each variable within the weigh formula. The reconstruction of the STF’s reasoning in the Arrested Defaulter Case I (2008) showed that Justices tacitly accepted many assumptions, for which no reason was cited or could be uncovered. Consequently, in the end the judgement was not truly justified. Courts also carry a special duty of justification when judicial borrowings are concerned; judges ought to justify why they have recourse to foreign law. STF’s decisions are lacking such a justification for borrowing proportionality as well. Two different tendencies are perceived in the court’s case law. In some decisions, the STF has attempted to assimilate proportionality to reasonableness and derive it from the due process clause in the Federal Constitution. By contrast, other Justices and scholars have maintained that proportionality is to be drawn from the Brazilian equivalent to the German Rechtsstaatsprinzip. Additionally, a minor but influential part of the scholarship has argued for the conceptual necessity of proportionality, in conformity with Alexy’s necessity thesis, which would make any further effort of normative justification superfluous. I nevertheless submit that none of them offer sufficient normative ground for appropriating the test. Proportionality is certainly a reasonable way to adjudicate on fundamental rights and is conform to the rule of law, but only provided that a particular legal arrangement stipulates it, thus making its use indispensable. In other words, proportionality is necessary where the normative conditions for its application are found. In the principles-theory variant, these conditions are the optimization thesis, the wide-scope conception of rights, and the self-understanding of courts as argumentative representatives of the people. Thus, in order to claim that the necessity thesis holds valid for the Brazilian legal system, one must demonstrate that these three elements are present there. Of course, each of them asks for normative justification for its own validity. And that is a task to be tackled in the next chapters.

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Daly TG (2014) The differential openness of Brazil’s supreme federal court to external jurisprudence. Presented at the international association of constitutional law world congress, Oslo. http://www.jus.uio.no/english/research/news-and-events/events/conferences/ 2014/wccl-cmdc/wccl/papers/ws5/w5-daly.pdf de Baracho Jr JAO (2003) A nova hermenêutica no supremo tribunal federal. In: Sampaio JAL (ed) Crise e desafios da Constituição: perspectivas críticas da teoria e das práticas constitucionais brasileiras. Del Rey, Belo Horizonte, pp 509–520 de Morais FS (2016) Poderação e arbitrariedade: A inadequada recepção de Alexy pelo STF. JusPodivm, Salvador Duarte D (2015) Analogy and balancing: the partial reducibility thesis and its problems. Revus (25). https://doi.org/10.4000/revus.3244 Dworkin R (1986) Law’s empire. Belknap Press, Cambridge, Mass Endicott T (2014) Proportionality and incommensurability. In: Huscroft G, Miller BW, Webber GCN (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, NY, pp 311–342 Frantz LB (1961) The first amendment in the balance. Yale Law J 71:1424 Freire AR (2007) Evolution of constitutional interpretation in brazil and employment of balancing “method” by the federal supreme court in judicial review. In: Workshop 15: the balancing and proportionality in the constitutional review. http://www.enelsyn.gr/papers/w15/Paper%20by% 20Prof%20Alonso%20Reis%20Freire.pdf Gardbaum S (2008) The myth and the reality of American constitutional exceptionalism. Mich Law Rev 107:391–466 Gardbaum S (2010) A democratic defense of constitutional balancing. Law Ethics Human Rights 4(1):79–106 Grimm D (2007) Proportionality in Canadian and German constitutional jurisprudence. Univ Toronto Law J 57(2):383–397 Habermas J (1996) Between facts and norms: contributions to a discourse theory of law and democracy. MIT Press, Cambridge, Mass Huscroft G, Miller BW, Webber G (2014) Introduction. In: Proportionality and the rule of law: rights, justification, reasoning. University Press, New York, Cambridge. http://papers.ssrn.com/ abstract=2434091 Jackson VC (2004) Being proportional about proportionality. Book review of: the ultimate rule of law. By Beatty DM. Univ Minnesota Digital Conserv Const Comment 21(3):803–859 Kaufman A, Hassemer W (1969) Enacted law and judicial decision in German jurisprudential thought. Univ Toronto Law J 461–486 Khosla M (2010) Proportionality: an assault on human rights?: a reply. Int J Const Law 8(2):298–306. https://doi.org/10.1093/icon/moq002 Kirsch W (1977) Einführung in die Theorie der Entscheidungsprozesse (2., durchges. u. erg. Aufl. d. Bd. 1 bis 3 als Gesamtausg). Verlag Gabler, Wiesbaden Klatt M (2012) Robert Alexy’s philosophy of law as system. In: Institutionalized reason : the jurisprudence of Robert Alexy. Oxford University Press, Oxford, New York Klatt M (2014) An egalitarian defense of proportionality-based balancing: a reply to Luc B Tremblay. Int J Const Law 12(4):891–899. https://doi.org/10.1093/icon/mou061 Klatt M, Meister M (2012a) Proportionality—a benefit to human rights? remarks on the I·CON controversy. Int J Const Law 10(3):687–708. https://doi.org/10.1093/icon/mos019 Klatt M, Meister M (2012b) The constitutional structure of proportionality, 1st edn. Oxford University Press, Oxford Klatt M, Schmidt J (2012a) Abwägung unter Unsicherheit. Archiv Des Oeffentlichen Rechts 137(4):545–591. https://doi.org/10.1628/000389112804720023 Klatt M, Schmidt J (2012b) Epistemic discretion in constitutional law. Int J Const Law 10(1):69–105. https://doi.org/10.1093/icon/mor056 Klement JH (2008) Vom Nutzen einer Theorie, die alles erklärt. JuristenZeitung, 63(15–16(8)), 756–763. http://dx.doi.org/10.1628/002268808785259767

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Kommers DP, Miller RA (2012) The constitutional jurisprudence of the Federal Republic of Germany, 3rd edn, rev. and expanded. Duke University Press, Durham, N.C Kumm M (2004) Constitutional rights as principles: on the structure and domain of constitutional justice. a review essay on a theory of constitutional rights. Int J Const Law 2(3):574–596. https:// doi.org/10.1093/icon/2.3.574 Kumm M (2007) Political liberalism and the structure of rights: on the place and limits of the proportionality requirement. In: Pavlakos G (ed) Law, rights and discourse: the legal philosophy of Robert Alexy. Hart Publishing, Oxford; Portland, Oregon, pp 131–166 Kumm M (2012) Total rights and the banality of injustice. Centuty’s Rev J Rational Leg Debate 1:10–14 Law DS (2004) Generic constitutional law. Minnesota Law Rev 89:652 MacCormick N (2005) Rhetoric and the rule of law: a theory of legal reasoning. Oxford University Press, Oxford; New York Martins L (2003) Proporcionalidade Como Critério de Controle de Constitucionalidade: Problemas de Sua Recepção Pelo Direito e Jurisdição Constitucional Brasileiros. Cadernos de Direito, Editora Unimep 3(5):15–45 McCrudden C (2014) The pluralism of human rights adjudication. In: Lazarus L, McCrudden C, Bowles N (eds) Reasoning rights: comparative judicial engagement. Hart Publishing, Oxford; Portland, Oregon, pp 3–27 Mendes GF (1996) Prefácio. In: Barros S de T, O princípio da proporcionalidade e o controle de constitucionalidade das leis restrictivas de direitos fundamentales. Brasília Jurídica, pp 13–31 Mendes GF (2001) O Princípio da Proporcionalidade na Jurisprudência do Supremo Tribunal Federal: Novas Leituras. Revista Diálogo Jurídico, 1(5). http://www.direitopublico.com.br/pdf_5/ DIALOGO-JURIDICO-05-AGOSTO-2001-GILMAR-MENDES.pdf Mendes GF (2012) Direitos fundamentais e controle de constitucionalidade estudos de direito constitucional, 4th edn. Saraiva, São Paulo Möller K (2012a) Proportionality: challenging the critics. Int J Const Law 10(3):709–731. https:// doi.org/10.1093/icon/mos024 Möller K (2012b) The global model of constitutional rights, 1st edn. Oxford University Press, Oxford, United Kingdom Möller K (2014) Constructing the proportionality test: an emerging global conversation. In: Lazarus L, McCrudden C, Bowles N (eds) Reasoning rights: comparative judicial engagement. Hart Publishing, Oxford; Portland, Oregon, pp 31–40 Pavlakos G (2007) Introduction. In: Pavlakos G (ed) Law, rights and discourse: the legal philosophy of Robert Alexy. Hart Pub, Oxford; Portland, Or., pp 1–13 Pildes RH (1993) Avoiding balancing: the role of exclusionary reasons in constitutional law. Hastings LJ 45:711 Pildes RH (1998) Why rights are not trumps: social meanings, expressive harms, and constitutionalism. J Leg Stud 27(S2):725–763. https://doi.org/10.1086/468041 Porat I (2014) Mapping the American debate over balancing. In: Huscroft G, Miller BW, Webber G (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, pp 397–416 Poscher R (2003) Grundrechte als Abwehrrechte: reflexive Regelung rechtlich geordneter Freiheit. Mohr Siebeck, Tübingen Poscher R (2009) Insights, errors and self-misconceptions of the theory of principles. Ratio Juris 22(4):425–454. https://doi.org/10.1111/j.1467-9337.2009.00434.x Poscher R (2015) Theory of a phantom: the principles theory’s futile quest for its object. In: de Oliveira JA, Paulson SL, Trivisonno ATG (eds), Alexy’s theory of law proceedings of the special workshop ‘Alexy’s Theory of Law’ held at the 26th world congress of the international association for philosophy of law and social philosophy in Belo Horizonte, 2013 (1. Aufl). Franz Steiner Verlag, Stuttgart, pp 111–128

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Pulido CB (2004) On Alexy’s weight formula. In: Menéndez AJ, Erik OE (eds) Constitutional rights through discourse: On Robert Alexy’s legal theory-European and theoretical perspectives. Arena, Oslo, pp 129–140 Reznik I (2000) The distinction between legislative and adjudicative decisions in Dolan v City of Tigard. NYUL Rev 75:242–282 Rivers J (2006) Proportionality and variable intensity of review. Cambridge Law J 65(01):174–207 Rivers J (2007) Proportionality, discretion and the second law of balancing. In: Pavlakos G (ed) Law, rights and discourse: the legal philosophy of Robert Alexy. Hart Pub, Oxford; Portland, Or., pp 167–188 Rivers J (2010) A theory of constitutional rights and the british constitution. A theory of constitutional rights. Oxford University Press, Oxford Rodriguez JR (2013) Como decidem as cortes?: para uma crítica do direito (brasileiro). FGV, Rio de Janeiro Santos GF (2013) Treaties X human rights treaties: a critical analysis of the dual stance on treaties in the Brazilian legal system. Eur JL Reform 15:20 Sapir E (1916) Time perspective in aboriginal american culture: a study in method. Geol Surv Memoir 90(13):1–87. https://doi.org/10.2307/1837696 Sarlet IW (2009) A eficácia dos direitos fundamentais: uma teoria deral dos direitos fundamentais na perspectiva constitucional. Livraria do Advogado, Porto Alegre Sarmento D (2003) A ponderação de interesses na Constituição Federal, 1st edn. Lumen Juris, Rio de Janeiro Sarmento D (2006) Legalização do aborto e Constituição. In: Livres e iguais: estudos de Direito Constitucional. Editora Lumen Juris, pp 95–137 Schauer F (1981) Categories and the first amendment: a play in three acts. Vand L Rev 34:265 Schauer F (2010) Balancing, subsumption, and the constraining role of legal text. Law Ethics Human Rights 4(1):35–45 Schlink B (1976) Abwägung im Verfassungsrecht (1. Aufl). Duncker und Humblot, Berlin Schlink B (1992) German constitutional culture in transition. Cardozo L Rev 14:711 Schlink B (1995) The dynamics of constitutional adjudication. Cardozo L Rev 17:1231 Schlink B (2012) Proportionality. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 718–737 Schwarze J (1992) European administrative law. Luxembourg: London: Office for Official Publications of the European Communities ; Sweet & Maxwell Somek A (2006) Rechtliches Wissen (1. Aufl). Frankfurt am Main: Suhrkamp Stumm RD (1995) Princípio da proporcionalidade no Direito Constitucional Brasileiro. Livraria do Advogado, Porto Alegre Sullivan KM (1992) Post-liberal judging: the roles of categorization and balancing. U Colo L Rev 63:293 Sullivan ET, Frase RS (2009) Proportionality principles in American law: controlling excessive government actions. Oxford University Press, New York Sweet AS, Mathews J (2008) Proportionality balancing and global constitutionalism. Columbia J Trans Law 47:68–149 Sweet AS, Mathews J (2010) All things in proportion-American rights review and the problem of balancing. Emory LJ 60:797 Tsakyrakis S (2009) Proportionality: an assault on human rights? Int J Const Law 7(3):468–493. https://doi.org/10.1093/icon/mop011 Tushnet M (1999) The possibilities of comparative constitutional law. Yale Law J 108(6):1225–1309. https://doi.org/10.2307/797327 Urbina FJ (2012) A critique of proportionality. Am J Jurisprudence 57 Varella MD (2014) Internationalization of law: globalization, international law and complexity. Springer von Bernstorff J (2014) Proportionality without balancing: why judicial ad hoc balancing is unnecessary and potentially detrimental to the realisation of individual and collective self-determination.

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In: Huscroft G, Miller BW, Webber G (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, pp 63–86 Webber G (2009) The negotiable constitution: on the limitation of rights. Cambridge University Press, Cambridge, UK, New York Webber G (2010) Proportionality, balancing, and the cult of constitutional rights scholarship. Canad J Law Jurisprudence 23(1). http://papers.ssrn.com/abstract=1322810 Wise EM (1990) The transplant of legal patterns. Am J Comp Law 38:1–22. https://doi.org/10. 2307/840531 Wróblewski J (1985) Presuppositions of legal reasoning. In: Bulygin E, Gardies J-L, Niiniluoto I (eds), Man, law, and modern forms of life. Sold and distributed in the U.S.A. and Canada by Kluwer Academic Publishers, Dordrecht, Holland , Boston, D. Reidel Pub. Co. , Hingham, MA, U.S.A. , pp 283–298 Wróblewski J (1992) The judicial application of law (Bankowski Z, MacCormic N, eds). Springer Yowell P (2014) Proportionality in the United States constitutional law. In: Lazarus L, McCrudden C, Bowles N (eds) Reasoning rights: comparative judicial engagement. Hart Publishing, Oxford, Portland, Oregon, pp 87–114

Chapter 4

A System of Rules and Principles

4.1 A Genealogy of the Distinction Between Rules and Principles According to the principles theory, the constitution of a minimally developed legal system is a set of legal norms encompassing rules and principles, either expressly stated in written clauses or inferred by constitutional interpreters in the process of legal application. It is of crucial importance the proposition that constitutional rules and principles have normative character, that is, they are both norms but of different kinds. As the principles theory postulates, every rule says that certain legal consequences ought to follow if the conditions it establishes are met; because of this, a rule is said to convey definitive rights, commands, prohibitions, and permissions, or to definitively empower officers to act on behalf of the state. A principle would run things differently. Principles posit purposes, aims, or values that should be pursued, with neither clearly stating which legal consequences follow nor under which conditions. Therefore, it would be incumbent upon public authorities, especially judges, to determine what is definitively commanded, prohibited, and permitted, and which concrete rights individuals have in a certain case in virtue of legal principles.1 In this chapter, I shall demonstrate that the STF has interpreted the Federal Constitution as a set of norms that are either rules or principles in accordance with the principles theory. To avoid misunderstandings, the task here is not to confront whether the Federal Constitution allows one to conceive it as such a set of rules and principles. This has not been a controversial issue. As I shall show in Sect. 4.4, the Federal Constitution contains many rule-like provisions, but also refers expressly to principles in some clauses and employs contested concepts in several others. Accordingly, a relatively strong consensus exists among Brazilian judges and scholars on that the constitutional wording shows an openness that encourages assessment based on principles. In this scenario, a theory that denied either the existence of principles 1 Alexy

(2010a), pp. 21–22; (2010c), p. 127.

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or their normative role within the constitutional order would contradict Brazilian constitutional culture, for conforming neither with the country’s prevailing scholarship nor with its judicial practice.2 Thus, although some elements that allow interpreters to refer to the Federal Constitution as a system of rules and principles will be expounded below, the main question I shall answer is whether the STF has extracted its interpretation from Alexy’s view on principles, rather than from a different principle-based conception, the most well-known representative of which is Dworkin’s. Two views will be considered below.3 The first adopts a broad understanding of principles as optimization requirements that collide among each other and claims that the correct method for solving such collisions and, thus, applying principles is the proportionality test. That idea is at the core of the principles theory as presented by Alexy4 and his followers.5 Actually, Alexy’s assertions on constitutional principles can be grouped under four theses: the dual nature of ought, the collision law, the optimization thesis, and the law of balancing. Particularly the optimization thesis and the law of balancing make a strong case for the mutual implication between principles and proportionality. One can infer such a connection from the BVerfG’s case law, although the court has never shown explicit adherence to the claim that principles are optimization requirements. The collected set of judicial decisions in Sect. 4.3 demonstrates that the STF has incorporated the optimization thesis, which is Alexy’s “highly original” idea and “central contribution;”6 the thesis that distinguishes the principles theory from other theories that preceded it in Germany and abroad, and especially from alternative, contemporary views, of which Dworkin is the most famous representative. Dworkin supports a narrow conception of principles, differentiates between policies and principles in the strict sense, and claims that, read in their best light, the principles in a constitution do not necessarily collide or require the proportionality test as a method for their application. That is the essence of his proposal of a constitutional moral reading.7 Despite the salient differences between their views, Alexy and Dworkin intend to grasp the essentials of the same legal phenomenon: constitutional principles. Principles are sometimes called by other terms, such as values, standards, directives, purposes, postulates, goals, guiding norms, burdens of argumentation, and so 2 See

Alexander (2012), pp. 122–123; Alexander and Kress (1996), p. 739; and Poscher (2009a) , p. 438, as examples of scholars that object the very existence of legal principles. 3 See Alexy (2000a), pp. 294–295, on the idea that two main positions regarding principles and rules emerged in the last decades. C.f. Ávila (2012), pp. 27–31, providing for a third position, somehow popular in Brazil, that differentiates between first-degree norms (principles and rules) and second-degree norms (postulates). 4 Alexy (2010a), pp. 44–56. 5 For instance, Klatt (2012); (2004); (2013); da Silva (2011), pp. 277–278; Klatt and Meister (2012a); Kumm (2007); Sieckmann (1994); Pulido (2007a); Sieckmann (1990); Raabe (1998); Borowski (1998); Jansen (1997); (1998); Pulido (2007b). By contrast, many are the authors pointing problems on the concept of optimization and countering the necessary connection between principles and balancing. See, e.g., Möller (2007), pp. 458–462; Poscher (2009a) ; Tsakyrakis (2009); (2010). 6 Kumm (2004), p. 575. 7 Dworkin (1978); (1986); (1999).

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on. For instance, the BVerfG often speaks of values in its judgements.8 Despite the lack of a pattern for using the terminology, I will consider that most authors and judges that employ these words do it in reference to the same thing: a legal source for commands, prohibitions, and permissions that differs from rules. I claim the institutional identity of principles, that is, that the same legal entity lies behind particular accounts offered by theorists, lawyers, and other legal interpreters, even from different geographical and historical backgrounds. Hence, the diversity of terms does not reflect a plurality of objects; rather, the points of disagreement show that jurists are looking at the same object, but each from a different perspective.9 It is not to say that all disagreements are purely about phraseology. Concerning the distinction between principle and rule, there is a genuine disagreement in the jurisprudence about whether principles are legal norms, or in other words, whether they really command, prohibit, or permit anything within the legal system. Accordingly, the debates will not vanish by simply proposing compliance with some criteria that provide for the correct use of the terminology. Regardless of using the words principle, value, or standard, for instance, theories dissent on what a principle (or value, or standard) really is. And they do so because each theorist considers specific features as being essential and sufficing to differentiate principles from rules. In any case, principles are commonly defined in contrast with rules, as rules were regarded as synonyms for legal norms until the scholarly and jurisprudential turn in the midtwentieth century. On account of this, I shall begin providing a brief genealogy of the distinction between rules and principles.10

4.1.1 Legal Scholarship The debates on whether principles have a role to play in positive law, in general, and in constitutional law, in particular, can be traced back to the first half of the twentieth century. Del Vecchio’s Sui principi generali del diritto (1921),11 marks the beginning of a period in which important works were published on the matter. Admittedly, Del 8 Schlink

(1992), pp. 717–718. See Alexy (2010a), pp. 14–15, 44–45, listing some of the terms used by the BVerfG. Webber (2009), pp. 5–6, 66–67, criticizes the fact that, under the language of principled-oriented theories, some terms are indistinctly taken to be synonymous. Nevertheless, the chaotic use of the terminology precedes the principles theory and, thus, should not be regarded as a consequence of it. Actually, Alexy (2010a), pp. 14–15, diagnosed the problem and pointed out to the necessity of ‘conceptual clarification,’ which he attempted to provide by proposing that the term “principles” be used in legal argumentation instead of “values.” Cf. Jacobsohn (2012), that attempts to differentiate between values and principles within the framework of comparative constitutional law. 9 See Dworkin (1986), pp. 68–70, on institutional identity and Wittgestein’s rope metaphor, which illustrates the historical changes in legal institutions and the variety of interpretations that follow from it. 10 An overview on how the concept of principles has changed since the beginning of the twentieth century can be found in: Manero (IVR Encyclopaedia of Jurisprudence); Bonavides (2008). 11 Del Vècchio (1958).

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Vecchio endeavoured to restore the importance principles of natural law previously had among jurists, and such a purpose did not reappear in the works of later authors. Remarkably Esser’s Grundsatz und Norm (1956)12 and Bobbio’s Principi generali di diritto (1957) and Teoria dell’ordinamento giuridico (1960),13 constituted serious attempts to reconcile the concept of principles with positive law, even if against some paradigms of legal theory in vogue at the time. However, while Esser denied that principles were “legal norms in a technical sense,”14 Bobbio affirmed that “principles [were] norms just like any other.”15 Either way, they both shared the understanding that principles did not operate from outside the law but performed normative functions within the legal system. Before the turn that Esser and Bobbio initiated in the jurisprudence, the influence of principles on legal decisions was generally a matter of interest from private lawyers and typified an appeal to natural law, to which legal positivism would only exceptionally consent.16 The work of theses authors marked the beginning of the conceptual transition of principles from outside the law to a privileged position inside the legal order, and simultaneously from private law to public law. Especially relevant here are the thoughts of Esser, who is reputedly the predecessor of the principles theory in Germany.17 As he affirmed, principles existed which were part of the positive law, although they were not necessarily written in any constitutional clause. As an example, he mentioned the fundamental rights and claimed that they would be positive law even if they had not been expressly promulgated.18 Esser argued that principles differed from rules, which were norms in the technical sense, because the latter had coercive force due to their promulgation, and the former did not. Principles would acquire coercive force by other means, by being either a necessary part of material law generally considered, or the point of departure for concrete norms in judicial decisions. In either case, a legal principle would not convey any definitive instruction for public authorities; it would, instead, require that the legislature or judiciary acted to frame the instruction, giving it specific normative content.19 Furthermore, in Esser’s view, a principle would be law only if it were justifiable from the legal perspective—that is, if one could put forward for it arguments that were sound and conform to the standards normally accepted in legal argumentation.20

12 Esser

(1964). (1957); (1960). 14 Esser (1964), p. 50 (my translation). 15 Bobbio (1960), p. 181 (my translation). 16 Bobbio (2011); Fassò (2000), p. 659. Cf. Dworkin (1986), p. 115; Alexy, p. 41. 17 That is the opinion of Jakab (2009); and Poscher (2009b) , for example. Alexy (1979), p. 67; (2000a), p. 294, also refers to Esser as an influential predecessor. 18 Esser (1964), p. 73. 19 Ibid., pp. 50–52. 20 Ibid., p. 69. 13 Bobbio

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In spite of the lack of factual evidence of direct influence, some features that Esser attributed to principles were later employed by Dworkin,21 who is acclaimed as “the leading theoretical expositor of the rule-principle distinction.”22 In the seminal article Model of Rules, first published in 1967, Dworkin argued that legal-positivism insistence on a single test to determine simultaneously the legal character and the validity of norms excluded everything which was not a rule—especially but not exclusively principles—from the universe of law. As he put it, the legal system encompassed both the rules that were directly enacted by lawmakers and the principles that, in spite of not being formally promulgated, were required by the best understanding of what law is. He asserted that, despite the different pedigree, both principles and rules are legal norms, thus binding on decision-makers, “so that judges are wrong not to apply the principles when they are pertinent.”23 Therefore, Dworkin was the first to unequivocally maintain that any correct account of law includes principles as well as rules. Dworkin observed that, besides the difference in pedigree, the principles to which courts appealed in their decisions differ from legal rules in two other essential aspects. Firstly, as he explained, principles state reasons for acting in one direction, but they “do not set out legal consequences that follow automatically when the conditions provided are met.”24 By contrast, the application of rules is an all-or-nothing matter: “if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.”25 Secondly, principles would have a dimension that rules lack: the dimension of weight or importance. Consequently, when principles intersect, the judge should take into account the relative weight or importance of each and solve the conflict without necessarily drawing an inference about the existence of the lighter principle. Conversely, the same judge should proceed differently before a conflict between rules. A legal rule would not supersede another due to a relatively greater weight, but according to specific regulations provided by law: “A legal system might regulate such conflicts by other rules, which prefer the rule enacted by the higher authority, or the rule enacted later, or the more specific rule, or something of that sort.”26 Above all, as Dworkin read, “if two rules conflict, one of them cannot be a valid rule.”27 21 See Poscher (2009b) , p. 6, affirming that, “certainly without reference to and almost certainly without any knowledge of Esser’s work, Ronald Dworkin used the argument from principles in a very similar attack on the Anglo-Saxon blend of legal positivism;” and Alexy (1979), pp. 67–68, noticing that there are relevant points of intersection between Esser’s and Dworkin’s thoughts. See e.g., Dworkin (1967), pp. 39, 42. C.f. Esser (1964), pp. 69–70. 22 Alexander and Kress (1996), p. 742. Also according to Alexy (2000a), p. 294, “it was Ronald Dworkin’s major challenge to H.L.A. Hart’s version of legal positivism, initially in ‘The Model of Rules,’ that marked the beginnings of a broad discussion.” 23 Dworkin (1967), p. 31. 24 Ibid., p. 25. 25 Ibid., p. 25. 26 Ibid., p. 27. 27 Ibid., p. 27.

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For now, this brief summary of Dworkin’s account on the differences between principles and rules should suffice to show the role his thoughts played in furthering the understanding on constitutional principles. Let alone other points of intersection and the divergences between the two views, Dworkin is the source of the idea, later absorbed by the principles theory, that differently from rules, principles have weight.28 The consequences each theory extracted from this idea, however, differ significantly and reflect, to a great extent, the particularities of legal practice in the U.S. and Germany.29 Specifically concerning Alexy, he had behind him an academic debate initiated by Esser and conducted by other German authors, such as Larenz30 and Canaris,31 but even more important for the case being, he had in front of him the decisions the BVerfG had been handing down under the Basic Law.

4.1.2 The Case Law of the BVerfG Alexy’s main purpose was to show that there was a coherent understanding on the fundamental rights in the Basic Law underlying the judgements of the BVerfG.32 In a seminal decision handed down in 1958, the BVerfG affirmed that the fundamentalrights section in the Basic Law provided for an objective order of values that might collide against each other in a concrete situation.33 The Lüth Case (1958) was about a constitutional complaint the President of the Hamburg Press Club filed with the BVerfG to overrule a lower-court decision in a civil suit for damages. The decision of the Hamburg Regional Court had secured a temporary order against him, determining that he refrained from calling theatre managers, film distributors, and the public to boycott a movie from a film director who was popular during the Nazi regime. He complained against the regional-court ruling, alleging that the temporary order had breached his basic right to freely express opinions pursuant to Article 5 (1) Basic Law.

28 Alexy

(2010a), p. 50, makes explicit reference to Dworkin (1978), p. 26 f. Kommers and Miller (2012), p. 67, on the differences between the U.S. Supreme Court’s case law and the BVerfG’s in what respects the concept of legal principles. See also Schlink (2011); and Tsakyrakis (2009) throwing light on what they perceive as a resistance to balancing in the U.S. C.f. Sweet and Mathews (2010), p. 178, arguing that “it is not true that the American system has rejected either balancing or proportionality;” and Beatty (2004), p. 162, affirming that “the U.S. Supreme Court relies on a test very similar to the metric of proportionality when it subjects state action under the First, Fifth, and Fourteenth Amendments to ‘strict scrutiny’.” 30 Larenz (1979a); (1979b). 31 Canaris (1969). 32 Alexy (2010a), p. 5. Schlink (1992), p. 730, voices harsh criticism against this project. In his view, the constitutional theory has been “entirely under the ‘spell’ of the Bundesverfassungsgericht,” as scholars abandoned their important role as critics of the BVerfG and assumed instead the task of only harmonizing the court’s decisions “into a coherent doctrinal corpus.” 33 For an analysis of the Lüth Case, see Schlink (1976), pp. 17–24; Kommers and Miller (2012), p. 442. 29 See

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The BVerfG upheld his complaint and declared that expressing a negative opinion about the film director fell under constitutional-law protection.34 As for the importance of the judgment for the principles theory as later developed by Alexy, the BVerfG firstly asserted in the Lüth Case that principles lied behind the rules on fundamental rights written in the Basic Law. Secondly, the court recognized the normative role constitutional principles play from their high-ranked position within the legal system: as constitutional norms, they “must direct and inform legislation, administration, and judicial decision,” bind third parties and apply to legal positions that were traditionally understood in Germany as primarily regulated by infra-constitutional law, notably the Civil Code.35 Thirdly, the decision stated that constitutional principles collide, so that balancing between the colliding principles is required in order to determine which principle takes precedence over the others under certain circumstances: “the right to express an opinion must yield if its exercise infringes interests of another which have a superior claim to protection.”36 As discussed in Chap. 1 above, far from constituting an exception in German case law, the Lüth Case deepened the view about the Basic Law the BVerfG had been developing since the Southwest State Case (1951).37 Furthermore, it solidified a particular understanding on fundamental rights and provided the basis for future decisions.38 The themes examined in the judgement would govern other cases. For instance, the idea that principles are part of the constitution even if not formally promulgated had been already suggested in the Schleswig-Holstein Voter’s Association Case (1952)39 and would reappear in the National Socialist Law Case (1968).40 On its turn, the high placement of fundamental-rights principles within the legal system was later mentioned in the Turnover Tax Record Case (1974)41 and the Abortion Case I (1975).42 Finally, balancing between conflicting principled-based rights was also considered in the Lebach Case (1973),43 the Classroom Crucifix Case II (1987),44 and the Hashish Drug Case (1994).45 From Lüth and other decisions of the BVerfG such as those above, Alexy extracted the lesson that, when principles collide, “a

34 BVerfG

(First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958. translated by Tony Weir, in the website of the University of Texas School of Law. All the references below refer to this translation, unless indicated otherwise. 36 Ibid. 37 BVerfG, Southwest State Case, 1 BVerfGE 14, Judgment of 23 October 1951. 38 Kommers and Miller (2012), pp. 448–450. The English names for the cases I mention in this paragraph were taken from Kommers and Miller’s. 39 BVerfG, Schleswig-Holstein Voters’ Association Case, 1 BVerfGE 208, Judgment of 4 May 1952. 40 BVerfG, National Socialist Law Case, 23 BVerfGE 98, Judgment of 14 February 1968. 41 BVerfG, Turnover Tax Record Case, 36 BVerfGE 321, Judgment of 3 May 1974. 42 BVerfG, Abortion Case I, 39 BVerfGE 1, Judgment of 25 February 1975. 43 BVerfG, Lebach Case, 35 BVerfGE 202, Judgment of 6 May 1973. 44 BVerfG, Classroom Crucifix Case, 93 BVerfGE 1, Judgment of 16 May 1995. 45 BVerfG, Hashish Drug Case/Cannabis Judgement, 90 BVerfGE 145, Judgment of 3 September 1994, pp. 399–400. 35 Ibid.,

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‘balancing of interests’ becomes necessary.”46 This premise provided the basis for the principles-theory four theses on principles to be explained in the next section.

4.2 Principles According to the Principles Theory The criterion Alexy employs to distinguish rules and principles differs from conventional approaches based on features such as generality and degree. He realizes that using ‘generality’ as the definitive criterion of differentiation would only be possible if there were no norms of a high degree of generality that one would regard as rules. But that it is not the case. For instance, Article 103 (2) Basic Law is a norm of high degree of generality that, in Alexy’s view, is actually a rule, not a principle.47 The clause reads: “An act may be punished only if it was defined by a law as a criminal offence before the act was committed.” Since not all principles have a higher degree of generality in comparison with rules, there might be a better criterion to differentiate the two types of norms, Alexy concludes. Similarly to Dworkin, the principles theory maintains that the difference between rules and principles pertains to their very nature or necessary properties: the two types of norms differ due to the character of the normative instructions each of them issues.48 Alexy advocates that rules and principles are legal norms, and for being norms, they say what ought to be the case—or to make use of the basic deontic expressions, what someone is commanded, permitted, or prohibited to do.49 Principles, however, express their normative instructions very differently. While rules are definitive norms, which say that specific legal consequences ought to follow once certain conditions are given, principles only convey prima facie commands, permissions, and prohibitions. A principle does not establish with certainty which legal consequence is required or under which conditions.50 In these aspects, the principles theory converges with Dworkin’s view. However, they differ in many others. Furthermore, although the legal material to which Alexy addresses his analysis is composed basically from decisions of the BVerfG, the principles theory has gone beyond its original aim of simply reconstructing German constitutional rights reasoning.51 The main conclusions that Alexy draws from both the preceding scholarship and BVerfG’s case law can be grouped in four theses, namely: (1) the dual nature of ought, (2) the collision law, (3) the optimization thesis, and finally (4) the law of balancing. I shall summarize these theses below, in order to contrast them with Dworkin’s approach within next section. 46 Alexy

(2003), p. 133. (2000a), p. 295. 48 Alexy (2010a), p. 47. C.f. Dworkin (1967), p. 25. 49 Alexy (2010a), p. 45. 50 Alexy (1992), p. 145. 51 Rivers (2010). 47 Alexy

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4.2.1 The Dual Nature of Ought The central premise over which Alexy built his understanding on principles and rules is the thesis that there are two different ways legal norms express what ought to be.52 According to the principles theory, legal principles express a prima facie ought, and this is part of their essential feature, a distinctive quality that contrasts them with other legal norms.53 Differently from principles, rules would express a definitive ought.54 A definitive ought is a statement of what one ought to do after considering everything else, including the opposing arguments. Someone is compelled to realize what a rule definitively commands, prohibits, or permits provided that the norm conveying the command, prohibition, or permission is valid and applicable. Validity and applicability are, thus, sufficient conditions for the duty of compliance with a definitive ought. A definitive ought is either complied with or not; and compliance is not a matter of degree. As a result, “if a rule is valid and applicable, it is definitively required that exactly what it demands be done.”55 By contrast, a prima facie ought does not say much about what is definitely obligatory. The duty it conveys can be factually and legally fulfilled at different extents. To satisfy such a duty, one is not required to exhaust its potential, but to carry it out as far as possible given a concrete case.56 That is because complying with a prima facie duty requires a further decision on what is exactly commanded, prohibited, or permitted in the case. After everything is considered, the conclusion may be that, under the circumstances at hand, the definitive ought—that is, the action actually required—cannot be directly reconciled with the prima facie ought under consideration from the beginning. This, however, does not mean that the prima facie ought was not valid. There is no necessary connection between the validity of a norm conveying a prima facie command, prohibition, or permission and the definitive duty that results in a case to which that norm would commonly apply. Or as Alexy states,

52 The separation between prima facie and definitive ought was already present in the works of other scholars, such as Ross (2002); Searle (1978); Hare (1981); Hintikka (1971). Alexy (1993a), pp. 157–170; (2010b), p. 57, also mentions Günther (1988) as a source. Remarkably Searle (1978), pp. 86–87, anticipated three features of prima facie obligations that Alexy would later attribute to legal principles: firstly, that any obligations can conflict in particular cases; secondly, that the conflict is solved when one obligation overrules another according to the their relative moral strength; and finally, that the decision on which obligation is morally stronger and, thus, should overrule the conflicting one is relative and transitive, that is, dependent on the particular features of the case under consideration. Importantly, Searle also put forward the conclusion that norms exist which remain valid regardless of conflicting with other equally valid norms within the same normative system. 53 Alexy (1979), pp. 81–82; (1992), p. 145; (2010b), p. 57. 54 Alexy (2010d) , p. 180. 55 Alexy (2010b), p. 21. Similarly, Dworkin (1967), p. 25. 56 Alexy (1979), pp. 79–82; (1992), p. 147.

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“it does not follow from the fact that a principle is relevant to a case that what the principle requires actually applies.”57 That is not to say that, in Alexy’s opinion, principles can never be reasons for concrete decisions (i.e., individual norms). It is true that, in his view, “decisions about rights presuppose the identification of definitive rights,” and “principles in themselves are never definitive reasons.”58 This makes the case easier for rules. Valid, applicable, and without-relevant-exception rules convey definitive rights that are immediate reasons for concrete ought-to judgments. However, the route departing from principles is longer but not necessarily obstructed. As it should be clear later in this chapter, it depends on balancing the competing reasons and stating the outcome of such a competition: a rule that reflects the relation of conditional preference between the colliding principles. Indeed, the reasons principles put forward for a decision can be displaced by other reasons; nonetheless, “whenever a principle turns out to be the dominant reasons for a concrete ought-to judgement, then that principle is a reason for a rule, which in turn is the definitive reason for the judgement.”59

4.2.2 The Collision Law The second of Alexy’s theses concerning the differences between principles and rules stresses the particular way each of these types of norms behave in cases of conflict. Conflicts of legal norms have serious consequences for rules. As they convey a definitive, or everything-considered ought, a legal system cannot tolerate conflicting rules. To put it in deontic language, a definitive prohibition to do something cannot logically coexist alongside a definitive command or permission to do the same thing. Consequently, the conflict must be resolved either by adding an exception to one of the rules or declaring that one of them is null and void.60 Not coincidentally, criteria for the solution of conflicts between rules—such as hierarchy, chronology, and specialisation—are commonly found in legal systems.61 By contrast, according to Alexy, principles collide or compete in a different manner. As the commands, prohibitions, or permissions they convey only prescribe that something prima facie ought to be, colliding or competing principles can coexist without raising questions concerning their validity. A theory concerned with collisions between principles within the same normative system has to take into account this distinctive feature. Alexy argues that there can be three possible models for dealing with collisions between principles within the same normative system. In the first 57 Alexy

(2010a), p. 57. C.f. Dworkin (1967), p. 42, doubting whether the concept of vality really applies to legal principles. 58 Alexy (2010a), p. 60. 59 Ibid. 60 Ibid., p. 49. The treatment given to exceptions is however controversial. See Alexy (2000a), p. 295. C.f. Dworkin (1967), p. 25; (Dworkin 1978), p. 74. 61 Alexy (2000a), p. 296.

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model, the collision would remain unsolved, which means that the fulfilment of one principle inevitably violates the other one: “in spite of the fact that a [person] cannot fulfil both obligations, he is subjected to both. He can do what he may, still he always violates a norm and therefore does wrong.”62 In the second model, no obligation arises from the collision. The person is thus free to choose to act as it pleases her. Finally, in the third model, one concrete obligation arises from the collision. That is the correct solution for the problem, as Alexy sees it: “one or the other obligation remains valid.”63 The fact that collisions occur between constitutional principles, and never between a constitutional principle and non-constitutional norms is very often overlooked.64 The principles theory does not uphold the idea that non-constitutional right can prevail over a constitutional one. The point is emphasized by Klatt and Meister, who correctly notice that “only interests of constitutional value are allowed to play out on the balancing stage,” and derive from this idea a rule that they call ‘the first law of trumping’: “constitutional rights always trump every consideration except for considerations which enjoy constitutional status likewise.”65 The point is of special relevance because it is exactly due to the constitutional status of principles that none of them can be denied validity in cases of collision. Alexy proposes a model in which neither the validity of any colliding principle nor the existence of the collision are denied.66 The conflict can be solved “by establishing a concrete relation of precedence,” he believes.67 The principle taking precedence imposes a solution to the case: its prima facie ought is to be carried out.68 The relation between the principles is said to be of concrete precedence or conditional priority because it only remains valid “under certain circumstances or conditions,”69 that is, the circumstances and conditions presented by the case at hand, and never absolutely nor unconditionally. Thus, given different circumstances and conditions, such an order of precedence may change.70 Alexy summarized both the outcome 62 Alexy

(1993a), p. 162. p. 162. Interestingly, the solution suggested by Dworkin (1967), p. 26, does not fall into any of these models. Indeed, he agrees on that collisions between principles do not normally raise questions of validity (or existence). Nevertheless, he proposes that the collision itself can be solved once one reaches the best (or correct) understanding of what law really demands in each case. 64 See for instance, Gardbaum (2010), p. 79, saying that “balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can, in principle, be limited or overridden by non-constitutional rights claims premised on conflicting public policy objectives.” 65 Klatt and Meister (2012a), p. 23. 66 Alexy (1993a), p. 162. 67 Alexy (2010d), p. 16. 68 Alexy (2000a), p. 297. As the opposite also holds true, the effects that the preceded principle prescribes are not to bring about. Consequently, as Kumm (2006), p. 345, noticed, “the fact that a rights holder has a prima facie right does not imply that he holds a position that gives him any kind of priority over countervailing considerations of policy.” 69 Alexy (2000a), p. 297; (2010b), p. 52. 70 There is an ongoing controversy about whether any abstract order of priority, lexical, weighted, or otherwise, actually exists between principles. See Alexander (2012), pp. 118, 122–123; Klatt and 63 Ibid.,

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of the concrete precedence as well as the conditional, relative character of such a relation in a collision law, which reads: “the circumstances under which one principle takes precedence over another constitute the conditions of a rule which has the same legal consequences as the principle taking precedence.”71 The collision law throws light on the fact that a rule is derived from the conditional relation of precedence, which allows one to conclude that “principles are necessarily reasons for rules.”72 The conditional relation of precedence offers, thus, a transition connecting principles and rules. Once the court has established the derivative rule, it is no longer speaking about precedence or principles; it has posed the concrete norm according to which the case is to be decided.73 The decision-maker can subsume the facts of the case under the derivative rule, as she would do if the same rule had been statutorily enacted. The specific features of this derivative rule shall become clearer in the next sections, which explore the optimizing character of principles and the law of balancing, respectively.

4.2.3 The Optimization Thesis Alexy affirms that principles are optimization requirements, which “require that something be realized to the greatest extent possible given the legal and factual possibilities,”74 and this is the defining element of his theory.75 Differently from principles, rules are definitive commands for neither their validity nor their incidence are matters of degree; they “are either fulfilled or not,” that is, the addressee is required “to do exactly what [the rule] says, neither more nor less,” Alexy says.76 Every rule, whether directly established in the authoritative legal material or derived from it, is a norm that, under the satisfaction of certain conditions, prescribes a definitive legal consequence that necessarily contains a previous “decision about what is to happen within the realm of the legally and factually possible.”77 This is in accordance with what has been said so far, regarding both the thesis on the dual nature of ought and the collision law. By contrast, principles only indicate an ideal scenario of their full-attainment. Meister (2012a), p. 26; (2012b), pp. 689, 698; McHarg (1999), pp. 673–674; Möller (2012), p. 720; Rawls (1999), pp. 37–40, 214–220; da Silva (2011), pp. 280–282; Tremblay (2014), pp. 866, 868, 880; Tsakyrakis (2009), p. 473; Waldron (1993), pp. 22, 30. 71 Originally, Alexy (2010b), p. 54, referred to the rule as ‘the Law of Competing Principles’. The name ‘collision law’ appeared in Alexy (2000a), p. 297, where the rule was stated slightly differently from the one I transcribed in the text. 72 Alexy (2000a), p. 297. 73 Klatt (2012), p. 20. 74 Alexy (2010a), p. 47. 75 Alexy (2000a), p. 294. 76 Alexy (2010a), p. 48. 77 Ibid., p. 57.

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Reality, however, is far from offering the conditions for a total realisation of a principle. Most likely, there will be in concrete cases factual counter-reasons that stop the public authority or agency from carrying out the principle until reaching its ideal consequences. Differently from rules, principles “can be satisfied to varying degrees,” and the appropriate degree of satisfaction is not settled by the principle per se.78 Given the factual and legal possibilities in a concrete case, the principle demands the promotion of a certain state of affairs to the higher extent possible. The factual possibilities of optimization are present whenever there are measures available that contribute for the state of affairs pointed by the principle by making use of the least intrusive means for doing so.79 In their turn, the legal possibilities of realization are determined, among other things, by the colliding principles.80 Since every legal system is made up of several principles, each of them pointing to its unconditional fulfilment, the legal possibility of enforcing a principle depends on the limits imposed on it by competing principles, and vice versa. The decision-makers ought to take these limits into account, and the correct way for dealing with them is within the dimension of weight, rather than within that of validity.81 Thus, the relevant question in a situation of conflict is not: “What principle is to be eliminated from the system?,” but rather: “How to optimize both principles within the system?”82 As another scholar has pointed out, a consequence of this conception is that the presence of principles supporting a legal measure does not settle the questions of its legal enforcement and validity; “rather, it is but the beginning of the process,”83 which from where Alexy stands, necessarily leads to balancing.

4.2.4 The Law of Balancing As exposed in last section, the characteristic form of applying a rule is subsumption: once the conditions it describes are realised, the consequences it states must follow.84 Principles, on the other hand, neither lay down their factual and normative premises nor determine the legal consequences they ensue; therefore, subsumption is not an option. Yet, the authority in charge of the decision is required to apply the principle. Without previously deciding to what degree the factual and legal conditions of the case affect a principle, the decision-maker cannot say which command, prohibition, or permission it definitively conveys. This prior decision can only be made by resort to the proportionality test, which is the method for applying principles, Alexy says. 78 Ibid.,

pp. 47–48, 57. and Peczenik (1990), p. 137; Alexy (2010a), p. 47. 80 Alexy (2010a), p. 48. 81 Ibid., pp. 66–69. 82 Alexy and Peczenik (1990), p. 137. 83 Webber (2009), p. 68. 84 Alexy (2010c), p. 70. 79 Alexy

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The principles-theory version of proportionality was detailed in last chapter. As I anticipated there, Alexy claims that the proportionality test and its three subtests—suitability, necessity, and proportionality in its narrow sense (or balancing)—, are logically deduced from his conception of constitutional principles as optimization requirements. Within this scheme, both suitability and necessity are devices to determine factual possibilities of realising a principle, to which Alexy’s definition alludes. Balancing in its turn is the correct way to take into account legal possibilities of realisation, which depend on the limits competing principles impose on each other. An act suitable and necessary to realise a principle is therefore proportional in the narrow sense if the restrictions it imposes on competing principles are justified after balancing.85 The optimization character of principles is thus the essential feature that structurally connects them to the proportionality test. Balancing in particular operates in the dimension of weight, which is an exclusive attribute of such type of norms. In the case of a collision, one of the principles must outweigh the other, which means neither that the outweighed principle is invalid, nor that an exception was built into it, but rather that the outweighing principle was given precedence in those particular circumstances. The outweighing principle is not necessarily the weightier principle abstractly speaking either. The outcome of balancing is not necessarily determined by the principle one would regard as more important without proper consideration for the circumstances of the concrete case. Or as Alexy teaches, “abstract weights are not … decisive.”86 Given a case of collision, a principle that is lighter in abstract may nevertheless be, in concrete, heavier than a colliding principle, and thus prevail over it. “The concrete weight of a principle depends on the intensity of interference with that principle,” Alexy explains.87 The idea can be summarized as follows: “the greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.”88 This is the law of balancing, which “reflects the character of principles as optimization requirements between which there is … no relation of absolute precedence.”89

4.2.5 Dworkin’s Alternative Model I shall now turn attention again to Dworkin’s account of principles, this time emphasizing the features that make it altogether an alternative to the principles theory as exposed in the previous section. To begin with, some might consider it awkward to refer to Dworkin as an author whose theory competes with Alexy’s. That is because, 85 Alexy

(2010a), pp. 47, 66–69. (2012), p. 329. 87 Ibid., p. 329. 88 Alexy (2010b), p. 28. 89 Alexy (2010a), p. 54. Alexy (2000a), p. 297, also refers to this rule as the ‘balancing law’. 86 Alexy

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as explained at the beginning of this chapter, Dworkin’s conception of principles as a type of legal norms that are logically distinct from rules has influenced the principles theory. Alexy expressly mentioned the American jurist as a source for the idea that, differently from rules, principles have weight.90 Nevertheless, however strong is the influence of Dworkin’s thoughts, and despite the many similarities and points of contact both viewpoints share, there remain remarkable differences between them, which in practice turn them into two competing approaches.91 Alexy has already exposed some of these differences92 and dedicated an entire work to demonstrate the flaws in Dworkin’s rigorous separation between principles and rules.93 In general, the opinion of both jurists is similar regarding the thesis that principles express a prima facie ought, while rules a definitive ought. Nevertheless, Alexy criticizes the conclusions Dworkin extracted from this differentiation and particularly Dworkin’s famous sentence, “rules are applicable in an all-or-nothing fashion.”94 Alexy objects this idea and conceives of a more nuanced scheme, which also takes into consideration fundamental rights with limiting clauses.95 Dworkin not only asserts that rules are applicable in an all-or-nothing manner, but also that an accurate, complete statement of a rule would take all its exceptions into account. The way Alexy sees it, these two claims cannot be simultaneously true. Their correctness would depend on the possibility of exhaustively listing all exceptions for a rule, embracing past, current, and future cases, which is not actually feasible.96 Besides this discrepancy in the treatment given to legal rules, three differences between Alexy’s and Dworkin’s theories have direct impact on this study and therefore will be emphasized below. The first difference regards the distinction between principles and policies. Alexy claims that either a norm is a principle or a rule.97 There might be situations in which it is difficult to precise the nature of a specific provision; but however disputed may be the answer in such a case, this remains being a matter of interpretation that does not detract from the validity of the proposition that either a prima facie ought (a principle) or a definitive ought (a rule) is at stake. By contrast, for Dworkin, there are other types of norms. Actually, he conceives of legal principles more narrowly, as embracing only principles that provide for individual rights; norms providing for collective interests are classified as policies. Both policies and principles would convey a prima facie ought—and therefore none of them should be confused with rules—, but while 90 Alexy

(2010a), p. 50, makes explicit reference to Dworkin (1978), p. 26 f.

91 There is no consensus in the literature about how different Dworkin’s approach and the principles

theory (or even the BVerfG’s practice) actually are. For instance, Yowell (2007), p. 96, claims that “Dworkin’s approach to rights under the shielded-interest theory is similar to balancing tests,” and according to Hall (2008), p. 772, Dworkin’s theory shares similarities with the BVerfG’s analytical approach as well. C.f. Schlink (2003), pp. 614–617; Tuori (2004), pp. 55–76. 92 Alexy (2010a), pp. 48 (footnote 27), 57–58, 66, 385. 93 Alexy (1979). 94 Dworkin (1967), p. 25. 95 Alexy (2010a), pp. 57–58. 96 Alexy (1979). 97 Alexy (2010a), p. 48.”

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principles are applied by the judiciary, policies are mainly addressed to the legislature and executive.98 The second difference concerns the definition of principles as optimization requirements. Dworkin does not endorse the optimization thesis and, consequently, does not subscribe to the collision law—at least not the principles-theory version of it. To be precise, he does conceive of principles as possessing weight, refers to them as norms conveying prima facie obligations, and explains that they may be opposite without threatening each other’s validity (or existence);99 nevertheless, he has never complied with the idea of optimization.100 And this leads to the third and, for the sake of this work’s argument, most important divergence between the two authors. The third difference points out to the necessary connection Alexy established between principles and balancing—and, thus, between principles and proportionality. Dworkin upholds neither the law of balancing nor the adjudicative method it implies, the proportionality test. Admittedly, he has never scrutinized the proportionality test in any of his works, nor has he directly countered the principles-theory arguments. However, in more than one opportunity, he referred with criticism to officers and lawyers who have recourse to some test like balancing to permit the abridgement of a constitutional right under the pretext of another policy or principle that was weightier in the given circumstances.101 Furthermore, he pointedly equated balancing with costbenefit analysis and branded this method as “inapt,” “misleading,” and “dangerous” because it offers no principled basis for decisions.102 In a later text, he maintained that resolving some moral conflicts by means of balancing required compromising both demands in conflict, which imposed a sacrifice to human dignity.103 As for an alternative to balancing, Dworkin conceived of his own adjudicative method, called moral reading.104 Without going into too many details that would surpass the range of this study, it is possible to summarize the moral reading as an interpretative approach that takes into consideration the language, history, and integrity of a constitution (or a constitutional clause) and aims at showing it in its best light.105 Under the moral reading, the correct understanding of what a constitutional principle requires would reconcile such a norm with the other principles and policies underlying the constitution, as well as with past judicial decisions, instead of colliding one norm against the others. Rather than balancing the apparently conflictive principles, the interpreter should regard as wrong the conflicting interpretations and seek for a meaning that allow the principles to cohere.

98 Dworkin

(1985), p. 11. Some criticism over Dworkin’s ‘division of labour’ and account of principles and policies can be found in Miller (2008). 99 Dworkin (1967), pp. 27, 36; (1986), p. 293. 100 Alexy (2010a), pp. 48, footnote 27. 101 Dworkin (1978), p. 27; (1985), p. 77. 102 Dworkin (2006); (2008), p. 27. 103 Dworkin (2011), p. 265. 104 Dworkin (1999). 105 Ibid., pp. 7–11; (1986).

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In conclusion, Dworkin proposes a holistic method for resolving intersections between principles that dissolves the conflict itself.106 Importantly, neither does he advocate Alexy’s optimization thesis nor the law of balancing, and the principles theory does not differentiate between principles and policies, as Dworkin does. These divergences should be kept in mind, as they will be useful in the analysis of the Brazilian case material presented in the next section, permitting to identify elements of the principles theory in STF decisions.

4.3 Principles in the STF’s Case Law In this section, I will expound fifteen cases in which the STF made explicit reference to properties of legal principles. My goal is to demonstrate that the court holds that the principles in the Federal Constitution are optimization requirements, which collide in concrete cases and whose collision requires balancing to be solved. That is, Brazilian Justices endorse three of Alexy’s theses advanced in last section: the optimization thesis, the collision law, and the law of balancing, respectively. In seven cases, the references made to the principles theory can be considered of secondary impact. That is either because the Justice who quoted Alexy delivered a dissenting opinion or because he voted with the majority, and his vote was not the leading opinion to conduce the judgement. I will detail five of these decisions below: the Additional Pay Case (2006),107 the Judicature Act Case (2007),108 the São Francisco River Case (2007),109 and the Judges Recruitment Cases I and II (2011)110 Also, at the end I comment on two other cases: the Political Donors Case (2015)111 and the Dantas Case (2016).112 Eight cases were selected due to the primary impact principles-theory theses had for the STF’s final rulings. Below I present: the New Municipalities Cases I (2007),113

106 Cornell

and Friedman (2010), p. 154.

107 STF, Additional Pay Case, RE 146.331

EDv/SP, Judgment of 23 November 2006, Relator: Min. Cezar Peluso, D.J. 20 Apr. 2007. 108 STF, Judicature Act Case, ADI 3.976 MC/SP, Judgment of 14 November 2007, Relator: Min. Ricardo Lewandowski, D.J. 15 Feb. 2008. 109 STF, São Francisco River Case, ACO 876 MC-AgR, Judgment of 19 December 2007, Relator: Min. Menezes Direito, D.J.e. 1 Aug. 2008. 110 STF, Judges Recruitment Case I, MS 28.594/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 205, 19 Oct. 2012; STF, Judges Recruitment Case II, MS 28.603/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 110, 11 Jun. 2012. 111 STF, Political Donors Case, ADI 5394 MC/DF, Judgment of 12 November 2015, STF, Relator: Min. Teori Zavascki, D.J.e. 239, 11 Oct. 2016. 112 STF, Dantas Case, HC 126292/SP, Judgment of 17 February 2016, STF, Relator: Min. Teori Zavascki, D.J.e. 100, 17 May 2016. 113 STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007.

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and the Chico Mendes Institute Case (2012).114 The New Municipalities Cases II, III, and IV (2007)115 addressed identical issues and were given the same solution as that of the New Municipalities Case I, which became the paradigm for the judgements of the others; that being the reason why only the latter will be exposed below. I comment on other three at the end: the Unauthorized Biographies Case (2015),116 Bull-Toppling Competition Case (2016),117 Criminal Forfeiture Case (2017).118 I take it as distinctive of these eight cases that the references to Alexy were part of the opinions that convinced the majority, that is, they were made by the Justice in accordance with whom the STF actually decided. The fifteen cases are exposed in chronological order, beginning with the Additional Pay Case below.

4.3.1 The Additional Pay Case (2006) The main question raised by the Additional Pay Case (2006) was whether new constitutional provisions overruled definitive, unappealable decisions that had been delivered by courts before the constitution was promulgated.119 State laws passed in the 1980s established a policy of awarding bonuses and additional pay to civil servants for their long time in service. As some years later the Federal Constitution provided for different rules, the state department of the treasury discontinued the pay plan and adjusted the inflated bonuses to the new constitutional limits. A civil servant who had his income reduced by reason of the adjustment pleaded with the Court of Justice to nullify the treasury’s measure. The petitioner argued that his monthly earnings encompassed not only his salary but also instalments that he had been granted by a judicial decision. According to him, the state department had no authority to interfere with a matter that had been foreclosed by a court ruling. Nonetheless, the Court of Justice denied his petition and decided for the lawfulness of the treasury’s measure. The issue was then brought before the STF by means of an extraordinary appeal. The appellant maintained that reducing his monthly pay was a breach to a judicial 114 STF,

Chico Mendes Institute Case, ADI 4029/AM, Judgment of 8 March 2012, Relator: Min. Luiz Fux, D.J.e. 125, 27 Jun. 2012. 115 STF, New Municipalities Case II, ADI 3.316/MT, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 29 Jun. 2007; STF, New Municipalities Case III, ADI 3.489/SC, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007; STF, New Municipalities Case IV , ADI 3.689/PA, Judgment of 10 May 2007, Relator: Min. Eros Grau, D.J. 29 Jun. 2007. 116 STF, Unauthorized Biographies Case, ADI 4815/DF, Judgment of 10 June 2015, STF, Relatora: Min. Cármen Lúcia, D.J.e. 18, 1 Feb. 2016. 117 STF, Bull-Toppling Competition Case, ADI 4983/CE, Judgment of 6 October 2016, STF, Relator: Min. Marco Aurélio, D.J.e. 87, Apr. 27, 2017. 118 STF, Criminal Forfeiture Case, RE 638491/PR, Judgment of 17 May 2017, STF, Relator: Min. Luiz Fux, D.J.e. 186, Aug. 23, 2017. 119 STF, Additional Pay Case, RE 146.331 EDv/SP, Judgment of 23 November 2006, Relator: Min. Cezar Peluso, D.J. 20 Apr. 2007.

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ruling and, consequently, a violation to Article 5, XXXVI, of the Federal Constitution, which forecloses the relitigation of matters that had been definitively settled by judicial decision (res judicata).120 In opposition, the state treasury alleged that the appellant had his earnings decreased in accordance with the Temporary Constitutional Provisions Act (Ato das Disposições Constitucionais Transitórias—ADCT ), Article 17. The clause commands that additional pays are immediately reduced to the limits therefrom imposed and expressly deauthorizes the appeal to vested rights to prevent the reduction.121 The STF handed down a majority opinion against the appellant. The court declared that no civil servant could invoke res judicata to secure their bonuses and additional pay if the judicial ruling they referred to had been delivered before the promulgation of the Federal Constitution and was based on laws that were no longer valid afterwards. Justice Ricardo Lewandowski was part of the majority. In his written opinion, he held that there were two principles conflicting in the case, legal certainty and administrative morality. According to him, the res judicata was an example of vested right to which the Article 5, XXXVI, of the Federal Constitution alluded, and for being so, it should be taken as part of the broader principle of legal certainty. The problem was that the constitutional clause determining the reduction of inflated civilservants pays would also serve to a different principle: administrative morality. In Justice Lewandowski’s view, each principle claims its maximum fulfilment, and they therefore conflict: “As taught by Alexy, every principle constitutes an optimization requirement, as to say, a precept that determines ‘that something be realized to the greatest extent possible given the legal and factual possibilities.’”122 Furthermore, Justice Lewandowski held that the principle of legal certainty should yield to administrative morality, “conform to the method of balancing values in face of the concrete case, as the modern constitutional hermeneutics prescribes for collisions between fundamental principles.”123 He understood that “the [principle of] administrative morality … ought to be expanded in its greatest extent, all the values against it being rejected in the case at stake, including legal certainty.”124 That is to say: no one can invoke the res judicata to secure rights that, although declared by a judicial decision, are no longer legitimate after the Federal Constitution was promulgated. Concluding that the constitutional legislator had banned from the legal

120 Constituição

da República Federativa do Brasil de 1988, Article 5, XXXVI: “The law shall not injure the vested right, the perfect juridical act and the res judicata.” 121 Ato das Disposições Constitucionais Transitórias, Article 17: “Earnings, compensation, advantages and additional pay, as well as retirement pensions which are being received in disagreement with this constitution, shall be reduced immediately to the limits arising therefrom, not being allowed, in this case, to invoke a vested right or receipt of excess on any account.” 122 In the original, Alexy (2002), p. 86, quoted in STF, Additional Pay Case, RE 146.331 EDv/SP, Judgment of 23 November 2006, Relator: Min. Cezar Peluso, D.J. 20 Apr. 2007; here, Alexy (2010a), p. 47. 123 STF, Additional Pay Case, RE 146.331 EDv/SP, Judgment of 23 November 2006, Relator: Min. Cezar Peluso, D.J. 20 Apr. 2007 (my translation). 124 Ibid.

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system the additional pays the appellant pleaded, he voted with the majority to deny the extraordinary appeal.

4.3.2 The Judicature Act Case (2007) The same quotation was later repeated in Justice Lewandowski’s opinion in the Judicature Act Case (2007).125 The case addressed an apparent conflict of legislative competences between state assemblies and the Federal Congress. The main issue was whether it fell under states’ authority to legislate on the nomination of judges for presiding officers of their own courts of justice. The Constitution of the State of São Paulo allowed state courts to stipulated rules for the election of their own chairmen. Under this permission, the Court of Justice of São Paulo established in its internal regulation the proceedings for choosing the members of its directive body. Nevertheless, these formal guidelines differed significantly from those laid down by the Supplementary Law no. 35, known as the Judicature Act, enacted by the Federal Union in 1979.126 Convinced that the clause in the state constitution was null and void—and so would be the Court of Justice’s internal regulation—, the General-Attorney of the Republic filed a petition with the STF calling for the declaration of unconstitutionality. As the next elections for the Court of Justice’s directive body had already been scheduled to happen in a few weeks, the plaintiff also pleaded for a temporary order suspending the selection of chairmen as set by the court’s internal regulation. He argued that the State of São Paulo had exceeded its authority to make laws on the matter, since it was the Federal Union’s duty to enact such rules pursuant to Article 93 of the Federal Constitution.127 Justice Lewandowski was the case rapporteur. He agreed with the GeneralAttorney’s claim that it fell under the authority of the Federal Union to dictate rules of procedure for choosing the presiding judges of courts of justice. He conceded that, under the Federal Constitution, the election of the courts’ directive body was not expressly among the issues governed by the federal Judicature Act; it was not mentioned in Article 93, but in Article 96, I, a, and this clause also referred to matters of internal regulation of each court.128 Nonetheless, he asserted that any interpretation of the constitutional arrangement must consider the republican principle; and, from where he stood, such constitutional principle pointed towards the necessity of a 125 STF,

Judicature Act Case, ADI 3.976 MC/SP, Judgment of 14 November 2007, Relator: Min. Ricardo Lewandowski, D.J. 15 Feb. 2008. 126 Lei Complementar 35, de 14 de março de 1979, D.O.U. 14.03.1979. 127 Constituição da República Federativa do Brasil de 1988, Article 93, Main Body: “A supplementary law, proposed by the Supreme Federal Court, shall provide for the Statute of the Judicature.” 128 Constituição (1988), Article 96, I, a: “It is of the exclusive competence of: … the courts: … to elect their directive bodies and to draw up their internal regulations, in compliance with the rules of proceedings and the procedural guarantees of the parties, and regulating the competence and the operation of the respective jurisdictional and administrative bodies.”

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national conformity on proceedings and criteria, which one could not obtain through diverse state laws. Consequently, it was prima facie under the legislative authority of the Federal Union to enact rules of procedure on the elections for chairmen and other presiding officers of all courts, including the state courts of justice. Nevertheless, going further on the analysis of the proceedings actually set by the State of São Paulo, Justice Lewandowski declared that the rules of procedure followed by that Court of Justice were proportional and served other constitutional principles better than those found in the federal Judiciary Act. Referring to Alexy’s conception of principles as “optimization requirements,” he held that the state practices were “far from being abusive or unreasonable;” on the contrary, in his view, they permitted that more judges stood as candidates for the office of president of the court, which “demonstrates perfect conformity with the … democratic principles … found in the text of the [Federal] Constitution.”129 Justice Lewandowski, thus, voted for the temporary maintenance of the state rules on the election of the directive body of the Court of Justice of São Paulo. However, this was not what the majority ruled. Most Justices were not convinced by Justice Lewandowski’s arguments and delivered dissenting opinions. The court granted the temporary order required by the General-Attorney of the Republic. The ruling suspended the elections for the directive body of the Court of Justice of São Paulo until the STF decided on the merits whether the respective clauses in the state constitution and the Court of Justice’s internal regulations were in accordance with the Federal Constitution.

4.3.3 The New Municipalities Cases (2007) The main issue of the New Municipalities Cases I (2007) was the procedure constitutionally established for creating municipalities.130 The peculiar federalist organization adopted in Brazil outlines the background to the legal dispute. Although largely inspired in the U.S. federation, the Brazilian counterpart comprises not only the federal union and the states, but also a third category of members: the municipalities. Originally, the Federal Constitution stipulated that was exclusively under states’ autonomy to create new municipalities in their territories. The conditions imposed by the constitutional text as promulgated in 1988 were strictly formal: new municipalities should be created by means of a state law and preceded by a consultation with the directly affected population. Additionally, states had unfettered discretion as to which requirements to set out since they laid down these requirements through a supplementary state law.131 In 1996, however, the Constitutional Amendment 15 129 STF,

Judicature Act Case, ADI 3.976 MC/SP, Judgment of 14 November 2007, Relator: Min. Ricardo Lewandowski, D.J. 15 Feb. 2008. 130 STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007. 131 Constituição da República Federativa do Brasil de 1988, Article 18, paragraph 4 (repealed 1996) (my translation): “The establishment, merger, fusion and dismemberment of municipalities

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changed the Federal Constitution wording. With the clear purpose of restraining the creation of new municipalities, it suppressed the states authority to legislate on requirements and conveyed to the federal union the duty to enact a supplementary law on the matter.132 The New-Municipalities Case I concerned the changes that the Constitutional Amendment brought about. The Labours Party (Partido dos Trabalhadores—PT ) filed a direct action of unconstitutionality with the STF provoking the court to nullify a law from the State of Bahia that had created the municipality of Luis Eduardo Magalhães. The petitioner claimed that the supplementary federal law to which the new wording of the Federal Constitution alluded had not been enacted when the state created the municipality. The rapporteur of the case, Justice Eros Grau, had initially handed down a vote nullifying the state law and consequently undoing the legislative act that had created the municipality. Nevertheless, Justice Gilmar Mendes, the second to vote, suggested a different solution that would be followed by the majority, including Justice Grau, after changing the opinion he had first delivered. Justice Mendes saw in the case a conflict of formal principles with constitutional status: legal certainty (on the one hand) and the supremacy of the constitution (on the other). In his view, although the state law was in clear breach of the Federal Constitution, the court should not simply take it to be null and void pursuant to the principle that confers on the constitution precedence over state laws. Doing so would make no room for the principle of legal certainty, whose relevance for the case was also “undeniable.”133 That is because the municipality of Luis Eduardo Magalhães was established in 2000 and had already existed “as a de facto federative entity for over six years.”134 He defended that several acts with complex legal implications had been committed in behalf of that municipality, and therefore simply nullifying shall preserve the continuity and historic-cultural unity of the urban environment, shall be effected through state law, within the period set forth by supplementary state law, and shall depend on prior consultation by means of a plebiscite with the population of the municipalities directly concerned.” 132 Constituição (1988), Article 18, paragraph 4, with the new wording given by the Constitutional Amendment 15, of 1996: “The establishment, merger, fusion and dismemberment of municipalities shall be effected through state law, within the period set forth by supplementary federal law, and shall depend on prior consultation, by means of a plebiscite, of the population of the municipalities concerned, after the publication of Municipal feasibility studies, presented and published as set forth by law.” 133 STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007. In spite of being largely recognized in civil law countries as a sub-principle derived from the rule of law, legal certainty has acquired peculiar features in Brazilian case law. The most important of them is that the principle has been used as an argument for decisions contrary the standard—or most obvious—interpretation of legal rules. Widely shared among Brazilian judges is the belief that legal certainty poses two demands—that law provide enough certainty about what is expected from those commanded by it, and that governmental acts and decisions be enacted according to law—and these demands may conflict under certain circumstances. In cases of conflict, it is common that judges give precedence to the former demand. In other words, they normally treat the principle of legal certainty as a requirement for the maintenance of the status quo, preserving citizens from the consequences of nullifying a governmental act, regardless of its lawlessness. In this sense, legal certainty has been understood as a principle of no surprise. 134 Jurisprudence/Selected Decisions. In: Portal STF Internacional. Accessed 2 April 2013.

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its creation would have “serious repercussions in the political, economic and social orders.”135 Referring to Alexy’s conception of principles, Justice Mendes declared to be “convinced that it was possible to optimise both principles [legal certainty and constitutional supremacy], by trying to apply them to the greatest extent possible conform to the factual and legal possibilities given in the case.”136 In his words, “such a necessity of finding balance between the principle of legal certainty and the nullity of an unconstitutional law constitutes the leitmotiv for developing alternative techniques of decision making on constitutional review.”137 He warned that a state law that contradicted the Federal Constitution was prima facie void and yet this principle “should be repelled if we are able to demonstrate, based on a concrete case of balancing, that declaring the strict unconstitutionality [with its full-nullifying effect] would be in sacrifice of legal certainty or another constitutional value.”138 Convinced by the arguments, the plenary of the STF held that the state law was unconstitutional. The majority understood that nullifying the legislative act of creation would affect in uncountable, unpredictable ways the life of the population concerned—more than 20 thousand inhabitants. And to determine the correct outcome, most Justices agreed on “striking a balance between the principle of nullity of the unconstitutional law and the principle of legal security.”139 As a result, the STF rendered a majority opinion declaring that the law was unconstitutional but would stay in force for 24 months. Within this period, the state lawmakers should conform the legislation to the provisions established by the supplementary federal law to be enacted in accordance with the Federal Constitution. Identical solution was applied to the New Municipalities Cases II, III, and IV.140

4.3.4 The São Francisco River Case (2008) The São Francisco River Case (2008) addressed the problem of the potential damages the governmental project to rechannel and divert a river could cause to the

135 STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007. 136 Alexy (1993b), pp. 86–88, paraphrased in: STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007 (my translation). 137 STF, New Municipalities Case I, ADI 2.240/BA, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007 (my translation). 138 Ibid. 139 Jurisprudence/Selected Decisions. In: Portal STF Internacional. 140 STF, New Municipalities Case II, ADI 3.316/MT, Judgment of Mai 2007, Relator: Min. Eros Grau, D.J. 29 Jun. 2007; STF, New Municipalities Case III, ADI 3.489/SC, Judgment of 9 May 2007, Relator: Min. Eros Grau, D.J. 3 Aug. 2007; STF, New Municipalities Case IV , ADI 3.689/PA, Judgment of 10 May 2007, Relator: Min. Eros Grau, D.J. 29 Jun. 2007.

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surrounding environment and populations.141 The São Francisco River is the longest watercourse running entirely inside the Brazilian territory. The river crosses five states in the Brazilian Northeast and Southeast regions, but although it is partly responsible for their water supply, within its basin also lies the Drought Polygon, a 900,000-km2 semi-arid area, the poorest in the country.142 In order to supply water to the cities and villages severely affected by the droughts, the federal government developed a diversion plan, the São Francisco River Integration Project, which consisted basically in redirecting the river’s flow through artificial channels, so that the water feed ephemeral streams that normally dry out during long dry seasons. The deep impact the works were expected to cause on the local ecosystems and native peoples drew the responsible authorities into political disputes with non-governmental organizations (NGOs) aiming to prevent or lessen the damages. Several of the conflicts escalated into legal disputes before courts, and in order to circumvent the legal uncertainty provoked by eventually conflicting judgments rendered by judges from different states, the STF claimed original jurisdiction over the matter.143 The São Francisco River Case was one of the lawsuits filed with the STF by a set of NGOs supported by the Public Prosecution Office and the Brazilian Bar Association. The plaintiffs alleged that the diversion project aimed at rechannelling river water through an indigenous reservation, yet neither asking the National Congress for prior authorization nor hearing the affected tribes, as the Federal Constitution would require.144 They also pointed to what they considered to be irregularities in the corresponding environmental licenses and permits. Finally, they asked the rapporteur to grant a temporary order suspending the works until the court’s final decision. On the merits, they pleaded with the STF to nullify the irregular permits and command the federal government to reconsider the legal process following the guidelines as provided in the Federal Constitution. Nevertheless, these arguments did not convince a majority of Justices. As a result, the STF denied the petition for a temporary order, holding that neither the alleged irregularities in licenses nor the unauthorized exploitation of hydric resources in Indigenous reservations were evident in the case. Justice Gilmar Mendes voted with the majority. Comparing the São Francisco River Diversion Case with the Kalkar I Case, judged by the BVerfG in 1978, Justice Mendes affirmed that executive and legislative authorities should be given discretion as to how decide “complex political questions, to which there was more than one

141 STF,

São Francisco River Case, ACO 876 MC-AgR, Judgment of 19 December 2007, Relator: Min. Menezes Direito, D.J.e. 1 Aug. 2008. 142 See Castañeda and Webb (2018); Romano and Garcia (1999); Ponce (1995). 143 STF, Rcl 3074/MG, Judgment of 8 April 2005, Relator: Min. Sepúlveda Pertence, D.J. Sep. 9, 2005. 144 Constituição da República Federativa do Brasil de 1988, Article 49, XVI: “It is exclusively the competence of the National Congress: … to authorize, in Indigenous lands, the exploitation and use of hydric resources;” and Article 231, Paragraph 3: “hydric resources, including energetic potentials, may only be exploited, and mineral riches in Indigenous land may only be prospected and mined with the authorization of the National Congress, after hearing the communities involved.” (my translation).

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legitimate answer.”145 He said he could not find in the case a breach of law that would justify granting the order the petitioners required, and he did not agree on interrupting the government project based solely on a vague precautionary principle, supported by uncertain empirical premises. Going further, he quoted an assertion from Alexy about the importance of clearly identifying the principles colliding in each case, especially due to the existence of complex situations in which three or more rights may collide.146 In Justice Mendes’s view, the case brought before the court a collision not only between environmental and economic rights. The court should also take into account the authority the democratic principle gives the executive, Justice Mendes said, as well as the question whether the diversion would most benefit the surrounding ecosystems and populations, including indigenous tribes, or place them at disadvantages. As he explained, “the measure, besides aiming to preserve the natural environment and the river, will also allow the use of water to populations that do not have access to it yet.”147 He conceded that, until the judgement on the merits, “other arguments may be put forward [the suspension of the works],” and the plaintiffs may file new petitions for temporary orders, but concluded his opinion voting against the order the petitioners had required.148

4.3.5 The Judges Recruitment Cases I and II (2011) The Judges Recruitment Cases I and II (2011) began as ordinary lawsuits about the strict duty of obedience to administrative laws and regulations upon public authorities, but turned out to raise questions about the conflicts between rules and principles and the methods for solving them.149 The immediate issue they addressed concerned the proceedings for recruiting state judges. In Brazil, the government ought to recruit non-elected officers through competitive examinations; only exceptionally, if the law provides for a commission office, civil servants can be freely appointed and discharged.150 Under the Federal Constitution, the admission of judges should likewise occur after the applicants pass very selective examinations, encompassing written 145 Schwabe

(2005), pp. 859–865, cited in STF, São Francisco River Case, ACO 876 MC-AgR, Judgment of 19 December 2007, Relator: Min. Menezes Direito, D.J.e. 1 Aug. 2008, pp. 105–106 (Justice Mendes’s vote) (my translation). The Kalkar Case I (BVerfG, 49 BVerfGE 89, Judgment of 8 August 1978) was about the license required by the German Atomic Energy Act to construct or operate installations for the production or fission of nuclear fuel. 146 Alexy (1999), pp. 67–69, cited with approval in STF, São Francisco River Case, ACO 876 MC-AgR, Judgment of 19 December 2007, Relator: Min. Menezes Direito, D.J.e. 1 Aug. 2008. 147 STF, São Francisco River Case, ACO 876 MC-AgR, Judgment of 19 December 2007, Relator: Min. Menezes Direito, D.J.e. 1 Aug. 2008 (my translation). 148 Ibid. 149 STF, Judges Recruitment Case I, MS 28.594/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 205, 19 Oct. 2012; STF, Judges Recruitment Case II, MS 28.603/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 110, 11 Jun. 2012. 150 Constituição da República Federativa do Brasil de 1988, Article 37, II: “Investiture in a public office or position depends on previously passing an entrance examination consisting of tests or

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and oral tests as well as other requirements, such as academic and professional credentials and a previous period of legal practice.151 By publishing a notice of civil service examination in the official gazette, the recruitment commission initiates the respective proceedings, which should be strictly conducted under administrative laws and regulations.152 In particular, the facts of the Judges Recruitment Case I concerned the competitive examination conduced by a state Court of Justice for the recruitment of substitute judges. The notice of examination provided for three phases of tests to be successively administered, and specified that only the 500 best-ranked applicants in the first phase could take the second exam, regardless of how many had actually passed the earliest test. Proceeding in accordance with the rules, the recruitment commission published a list of the candidates who would be admitted to the second phase. However, the nullification of two questions of the first exam after the results had been published changed the first-phase ranking and consequently altered the list of applicants who could remain in the competition. With a declared intention of preventing from threats of litigation initiated by candidates who had been initially classified as approved but later subtracted from the list, the recruitment commission called all the 745 applicants who passed the first test to take the second exam.153 Notwithstanding the announced strategy of avoiding protracted legal disputes, the decision of the recruitment commission raised controversial issues and actually became the subject of debates among judiciary authorities. Firstly, the controversy was brought before the National Council of Justice, the office upon which it is incumbent to review the administrative acts of the judicial branch. The Council complied with the legal precept that the notice of examination is the law governing the competition, nullified the admission of the 745 applicants to the second phase,

tests and presentation of academic and professional credentials, according to the nature and the complexity of the office or position, as provided by law, except for appointment to a commission office declared by law as being of free appointment and discharge.” 151 Constituição (1988), Article 93, Main Body and I: “A supplementary law … shall provide for the Statute of the Judicature, observing the following principles: … admission into the career, with the initial post of substitute judge, by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all phases, at least three years of legal practice being required of holders of a B.A. in law, and obeying the order of classification for appointments.” 152 The notice of examination should provide for qualification requirements and admission procedures in detail, describing the tests and criteria for correction, informing about the positions available, admitted applicants, and so forth. While public authorities in charge have certain discretion as to how they frame the notice of examination, they carry a duty of conducting the procedures rigorously along the lines as drawn in that document. This practice conforms to the largely accepted understanding on the matter, as a very influential author put it, that the notice of examination is “the law governing the competition” and therefore binding all parties, not only applicants, but also the recruitment commission. See in this respect, Meirelles (2010), pp. 369–370. 153 STF, Judges Recruitment Case I, MS 28.594/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 205, 19 Oct. 2012.

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and commanded the recruitment commission to exclude from the competition the 245 candidates not ranked among the 500 ones who had best scored in the first exam.154 Nonetheless, when the recruitment commission proceeded as the National Council of Justice determined, it sparked a new legal dispute. The candidates who had been excluded from the competitive examination filed a petition with the STF against the Council’s decision with which the commission complied. The petitioners of the Judges Recruitment Case I pointed out formal and material breaches of administrative principles in the decision. Concerning the procedural problems, they alleged that the commission should be left discretion over that matter and, even if it were incumbent upon the Council to decide on it, all the potentially affected candidates should have been called for hearings; which did not happen, in violation of the constitutional right to make full answer and defence also in administrative procedures.155 Regarding the substantive problems, they sustained that the commission’s decision of calling more than 500 applicants to take the second exam was reasonable and therefore should not be overruled. They defended that it was the correct decision given the circumstances and that the commission had acted responsively to the good faith of the excluded candidates, who should not be punished for administrative errors to which they have not contributed. The petitioners’ arguments convinced the STF. A majority of Justices held that the National Council of Justice’s act was void for showing disrespect for the applicants’ rights to make full defence in administrative procedures. Advancing on the merits of the cause, the court validated the decision of the recruitment commission that permitted more than 500 applicants to remain in the competitive examination and take part in its next phases. Justice Luiz Fux was one of the Justices to grant the petition, and he justified his vote by appealing to the principles theory. According to him, it was not under dispute in that case whether the rules as prescribed in the notice of examination govern the recruitment of civil servants; the relevant question was whether only these written rules do it. As he stated, “several principles, other than [the binding force of the notice of examination], govern the public offices that conduce this sort of administrative procedures;” it was necessary, thus, to ask whether these competing principles should be given precedence over the written rules.156 Affirmatively answering the question he had just posed, Justice Fux quoted Alexy’s assertion that principles should prevail, given a concrete case, whenever judges have strong reasons for putting rules aside.157 In Justice Fux’s view, after the initial error of announcing the wrong candidates, the recruitment commission could 154 C.N.J.,

Procedimento de Controle Administrativo 6090-39.2009.2.00.0000, Judgment of 17 December 2009, Relator: Con. Sílvio Luis Fererira da Rocha, D.J.e. 218, Dec. 12, 2009, 5–28. 155 Constituição da República Federativa do Brasil de 1988, Article 5, LV: “Litigants, in judicial or administrative processes, as well as defendants in general, are ensured of the adversary system and of full defence, with the means and resources inherent to it.” 156 STF, Judges Recruitment Case I, MS 28.594/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 205, 19 Oct. 2012 (Justice Fux’s vote) (my translation). 157 Alexy (2008), p. 141, quoted in STF, Judges Recruitment Case I, MS 28.594/DF, Judgment of 6 October 2011, Relatora: Min. Cármen Lúcia, D.J.e. 205, 19 Oct. 2012.

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not have acted differently; in fact, they would show disrespect for the applicants if they had strictly followed the recruitment rules. As Justice Fux said, when the commission incorrectly ranked the candidates who had passed the first exam, it created false expectations of admission that would be later frustrated if the list were simply corrected and several applicants excluded. Moreover, in his opinion, the decision of calling all the candidates mentioned in the first ranking, besides the 500 best-ranked ones in the correct list, did not cause considerable inconvenience. On the contrary, he said, it enforced the constitutional principle of legal certainty by taking into consideration that they were acting in good faith and had not contributed to, nor were responsible for, the administrative error.

4.3.6 The Chico Mendes Institute Case (2012) The Chico Mendes Institute Case (2012) addressed the question of who can petition for the STF’s abstract judicial review.158 The case was triggered by the enactment of the Federal Act that created the Chico Mendes Institute for Biodiversity Conservation (Instituto Chico Mendes de Conservação da Biodiversidade—ICMBio) as part of a policy to facilitate the issuance of environmental licenses. In response to what they saw as a threaten to the effectiveness of environmental protection, the National Association of Civil Servants employed for the Brazilian Institute of Environment and Renewable Natural Resources (Instituto Brasileiro de Meio Ambiente e Recursos Naturais—IBAMA) filed a petition with the STF and laid the statute before the court. As the petitioners argued, the Federal Act was enacted without observance of the process constitutionally established for legislating and its content violated substantial provisions in the Federal Constitution. The STF’s majority opinion, however, deemed the arguments as non-convincing and declared that the Federal Act was conform to the Constitution and, thus, valid. Putting aside the decision on the merits, the case raised the question whether the court could receive the petition. Particularly, there was doubt about whether the National Association of Civil Servants could file a direct action of unconstitutionality with the STF. Summoned to deliver an opinion on the matter, the Federal GeneralAttorney maintained that the professional association had not demonstrated to have nationwide nature, as the Federal Constitution required. Moreover, he defended the constitutionality of the Federal Act and requested that the petition was not accepted. The rapporteur, Justice Luiz Fux, countered the Federal General-Attorney’s arguments. In Justice Fux’s opinion, albeit the remaining doubts about whether that particular association had actually fulfilled the requirements laid down in the Constitution, the constitutional text ought to be given an extensive interpretation in the case. Justice Fux affirmed that the preceding Brazilian constitutions only granted the right to file direct actions of constitutionality with the STF to a very exclusive and 158 STF,

Chico Mendes Institute Case, ADI 4029/AM, Judgment of 8 March 2012, Relator: Min. Luiz Fux, D.J.e. 125, 27 Jun. 2012.

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distinct group of public authorities; in contrast, the Federal Constitution included professional associations and labour unions in the list of admitted petitioners. According to Justice Fux, behind this turn in the institutional history was the understanding that the constitution should be read as an open document, both in Härbele’s and Alexy’s sense. That would mean, firstly, that not only qualified public officers were constitutional interpreters, but all the people—idea he attributed to Härbele.159 Secondly, it would also mean, paraphrasing Alexy, that “the legal system is a system open to the influence of morality, insofar as morality is necessary to give concrete meaning to abstract principles such as dignity, freedom and equality.”160 Combining the two views, Justice Fux concluded that “it would be despicably antidemocratic to deny people participation is this process of transforming something axiological into deontological.”161 He therefore voted for the admission of the national association as legitimate petitioners, opinion which was followed by all the other Justices.

4.3.7 Other Cases After 2012, references to the principles-theory account on constitutional principles appeared in five cases. In two of them, the Justices who quoted Alexy only followed the majority, which gave the references only secondary impact. The Political Donors Case (2015) was about a new statute on election law that allowed political parties to withhold the name of donors and contributors when they shared the donations among their candidates.162 Quoting Alexy’s law of balance, Justice Fux balanced the donors’ alleged right to privacy against the principles that govern the election process. He then concluded that the latter principles should prevail in the case, as in his words, “the individualization of the donors will impose a minimum cost to the contributors (that will be identified) if compared with the bonus to be gained in terms in terms of publicity, transparency and morality in the election process.” The Dantas Case (2016) was about whether the presumption of innocence prohibits the imprisonment of a person before the issuing of a final and unappealable penal sentence—or as long as a special appeal to a superior court or an extraordinary appeal to the STF are pending.163 Justice Barroso struck a balance between two constitutional principles that, in his view, collided in the case. On the one hand, Article 5, LVII, of the Federal Constitution commands that “no one shall be considered guilty 159 Häberle (1997), cited in STF, Chico Mendes Institute Case, ADI 4029/AM, Judgment of 8 March 2012, Relator: Min. Luiz Fux, D.J.e. 125, 27 Jun. 2012. 160 Alexy (2008), cited in STF, Chico Mendes Institute Case, ADI 4029/AM, Judgment of 8 March 2012, Relator: Min. Luiz Fux, D.J.e. 125, 27 Jun. 2012 (my translation). 161 STF, Chico Mendes Institute Case, ADI 4029/AM, Judgment of 8 March 2012, Relator: Min. Luiz Fux, D.J.e. 125, 27 Jun. 2012 (my translation). 162 STF, Political Donors Case, ADI 5394 MC/DF, Judgment of 12 November 2015, STF, Relator: Min. Teori Zavascki, D.J.e. 239, 11 Oct. 2016. 163 STF, Dantas Case, HC 126292/SP, Judgment of 17 February 2016, STF, Relator: Min. Teori Zavascki, D.J.e. 100, 17 May 2016.

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before the issuing of a final and unappealable penal sentence.” This constitutional clause turns the presumption of innocence into a principle that grants to those convicted by an ordinary court or judge the right to begin to serve sentence only when appealing is no more possible. On the other hand, however, the Federal Constitution also grants protection to fundamental rights such as life, physical integrity and public morality, the enforcement of which depends on that criminal laws be effective. The effectiveness of criminal justice as a whole would be hindered if a conviction issued or upheld by an appellate court were considered insufficient as a declaration of guilty, Justice Barroso believed. According to him, this principle, which required that the STF maximized the effectiveness of criminal laws, should prevail in balancing. In his view, the “sacrifice imposed to the presumption of innocence by imprisoning the defendant convicted by a court of appeal, before her sentence was declared res judicata, is surpassed by gains in the effectiveness and credibility of criminal justice, especially due to the minimum chances of overruling a conviction, as statistics show. This conclusion is reinforced by applying the principle of proportionality as a prohibition of insufficient protection.”164 By contrast, in the three following cases, the Justices who quoted to the principlestheory conception of principles delivered the court’s opinion, which gave the references primary impact. The Unauthorized Biographies Case (2015) dealt with the Civil Code provisions that allegedly granted notorious people the right to impede the publication of biographies without previous consent or authorization.165 The rapporteur, Justice Cármen Lúcia, referred to Alexy as she affirmed that the case brought before the STF a collision between constitutional principles that the court ought to solve by resort to balancing. On the one hand, the person whose life was portrayed had rights to privacy, intimacy, and image that should be respected. On the other, however, the biographers held the right to freely express their thoughts and artistic ideas, and in what refers to a famous person, the public held a right to information. In Justice Cármen Lúcia’s view, the latter set of rights prevailed in the case, particularly considering the cultural, historical, and sometimes scientific importance of registering the life and experiences of notorious figures. Following her vote, the STF declared that the Civil Code provisions should be read in accordance with the Federal Constitution, so as to say that biographers had the right to publish or release their works without the consent of the biographed person or the authorization of other people mentioned in the biography. The Bull-Toppling Competition Case (2016) was about a rodeo-style sport called “vaquejada”, which became popular in Brazilian Northeast region to the point of being considered a cultural tradition.166 The event consisted in forcing a small bull or cow to run between two horsemen, who competed against each other to knock it 164 STF,

Dantas Case, HC 126292/SP, Judgment of 17 February 2016, STF, Relator: Min. Teori Zavascki, D.J.e. 100, 17 May 2016 (my translation). 165 STF, Unauthorized Biographies Case, ADI 4815/DF, Judgment of 10 June 2015, STF, Relatora: Min. Cármen Lúcia, D.J.e. 18, 1 Feb. 2016. 166 STF, Bull-Toppling Competition Case, ADI 4983/CE, Judgment of 6 October 2016, STF, Relator: Min. Marco Aurélio, D.J.e. 87, Apr. 27, 2017.

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over by pulling on its tail. The General-Attorney of the Republic filed with the STF a petition against a statute passed by the State of Ceará, which gave to the “vaquejada” the legal status of a cultural activity. To the rapporteur, Justice Marco Aurélio, the case presented a conflict between two constitutional principles. On the one side, Article 225, § 1, VII, of the Federal Constitution made it incumbent upon public authorities to protect fauna, banning practices that “subject animals to cruelty,” the Justice said. On the other, pursuant to Article 215, § 1, of the Federal Constitution, public authorities have to “ensure to all the full exercise of cultural rights.” Quoting Alexy’s law of collision, Justice Marco Aurélio gave precedence in the case to the former principles and formulated a rule according to which, “cultural events that aim at entertaining and subject animals to cruelty are incompatible with Article 225, § 1, VII, of the Federal Constitution, when it is impossible to avoid the cruel practices without de-characterizing the event itself.”167 A majority of STF’s Justices agreed on the application of this rule to the judgement. As a result, the court declared the state statute null and void. Finally, the Criminal Forfeiture Case (2017) was about the limits of law enforcement agencies’ permission to seize and held property used or obtained by offenders while committing the crime of drug trafficking.168 In his vote, the rapporteur, Justice Fux, quoted Alexy’s conception of principles as optimization requirements that can only find their legal limits in other norms of equal status, i.e., other constitutional principles. In view of this, Justice Fux continued, there are exceptions to principles that are not written in the constitutional text, but can be implicitly derived from other colliding principles. This understanding was important to solve the case at hand, as the individual right to property was prima facie infringed by the statutory provisions that permitted law enforcement agents to forfeit goods that had been used in the commitment of crimes. Following Justice Fux’s vote, the STF rendered a decision declaring that “the forfeiture of economically valuable property that has been seized due to drug trafficking is lawful, regardless of whether the goods were habitually and repeatedly used to criminal purposes, modified to make it difficult to reach the place where the drug was stocked, or any other requirements besides those expressly stated in Article 243 of the Federal Constitution.”169

4.4 A Case Law on Principles as Optimization Requirements The selected set of cases demonstrates that the STF expressly conceives of the Federal Constitution as a system of rules and principles in which written rules should normally take precedence over principles, although principles may have primacy 167 Ibid.

(my translation). Criminal Forfeiture Case, RE 638491/PR, Judgment of 17 May 2017, STF, Relator: Min. Luiz Fux, D.J.e. 186, Aug. 23, 2017. 169 Ibid. (my translation). 168 STF,

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over rules when justification is given for this. This was clearly affirmed in the Judges Recruitment Case I (2011), for example. Furthermore, according to the court, constitutional principles are not necessarily stated in any clause of the written document and often collide between each other. This way of considering the Federal Constitution is indicative of Alexy’s influence on the court’s case law. Although the insufficiency of external justification remains as the greatest weakness in the STF’s decision-making, the analysis reveals that the references’ accuracy is not a cause for concern. Actually, the problems in the decisions can be said to reflect difficulties in the theory itself, that is, the existence of some apparently contradictory parts that remain untied. For instance, in the Additional Pay Case (2006), Justice Lewandowski opposed a substantive principle to a formal principle. Alexy recognizes the existence of formal principles, which differ from substantive ones mainly for neither having content nor being able to determine the content of any legal decision. Formal principles determine instead who ought to decide or which conditions ought to be met so that the decision is authoritative, Alexy says.170 Despite all the effort to explain how formal principles can cohere with his theses on principles in general, the relationship between formal and substantial principles, and particularly the role formal principles play in balancing, are still a difficult and problematic part of his theory. Apart from being frequently objected and targeted with criticism,171 the principles-theory approach on formal principles has been reviewed by scholars of the principles theory172 and modified more than once by Alexy.173 An important question is whether the proportionality test is to be performed differently once formal principles are at stake due to any structural particularity of theirs. Three models tried to offer an account on that: the combination model, the pure model, and the epistemic model. According to the combination model, formal principles are second-order principles, whose role in balancing is only “adding weight to one of the two substantive principles” in dispute.174 That was the first model to appear in A Theory of Constitutional Rights.175 However, in another extract of the work, Alexy affirmed that a substantive principle can be directly balanced against

170 Alexy

(2010a), pp. 82, 416. e.g., Jestaedt (1999), p. 246; Allan (2012), pp. 135–136. 172 See e.g., Borowski (2010), pp. 31–35; (2013); Sieckmann (1990), pp. 147–148, 152. Other authors suggested that the weight formula should be reviewed as to accommodate a correct account of formal principles. See Klatt and Schmidt (2012), pp. 94–105; Klatt and Meister (2012a), pp. 135–148; Badenhop (2010), pp. 366–367. 173 Compare, for instance, what Alexy (2010b) says at p. 423, with what he says at page 417. Alexy (2012), p. 331, attempted to revise his first ideas about formal principles, but only later, in Alexy (2014a), pp. 19–35, could he succeed in accommodating the two apparently inconsistent models within the principles theory. 174 Borowski (2010), p. 34. 175 Alexy (2010b), p. 82. The combination model is endorsed still nowadays by authors like Borowski (2010), pp. 34–35, notwithstanding a word of warning: “there are instance of formal principles that are not dependent on the balancing of other principles, and to these cases the ‘Law of Combination’ has no application.” 171 See

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a formal principle.176 This is in essence what the pure model postulates: that formal principles compete directly with substantive principles in balancing.177 Finally, Alexy has more recently envisaged the possibility of combining both models in cases of empirical uncertainty. This gave rise for the epistemic model, which was framed to rule cases of epistemic uncertainty, that is, lack of certainty about the premises that should support the legal decision.178 Questions that remain unsolved concern the coexistence of the three models, and particularly the coexistence of the pure and the combination models within the principles theory. It is not clear whether or not one scheme should exclude the others. In the case they were supposed to cohere, further justification is needed especially with regard to the circumstances under which each model applies. In either event, in the Additional Pay Case, Justice Lewandowski showed acceptance for the pure model, which as exposed above insists in balancing formal and substantive principles directly against each other, instead of combining them as the law of combination suggests. However, considering A Theory of Constitutional Rights only, which the Justice used as a reference, and ignoring later publications, one could still ask whether that was the correct way to manage principles. In its turn, the New-Municipalities Case I (2007) allows one to doubt whether the STF has put a genuine deal of effort in the identification of the principles actually at stake and their precise content. Justice Mendes allegedly balanced two formal principles against each other, namely legal certainty and the supremacy of the constitution. Again, one may question whether it is conform to the principles theory to collide two formal principles against each other. Without going into any more detail than that exposed above, Alexy has recently denied the possibility,179 which nevertheless has found support in works of principles-theory scholars such as Klatt.180 Furthermore, Justice Mendes arguably extracted from that collision a solution for the case—i.e., that municipalities created in breach of the formal procedure required in the Federal Constitution should remain in existence until the Congress passed a federal law on the matter. Nevertheless, he failed in putting forward sound arguments for the suitability of the outcome he came up with under any of the colliding principles. As the court’s ruling did not automatically follow from any provision in the Federal Constitution or in statutory law, one could reasonably doubt whether it really served to promote either legal certainty or the constitutional supremacy. Moreover, the case Justice Mendes had before him involved the executive duty of compliance with statutory limits and regulations, which poses an additional problem. 176 Alexy

(2010a), p. 417. (2014b), p. 518, actually speaks of a ‘pure substantive-formal model,’ but I use ‘pure model’ instead for the sake of simplicity. See, e.g., Alexy (2010d) , pp. 175–177, saying that Gustav Radbruch’s formula, which reads, “extreme injustice is not law,” is the outcome of balancing a formal principle (legal certainty) against a substantive one (justice). See also Alexy (2001), p. 428; and Radbruch (2006), p. 7. Borowski (2010), pp. 31–33, accepts the model as well, but only with regard to what he calls independent or first-order formal principles. 178 Alexy (2014a), p. 25; (2014b), p. 520. 179 Alexy (2014a), pp. 33–35. 180 Klatt (2015), p. 17. 177 Alexy

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The principles theory has not yet satisfactorily answered the question whether the formal principle that commands, “the executive [should] base its action on a constitutionally mediate limit such as a statute,”181 should prevail against a substantive principle commanding exactly the opposite in a given case. Alexy has affirmed it, but one could easily object, as his understanding necessarily leads to the conclusion that executive authorities are released from the duty of compliance with the constitution. Equally important, it is not clear whether Alexy still maintains his opinion, for he argued in a later work that administrative acts were defective if contrary to the proportionality test,182 consonant to the BVerfG’s case law.183 At any rate, by indistinctly applying Alexy’s theses on principles in general the STF threw light on an inconsistent part of his theory.

4.4.1 Judging Under the Optimization Thesis Aside problems concerning formal principles, one can draw some conclusions from the set of decisions with both secondary and primary impact. Firstly, the STF has shown explicit adherence to the optimization thesis in more than one decision. References to the principles in the Federal Constitution as optimization requirements were voiced in the Additional Pay Case (2006), as well as in the Judicature Act Case (2007). It is also possible to infer an implicit reference to the optimization nature of principles in cases where balancing was considered, such as the New Municipalities Cases I, II, III, and IV (2007), the Dantas Case (2016), the Unauthorized Biographies Case (2015), and the Bull-Toppling Competition Case (2016). Nevertheless, the unambiguous reference made to optimization in the two former cases is highly significant. Differently from the STF, the BVerfG has never made express reference to the optimization thesis in its decisions; it holds instead that principles have a “radiating effect.”184 It is possible to acknowledge this without rejecting the claim that the optimization thesis gives coherence to the BVerfG’s decision-making under the Basic Law.185 Be that as it may, the absence of references to the optimization thesis in German court decisions casts doubts on the idea that the principles theory does nothing more than mediate the influence of the BVerfG and will thus vanish from the STF’s case law once the migration of proportionality is complete.186 Secondly, the STF’s reading on the Federal Constitution reflected in the judgments diverges from the alternative approach on constitutional principles provided by Dworkin. As explained above, Dworkin does not subscribe to the optimization thesis, nor does he support the law of balancing. Instead of the proportionality test, 181 Alexy

(2010a), p. 189. (2000b), p. 33. 183 BVerfG, 49 BVerfGE 168, Judgment of 26 September 1978, at p. 184. 184 BVerfG (First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958. 185 Schlink (1992), p. 718. 186 Reference is made here to the idea of a vanishing mediator, in Jameson (1988). 182 Alexy

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he proposes his own method for constitutional adjudication: the moral reading,187 which is based on integrity.188 By contrast, the STF upheld both the collision law and the law of balancing in the Additional Pay Case, Judicature Act Case, New Municipalities Cases I, II, III, and IV , Dantas Case, Unauthorized Biographies Case, and Bull-Toppling Competition Case. Moreover, in the set of judgements, the STF did not differentiate between policies and principles, as Dworkin does. For instance, in the São Francisco River Case (2007), Justice Mendes argued that the court was before a collision between environmental and economic principles, among others. Dworkin would most likely deem such norms providing for environmental and economic goals as policies, rather than principles. Given these points, the set of cases strongly indicates that, apart from the obvious and explicit references to Alexy, the principles theory has exerted an actual, deep influence on the STF’s decision-making, rather than alternative approaches. Admittedly, the STF has also mentioned Dworkin, and his name is quoted in 25 collegiate decisions, delivered between 2004 and 2017. In at least twelve of these, both Dworkin and Alexy were quoted.189 However, references to Dworkin are mainly concerned with his thoughts on justice and political morality, such as the state duty to respect citizens under its govern190 and treat them with equal consideration,191 or his opinion about substantive but specific controversial matters, such as abortion,192 political donations,193 or freedom of expression.194 Regarding the two distinctive features of his approach—the moral reading and the differentiation between principles and policies—, two Justices have mentioned the moral reading with appraisal in five cases,195 but the STF has never attempted to employ it as an adjudicative method; similarly, the court has never subscribed to differentiating between principles and 187 Dworkin

(1999), p. 2 ff. (1986), pp. 95–96. 189 Stem-Cells Case (2008); Pretrial-Detention Case I (2009); Press-Law Case (2009); Same-SexUnion Case I (2011); Same-Sex-Union Case II (2011); Anencephaly Case (2012); Unauthorized Biographies Case (2015); Dantas Case (2016); Criminal Forfeiture Case (2017); Racial Quotas Case (2012); Legal Entity’s Political Donation Case (2015). 190 STF, Same-Sex-Union Case I, ADI 4277/DF, Same-Sex-Union Case II, ADPF 132/DF, Judgment of 5 May 2011, Relator: Min. Ayres Britto, D.J.e. 198, 14 Oct. 2011. 191 STF, Racial Quotas Case, ADPF 186/DF, Judgment of 26 April 2012, Relator: Min. Ricardo Lewandowski, D.J.e. 205, 20 Oct. 2014. 192 STF, HC 84025/RJ, Judgment of 4 March 2004, Relator: Min. Joaquim Barbosa, D.J. 25 Jun. 2004; Stem-Cells Case, ADI 3510/DF, Judgment of 29 May 2008, Relator: Min. Ayres Britto, D.J.e. 28 May 2010; Anencephaly Case, ADPF 54/DF, Judgment of 12 April 2012, Relator: Min. Marco Aurélio, D.J.e. 80, 30 Apr. 2013. 193 STF, Legal Entity’s Political Donation Case, ADI 4650/DF, Judgment of 17 September 2015, Relator: Min. Luiz Fux, D.J.e. 34, 24 Feb. 2016. 194 STF, Press-Law Case, ADPF 130/DF, Judgment of 30 April 2009, Relator: Min. Carlos Britto, D.J.e. 208, 6 Nov. 2009. 195 STF, Same-Sex-Union Case I, ADI 4277/DF; Same-Sex-Union Case II, ADPF 132/DF, Judgment of 5 May 2011, Relator: Min. Ayres Britto, D.J.e. 198, 14 Oct. 2011; Party-Switching Case I, MS 26602/DF, Judgment of 4 October 2007, Relator: Min. Eros Grau, D.J.e. 197, 17 Oct. 2008; PartySwitching Case II, MS 26603/DF, Judgment of 4 October 2007, Relator: Min. Celso de Mello, 188 Dworkin

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policies, as Dworkin proposed. As a result, it is the principles theory that provides the most comprehensive understanding of the STF case law on the nature of principles.

4.4.2 Principles as Optimization Requirements in the Federal Constitution? To be clear, I do not suggest that the STF introduced the concept of legal principles to Brazilian constitutional system nor that the court did so by borrowing from Alexy. Rather, the principles-theory borrowings are ultimately justified by the prior diffusion of the concept of principles in Brazilian legal practice and their presence in the text of the Federal Constitution. For instance, under the title “Fundamental Principles,” which encompasses Articles 1 through 4, the Federal Constitution declares that the Federative Republic of Brazil is a democratic state founded on the “dignity of the human person,” the “social values of labour and free enterprise,” and “political pluralism.” Furthermore, in Article 5, which constitutes the core of the Brazilian chart of fundamental rights, the Federal Constitution provides several clauses that contain contested concepts, such as “inviolability of the right to life, liberty, and equality” (Article 5, Main Body), “freedom of conscience and belief” (Article 5, VI), and “inhuman or degrading treatment” (Article 5, III). These concepts are often the subject-matter of disputes whose resolution demands more than linguistic rules of definition or traditional methods on the interpretation of legal rules’ wording. As they are morally and politically-grounded, they make the constitutional provisions in which they appear open to principled-based assessment, as Justice Fux affirmed in the Chico Mendes Institute Case (2012). There is a connection between the openness of constitutional clauses and their value-based (or, preferably, principle-based) interpretation. Alexy points out that phrases such as “good,” “fair,” and “against the morals,” are intrinsically “open to values.”196 Because their meaning is little descriptive but highly evaluative, they invite legal interpreters to engage in arguments for rightness and justice.197 Dworkin upholds similar opinion regarding the prohibition of inflicting cruel and unusual punishments pursuant to the 8th Amendment to the U.S. Constitution.198 According to him, the adjective “cruel” illustrates an interpretive concept and asks for a moral reading, rather than grammatical interpretation.199 Likewise, a relatively strong D.J.e. 241, 19 Oct. 2008; Party-Switching Case III, MS 26604/DF, Judgment of 4 October 2007, Relatora: Min. Cármen Lúcia, D.J.e. 187, 3 Oct. 2008. 196 Alexy (1995), p. 183. 197 Alexy (1991), pp. 75–78. 198 Dworkin (1986), pp. 355–357. 199 Dworkin (1999), pp. 291–305. C.f. Beatty (2004), p. 4, affirming: “constitutional exhortations proclaiming the inviolability of life, liberty, and equality … tell judges very little about how to solve the hard, real-life disputes they are called upon to decide;” and Schlink (1991), p. 1715: “what were once problems of justice, as opposed to problems of legality, have penetrated the legal system.”

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consensus exists in Brazilian scholarship on that the constitutional wording shows an openness that encourages principled assessment. Very influential scholars, such as Bonavides,200 Cittadino,201 Sarlet,202 and many others203 have argued for the openness of the Federal Constitution to theories of values and particularly for a normative system encompassing legal principles and rules. In either event, constitutional provisions such as those aforementioned do put arguments forward for employing a principled-based theory, but they do not say by themselves which of the two available conceptions would be preferable. Nevertheless, other provisions for principles are in the Federal Constitution, which make a strong case for adopting the principles theory, instead of Dworkin’s alternative approach. For instance, the Federal Constitution establishes the “Principles of the Economic Activity” in Articles 170 through 181 and commands that the economic order should “ensure everyone a life with dignity, in accordance with the dictates of social justice, with due regard for the following principles: … the social function of property; … [and] consumer protection” (Article 170, Main Body, III, and V). Social function of property and consumer protection are also significant because the Federal Constitution not only states they are economic principles, as they also appear among individual and collective rights in Article 5, XXIII204 and XXXII,205 respectively. Not to mention that Articles 3 and 4 of the Federal Constitution establish some collective goals to state and society under the title “Fundamental Rights”: to build a free, just and solidary society; to guarantee national development; to eradicate poverty (Article 3, I, II, and III) and to “seek the economic, political, social and cultural integration of the peoples of Latin America” (Article 4, Sole Paragraph). None of these provisions would coherently fall under Dworkin’s definition of principles and would be rather classified as policies according to his premises. In sum, although the constitutional wording solely considered cannot explain the STF’s recourse to the principles theory, it plays a significant role in justifying the court’s borrowings. Constitutional framers’ word choices made it possible, but not necessary, to accommodate the optimization thesis within Brazilian law. At any rate, the STF had considerable discretion as to how interpret the constitutional clauses that provided for principles and deliberately opted to resort to Alexy’s theory in doing so.

200 Bonavides

(2008). (2009), p. 46. 202 Sarlet (2009). 203 See, e.g., Barros (1996); (2006); Castro (2003); Grau (1990); da Silva (2010). 204 Constituição da República Federativa do Brasil de 1988, Article 5, XXIII: “Property shall observe its social function.” 205 Constituição (1988), Article 5, XXXII: “The state shall provide, as set forth by law, for the defense of consumers.” 201 Cittadino

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4.5 Results In this chapter, I have demonstrated that judicial-making in Brazil is better understood if one considers the influence the principles theory, rather than another competitive approach, has exerted over the STF’s understanding on constitutional principles and rules. As exposed above, Alexy’s assertions on principles fall under four theses. Firstly, the thesis of the dual nature of ought claims that principles and rules differ in the way they convey their prescriptions: principles say what one ought to do prima facie, rules what one ought to do after everything being considered. From this difference arises the distinct ways in which a conflicting situation affects them: the conflict may be fatal for the validity of rules, but not for principles. Accordingly, the second thesis, also known as the collision law, says that under the circumstances a principle supersedes another, the legal conditions of the superseding principle should follow. Thirdly, the optimization thesis reads that principles are optimization requirements. Finally, the law of balancing claims that the degree of non-satisfaction of a principle should be proportional to the importance of satisfying another. The set of decisions exposed above showed that the STF upholds a view of the Federal Constitution that it is altogether conform to the principles theory. In this view, the difference between the principles and rules in the constitution pertains to the very nature of these two types of norms. In what differentiates the principles theory from alternative approaches such as Dworkin’s, Alexy claims, and so do STF’s Justices, that principles are optimization requirements that have to be balanced against each other in cases of collision. Once the optimization thesis and the law of balancing have been incorporated to STF’s conception of principles and thus offered guidance to decisions of the court, the proportionality test becomes a necessary tool for solving the collisions and consequently applying principles. In next chapter, I shall reinforce this conclusion, by showing that during the last decades, the STF has modelled the very concept of fundamental rights in the Brazilian constitutional system, so as to accommodate a conception of rights with wide scope that is altogether coherent with the optimization thesis and the proportionality test.

References Alexander L (2012) Legal objectivity and the illusion of legal principles. In: Klatt M (ed) Institutionalized reason: the jurisprudence of Robert Alexy. Oxford University Press, Rochester, NY. Accessed from http://papers.ssrn.com/abstract=1236222 Alexander L, Kress K (1996) Against legal principles. Iowa Law Rev 82:739 Alexy R (1979) Zum Begriff des Rechtsprinzips. In: Krawietz W, Opalek K, Peczenik A, Schramm A (eds) Argumentation und Hermeneutik in der Jurisprudenz. Duncker und Humblot, Berlin, pp 59–87 Alexy R (1991) Statutory interpretation in the Federal Republic of Germany. In: MacCormick N, Summers RS (eds) Interpreting statutes: a comparative study. Aldershot, Hants, England; Dartmouth, Brookfield, Vt., USA, pp 73–121

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constitucional: ponderação, direitos fundamentais e relações privadas. Renovar, Rio de Janeiro, pp 1–48 Beatty DM (2004) The ultimate rule of law. Oxford University Press, Oxford, New York Bobbio N (1957) Principi generali di diritto. In Novissio digesto italiano, vol 13. Turim Bobbio N (1960) Teoria dell’ordinamento giuridico. G. Giappichelli, Torino Bobbio N (2011) Giusnaturalismo e positivismo giuridico. Laterza, Roma, Bari Bonavides P (2008) Curso de direito constitucional: (em apêndice texto da constituição federal de 1988, com as emendas constitucionais até a de n. 56, de 20.12.2007), 23rd edn. Malheiros, São Paulo, SP Borowski M (1998) Grundrechte als Prinzipien: die Unterscheidung von Prima-facie-Position und definitiver Position als fundamentaler Konstruktionsgrundsatz der Grundrechte, 1st edn. Nomos Verl.-Ges, Baden-Baden Borowski M (2010) The Structure of Formal Principles-Robert Alexy’s ‘Law of Combination’. In: Borowski M (ed) On the nature of legal principles: proceedings of the special workshop ‘The Principles Theory’ held at the 23rd world congress of the international association for philosophy of law and social philosophy (IVR), Kraków, 2007. Franz Steiner Verlag, Stuttgart, pp 19–35 Borowski M (2013) Formelle Prinzipien und Gewichtsformel. In: Klatt M (ed) Prinzipientheorie und Theorie der Abwägung. Tübingen, Mohr Siebeck Canaris C-W (1969) Systemdenken und Systembegriff in der Jurisprudenz: entwickelt am Beispiel des deutschen Privatrechts. Duncker & Humblot, Berlin. Accessed from https://kataloge.unihamburg.de/DB=1/SET=6/TTL=71/SHW?FRST=77 Castañeda CE, Webb KE (2018, January 17) Sao Francisco River (river, Brazil). In: Encyclopædia Britannica. Encyclopædia Britannica, inc. Accessed from https://www.britannica.com/place/SaoFrancisco-River Castro CRS (2003) A constituição aberta e os direitos fundamentais: ensaios sobre o constitucionalismo pós-moderno e comunitário. Editora Forense Cittadino GG (2009) Pluralismo, direito e justiça distributiva: elementos da filosofia constitucional contemporânea. Editora Lumen Juris, Rio de Janeiro Cornell D, Friedman N (2010) The significance on Dworkin’s non-positivist jurisprudence for law in the post-colony. Malawi LJ 4:1 Del Vècchio G (1958) Sui principi generali del diritto. In: Studi sul diritto, vol I. Milano Dworkin R (1967) The model of rules. Faculty scholarship series. Accessed from http:// digitalcommons.law.yale.edu/fss_papers/3609 Dworkin R (1978) Taking rights seriously. Harvard University Press, Cambridge, Mass Dworkin R (1985) A matter of principle. Harvard University Press, Cambridge, Mass Dworkin R (1986) Law’s empire. Belknap Press, Cambridge, Mass Dworkin R (1999) Freedom’s law: the moral reading of the American constitution. Oxford University Press, Oxford Dworkin R (2006, May 24) It is absurd to calculate human rights according to a cost-benefit analysis. In: The Guardian. Accessed from http://www.theguardian.com/commentisfree/2006/ may/24/comment.politics Dworkin R (2008) Is democracy possible here? Principles for a new political debate. Woodstock: Princeton University Press, Princeton, N.J. Accessed from http://search.ebscohost.com/login. aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=273131 Dworkin R (2011) Justice for hedgehogs. Belknap Press of Harvard University Press, Cambridge, Mass Esser J (1964) Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts: rechtsvergleichende Beiträge zur Rechtsquellen- und Interpretationslehre, 2nd edn. Mohr, Tübingen Fassò G (2000) Jusnaturalismo. In: Bobbio N, Matteucci N, Pasquino G (eds) Dicionário de política, vol I. Editora Universidade de Brasília, Brasilia Gardbaum S (2010) A democratic defense of constitutional balancing. Law Ethics Hum Rights 4(1):79–106

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Manero JR (n.d.) Rules and principles. In: IVR encyclopaedia of jurisprudence, legal theory and philosophy of law. Accessed from http://ivr-enc.info/index.php?title=Rules_and_Principles&oldid= 1340 McHarg A (1999) Reconciling human rights and the public interest: conceptual problems and doctrinal uncertainty in the jurisprudence of the European court of human rights. Modern Law Rev 62(5):671–696. https://doi.org/10.2307/1097381 Meirelles HL (2010) Direito Administrativo Brasileiro, 36 ed, atual. até a EC 64/2010. Malheiros, São Paulo Miller BW (2008) Justification and rights limitations. In: Expounding the constitution. Cambridge University Press, pp 93–115. Accessed from http://dx.doi.org/10.1017/CBO9780511511042.006 Möller K (2007) Balancing and the structure of constitutional rights. Int J Const Law 5(3):453–468. https://doi.org/10.1093/icon/mom023 Möller K (2012) Proportionality: challenging the critics. Int J Const Law 10(3):709–731. https:// doi.org/10.1093/icon/mos024 Ponce VM (1995) Management of droughts and floods in the semiarid Brazilian Northeast—The case for conservation. J Soil Water Conserv 50(5):422–431 Poscher R (2009a) Insights, errors and self-misconceptions of the theory of principles. Ratio Juris, 22(4):425–454. https://doi.org/10.1111/j.1467-9337.2009.00434.x Poscher R (2009b) The principle theory: how many theories and what is their merit? (SSRN Scholarly Paper No. ID 1411181). Social Science Research Network, Rochester, NY. Accessed from http://papers.ssrn.com/abstract=1411181 Pulido CB (2007a) El principio de proporcionalidad y los derechos fundamentales: el principio de proporcionalidad como criterio para determinar el contenido de los derechos fundamentales vinculante para el legislador. Centro de Estudios Políticos y Constitucionales, Madrid Pulido CB (2007b) Grundrechtsprinzipien in Spanien: Rationalität und Grenzen der Abwägung. In: Sieckmann J-R (ed) Die Prinzipientheorie der Grundrechte: Studien zur Grundrechtstheorie Robert Alexys, 1st edn. Nomos Verl.-Ges, Baden-Baden, pp 197–214 Raabe M (1998) Grundrechte und Erkenntnis: der Einschätzungsspielraum des Gesetzgebers, 1st edn. Nomos-Verl.-Ges, Baden-Baden Radbruch G (2006) Statutory lawlessness and supra-statutory law. Oxford J Leg Stud 26(1):1–11. https://doi.org/10.1093/ojls/gqi041 Rawls J (1999) A theory of justice. Belknap Press of Harvard University Press, Cambridge, Mass Rivers J (2010) A theory of constitutional rights and the British constitution. In: A theory of constitutional rights. Oxford University Press, Oxford Romano PA, Garcia EAC (1999) Policies for water-resources planning and management of the São Francisco river basin. In: Biswas AK, Cordeiro NV, Braga BPS, Tortajada C (eds) Management of Latin American River Basins: Amazon, Plata, and São Francisco. United Nations University Press, New York, pp 245–271 Ross WD (2002) The right and the good, New edn. Clarendon Press, Oxford Sarlet IW (2009) A eficácia dos direitos fundamentais: uma teoria deral dos direitos fundamentais na perspectiva constitucional. Livraria do Advogado, Porto Alegre Schlink B (1976) Abwägung im Verfassungsrecht (1. Aufl). Duncker und Humblot, Berlin Schlink B (1991) Open justice in a closed legal system. Cardozo Law Rev 13:1713 Schlink B (1992) German constitutional culture in transition. Cardozo Law Rev 14:711 Schlink B (2003) Hercules in Germany. Int J Const Law 1:610 Schlink B (2011) Proportionality in constitutional law: why everywhere but here. Duke J Comp Int Law 22:291–302 Schwabe J (2005) Cinqüenta anos de jurisprudência do Tribunal Constitucional Federal Alemão (Martins L, de Carvalho MB, de Castro TM, Trans.). Fundación Konrad-Adenauer-Stiftung, Montevideo Searle J (1978) Prima facie obligations. In: Raz J (ed) Practical reasoning. Oxford University Press, Oxford, pp 81–90

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Sieckmann J-R (1990) Regelmodelle und Prinzipienmodelle des Rechtssystems, 1st edn. NomosVerl.-Ges, Baden-Baden Sieckmann J-R (1994) Zur Abwägungsfähigkeit von Prinzipien. Archiv Für Rechts- Und Sozialphiloso-phie Beiheft 53:205–213 da Silva VA (2010) Direitos Fundamentais: Conteúdo essencial, restrições e eficácia, 2nd edn. Malheiros Editores, São Paulo da Silva VA (2011) Comparing the incommensurable: constitutional principles, balancing and rational decision. Oxford J Leg Stud 31(2):273–301. https://doi.org/10.1093/ojls/gqr004 Sweet AS, Mathews J (2010) All things in proportion-American rights review and the problem of balancing. Emory LJ 60:797 Tremblay LB (2014) An egalitarian defense of proportionality-based balancing. Int J Const Law 12(4):864–890. https://doi.org/10.1093/icon/mou060 Tsakyrakis S (2009) Proportionality: an assault on human rights? Int J Const Law 7(3):468–493. https://doi.org/10.1093/icon/mop011 Tsakyrakis S (2010) Proportionality: an assault on human rights?: a rejoinder to Madhav Khosla. Int J Const Law 8(2):307–310. https://doi.org/10.1093/icon/moq017 Tuori K (2004) Fundamental rights principles: disciplining the instrumentalism of policies. In: Menéndez AJ, Erik OE (eds) Constitutional rights through discourse: on Robert Alexy’s legal theory-European and theoretical perspectives. Arena, Oslo, pp 55–76 Waldron J (1993) A right-based critique of constitutional rights. Oxford J Leg Stud 13(1):18–51 Webber G (2009) The negotiable constitution: on the limitation of rights. Cambridge University Press, Cambridge, UK, New York Yowell P (2007) Critical examination of Dworkin’s theory of rights. Am J Jurisprud 52:93–137

Chapter 5

A Charter of Rights with Wide Scope

5.1 A Dispute About Fundamental Rights and Their Limits Last chapter addressed the relationship between rules and principles considered as constitutional norms. I have affirmed that the principles theory supports a conception of constitution as encompassing not only rules but also principles, which Alexy defines as optimization requirements. Furthermore, I have demonstrated that the STF has expressly endorsed such a conception in several judgements. In this chapter, I will discuss principles and rules as fundamental rights—whether prima facie or definitive. More specifically, the sections below will address an important question about the structure of fundamental rights. In contrast with their substance or content within certain legal system, the structure “is the underlying framework … that applies to, organizes, and characterizes constitutional rights analysis as a whole within that legal system.”1 In the field of comparative constitutional law, a growing literature is concerned with a salient problem posed by the architecture of most charters, the fact that they not only enumerate rights in very abstract provisions, but provide for more specific rights and limiting clauses as well.2 The principles theory attempts to reply the questions raised by the relation between rights clauses, whether general or specific, and their limiting clauses by formulating a thesis of wide-scope rights. Grounded in the Basic Law provisions on freedom and equality, Alexy observed that clauses like these grant individuals general rights, as well as subjective, specific rights—freedom of expression and a right against racial discrimination, for instance.3 Furthermore, the principles theory postulates that, between fundamental rights and principles, there is a relation of identity,4 which 1 Gardbaum

(2011), p. 387. for instance: Alexy (2010a), chap. 6; Miller (2008), pp. 93–115; der Schyff (2008), pp. 131–148; Butler (2002), pp. 537–577; Weinrib (2006), pp. 95 ff. 3 Alexy (2010a), p. 223. 4 Ibid., p. 388. See above “Strong thesis” in Chap. 2 and “Proportionality and limitations of rights” in Chap. 3. © Springer Nature Switzerland AG 2018 187 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_5 2 See,

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means that constitutional clauses provide for prima facie rights. One who conceives of principles as prima facie rights, as does Alexy, agrees that not all acts that, at first sight, would somehow interfere with abstract provisions for constitutional rights actually violate these rights. After everything was considered, one may realize that the supposed infringement targeted a penumbra instead of the definitive right.5 Hence, a distinction between a prima facie infringement and a definitive violation ought to be drawn, distinction which corresponds to the separation between the widely conceived scope and the core of that right. Despite the quasi-universal adherence of constitutional states to this model and the popularity of this arrangement among constitutional rights theorists of the post-war, not all legal systems and scholars endorse the principles-theory theses on the structure of rights.6 Rival approaches attempt to either reduce the scope of fundamental rights or deny constitutional provisions the character of subjective rights.7 The first choice is between theories of narrow or wide scope,8 the second between subjective or objective theories.9 In Brazil, a consensus has been recently reached on the fact that the Federal Constitution explicitly provides for the subjective character of the rights it lists, reason why strictly objective theories are not considered here.10 Only the alternatives that regard constitutional rights as proper rights—whether with narrow or wide scope—will be discussed below. Every legal community has to answer the central question of which of these two basic approaches to the structure of rights (and possibly which of their variant forms) provides for the best understanding of the constitution. Details aside, the two rival approaches can be reconstructed with regard to the dominant legal practice in either the U.S. or Germany. As Schlink points out, “the Bill of Rights of the U.S. Constitution protects fewer rights than other constitutions, but protects the most prominent among them categorically.”11 By contrast, other charters, often inspired by the Basic Law, “protect a plethora of rights and freedoms, with the effect that all 5 The

term ‘penumbra’ appears in Barak (2012a), pp. 50–51. of the wide-scope model are, for instance, Klatt and Meister (2012a), pp. 687–708; Gardbaum (2010), pp. 105–106; Kumm (2012), pp. 13–14; and Borowski (2007), pp. 197–240. C.f. Habermas (1996), pp. 258–259; Schauer (1992), pp. 429–431; Tsakyrakis (2009), pp. 487–493; and Webber (2009), p. 67, who are critics to the wide-scope conception of rights. 7 Alexy (2010a), pp. 223–224. 8 McHarg (1999), pp. 61–62. C.f. Gardbaum (2011), p. 389, affirming that these two approaches are mutually exclusive only in constitutional scholars’ view, for “the actual practice of constitutional courts jurisprudence tends not to treat them as alternatives by choosing one or the other but to employ both, to a greater or a lesser degree;” and Pildes (1993); (1998), claiming that neither balancing nor the model of rights as trumps correctly describes how judges actually conduce constitutional adjudication. 9 Hesse (1995), pp. 149–150; Borowski (1998), pp. 227–228. 10 See e.g., da Silva (2008), p. 66; Cittadino (2009), pp. 64–73; Sarmento (2006), pp. 177–179; Sarlet (2009), pp. 63–78. Admittedly, the consensus has always existed towards negative rights, but concerning social rights, the disputes lasted until very recently, and the principles theory played an important role in the STF’s decisions and in the consequent turn in the Brazilian case law. See more in this respect in Chap. 7 below. 11 Schlink (2012), p. 731. See also Schlink (2011), pp. 296–297. 6 Supporters

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189

behaviour, all action, all expression is protected, but the state can limit and intrude upon these protections, as long as it does so proportionally.”12 Thus, it was not a coincidence that Alexy conceived of prima facie, externally limited, and relative rights. After all, he proposed the principles theory as an attempt to grasp the main features of fundamental rights as they appeared in the case law of the BVerfG. And it was the BVerfG rather than German constitutional scholarship that first conceived of fundamental rights as exhibiting a principled face.13 In opposition, an author like Dworkin, who directed his analysis to the U.S. Constitution and the Supreme Court’s case law, asserted that constitutional rights were rather specific, unrestricted, and possibly absolute.14 These two approaches dispute about which best depicts the interpretative problems raised by the structure of fundamental rights and is able to reconcile the constitutional provisions for abstract rights with their limits. This dispute can be grasped in accordance with two points of view, at least. From the point of view of someone who upholds a formal conception of constitution, the fundamental rights within a legal system coincide with the catalogue of rights written in the document. What counts as a constitution is the constitutional text, not only the explicit wording of constitutional clauses, but also the text that is implicit in the constitutional architecture, or in the way the sections are organized.15 By contrast, someone who endorses a substantive view of constitution regards the fundamental rights as “attempts to transform human rights into positive law,” which, “as with attempts generally, … can be successful to a greater or lesser extent.”16 From this point of view, the interpretation and application of rights are of pivotal importance. The wording may be relativized in practice, whenever interpreters have reasons to question the correctness of the authoritative material. Next sub-sections detail both points of view and argue that the substantive approach is the most adequate for the inquiry conducted here because it allows one to answer from the perspective of a participant the questions posed by fundamental rights and their limits. This chapter shall demonstrate that the Supreme Federal Court of Brazil (STF) has interpreted the Federal Constitution as a charter of wide-scope rights, in accordance with Alexy’s principles theory. The court has done so despite the constitutional silence regarding the possibility of legislative limits to the fundamental rights. To demonstrate this, Sect. 5.1 begins by discussing the interpretative questions posed by fundamental rights and their limits, and how different scholars have approached the problem. Section 5.2 expounds the differences between Alexy’s principles theory and Dworkin’s trump model. Section 5.3 analyses fifteen decisions delivered by the STF on freedom and equality rights. Finally, Sect. 5.4 highlights the principles-theory influence on the STF’s case law, advancing justificatory reasons for the borrowings. 12 Schlink

(2012), p. 731. (1992), pp. 730–734. 14 Dworkin (1999). 15 On the distinction between explicit and implicit constitutional text, and between constitutional text (whether explicit or implicit) and its application, see Barak (2012a), pp. 50–51. 16 Alexy (2012), p. 290. 13 Schlink

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5.1.1 Formal Approaches One can find an example of the formal point of view in Webber’s work.17 Comparing the architecture of constitutional charters, he mentions the existence of three approaches to the limitation of rights. Firstly, as the U.S. Bill of Rights shows, a charter can be silent about the existence of limits to the rights it guarantees. Secondly, some charters provide for “a single, overarching limitation” to rights.18 Provisions such as Article 52 (1) of the Charter of Fundamental Rights of the European Union,19 Section One of the Canadian Chart of Rights and Freedoms,20 and Article 2 (1) of the Basic Law would be examples of overarching limits.21 Thirdly, charters can provide for “a series of right-specific limitation clauses,”22 which is the case of the Federal Constitution. At any rate, however useful this threefold scheme may be for comparative research on the architecture of constitutions, it is insufficient for the purposes of this inquiry. Firstly, a classification as such says nothing about the legal practice of the country each constitution governs, that is, about how courts, legislators, executive officers, and scholars interpret the constitutional text they have before them. Webber bases his analysis on a strictly formal criterion, the evident differences in wording and structure, and ignores that a constitution may encompass two classes of fundamental rights norms: those directly established by the constitutional wording and structure (authoritative rights) and those that interpreters derive from the text (derivative rights). If derivative rights exist, there must be unwritten limitations to authoritative rights as well,23 but Webber’s account leaves no room for these judge-made limits. Secondly, even if solely formal aspects are to be considered, one has to concede that a fourth and probably most common type of charter exists that combines elements of the other three. Let derivative norms aside, a constitution can (and normally does) encompass three kinds of normative statements providing for fundamental rights: clauses without reservation, clauses with simple reservation, and clauses with 17 Webber

(2009), pp. 60–61. Similarly, Gardbaum (2010), pp. 82–83. (2009), p. 60. 19 Charter of Fundamental Rights of the European Union, Article 52 (1): “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” See Borowski (2007), p. 197, for comments. 20 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.), Section 1 (Can.): “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. See Strayer (1989), p. 352, for comments. 21 Grundgesetz für die Bundesrepublik Deutschland, Article 2 (1): “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” 22 Webber (2009), p. 60. 23 Alexy (2010a), p. 35. 18 Webber

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qualified reservation. Clauses without reservation are silent about their limitation; clauses with simple reservation expressly admit that the legislature enacts laws that limit the rights they provide for; and clauses with qualified reservation stipulate their own limits.24 Authors label such a constitutional arrangement as “hybrid” because it accommodates the three types of limitation clauses without clearly opting for any model.25 The Federal Constitution is a notable example of charter with such a hybrid composition. Especially clauses with simple reservation raise important questions that challenge any strictly formal classification of constitutions. As Alexy explains, these provisions “first grant a fundamental right and then add a clause which allows the parliament or the administration to delimitate or restrict the right.”26 In other words, before commanding certain authorities to frame the provision, the constitution declares that a fundamental right is at stake. As by definition fundamental rights are binding on the same officers that are responsible for framing them, it is not coherent to conceive of clauses with simple reservation as strictly formal, materially empty constitutional provisions. (That would be a constitutional provision that empowered the legislature to legislate on a matter, but gave congressmen unfettered, or “substantively unlimited” discretion as how to do it.)27 As clauses on fundamental rights are paramount, both lawmakers and courts in charge of judicial review are confronted with the problem of determining whether the statute enacted under the right regulates or violates it.28 That is a problem which substantive conceptions of constitutional rights and their limits look at, and which shall be discussed below.

5.1.2 Substantive Approaches One can identify two substantive approaches on constitutional rights and their limits.29 Both are substantive because they take not only the constitutional wording and architecture into consideration, but also the constitutional practice, and combine derivative and authoritative rights from the three types indicated above. The first substantive approach conceives of fundamental rights as rights with wide scope, which do not provide by themselves for all their limits and, hence, admit external restriction. Depending on the aspect one intends to emphasize, this approach is sometimes

24 Ibid.,

pp. 71–80; Alexy (2010b), p. 23. (2012a), pp. 144–145. 26 Alexy (1992), p. 146. 27 Alexy (2010a), p. 392. 28 Rivers (2010), xx; Alexy (2010a), pp. 76; (2010b), p. 23; Schlink (1991), p. 1714. 29 For a general view of the two approaches, see: McHarg (1999), pp. 41–42; Borowski (2007); Klatt and Meister (2012a), chap. 2. For an historical perspective, see Borowski (1998), pp. 47–60. Finally, on the reception of these ideas in Portugal: de Andrade (1987), pp. 215–251; and in Brazil: de Barros (1996), pp. 94–98. 25 Barak

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called the external theory,30 two-stage rights analysis,31 received approach,32 interest model,33 principles construction,34 weak conception of rights,35 model of optimization,36 wide-scope theory,37 or total rights conception.38 In detail, not all these labels refer exactly to the same conception of rights, but they all put arguments forward for balancing.39 The second substantive approach conceives of fundamental rights as rights with narrow scope, which cannot be externally restricted without violation or sacrifice of the individual interests they were framed to protect.40 Accordingly, rights would be trumps,41 shields,42 side constraints,43 exclusionary reasons,44 or firewalls,45 and their limits would be internal46 or immanent.47 This approach is sometimes known as the internal theory,48 one-stage rights analysis,49 theory of rights with exclusionary force,50 model of pure rules,51 trump model,52 rule construction,53 strong conception

30 Häberle

(1983), pp. 179–180; Borowski (1998), pp. 100–103. Schyff (2013), pp. 8–10; (2008), p. 140. 32 Webber (2009), p. 67. 33 Aleinikoff (1987), p. 946. 34 Alexy (2003a), pp. 131–132. 35 Kumm (2007), p. 141. See also Harbo (2010), pp. 166–167, on a “weak rights regime;” and Klatt and Meister (2012a), p. 23, on a “weak trump model.” 36 Tremblay (2014), p. 868. 37 Alexy (2010a), pp. 210–217. 38 Kumm (2012), p. 10. 39 For instance, it is possible to differentiate approaches that argue for balancing between rights, of which Alexy (2010a), p. 181; (2012), p. 293, is a representative, from approaches that admit balancing between interests, of which Beatty (2004), pp. 169–171, is a representative. See Klatt and Meister (2012a), chap. 2, referring to the former approach as the ‘weak trump model,’ and to the latter as the ‘interest model.’ 40 Waldron (1993), p. 30. 41 Dworkin (1978), xi; (1981), pp. 199–200. 42 Schauer (1992), pp. 429–431. 43 Nozick (1974), pp. 30–31. 44 Webber (2009), p. 117. 45 Habermas (1996), pp. 258–259. 46 Häberle (1983), p. 179. 47 Müller (1969), p. 41. 48 Häberle (1983), pp. 179–180; Borowski (1998), pp. 99–100. 49 der Schyff (2013), pp. 8–10; (2008), p. 139. 50 Webber (2010), p. 201. 51 Alexy (2010a), pp. 71–80. 52 Klatt and Meister (2012a), p. 15. 53 Alexy (2003a), pp. 131–132. 31 der

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of rights,54 priority of rights model,55 narrow-scope theory,56 or “limited domain conception of rights.”57 Although with salient differences, all these views share the understanding that individual rights should normally prevail over other reasons, especially over those grounded on public interests, and their leading scholars condemn balancing, for it arguably denies basic liberties such a priority. The fact that theorists make use of different terms when designating each of these approaches reflect how deep the controversies about the nature of fundamental rights are. Again, the debates on the matter are mostly conceptual rather than terminological, and the diversity of terms illustrates divergent, sometimes irreconcilable variants within the same approach. In other contexts, those divergences may speak against such an unrefined distinction as the one presented above; for the purpose of this study, however, the twofold separation shall suffice. In what is relevant here, every legal community has to answer the central question of which of these two basic approaches (and possibly which of their variant forms) provides for the best understanding of the structure of the rights in the constitution. Except for the U.S., variant forms of the first approach have prevailed in the constitutional arrangement of the Western world and in countries of European-based legal system since World War II.58 Illustrative are the cases of Germany, where the BVerfG has interpreted the Basic Law based on the assumption of identity between principles and rights,59 and Brazil, where Alexy’s conception of fundamental rights as rights with wide scope has been very influential. Alexy’s principles theory is a variant of the first approach and will be exposed below.

5.2 The Principles-Theory Approach to Rights The principles theory attempts to solve the problem of constitutional clauses with simple reservation by differentiating between scope and limit and conceiving of wide-scope rights. Alexy’s analysis departs from the presence of two types of fundamental rights in the Basic Law: general and specific rights.60 The BVerfG had already acknowledged that both types of rights played a normative, relatively independent role in courts’ adjudication, in the sense that a general right could apply 54 Kumm

(2006a). See also Harbo (2010), pp. 167–169, on a ‘strong rights regime;’ and Klatt and Meister (2012a), pp. 17–22, on a ‘strong trump model’ or ‘medium trump model.’ 55 Tremblay (2014), p. 866. 56 Alexy (2010a), pp. 202–210. 57 Kumm (2012), p. 10. 58 Tsakyrakis (2009), pp. 468–475. 59 Schlink (1976); (1995); (2011). 60 Here, I attempt to summarize and simplify Alexy’s ideas conform they serve to this study. A complete classification would account for three criteria: (1) type of position within the legal system (whether rights to something, liberties, or powers, between which there is a means-end relation), (2) degree of generality (whether general or specific positions, between which there is a relation of precision), and (3) normative character (whether definitive positions or prima facie positions, between which there is a balancing relation). See: Alexy (2010a), pp. 160–161.

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to a case where no specific right provided for a solution.61 Nevertheless, the court had not yet formulated systematic criteria for differentiating between general and specific rights, which Alexy did. In his view, two factors should be considered for the differentiation: the range and degree of protection of each right. Alexy speaks of range of protection to determine whether a right is abstract or concrete. According to him, constitutional rights such as freedom and equality are normally abstract as they appear in constitutions, and they can therefore lead to a great variety of concrete rights. Degree of protection, in its turn, refers to the distinction between prima facie and definitive fundamental rights. Combined, these two criteria allow to distinguish three different types of subjective rights: abstract definitive rights, concrete definitive rights, and abstract prima facie rights.62 I shall focus below on the question of the degree of protection and consider only abstract rights. As explained in the previous chapter, a charter of constitutional rights may encompass both principles and rules. The former are norms providing for a prima facie ought, and the latter provide for a definitive ought. Conversely, the principles theory postulates the existence of two distinct normative elements: the scope of a right (what it prima facie protects) and what the right actually grants (the definitive right). A prima facie right corresponds to the scope of a right as unrestrictedly conceived; by contrast, a definitive right results from the combination of scope and limiting clauses—it is exactly “what is left over once the limit has been set into place.”63 This is a distinctive feature of Alexy’s theory, which permits one to classify his approach of limits as external.64 As a result, a court in charge of deciding whether an individual is definitively a right-holder has to employ a twofold analysis if it proceeds in accordance with the principles theory.65 The first step consists in answering the question: does the action (or measure) fall under the norm providing for the prima facie (and therefore unrestricted) right? If the answer is affirmative, another question should follow: does the same action fall under a restriction of such a right? If the answer is negative, the court ought to conclude for the existence of a definitive right. The analysis depends, of course, of a previous understanding on the scope of the right, that is, of which actions and measures would fall under it, and then which would fall under its limit. This is the topic I will discuss next.

61 For instance, in BVerfG, Elfes Case, 6 BVerfGE 32, Judgment of 16 January 1957: “The individual may invoke Article 2 (1) [which provides for a general right to freedom of action] in the face of an encroachment upon his freedom by public authority to the extent that fundamental rights do not specifically protect such special areas of life.” (Translated in Kommers and Miller [2012], p. 402). 62 Alexy (2010a), pp. 285–286. 63 Alexy (2010a), p. 180; Alexy (2010b), p. 345. 64 Alexy (2010a), pp. 178–181. 65 Gardbaum (2011), p. 388; Borowski (1998), pp. 99–114.

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5.2.1 A Theory of Rights with Wide Scope The wide-scope conception of rights is intrinsically connected to the optimization thesis discussed in the previous chapter. If principles are optimization requirements, as Alexy claims, a right which is embedded in such a norm should also be carried out to the highest degree that is factually and legally possible. As with constitutional principles, the legal possibilities to a right are given by competing norms, whether principles or rules, which provide for unwritten or written limits.66 Two consequences follow. Firstly, both the scope of a right and its limits are to be optimized, that is, prima facie considered in their greatest extent possible. Secondly, one has to differentiate restrictions, violations, and regulations of a right. To begin with the definition of scope, Alexy’s conception is “broad and comprehensive”67 and implies a presumption. If there is a reason for thinking that, everything being the same, an action somehow affects the right at hand, one should consider that such an action occurs within the scope of the prima facie right.68 Thus, according to the principles theory, fundamental rights drag into their scope of protection everything that their normative content merely suggests. To put it another way, if a fact conveys “at least one characteristic, which—viewed in isolation—would suffice to bring the matter within the scope of the relevant right, [it] does so, regardless of what other characteristics it has.”69 A necessary consequence of such a wide conception of scope is that prima facie rights with a high degree of abstraction encompass innumerable specific rights and not only those expressly mentioned in written constitutional clauses. Freedom is the general right commonly adduced as an example. As introduced in Chap. 3, the BVerfG conceives of freedom as a right to do or not to do whatever one pleases, in account of which its scope includes almost all individual interests, actions, and states of affairs.70 And for being included in the scope of a constitutional right, these interests, actions, and states of affairs are prima facie under constitutional protection. For instance, the general right to freedom of action “has been held by the Constitutional Court [of Germany] to include such mundane things as a right to ride horses through public woods, feed pigeons in public squares, smoke marihuana, and bring a particular breed of dogs into the country.”71 An optimistic commentator could say that, under the principles-theory approach, the interpretation of a fundamentalright provision should begin by drawing from the constitutional clause “a generous reading.”72 66 Alexy

(2003a), pp. 146–147. p. 131. 68 Alexy (2010a), pp. 209–210. 69 Ibid., p. 210. 70 See ‘Proportionality and limitations of rights’ in Chap. 3 and also Kumm (2007), p. 141; Borowski (2011), pp. 581–582; Alexy (2010a), p. 181, 225. 71 Kumm (2007), p. 141. 72 Webber (2009), p. 65. 67 Ibid.,

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Other authors and courts, however, fear the “erosion,”73 “inflation”74 or “trivialisation” (Banalisierung)75 of fundamental rights. Critics point out that the principlestheory approach leads to a “total constitution”76 —“the idea that there is nothing that rights do not cover”77 —and reduces the force of fundamental rights—if almost everything is within the scope of a right, without being actually granted, “having a right provides one with very little.”78 Concerning the latter critique, authors have correctly countered that “there is no reason to assume a priori that judges will afford less protection to human rights under a system of proportionality (centred on balancing) than under its alternatives.”79 In either event, the former critique is sound in saying that, under the principles-theory approach, “there is little obstacle to recognizing an activity as within the scope of a right,”80 which creates the need of a method for assessing whether something is definitely granted by the right. The principles theory purports to have provided that method: the proportionality test.

5.2.1.1

Regulation, Restriction, or Violation

Within the limits of the principles theory, one who speaks of interference to a right may be referring to three different concepts: limits, prima facie infringements, or violations. As Alexy explains, limits are reasons countering the admission of an act or measure into the scope of protection of a prima facie right.81 They may be either written or unwritten, on the one hand, and constitutionally immediate or mediate, on the other. Constitutionally immediate limits are norms of constitutional status, whether constitutional principles or rules. Constitutionally mediate limits are statutory rules, normally enacted pursuant to a constitutional clause with single reservation, which makes it incumbent upon the legislature to pass laws on the matter. But not all legislative acts that concern a constitutional right are mediate limits. Generally speaking, Alexy distinguishes restriction from regulation. Legislative restrictions impose limits upon the prima facie right by removing certain actions or measures from its scope of protection. By contrast, regulations are acts of legislative creation that frame the institutions a constitutional clause provides for. Hence, regulative norms are counter-

73 Möller

(2012), p. 2. (2007), p. 126; Möller (2014), pp. 155–172. 75 BVerfG, Equestrian Case, 80 BVerfGE 137, Judgment of 6 June 1989, p. 168 (Justice Grimm dissenting), translated in van der Walt (2014), p. 152. 76 Kumm (2006b), pp. 344–345. 77 Webber (2009), p. 68. 78 Ibid., p. 68. See also Schlink (2012), p. 730, affirming that “fundamental rights are in danger of losing their prominence;” and Menéndez (2004), p. 175, that this approach devaluates “the currency of fundamental rights.” 79 Barak (2012b), p. 750. 80 Webber (2009), p. 68. 81 Alexy (2010a), p. 198. 74 Letsas

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parts to restrictions; instead of obstructing the realization of a right, they “outwork” what that right commands.82 In either event, where limits are concerned, an action that happens under the scope of protection of a right is only definitively guaranteed when it does not fall under a limiting clause, whether mediate or immediate. Therefore, given a certain case, two are the hypotheses for not granting that right definitive protection: (1) either the measure is not even prima facie protected because it does not fall within the scope of the right; (2) or a measure that was prima facie under the scope of a right turned out to be not definitively protected after everything was considered because the limiting clause was satisfied.83 In the second hypothesis, the measure that fell under the limiting clause is prima facie an infringement to the right, but does not constitute a definitive violation, nor is it unlawful. Rather the opposite, it is justified and therefore lawful. In short, the principles theory distinguishes between prima facie infringements of a right, on the one hand, and violations to the same right, on the other. Infringements to a prima facie right that fall under a limiting clause are justified and remain as prima facie infringements; only those infringements to the scope of a right that cannot be justified actually violate the definitive right.84 The main consequence Alexy extracts from these premises is detailed below.

5.2.1.2

A Theory of Relative Rights: Essential Core and Proportionality

It is necessary to say something more about the criterion Alexy adopts to separate infringements from violations. Decades ago, the BVerfG arrived at an understanding that every right contains an essential core, which no action can infringe or interfere without violation.85 The principles theory adhered to this thesis and connected the idea to the proportionality test. Alexy subscribes to Hesse’s words: “a limitation of a constitutional right touches the essential core whenever it is disproportionate, that is, … if it ‘does not take appropriate account of the weight and significance of the constitutional right.’”86 That is to say, an action violates a right whenever sound arguments cannot be put forward for its suitability, necessity, and proportionality in the narrow sense. Suitable, necessary, and proportional acts “do not infringe the essential core, even if they leave nothing left of the constitutional right in an individual case,” Alexy remarks.87 Such a conception makes no room, in the principles theory, for the idea of trumps or absolute rights, which by definition must always prevail

82 Ibid.,

pp. 217–222. p. 200. 84 Ibid., pp. 76–78. 85 See e.g., BVerfG, Hashish Drug Case/Cannabis Judgement, 90 BVerfGE 145, Judgment of 3 September 1994. 86 Hesse (1995), para. 318, translated in Alexy (2010a), p. 76. 87 Alexy (2010a), p. 193. 83 Ibid.,

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over competing reasons. Furthermore, it points out that “the essential core [of a right] is what is left over after the balancing test has been carried out.”88 To summarize, only by means of the proportionality test can one determine the core of a right in regard to its scope and hence precise whether a measure violated it or not. This makes a strong case for proportionality as a necessary method of adjudication. To determine whether a case falls into the area definitively protected by a fundamental right becomes a matter of balancing. In Alexy’s words, “even clear cases … are the result of balancing principles, … the possibility of balancing is kept open in all cases, and … it cannot be replaced by ‘self-evidence’ of any sort.”89 Altogether, the necessary connection between rights and proportionality lays on the legislature an additional, substantive responsibility. When enacting statutory limits to a fundamental right, law-makers are not bound by the literal conditions the constitution might have set out in qualified reservation clauses only; they must also show concern for the inalienable core of the right at stake, as well as for proportionality.

5.2.2 The Trump Model: An Alternative Approach As explained above, not all scholars who maintain that constitutional principles are norms providing for fundamental rights agree with the conclusions the principles theory extracts from the structure of rights. Especially controversial are the assertions that: (a) fundamental rights possess wide scope; (b) limits are external to rights; (c) not all infringements to the scope of a right are violations to it; and finally that (d) the proportionality test is required if one is to separate prima facie infringements from definitive violations. Famous for his conception of rights as trumps, Dworkin is a representative of a competing conception,90 yet not the only one. Several authors propose theories that altogether reject some of Alexy’s basic ideas. Although in various ways and at different degrees, examples of alternative approaches are found in Habermas,91 Nozick,92 and Waldron,93 to name just a few. Furthermore, other scholars do not properly formulate any alternative approach, but criticize the principles theory. Some accuse it of believing in non-existent things such as prima facie rights,94 others of obscuring the actual value of rights by making them compete with individual preferences of lower importance.95 Notably, not even one among these authors “explicitly or unabashedly endorses the principle of proportionality or balancing as 88 Ibid.,

p. 193. pp. 209–210. 90 Dworkin (1978), pp. 90–94; (1981), p. 200. 91 (1996), pp. 258–259. 92 (1974), p. ix. 93 (1993), p. 30. 94 Jakab (2009), p. 6. See also Poscher (2015), referring to the principles theory as a “theory of a phantom.” 95 Tsakyrakis (2009). 89 Ibid.,

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an inherent part of their account of rights,”96 nor do they “employ the vocabulary of optimization,”97 or admit that some infringements to rights can be justified after everything is considered. Klatt and Meister correctly pointed out that the alternatives to the principles-theory approach, grouped under the label of trump models, could be coherently divided in two sub-categories. The strong trump model “assumes that rights are absolute rights, construed by applying the so-called internal theory, and thus not amenable to limitations.”98 In its turn, the medium trump model admits that in certain cases rights may be overridden by countervailing arguments, but restricts these arguments to a particular kind: only reasons of a special strength or greater importance can prevail over rights.99 Whatever the case may be, both models reject the idea of balancing.100 In this study, particularities will not be contemplated, and Dworkin will be again selected as a representative of the alternative approach. Three of his theses on fundamental rights will be considered below, as they directly contrast with main features of the principles-theory conception as exposed above. According to Dworkin, rights are specific (as opposed to general), free of external restriction (as opposed to externally limited), and possibly absolute (as opposed to relative). To begin with, in contrast with the case law of the BVerfG, over which Alexy built his understanding of general and specific rights, Dworkin denies the existence of a general right to freedom. According to him, it is “absurd to suppose that men and women have any general right to liberty at all” if liberty is to be conceived of as a general license, or “as the absence of constrains placed by a government upon what a man might do if he wants to.”101 In his opinion, such a misconceived idea of freedom gives rise to “a false sense of a necessary conflict between liberty and other values” and leads to the wrong conclusion that certain constraints are unjust “because they have a special impact on liberty as such.”102 Dworkin argues instead for a right to specific liberties, that is, a right not to be coerced when certain matters, which are specially regarded as important, are at play. It might seem disputable, however, whether Dworkin really postulates the existence of no general rights, for he apparently argues against the general right to 96 Webber

(2010), p. 201. p. 201. 98 Klatt and Meister (2012b), p. 17. 99 Ibid., pp. 21–22. 100 In this sense, Häberle (1983), pp. 179–180, 327, is not a typical representative of an alternative approach because he supports the internal theory, but connects it to balancing. Indeed, Harbële claims that fundamental rights are non-limitable rights, but also concedes that in determining the content of a right, one is required to balance between the aim pursued, on one hand, and the restrictions its fulfilment would impose upon competing interests, on the other. Borowski (1998), pp. 111–114, criticizes the idea, for it implies that one can derive fundamental rights from balancing between things other than constitutional principles—such as ethical, moral, or religious norms, or other types of norms that in any case should have supra-constitutional character—, which is highly controversial. 101 Dworkin (1978), p. 267. 102 Ibid., p. 271. 97 Ibid.,

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liberty in favour of a more encompassing general right, that of being treated with due respect.103 At any rate, it is accurate to claim that within Dworkin’s theory, rights such as the one of deserving respectful treatment are abstract rather than general, and even more importantly for the case being, a background right, which “provide[s] a justification for political decisions by society,” rather than an institutional right, which “provide[s] a justification for a decision by some particular and specified political institution.”104 I therefore maintain that, considering only the fundamental rights in a constitution, that is, rights which Dworkin would refer to as institutional, he mainly conceives of them as specific, concrete rights and denies their general character. For the sake of clarity, I shall consider only institutional rights within the next sub-sections.

5.2.2.1

Rights Without External Limits

Dworkin does not support the separation between the scope of a fundamental right and its limits, which the principle theory proposes. In Dworkin’s view, there is only one normative element to consider: the right, which already includes its limits. Once the right has been defined, further restriction is unnecessary and impossible.105 That is to say, if a person is a right-holder, the state of affairs in which she enjoys her right is to be protected against decisions that “endanger that state of affairs, … even when no other political aim is served [by the protection] and some political aim is disserved thereby.”106 By contrast, one of the lessons Alexy extracts from the Lüth Case is that the task of fundamental rights is not simply to protect certain interests of the citizen. Rights express the substantive understandings the constitution declares, Alexy says,107 and those understandings include aims that Dworkin would rather consider to be political. Alexy criticizes Dworkin’s alternative construction, which would be too “narrow and strict.”108 According to Alexy, under this approach fundamental-rights clauses are merely abstract norms that the constitutional framers ranked in the highest position within the legal system in order to protect citizens against the state. Besides the abstract character and the higher-ranked position of these rights, scholars who support this view would see no structural difference between fundamental-rights norms and legal rules. Admittedly, Dworkin concedes that prima facie rights (or abstract rights, as he calls them) can conflict. “My exercise of my right may invade or restrict yours,”109 103 Ibid., pp. 274–275. The apparent lack of uniformity in the definition of rights through Dwokin’s

prolific bibliography has led to conflicting interpretations. Very illustrative is the debate between Waldron (2000) and Pildes (2000) on the matter. 104 Dworkin (1978), p. 93. 105 Gardbaum (2011), p. 388; Borowski (1998), p. 99. 106 Dworkin (1978), p. 91. 107 Alexy (2003a), pp. 131–133. 108 Ibid., p. 131. 109 Dworkin (1986), p. 293.

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he says. Nevertheless, he does not see such conflicts as demanding the identification of a right and its limits—and, furthermore, as requiring the proportionality test—, nor does he treat them as consequences of an essential feature of all fundamental rights—their principle-like character as optimization requirements. Rather, in Dworkin’s view, cases of conflict between prima facie individual rights, in the special occasions when they happen, are solved by inquiring “which of us has an actual or concrete right to do what he wishes”110 once the legal material is read in its best light. As a result, Dworkin does not endorse the main conclusion the principles theory reaches: that the “the application of a right is more than a mere subsumption of a case under a rule. It is a weighing or balancing process.”111

5.2.2.2

Absolute Rights

Dworkin believes fundamental rights may be absolute in two different ways. The first is a consequence of his method for legal adjudication, which purports to avoid balancing by reading the constitution in its integrity. In proceeding in accordance with the moral reading, “once we have a careful account of exactly what the human right in question really is,” it is possible “to claim that right as absolute, to say that it brooks no violation.”112 The second way one can say a right is absolute is by opposing it to pressing political reasons that can be argued against its protection in exceptional circumstances. From where Dworkin stands, public authorities may have this concept in mind when they claim that there are no absolute rights. In his view, such a claim could be read as follows: “in a sufficiently grave emergency, a government is justified in violating even the most basic and fundamental human rights even after these have been precisely stated.”113 He therefore maintains that constitutional adjudication is essentially a definitional activity, concerned with providing the best reading of the constitution, but concedes that under extreme situations, certain arguments would impose themselves over the correct definitions. Dworkin leaves without answer questions such as which criteria judges would employ to decide which situations are that extreme and which pressing facts should prevail under these circumstances. His theory is thus unable to provide courts with guidelines for deciding difficult cases—exactly the kind of cases to which his conception was framed to apply.114 Coherently, critics accuse his theory of stimulating judges to perform hidden balancing.115

110 Ibid.,

p. 293. (2003a), pp. 146–147. 112 Dworkin (2008), p. 49. 113 Ibid., p. 49. 114 Dworkin (1978), pp. 81–130. 115 Klatt and Meister (2012a), pp. 17–21. 111 Alexy

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Let aside the problems with Dworkin’s account, very different is the principlestheory approach, which affirms that “no right is absolute.”116 In fact, Alexy asserts that there are “conditions under which one can say with a very high degree of certainty that no countervailing principle will take priority” over a right.117 Determining whether that is the case is the same as searching for the core of the right, which should occur by means of balancing and not regardless of it. That is to say, the weight of fundamental rights is relative and can only be assessed in comparison with the importance of other rights.118 Conversely, Dworkin’s account of specific, externally unlimited, and possibly absolute rights that figure as “trumps over decisions of policy” make a case against employing the proportionality test.119 It is essential to bear this distinction in mind, for Sect. 5.4 shows that the STF has appropriated Alexy’s theses in some cases that include not only judgements on freedom rights but also equality rights, which I will start to discuss below.

5.2.3 Equality as a Fundamental Right with Wide Scope Equality is, along with freedom, a typical fundamental right that can be found in nearly all charters of rights and modern constitutions.120 The BVerfG’s case law gives emphasis to the two general rights, freedom and equality, but only freedom is commonly adduced as an example of right with wide scope.121 This does not come as a surprise, as equality provides for specific positive rights that apparently defy some conclusions that abound in the literature predominantly focused on negative rights. But for not being the obvious choice, equality is a fundamental right, which means it possesses wide scope in Alexy’s view. Actually, equality rights reflect all the features that characterize fundamental rights within the principles theory. Conceived of as a fundamental right with wide scope, equality (a) binds all government branches, (b) includes more specific equality rights, (c) encompasses rules that either command or prohibit unequal treatment, and (d) requires prima facie that people be equally treated before the law, unless factual equality is demanded. Particularly in which concerns legal adjudication, Alexy claims that equality requires that judges have recourse to proportionality and balancing. As a fundamental right, equality is paramount within the legal system and governs the activity of all governmental branches—not only the judiciary, as traditionally 116 Webber

(2009), p. 70. In Webber’s view, under this approach, “a rights-claim is not that a claim that a given legislative measure is altogether impermissible—the right is neither a trump, nor a firewall, nor does it benefit from lexical priority.” (Ibid., p. 68). 117 Alexy (2010a), p. 195. 118 Ibid., p. 195. 119 Dworkin (1986), p. 223. 120 O’Regan and Friedman (2011), p. 473. 121 See Bleckmann (1995), p. 51 ff., for more on equality in Germany, including brief comments on the jurisprudence of the BVerfG; Baer (1998), pp. 249–279, on proportionality and equality in German scholarship and case law; and Kirchhof (1992), about equality in German jurisprudence.

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understood.122 Alexy endorses the BVerfG’s understanding, “assumed as a matter of course from its very first decisions, that the principle of equality binds the legislature.”123 This thesis of “equality in the application and creation of law” is important because it illuminates the relation of identity that the principles theory purports to exist between fundamental rights and constitutional principles.124 The combination of scope and limiting equality clauses leads to two abstract definitive rights: the right to be treated similarly if there is no adequate reason for permitting differential treatment and the right to be treated differently if there is an adequate reason for requiting this.125 Constitutional clauses providing for equality rights are either very general or more specific, and express either principles or rules, sometimes within the same legal document. The Basic Law contains not only a general statement of equality before the law, but also specific equality clauses regarding, for instance, equal citizenship126 ; electoral equality127 ; equality of men and women128 ; equality between legitimate and illegitimate children129 ; the prohibition of disfavour due to disability130 ; and the ban of discrimination on grounds of sex, parentage, race, language, homeland, origin, faith, and religious or political opinions.131 According to the BVerfG, the content of the general right to equality is not exhausted by the specific clauses. The principle of equality preserves an independent normative meaning and can thus be “again super-imposed” over specific clauses “in borderline cases.”132 To the principles theory, this reveals the character of the general right to equality as an abstract prima facie right in contrast with specific equality rights. As with freedom rights, the distinction between the general right to equality and specific equality rights 122 Whether

the legislature was also an addressee of the wording ‘equality before the law’ has been the object of dispute in German jurisprudence in the past, but after the Basic Law was enacted, the question was, in the words of Klein (1975), p. 74, “unexpectedly quickly and clearly” answered by the BVerfG, which “early decided without further discussion that also the legislature is subject to the principle of equality.” 123 Alexy (2010a), p. 261. 124 Ibid., p. 388. 125 Ibid., pp. 271–272, 285. 126 Grundgesetz für die Bundesrepublik Deutschland, Article 33 (1): “Every German shall have in every Land the same political rights and duties.” 127 Grundgesetz, Article 38 (1): “Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections.” 128 Grundgesetz, Article 3 (2): “Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” 129 Grundgesetz, Article 6 (5): “Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.” 130 Grundgesetz, Article 3 (3): “No person shall be disfavoured because of disability.” 131 Grundgesetz, Article 3 (3): “No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions.” 132 Klein (1975), p. 89. See for instance, BVerfG, Nocturnal Employment Case, 85 BVerfGE 191, Judgment of 28 January 1992; and 88 BVerfGE 87, Judgment of 26 January 1993.

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is reflected in both their degree and range of protection. Specific equality rights are “more strongly protected than they would be if there were only the general right,”133 for they impose an extra argumentative burden upon the shoulders of anyone who counters the legal text. This higher degree of protection is nevertheless only prima facie, because it may be “significantly reduced in practice” by either the principle of proportionality or written and unwritten limiting clauses, as Alexy acknowledges.134 Furthermore, from where Alexy stands, there is a relation of inclusion between the general right to equality and specific equality rights, such as equality among taxpayers, for instance. Everything that in a given constitutional order is protected by the latter necessarily falls under the former’s range of protection. However, such an inclusion does not imply a two-way street. Although the right to equality encompasses the right of taxpayers to be treated equally to others in the same situation, the latter is not the outcome of a mere deduction. Equality commands prima facie that those under its scope of protection be equally treated in all situations; it does not explain by itself why some citizens are qualified as taxpayers and others not. Standards for such differentiation cannot be derived from general equality itself and have to be provided by competing principles, for example those that rule taxation. The principles theory claims that every abstract prima facie right corresponds to the scope of the right unrestrictedly conceived. Applied to the right of equality, this understanding leads to two abstract prima facie rights: legal equality and factual equality.135 Legal equality is act-related and commands public authorities to refrain from putting people in different categories before the law; factual equality is consequence-related and requires that government implements the necessary policies to reduce social, economic, educational, or other non-statutory inequalities even if, by doing so, some groups or individuals have to be legally differentiated from others. There is a prima facie conflict between these two demands of equality. Alexy observes that “each legal difference of treatment in pursuit of factual equality is by definition a limitation of the realization of the principle of legal equality.”136 In his view, legal equality may be required or prohibited in a given case, depending on whether factual equality provides reason for equal or unequal treatment before the law. Instead of ruling that law should equally treat everyone, the substantive principle of equality prohibits that people receive arbitrary treatment. And it does so by imposing an argumentative burden over public authorities: in view of the prima facie requirement of similar treatment, differential treatment is only permitted if adequate justification can be given for it. This definition of equality as a norm either requiring or prohibiting similar treatment depending on the circumstances of a given case provides a notable example of reciprocal influence of legal doctrine and practice in an intra-national context. Alexy draws his conclusions from the BVerfG’s case

133 Alexy

(2010a), p. 247. pp. 247–248. 135 Ibid., p. 287. 136 Ibid., p. 281. 134 Ibid.,

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law,137 but the court’s rationale was largely inspired by Leibholz’s academic writings, according to which the command of equality before the law stated by Article 109 of the Weimar Constitution should to be read as a prohibition of arbitrariness.138

5.3 Wide-Scope Rights in the STF’s Case Law This brief exposition of Alexy’s main theses on equality in the previous section served two purposes. Firstly, it illuminated how general aspects of the wide-scope theory of rights endorsed by Alexy are present in the treatment given to equality rights, which has not been a recurrent choice when authors examine the questions posed by the structure of fundamental rights in general. In fact, differently from freedom rights, constitutional clauses on equality are normally not restricted by explicit limitation clauses; their application, however, still depends on assessing the restrictions posed by competing principles, which inevitably requires striking a balance, in accordance with the principles theory.139 Specially the distinctions between similar or differential treatment, and legal or factual equality reflect the collision between a prima facie right and its prima facie limits, both optimized—considered in their wider scope. Alexy solves the collision by giving more abstract weight to similar treatment and formal equality, unless there is justification for acting otherwise. The principle of equality is breached when the difference of treatment is arbitrary, that is, when it cannot be justified by means of the proportionality test. Arbitrary, disproportional differentiation is forbidden, and that marks the core of the right to equality.140 Secondly, such an exposition makes it easier to identify Alexy’s conception of fundamental-rights structure in the STF’s case law. To recall, the principles theory is an example of the wide scope conceptions of rights, which prevail in the literature in comparative constitutional law. The most renowned alternative is Dworkin’s trump model, according to which fundamental rights are narrow in scope. In this section, attention shall be directed to the STF’s borrowings. The purpose is to show that the court endorses the principles-theory conception of fundamental rights as prima facie 137 See, e.g., BVerfG, Southwest State Case, 1 BVerfGE 14, Judgment of 23 October 1951; BVerfG,

Fire Fighting Case I, 9 BVerfG 291, Judgment of 20 May 1959. Underlying both decisions was the rationale that, rather than requiring equal, indistinct treatment to all disregarding their inherent features, the equality clause forbids that public officials treat arbitrarily people under government authority. 138 Leibholz (1925). Klein (1975), pp. 75, 110, explained that Leibholz’s thoughts were developed during the 1920s and became especially influential later because of his nomination to a BVerfG’s seat, a place that he occupied from the Court’s establishment in 1951 until 1971. During his tenure, “he was in a unique position to translate his constitutional ideas from the level of philosophical abstractions to operational principles of the evolving West German constitutionalism—from lawin-books to law-in-action,” McWhinney (1986), p. 179, notices. Years later, after being incorporated in Germany’s constitutional case law, these thoughts would be embraced by the principles theory, performing the opposite movement from courts’ benches to Universities’ classrooms. 139 Borowski (1998), pp. 364–374. 140 Alexy (2010a), pp. 265–270.

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rights with wide scope, instead of a variant or a rival theory of rights with narrow scope. STF’s case law on fundamental-rights structure embrace freedom rights, like women’s right to abort anencephalic fetuses,141 criminals’ right to individualized sentencing,142 and journalists’ right to freely exercise their profession,143 but the number of cases respecting the fundamental right to equality is remarkable. This may look odd to some readers, for whom the usual and essential task of a constitutional court in a democratic country is to safeguard freedom rights. It is notable that due to a peculiar institutional arrangement, professional class organizations and unions, particularly civil-servants associations, have easier access to the STF when compared to individuals.144 Since the 1990s, the elite of legal professionals and their associations—judges, prosecutors and public attorneys, e.g.—have developed tactics of judicial lobbying to set the court’s agenda and implement measures that they believed could foster moral behaviours in government and administrative officers. These groups filed a considerable number of petitions with the court in the first decade after the Federal Constitution was promulgated, which reflected on the STF’s case law on equality rights. In some judgements, even if the issue ultimately raised concerned a freedom right, the court resorted to the rhetoric of equality.145 As the cases described below shall demonstrate, Justices have expressly pointed in their opinions to Alexy’s theory as a source of the ideas that equality is a principle binding also the legislature, including more specific rights, commanding or prohibiting unequal treatment, and requiring either legal or factual considerations. In order to expose the influence of the principles theory on the structure of fundamental rights in the STF’s case law, fifteen cases will be addressed in this section. Respecting freedom rights, the set encompasses the Heinous Crimes Act Cases I (2005) and II (2006),146 and the Journalism Degree Case (2009).147 Respecting equality rights, I have selected twelve opinions of the full court and its Justices in which different issues are discussed, including racial quotas in public universities, legal entities’ right to make political donations, and adequate criteria for civil-service entrance examination. Moreover, the set shall offer an overview of the STF’s under141 STF, Anencephaly Case, ADPF 54/DF, Judgment of 12 April 2012, Relator: Min. Marco Aurélio,

D.J.e. 80, 30 Apr. 2013. Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005; Heinous Crimes Act Case II, HC 82959/SP, Judgment of 23 February 2006, Relator: Min. Marco Aurélio, D.J. 1 Sep. 2006. 143 STF, Journalism Degree Case, RE 511.961/SP, Judgment of 17 June 2009, Relator: Min. Gilmar Mendes, D.J.e. 213, 13 Nov. 2009. 144 See in this respect, Mariano Silva (2016), pp. 277–278. 145 See e.g., STF (First Panel), Senator’s Preventive Detention Case, AC 4327 AgR-terceiroAgR/DF, Judgment of 26 September 2017, STF, Relator (acórdão): Min. Roberto Barroso, D.J.e. 247, Oct. 27, 2017. 146 STF, Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005; STF, Heinous Crimes Act Case II, HC 82959/SP, Judgment of 23 February 2006, Relator: Min. Marco Aurélio, D.J. 1 Sep. 2006. 147 STF, Journalism Degree Case, RE 511.961/SP, Judgment of 17 June 2009, Relator: Min. Gilmar Mendes, D.J.e. 213, 13 Nov. 2009. 142 STF,

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standing on three matters: equality in taxation, equality among government officials and ordinary citizens, and equality under the competitive-bids law. References to the principles theory can be considered of secondary impact in nine cases, eight of which will be detailed below. In the Public Pension Reform Cases I and II (2004),148 the University Placement Case (2004),149 the Heinous Crimes Act Case II (2006), and the Senator’s Preventive Detention Case (2017)150 the relevance of principles theory-based arguments for the full court’s or its panels’ final rulings is disputable because the Justices who quoted Alexy only used his theses to support a conclusion already reached by the majority. In three other cases, the Heinous Crimes Act Case I (2005), the Social Organizations Case (2007),151 and the Ex-Governors’ Pension Case (2007),152 citations appeared in dissenting or concurrent opinions. By contrasts, arguments based on the principles theory had a primary impact in the STF’s final rulings in six cases, four of which will be analysed below: the Opening Ceremony Case (2006),153 the RN Bidding Law Case (2007),154 the RO Bidding Law Case (2007),155 and Journalism Degree Case (2009). The cases are exposed in chronological order, beginning with the Public Pension Reform Cases as follows.

5.3.1 The Public Pension Reform Cases (2004) Alexy’s conception of equality rights was first mentioned by a STF’s Justice in the judgement of the Public Pension Reform Cases I and II (2004).156 The cases were about equality in taxation, principle derived from Article 150, II, of the Federal Constitution, which prohibits that different tributes are applied to taxpayers in equivalent

148 STF, Public Pension Reform Case I, ADI 3.105/DF; Public Pension Reform Case II, ADI 3.128/DF, Judgment of 18 August 2004, Relator (acórdão): Min. Cezar Peluso, D.J. 18 Feb. 2005. 149 STF, University Placement Case, ADI 3.324/DF, Judgment of 16 December 2004, Relator: Min. Marco Aurélio, D.J. 5 Aug. 2005. 150 STF (First Panel), Senator’s Preventive Detention Case, AC 4327 AgR-terceiro-AgR/DF, Judgment of 26 September 2017, STF, Relator (acórdão): Min. Roberto Barroso, D.J.e. 247, Oct. 27, 2017. 151 STF, Social Organizations Case, ADI 1.923 MC/DF, Judgment of 1 August 2007, Relator (acórdão): Eros Grau, D.J. 21 Sep. 2007. 152 STF, Ex-Governors’ Pension Case, ADI 3.853/MS, Judgment of 12 September 2007, Relatora: Min. Carmen Lúcia, D.J. 26 Oct. 2007. 153 STF, Opening Ceremony Case, ADI 3.305/DF, Judgment of 13 September 2006, Relator: Min. Eros Grau, D.J. 24 Nov. 2006. 154 STF, RN Bidding Law Case, ADI 3.070/RN, Judgment of 29 November 2007, Relator: Min. Eros Grau, D.J. 19 Dec. 2007. 155 STF, RO Bidding Law Case, ADI 2.716/RO, Judgment of 29 November 2007, Relator: Min. Eros Grau, D.J.e 41, 7 Mar. 2008. 156 STF, Public Pension Reform Case I, ADI 3.105/DF; Public Pension Reform Case II, ADI 3.128/DF, Judgment of 18 August 2004, Relator (acórdão): Min. Cezar Peluso, D.J. 18 Feb. 2005.

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situations.157 In 2003, the National Congress passed the Constitutional Amendment 41, enacting new contributions to be paid by civil servants who had already retired from service according to older retirement plans. The petitioners, the National Association of Federal Prosecutors and the National Association of the Members of the Department of Public Prosecution, alleged that the creation of such contributions was unconstitutional. Their main argument was that the amendment had violated several clauses of the Federal Constitution: Article 5, XXVI, for denying protection to vested rights, granted by previous, valid law158 ; Article 60, §4, IV, for aiming to abolish an individual right guaranteed against amendments159 ; and Article 150, II, for imposing different rates of compulsory contributions on federal, state, and municipal civil servants, despite their equal status as government officials.160 The majority of the STF, however, partially denied the petitions. Considering that only the petitioners’ latter argument was defensible, the court declared unconstitutional solely the paragraphs of the amendment that had treated unequally taxpayers in equivalent situations. Rephrasing Alexy’s thesis on the binding nature of general equality both to the application and creation of law, Justice Eros Grau affirmed in his opinion that the principle of equality had historically developed from a narrower into a wider norm. Initially, he said, the principle was read as requiring equal treatment in legal application only, but currently it should be understood as commanding equal treatment also in law-making, in as much as equality was a norm addressed not only to the judiciary, but to the legislature as well.161 By referring to a general right to equality, Justice Grau implied that equality in taxation is a specific right derived from that. In addition, he endorsed the theses that equality either command or prohibit equal treatment before the law and that legal equality may have to capitulate depending on whether a case requires factual quality. He quoted Alexy’s affirmation that “arbitrary differentiation is to be found ‘whenever a persuasive and reasonable ground, arising from the nature of the subject-matter or some other material circumstance, cannot

157 Constituição

da República Federativa do Brasil de 1988, Article 150, II: “Without prejudice to any other guarantees ensured to the taxpayers, the Union, the states, the Federal District and the municipalities are forbidden to: … Institute unequal treatment for taxpayers who are in an equivalent situation.” 158 Constituição (1988), Article 5, XXVI: “The law shall not injure the vested right, the perfect juridical act and the res judicata.” 159 Constituição (1988), Article 60, §4, IV: “No proposal of amendment shall be considered which is aimed at abolishing: … Individual rights and guarantees.” 160 Constituição (1988), Article 150, II: “Without prejudice to any other guarantees ensured to the taxpayers, the Union, the states, the Federal District and the municipalities are forbidden to: … Institute unequal treatment for taxpayers who are in an equivalent situation, it being forbidden to establish any distinction by reason of professional occupation or function performed by them, independently of the juridical designation of their incomes, titles or rights.” 161 Alexy (1986), p. 357, paraphrased in: STF, Public Pension Reform Case I, ADI 3.105/DF; Public Pension Reform Case II, ADI 3.128/DF, Judgment of 18 August 2004, Relator (acórdão): Min. Cezar Peluso, D.J. 18 Feb. 2005.

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be given for the legal differentiation’.”162 Hence, referring to the BVerfG’s case law as depicted by the principles theory, Justice Grau joined the STF’s majority opinion, ruling that the Constitutional Amendment 41/03 breached the principle of equality in taxation in the Federal Constitution. In further judgements, Justice Grau repeated the same reasoning issued in the Public Pension Reform Cases I and II. He rendered identical opinions with arguments about the duties of equal treatment in applying and making law—addressed to judiciary and legislature, respectively—in the Opening Ceremony Case (2006), Ex-Governors’ Pension Case (2007), Social Organizations Case (2007), and the Bidding Law Cases (2007).

5.3.2 The University Placement Case (2004) The University Placement Case, the Ex-Governors’ Pension Case, and the Opening Ceremony Case referred to the legal statuses granted to public authorities and civil servants, and the differences in treatment that such statuses require or prohibit when compared to ordinary citizens or other individual government officials. Particularly the University Placement Case (2004)163 involved the Federal Law 9536/97, which established that when civil servants were compulsorily transferred to an office in a different city, they, their spouses, and children would be granted placement in a local educational institution, including universities, regardless of fulfilling the requirements for admission.164 The petitioner, the General-Attorney of the Republic, argued that the statute was unconstitutional because it had breached the general principle of equality to access public universities. Partly concurring with those arguments, the STF’s final opinion stood for the constitutionality of the law, provided that it was interpreted as ruling that placement in a local public university is only granted to civil servants, their spouses and children who had been admitted in another public university before the transfer. Justice Gilmar Mendes voted with the majority. He held in his opinion that only a specific reading of the statute was in accordance with the Federal Constitution. Quoting Alexy, he affirmed that the command to “treat the same similarly, and differences differently,” gives rise to two rules: on the one hand, “if there is no adequate reason for permitting differential treatment, then similar treatment is required,” and, on the other, “if there is an adequate reason for requiring differential treatment, then

162 Alexy

(1986), p. 370, quoted in: STF, Public Pension Reform Case I, ADI 3.105/DF; Public Pension Reform Case II, ADI 3.128/DF, Judgment of 18 August 2004, Relator (acórdão): Min. Cezar Peluso, D.J. 18 Feb. 2005. 163 STF, University Placement Case, ADI 3.324/DF, Judgment of 16 December 2004, Relator: Min. Marco Aurélio, D.J. 5 Aug. 2005. 164 Lei 9.536, de 12 de novembro de 1997, Brazil, D.O.U. 12.12.1997.

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differential treatment is required.”165 Justice Mendes emphasized that unequal treatment was only required where reasons for this prevailed over the reasons for an equal treatment.166 Providing arguments for applying the proportionality test to conflicts of principles—the same arguments he had delivered in the judgement of the Ellwanger Case—, Justice Mendes noted that two interests opposing to the statute should be taken into account. There would be, firstly, the interests of other fellow citizens who were “directly affected by the norm, insofar as … its application potentially reduced the number of seats available in federal public universities;” and secondly, the interests of the educational institutions, to the extent that the universities’ autonomy is a constitutionally guaranteed principle.167 Justice Mendes concluded by voting with the majority opinion, for considering that proportionality would only be reached in the case if the statute were interpreted as ruling that the university of destination ought to be similar to that of origin. To summarise, he held that only those who had been previously admitted into a public university would be guaranteed placement in another public institution.

5.3.3 The Heinous Crimes Act Cases (2005 and 2006) The Heinous Crimes Act Case I (2005), decided by the STF’s second panel, and the Heinous Crimes Act Case II (2006), judged in plenary session,168 involved the constitutional right to individualized sentencing.169 The recently enacted Heinous Crimes Act established that felons convicted of heinous crimes ought to be confined in a closed prison for the entire period of incarceration.170 The petitioner of the Heinous Crimes Act Case I pleaded for revision of the appellate decision that, applying the Heinous Crimes Act, had dismissed his previous petition for having the penalty of imprisonment reduced to a less severe one. He argued that the right of progressive commutation was implicated by the constitutional principle of individualized sentencing; consequently, the Heinous Crimes Act had violated the Federal Constitution by imposing to felons an exclusive, more severe form of imprisonment.

165 In the original, Alexy (1993), p. 408, quoted in: STF, University Placement Case, ADI 3.324/DF,

Judgment of 16 December 2004, Relator: Min. Marco Aurélio, D.J. 5 Aug. 2005; here, Alexy (2010a), p. 280. 166 STF, University Placement Case, ADI 3.324/DF, Judgment of 16 December 2004, Relator: Min. Marco Aurélio, D.J. 5 Aug. 2005, p. 177. 167 Ibid., pp. 179–180 (my translation). 168 STF, Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005; Heinous Crimes Act Case II, HC 82959/SP, Judgment of 23 February 2006, Relator: Min. Marco Aurélio, D.J. 1 Sep. 2006. 169 Constituição da República Federativa do Brasil de 1988, Article 5, XLVI: “The law shall regulate the individualization of punishment.” 170 Lei 8.072, de 25 de julho de 1990, Brazil, D.O.U. 26.07.1990, Article 2, Paragraph 1 (repealed 2007).

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Nevertheless, the second panel’s majority rejected the petition for a writ of habeas corpus. Justice Mendes’s vote was the only dissenting. He disagreed with the decision reached by the majority, for believing that, “with regard to heinous crimes, the essential core of this right [to individualized sentencing] is completely affected [by the Heinous Crimes Act].”171 On the concept of an alienable core of constitutional rights, he regarded the existence of relative and absolute theories, which dispute whether rights possess wide or narrow scope, respectively. According to him, the principles theory endorsed a conception of rights with wide scope and differentiated between prima facie infringements, which affect the right but do not encroach on its core, and actual violations, which trespass that core. As a result, Alexy would be a representative of the relative theory, and that would be the reason why the German scholar stated that “the guarantee in Article 19(2) Basic Law does not represent any additional limit to the restrictions of fundamental rights, when compared to the principle of proportionality.”172 Justice Mendes acknowledged, however, that following either the relative or absolute theory, one would come to the same conclusion that the Heinous Crimes Act compromises the right of convicts to individualized sentencing. In his words, “although the Brazilian constitutional text had not expressly established the idea of an essential core, it is certain that this principle follows from the model of guarantees used by the constitutional framers.”173 As he saw it, “if the court did not admit a limit to the legislative activity, every fundamental protection would be made ineffective.”174 In his opinion, the Heinous Crimes Act abolished the right of progressive commutation and consequently violated the right to individualized sentences in convictions for heinous crimes. Furthermore, he said, the statutory provision was unnecessary because there remained less restrictive means to make the punishment for heinous crimes more severe than the punishment applied to common crimes. In virtue of this, Justice Mendes concluded that the Article 2, Paragraph 1, of the Heinous Crimes Act was unconstitutional. By the time the second panel decided the Heinous Crimes Act Case I, the Heinous Crimes Act Case II was waiting in line for a final judgement in a plenary session, which happened on February 23, 2006. Although the laws of both cases were identical, the STF came to a different decision in the latter judgement. Justice Mendes repeated in the Heinous Crimes Act Case II exactly the same arguments on the unnecessary restriction—or violation to the core—of the constitutional right claimed in the case. This time, however, he was part of the prevailing opinion. A majority of Justices held then that Article 2, Paragraph 1, of the Heinous Crimes Act was null

171 STF,

Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005 (my translation). 172 Alexy (2010a), p. 196, paraphrased in STF, Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005 (my translation). 173 STF, Heinous Crimes Act Case I, HC 84862/RS, Judgment of 22 February 2005, Relator: Min. Carlos Velloso, D.J. 15 Apr. 2005 (my translation). 174 Ibid.

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and void because it infringed the principle of individualized sentencing, as enacted by the Federal Constitution, Article 5, XLVI.

5.3.4 The Opening Ceremony Case (2006) The Opening Ceremony Case (2006)175 dealt with the prohibition under Federal Law 9504/97, Article 77, that candidates running for offices in the executive branch participate in inaugurations of public facilities during the three months prior to elections.176 The plaintiff, the Liberal Party, asserted that the statute had violated the constitutional principle of equality, among other norms, since there would be no sound reason for treating the candidates for positions in the executive differently from those competing for other offices. Nonetheless, the STF declared that the law was constitutional. The unanimous decision stated that differential treatment was justified in the case by the fact that it is in charge of executive authorities to schedule the opening of public facilities, which increases the chances that they dishonestly arrange the ceremonies to benefit fellow party candidates. According to the rapporteur, Justice Grau, the rule applicable to the matter was that an arbitrary differentiation occurs if the provision establishing unequal treatment is not supported by any persuasive justification. Considering that “there was in the case a relevant reason that justified the differential treatment given to candidates running for offices of the executive branch,” he ruled that Federal Law 9504/97 had not breached the principle of equality. His opinion had primary impact and received adherence from all the other associate Justices.

5.3.5 The Social Organizations Case (2007) The Social Organizations Case (2007) addressed the problem of the support the government gives to non-governmental organizations that promote education, health, culture, scientific research, and environmental protection.177 The Federal Law 9637/98 authorized that private entities were classified as ‘social organizations,’ since they pursue the public goals as defined by the same statute.178 Once classified as a social organization, the entity was eligible to receive governmental aid, which could consist in the transferring of civil servants or public funds. The petitioner of the Social Organizations Case, the Labours Party (Partido dos Trabalhadores—PT ), argued that the law had indirectly allowed the disposal of public resources without the 175 STF,

Opening Ceremony Case, ADI 3.305/DF, Judgment of 13 September 2006, Relator: Min. Eros Grau, D.J. 24 Nov. 2006. 176 Lei 9.504, de 30 de setembro de 1997, D.O.U., 30.09.1997 (repealed 2009). 177 STF, Social Organizations Case, ADI 1.923 MC/DF, Judgment of 1 August 2007, Relator (acórdão): Eros Grau, D.J. 21 Sep. 2007. 178 Lei 9.637, de 15 de maio de 1998, D.O.U., 18.05.1998.

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legal constraints constitutionally imposed to governmental offices and agencies. The petitioner especially claimed that, pursuant to Article 37, XXI, of the Federal Constitution, all entities dealing with public assets are obliged to call for bids or release tenders for services and works. It advanced that competitive bidding processes should precede contracts signed by all federated entities—the Federal Union, states, federal district, and municipalities—or their offices and agencies.179 In the petitioner’s view, by permitting the transfer of public resources to entities that were not bound by that obligation or any other constrains of public law, the statute breached the principles that rule administrative bidding processes. Alleging the risk of irreparable harm to state property, the plaintiff pleaded for a preliminary order to suspend the effects of the statute until the STF’s final decision. On the petition for a preliminary order, Justice Eros Grau wrote that Federal Law 9637/98 had created an arbitrary differentiation between public entities, on the one hand, and the so-called social organizations, on the other. According to Justice Grau, no convincing reasons were given for permitting that the latter could more freely dispose of public resources, while the former had to fulfil strict requirements and observe bidding proceedings in order to do the same. Considering that the plaintiff’s arguments were sound and that it was necessary to prevent irreparable injury to state property, Justice Grau upheld the petition. Nevertheless, his vote constituted a dissenting opinion, for a majority of Justices ruled in the interlocutory decision that Federal Law 9637/98 should be enforced until the court’s definitive judgement. Under the argument that the risk of irreparable harm was not present in the case, the plaintiff was denied the preliminary order.

5.3.6 The Ex-Governors’ Pension Case (2007) The Ex-Governors’ Pension Case (2007) involved the payment of lifelong, monthly pensions to ex-governors and their surviving spouses.180 The Legislative Assembly of the State of Mato Grosso do Sul had created the benefit in 2006 by amending the state constitution. Called to deliver a report on the matter, the Federal AttorneyGeneral sustained that the state act had violated the Federal Constitution by equating pensioners with officers still in service. Repeating entirely the arguments given in the Opening Ceremony Case and the Public Pension Reform Cases I and II, Justice Eros Grau acknowledged in his opinion that equality in law-making, as defined by Alexy, was a principle of the Brazilian legal system. He conceded, however, that a persuasive 179 Constituição

da República Federativa do Brasil de 1988, Article 37, XXI: “With the exception of the cases specified in law, public works, services, purchases and disposals shall be contracted by public bidding proceedings that ensure equal conditions to all bidders, with clauses that establish payment obligations, maintaining the effective conditions of the bid, as the law provides, which shall only allow the requirements of technical and economic qualifications indispensable to guarantee the fulfilling of the obligations.” 180 STF, Ex-Governors’ Pension Case, ADI 3.853/MS, Judgment of 12 September 2007, Relatora: Min. Carmen Lúcia, D.J. 26 Oct. 2007.

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reason could be given to treat ex-governors differently from other civil servants, and similarly to current governors. This reason would be the peculiar condition and importance of the office they had occupied. Nevertheless, Justice Grau’s vote constituted a dissenting opinion. While he concluded that the state amendment was valid, the majority held that it was unconstitutional. Justice Mendes’s vote was in concurrence with the court. He agreed on the statute’s unconstitutionality, but dissented from the majority arguments. Whereas the other Justices based their opinions on the implicit limits to states’ authority to legislate on that matter, Justice Mendes assented with Justice Grau that the especial status of a governor offered sufficient grounds for a differential treatment. According to him, such a differentiation did not constitute a breach of equality under the Federal Constitution. He affirmed: “With Alexy, we have learned that the structure of the norm of differential treatment is as follows: ‘If there is an adequate reason for requiring differential treatment, then differential treatment is required.’”181 As a result, Justice Mendes ruled that unequal treatment was constitutionally required in that case, rather than prohibited. Despite this, he held that the amendment was formally void and null because it had been enacted in disagreement with the proceedings for amending state constitutions. In his opinion, only the state’s Governor, and not a member of the legislature, had the authority to propose the amendment and submit it to the consideration of the Legislative Assembly.

5.3.7 The Bidding Law Cases (2007) Similarly to the Social Organizations Case, both the RN Bidding Law Case and the RO Bidding Law Case were concerned with the implications of the general right to equality for the rules and proceedings that govern public purchases and sales.182 The Federal Constitution commands state offices and agencies to proceed to trades through competitive bidding processes. These processes are open with the publication of a notice soliciting bids for some service or good and settling guidelines for bidders. It is constitutionally required that these guidelines grant equal conditions of dispute to all participants, qualify the bids only according to features considered technically and economically indispensable to the fulfilment of obligations, and be incorporated as clauses to the contract signed with the winner. These norms are largely accepted in Brazilian jurisprudence as principles for the equality of conditions among bidders, the adoption solely of indispensable requirements, and the maintenance of the effective conditions of the bid, respectively.

181 In

the original, Alexy (1993), p. 397, quoted in: STF, Ex-Governors’ Pension Case, ADI 3.853/MS, Judgment of 12 September 2007, Relatora: Min. Carmen Lúcia, D.J. 26 Oct. 2007, p. 721; here, Alexy (2010a), p. 272. 182 STF, RN Bidding Law Case, ADI 3.070/RN; RO Bidding Law Case, ADI 2.716/RO, Judgment of 29 November 2007, Relator: Min. Eros Grau, D.J.e 41, 7 Mar. 2008.

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In what respects the RN Bidding Law Case (2007), the State of Rio Grande do Norte had passed a clause in its constitution dictating criteria for selecting the best offer among the bids for goods or services submitted under any public notice solicitation. The rule settled that bidders should be preferentially selected among taxpayers from that state. The General-Attorney of the Republic filed the lawsuit pleading that the state clause was declared void for violating the right to equality and the prohibitions under the Federal Constitution that a federated entity create distinctions among Brazilians,183 and that bidders be unequally treated (Article 37, XXI). In opposition, the Federal General-Attorney delivered a report arguing that the goal pursued by the state constitution—to stimulate economic investments in that region—was reasonable, and the violation to the principle of equality was not evident. Justice Grau was the rapporteur of the case and disagreed on the alleged absence of clear violation of the principle of equality. He affirmed that the clause of the state constitution was in evident violation of the Federal Constitution, for having created distinctions among Brazilian citizens due to their state of origin and also for having established different conditions for the bidders in dispute, conditions which were not technically nor economically indispensable for fulfilling government’s needs. In his terms, the general principle of equality underlays such prohibitions, to the extent that, despite these rules, unequal treatment could be constitutionally required in a situation—either by the subject-matter of a case, or some other material circumstance—, rather than constitutionally forbidden. According to him, however, that was not the case; rather the opposite, the state constitution placed some bidders in a privileged position, granting them an unjustified advantage over other competitors that had never paid taxes to that state or who paid less taxes. He concluded by declaring that the clause was null and void. All other Justices followed his opinion, and the STF rendered a unanimous decision. Likewise, in the RO Bidding Law Case (2007) the subject matter under dispute was a law passed by the Legislative Assembly of the State of Rondônia. The act permitted that, if new municipalities were created by the partition of a pre-existing one, contracts for public transport signed by the prior municipality would be automatically binding not only for the new ones but also for that state. The same private operator previously in charge of an intra-municipal service would then be the provider for the inter-municipal public transport—i.e., the transport between the recently created municipalities—without the need of a new call for bids. Additionally, the law commanded that where there were two operators or more, the government should open a competitive bidding process, but the service would be preferentially purchased from bidders that were taxpayers from that state and had previously provided similar services in that region. The petitioner of the RO Bidding Law Case, the Governor of the State of Rondônia, alleged that the statute violated three clauses of the Federal Constitution: Article 37, Main Body, for authorizing state government to treat with partiality people and 183 Constituição

da República Federativa do Brasil de 1988, Article 19, III: “The union, the states, the federal district and the municipalities are forbidden to: … create distinctions between Brazilians or preferences favouring some.”

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entities under its authority184 ; Article 37, XXI, for having unreasonably created more favourable conditions for some bidders; and Article 175, for allowing the purchase of inter-municipal public services without a previous and specific bidding process.185 Justice Grau, the case rapporteur, considered that the petitioner’s arguments were sound. According to the Justice, the law treated bidders unequally by creating unjustified advantages for private operators that had previous contracts for providing public transport in that state. Thus, he stated the unconstitutionality of the statute articles and paragraphs that had provided for the unequal treatment. Rendering a unanimous decision on these merits, the STF declared the provisions null and void.

5.3.8 The Journalism Degree Case (2009) The Journalism Degree Case (2009) raised the question of whether the requirement of a specific degree to work as a journalist conformed to the Federal Constitution.186 According to a statute enacted in 1969 during the military dictatorship, the practice of journalism was conditional on registration before the Ministry of Labour and Social Security, provided that a person had been granted the corresponding degree by an accredited institution of higher education.187 The case was filed with the STF by means of an extraordinary appeal. The appellant claimed that the reception of the statute under the new constitutional order was not possible, for the legal requirement of a degree to practice journalism breached the freedoms of expression, profession, information, and press. Particularly concerning the freedom of profession, the appellant argued that, although the legislature was constitutionally empowered to regulate and impose conditions to any professional practice, the statutory regulation was excessive and unreasonable in that case. These arguments convinced a majority of Justices. As a result, the STF upheld the appeal and declared that the statute did not conform to the Federal Constitution. Justice Gilmar Mendes was the rapporteur of the case. According to him, deciding the case depended on answering whether or not the legislature had abused its authority. This would be especially important for the judgement because the Federal Constitution expressly announces that freedom of profession is guaranteed, “the practice of any work, trade or profession is free,” and then delegates to the National Congress the responsibility to pass laws about the minimum qualification required for a specific practice, “observing the professional qualifications which the law shall 184 Constituição

(1988), Article 37, Main Body: “The governmental entities and entities owned by the Government in any of the powers of the union, the states, the Federal District and the Municipalities shall obey the principles of lawfulness, impersonality, morality, publicity, and efficiency.” 185 Constituição (1988), Article 175: “It is incumbent upon the Government, as set forth by law, to provide public utility services, either directly or by concession or permission, which will always be through public bidding.” 186 STF, Journalism Degree Case, RE 511.961/SP, Judgment of 17 June 2009, Relator: Min. Gilmar Mendes, D.J.e. 213, 13 Nov. 2009. 187 Decreto-Lei 972, de 17 de outubro de 1969, D.O.U. 21.10.1969, Article 4, V.

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establish.”188 Hence, it would be necessary firstly to delineate the scope of protection of the constitutional provision on freedom of profession. Once the scope had been delineated, the next step would involve separating potential infringements that albeit falling into the scope of the freedom do not affect its core, on the one hand, from violations to its essential core, on the other. Paraphrasing Alexy, Justice Mendes said that statutory limitations the legislature imposes on a constitutional right are only permitted where they do not encroach upon the essential core of the same right.189 As the Justice acknowledged, to identify whether the statutory regulation had violated the core of the freedom of profession demanded that the court performed the proportionality test. And the statute at hand would fail the first of the proportionality subtests, suitability. Justice Mendes affirmed that the aim pursued by the constitutional provision that admitted legislative limits on freedom of profession was to protect individuals against possible harm caused by professionals lacking the corresponding qualification. That would be the case of medicine and engineering, for example; journalism, however, would not normally require scientific or advanced knowledge. The statutory requirement of a journalism degree would be, thus, unsuitable for the protective purpose. What is more, it would not protect the rights of third parties from the damages caused by possible abuses in exercising the freedom of the press. In Justice Mendes opinion, such damages were generally not a consequence of the action of unprepared journalists, but rather of anti-ethical conduct, which one could not prevent by requiring a diploma from those in charge of writing, publishing, or editing journalistic texts. Besides being unsuitable for the protection of third parties, the statutory requirement of a journalism degree was unnecessary, said Justice Mendes in reference to the second of the proportionality subtests. The statute would severely restrict the freedoms of profession and expression of individuals interested in conducing journalistic activities, and it would do so without even reaching the ends it was supposed to accomplish. As Justice Mendes explained, journalism encompasses the professional practice of activities such as writing, reporting, and publishing, which would fall into the scope of protection of freedom of expression. That being the case, all individuals could freely engage in these activities independently of license. He mentioned as an example the fact that notorious writers had always worked for respected newspapers and magazines without a journalism degree, and no one could reasonably doubt their aptitude and qualification to do so. In contrast, as Justice Mendes acknowledged, the requirement of a degree exposed these professionals to unjustified embarrassment and subjected them and the media companies they work for to constraints, for example, the payment of fees and other penalties due to the non-fulfilment of labour regulatory conditions.

188 Constituição

da República Federativa do Brasil de 1988, Article 5, XIII: “The practice of any work, trade or profession is free, observing the professional qualifications which the law shall establish.” 189 Alexy (1986), p. 267, paraphrased in STF, Journalism Degree Case, RE 511.961/SP, Judgment of 17 June 2009, Relator: Min. Gilmar Mendes, D.J.e. 213, 13 Nov. 2009.

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Justice Mendes collected similar decisions from the Inter-American Court of Human Rights, in which the legal requirement of a journalism degree had been deemed as violating Article 13 of the ACHR.190 He finally concluded his vote declaring that the statutory provision was disproportional and, therefore, its reception was not possible under the Federal Constitution. A majority of Justices adhered to his vote, and the STF upheld it as its final opinion on that case.

5.3.9 Other Cases References to Alexy in STF’s case law on freedom and equality rights are present in several other cases, with either primary or secondary impact. For instance, in the Anencephaly Case (2012), which addressed the question of whether pregnant women had a constitutional right to abort fetuses that were diagnosed as anencephalic, Justice Rosa Weber applied the principles-theory variant of proportionality.191 She voted with the majority to permit abortion under those particular circumstances. As advanced in Chap. 3 above, that was the first time the complete weight formula appeared in a Justice’s opinion. In the same judgement, Justice Fux followed the majority as well. He did so by endorsing Alexy’s conception of wide-scope rights, which in his view led to the necessary conclusion that “no fundamental right in the Federal Constitution is absolute.”192 As next section shall demonstrate, this claim is an essential tenet of the STF’s case law on the structure of fundamental rights, which allows for the proportionality test. Other cases in which Justices referred to the principles-theory conception of widescope rights, this time respecting equality, were the Racial Quotas Case (2012)193 and the Senator’s Preventive Detention Case (2017).194 In the former, the STF had to decide whether race-based quotas for admission to federal universities were constitutional; in the latter, the court had to declare whether the Federal Constitution allowed for preventive detention of senators and whether a majority of members of the Federal Senate needed to approve such a request. In both cases, Justices who

190 ‘Everyone

has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice. … The right of expression may not be restricted by indirect methods or means.’ (Organization of American States, American Convention on Human Rights, Article 13). 191 STF, Anencephaly Case, ADPF 54/DF, Judgment of 12 April 2012, Relator: Min. Marco Aurélio, D.J.e. 80, 30 Apr. 2013. 192 Ibid. 193 STF, Racial Quotas Case, ADPF 186/DF, Judgment of 26 April 2012, STF, Relator: Min. Ricardo Lewandowski, D.J.e. 205, 20 Oct. 2014. 194 STF (First Panel), Senator’s Preventive Detention Case, AC 4327 AgR-terceiro-AgR/DF, Judgment of 26 September 2017, STF, Relator (acórdão): Min. Roberto Barroso, D.J.e. 247, Oct. 27, 2017.

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quoted Alexy—Justice Mendes and Justice Fux, respectively—did so in support of the majority opinion. Finally, in two other judgments, references to the principles-theory account of equality rights had primary impact on the STF’s final ruling. The Civil-Service Entrance Examination Case (2014) was about the rules applied to the recruitment and admission of public sector employees.195 According to the guidelines issued by the State of Alagoas, not everybody who had attained the minimal score in the first test could continue the entrance examination, as participation in the next phases was granted to a limited number of competitors only. In his vote, the rapporteur, Justice Mendes, referred to the principles-theory conception of a general right to equality. He affirmed that such a constitutional right was not absolute and only required a prima facie equal treatment. Justice Mendes advanced that unequal treatment could be justified in a given case, provided that further reasons existed for that. He concluded that the election of criteria to limit the number of competitors based on a merit system was in accordance with the Federal Constitution. As a result, the STF delivered a unanimous opinion overruling the lower court decision that had declared the entrance-examination guidelines null and void. The Legal Entity’s Political Donation Case (2015) was about the right to finance political parties and campaigns.196 Legal entities had the right to make political donations pursuant to Election Law. Nonetheless, the Brazilian Bar Association filed a petition with the STF claiming that the statutory section that allowed for such type of donations was unconstitutional, which the court assented with. The STF understood that the economic power of legal entities put them in a privileged position when compared to citizens, thus diminishing the chances people had to influence the results of the election process. As a consequence, the court declared that the right to finance political parties and campaigns was exclusive to individuals. The rapporteur, Justice Fux, delivered the court’s opinion. Referring to Alexy’s conception of equality, he sustained that, although the right to equal treatment was prima facie infringed by any law that restricted anyone’s right to participate in the political life of her community, unequal treatment was definitively required in the case, as treating legal entities as individuals would hinder citizens’ political rights. A majority of Justices agreed, and the STF granted the petition, declaring that the Federal Constitution implicitly prohibited legal entities to make political donations to either political parties or candidates.

195 STF, Civil-Service Entrance Examination Case, RE 635739/AL, Judgment of 19 February 2014,

STF, Relator: Min. Gilmar Mendes, D.J.e. 193, 3 Oct. 2014. Legal Entity’s Political Donation Case, ADI 4650/DF, Judgment of 17 September 2015, Relator: Min. Luiz Fux, D.J.e. 34, 24 Feb. 2016.

196 STF,

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5.4 Borrowing a Particular Conception of Wide-Scope Rights As seen above, Alexy claims that the scope of any fundamental right expands to encompass all actions, interests, and measures that minimally interfere with the rightholder’s position. Their range of protection is, thus, extraordinarily wide, but most of what falls under their scope is protected only prima facie against the fundamental rights of others. It may happen, and in fact it frequently does, that after everything is considered, the right-holder ends up with nothing—and this does not allow to infer that she did not have any right. What prima facie rights actually require in each and every case is that the reasons they put forward for or against something must be considered in legal argumentation; only definitive rights can grant someone more than this. As prima facie rights limit themselves, we can only be sure about whether someone holds a definitive right in a given case by having recourse to proportionality. With the help of the proportionality test, we are able to separate mere infringements from real violations to a right, Alexy maintains. He assumes that an opposing measure that apparently infringed a right may nevertheless be justified, say, by a conflicting right of a third person, which means it did not violate her right in the end. A right is only violated when a measure encroaches upon its core. This theory of wide-scope rights makes no room for absolute rights in a constitution. All definitive rights must be relative, for their range of actual protection depends on (or is determined by) the result of collisions between prima facie rights— the right from which it derived and those against which it collides. All of this applies to freedom rights, which are commonly the main subject of analysis in comparative constitutional law, but also to equality rights. The general right to freedom provides its holder with the right to do or not to do whatever pleases her and includes more specific freedom rights that grant particular behaviours or courses of action. The general right to equality gives its holder the right not to be arbitrarily treated; this prohibition of arbitrary treatment binds all government branches, includes more specific equality rights, encompasses rules that either command or prohibit unequal treatment, and requires prima facie that people be equally treated in a legal sense, unless factual equality is demanded in a case. The fifteen judgements advanced in the last section exemplify the influence of Alexy’s conception of wide-scope rights on STF’s opinions. Considering only the six cases in which principles-theory-based arguments had a primary impact for the final rulings, the existence of a general right to equality and more specific equality rights was affirmed in the Opening Ceremony Case (2006), the Bidding Law Cases (2007), the Civil-Service Entrance Examination Case (2014), and Legal Entity’s Political Donation Case (2015). Notably, the STF has never expressly declared the existence of an equivalent general right to do whatever one pleases in the Federal Constitution. We can nevertheless infer from the court’s case law that a wide-scope right to freedom does exist. In the Journalism Degree Case (2009), for instance, the STF had recourse to the proportionality text to determine that a statute was null and void because it encroached upon the core of fundamental rights like freedoms

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of expression and profession. This argument is only intelligible if a general right to freedom, from which more specific freedom rights as such derive, is assumed from the beginning. Admittedly, most judgments on equality expounded above show not only that Alexy’s theses have influenced the STF’s case law, but also that the borrowings can be described as a-contextual. Were the STF less enthusiastic about foreign legal references, it would be expected that, before applying scholarly theses that were originally inferred from the case law of an alien court, and thus delivered under an alien constitution, Justices compared both legal systems and exposed where they share similarities that support the borrowings. By contrast, the STF took for granted and included in its opinions pieces of the principles theory regardless of the reasoning that originally upheld them, and with little regard for peculiar features of German legal system either. Importantly, the Brazilian court has assumed that Alexy’s works are a source of valid judicial arguments without further reflection on the legitimacy of such borrowings. Since the STF has given scant notice to their context of origin when incorporating these elements to Brazilian case law, their reception could be described as a simple import.197 Yet, more important than introducing another metaphor to the terminological war that has raged on the literature on constitutional migrations is to compare the paths the BVerfG and the STF pursed to reach similar understating. Alexy conceived of wide-scope rights to give coherence to the judgements the BVerfG had been delivering on the matter. One may doubt whether German Justices had any theory on the structure of rights in mind when they delivered their opinions, were conscious of their role in developing a new legal paradigm, or pursued anything more than deciding the concrete cases they were faced with.198 At any rate, the change in the view of fundamental rights in Germany, from narrowly to widely conceived rights, cannot be denied. Nor can one ignore that a chain of significant cases marked such a development throughout the decades. The BVerfG sparkled the change by first overriding the understanding inherited from the Empire and the Weimar Republic that fundamental rights protected citizens against the government, “but [did] not touch the relationship of citizens to one another.”199 In the aforementioned Lüth Case (1958), the court held that fundamental rights have a “third-party effect,” that is, they are also binding on the relationships between natural persons.200 That was the initial step towards a conception of fundamental rights as prima facie rights with wide scope, but it would be highly doubtful to say that the BVerfG knew by then how its case law would evolve afterwards. Respecting equality, the BVerfG held in 1951—the year of its establishment—that lawmakers were also bound to the constitutional clause of equality. The court did so by interpreting Article 20 (3) of the Basic Law, which reads, “the legislature 197 See

Frankenberg (2010), pp. 574–575, comparing constitutional migrations to the purchase, import, and reassembly of products. 198 Schlink (1995), pp. 1231–1237. 199 Schlink (1992), p. 718. 200 BVerfG (First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958. See Chaps. 2 and 4.

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shall be bound by the constitutional order.” The judgement, known as the Southwest State Case,201 is considered to have inaugurated a new era for judicial review in Germany.202 The possible precedence of factual equality over legal equality is necessarily connected to the task of implementing a welfare state and promoting distributive justice. The allocation of social resources and repartition of public goods are at some extent determined by the answers a political community gives to these issues. Not coincidentally, the BVerfG has enforced factual equality when the situation posed by a case demonstrates that strictly guaranteeing equality before the law, by treating the same way citizens under different factual conditions, could lead to unjustly burdening some individuals and groups, while enforcing the maintenance of more favourable positions of others.203 Whereas the interpretation of the BVerfG was initially concerned with economic aspects of inequality, its case law was further extended to other equality problems, such as sex discrimination and the imbalance between men’s and women’s legal rights and duties, for instance.204 The court developed this new concept of wide-scope rights to freedom and equality in response to its own interpretive needs, as Justices faced challenges posed case by case, which is altogether different from the STF’s attitude of taking these ideas as ready-made products. In all fairness, a positive aspect of the imports as made by the STF is that although the court takes for granted principles-theory theses on equality, Brazilian Justices have tried to answer by themselves, by extracting evaluative parameters from the Brazilian legal system, “the question of what counts as an adequate reason for permitting or requiring difference of treatment.”205 In this way, the principles theory has intermediated the transference of elements from German constitutional case law and jurisprudence, but its function goes beyond the role of a mere mediator. The theory has been considered a source in itself. Not surprisingly, arguments that could be put forward for the borrowings, such as the text of the Federal Constitution, in several clauses very similar to the Basic Law, are 201 BVerfG,

Southwest State Case, 1 BVerfGE 14, Judgment of 23 October 1951. in this respect, Leibholz (1952), pp. 723–731; Klein (1975), pp. 74–75; and Kommers and Miller (2012), pp. 66–67, according to whom, “the case has been compared to Marbury v. Madison.” 203 See e.g., BVerfG, Party Finance Case I, 8 BVerfGE 51, Judgment of 24 June 1958, in which the court held that whether a statute is in accordance with constitutional equality does not depend of its wording being formulated in a manner that gives equal treatment to all the people under its authority; a legislative act “may be contrary to the principle of equality [and thus unconstitutional] if its practical application results in an obvious inequality and if this unequal effect is due to the legal formulation [of the same statute]” (translated in Kommers and Miller [2012], pp. 271–273). The same substantial understanding of equality has been shown in several of its decisions delivered under what Klein (1975), p. 78, called “guidance by the idea of justice.” In fact, the BVerfG’s leitmotif is broader than the idea of social fairness and cannot be reduced to an emphasis on the economic values traditionally related to the welfare state. 204 In BVerfG, Pension Reform Case, 74 BVerfGE 163, Judgment of 28 January 1987, e.g., the court came to the conclusion that allowing women to retire earlier than men does not violate equality, since women generally carry the burden of a double occupation as workers and housewives, and on them lay the heavier onuses of child caring imposed by pregnancy and nursing. See in this respect, Rabe (2001), p. 220. 205 Alexy (2010a), p. 273. 202 See

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rarely mentioned. That is not to say that justification for borrowing does not exist, as I shall demonstrate below.

5.4.1 Wide-Scope Rights to Freedom and Equality in the Federal Constitution A task posed by any coherent interpretation of the Basic Law was to explain the relation between specific freedom rights and a general right to freedom, on the one hand, and between specific equality clauses and the general provision of equality before the law, on the other. The circumstances in Brazil are not so different in this respect. The Federal Constitution contains both a general statement of freedom and equality and several specific clauses on both rights. The Main Body of Article 5 reads: “All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to … liberty, to equality … on the following terms.” Such a provision of a general right to freedom and equality matches the principles-theory claim that abstract prima facie rights—that is, rights unrestrictedly conceived—co-exist with either concrete or abstract definitive rights within the same charter. It therefore raises difficulties for the defence of an account such as Dworkin’s, which claims that institutional rights are specific and there is nothing like a general right to freedom.206 It is thus consistent with the Brazilian constitutional text that freedom be deemed both as a general right and as more specific freedom rights, in accordance with Alexy’s theory. The main provision is followed by several statements on freedom of expression,207 of conscience,208 of association,209 and so on. Respecting equality, the Federal Constitution also provides for equality between men and women210 —in a manner that is substantially similar to Article 3 (2) Basic Law—and more specific clauses that allow differentiation in benefit of women.211 Other constitutional rules establish, for instance, equal citizenship (Article 12, Paragraph 2, and Article 19, III), electoral equality (Article 14), the prohibition of disfavour due to disability (Article 206 Dworkin

(1978), pp. 267–275. da República Federativa do Brasil de 1988, Article 5, IV: “The expression of thought is free, and anonymity is forbidden.” 208 Constituição (1988), Article 5, VI: “Freedom of conscience and of belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed.” 209 Constituição (1988), Article 5, XVII: “Freedom of association for lawful purposes is fully guaranteed, any paramilitary association being forbidden.” 210 Constituição (1988), Article 5, I: “Men and women have equal rights and duties under the terms of this Constitution.” 211 Constituição (1988), Article 5, XLVIII and L: “The sentence shall be served in separate establishments, according to the nature of the offence, the age and the sex of the convict” and “female prisoners shall be ensured of adequate conditions to stay with their children during the nursing period.” 207 Constituição

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7, XXXI), and the ban of discriminating workers on grounds of sex, age, colour, or marital status (Article 7, XXX). These are all examples of abstract definitive rights to be treated differently if there is an adequate reason for such a differentiation. Notably, the Federal Constitution includes provisions according to which the right to equality: binds law-makers,212 commands either equal or unequal treatment,213 and requires prima facie that people be equally treated in a legal sense, unless factual equality is demanded.214

5.4.2 Unwritten Limits to Rights in the Scholarly Debate Similarly to the Basic Law, the Federal Constitution poses a task to its interpreters: to conceive the various freedom and equality rights in the constitutional text in a manner that general and specific clauses cohere. Alexy does formulate a conception of wide-scope rights that fit this arrangement and is embedded in a comprehensive understanding about their structure. Whereas similarities between the constitutional wording can provide some reasons for borrowing the principles theory, one may not overestimate the importance of such textual resemblance. Scholars affirm that the framers of the Basic Law envisaged a constitution in the mould of its equivalent in the U.S., as a charter of guarantees that citizens hold against specific state intrusions.215 As we know, this has not prevented the BVerfG neither from developing a case law on wide-scope rights nor from referring this conception to the same text that had arguably been designed to provide for narrower conceived, trump-like rights. Consequently, by recognizing the implications of clauses that give raise to a duty of unequal treatment before the law, for instance, I do not intend to deny the important distinction between text and norm. I actually agree with Koopmans, who maintains that “what the courts can do to put equality principles into effect may not so much depend on the wording of these principles in constitutional documents, but rather on judicial attitudes in general.”216 The distinction between text and norm has practical implications as it turns the recognition of limits to rights into something relatively independent of the actual existence of a clause providing for it. As Barak explains, while “the inclusion of an express limitation clause in a constitution indicates the relative nature of the rights to which it applies, … the constitution’s silence regard212 Constituição (1988), Article 12, Paragraph 2: “The law may not establish any distinction between

born and naturalized Brazilians, except in the cases stated in this Constitution.” (1988), Article 37, VIII: “The law shall reserve a percentage of public offices and positions for handicapped persons and shall define the criteria for their admittance.” 214 An example in which promoting factual equality has justified legal inequalities is found in Article 201, Paragraph 7, I and II, of the Federal Constitution. These provisions grant women more favourable conditions of voluntary retirement: “thirty-five years of contribution, if a man, and thirty years of contribution, if a woman,” added to “sixty-five years of age, if a man, and sixty years, if a woman.” 215 Schlink (1992), p. 725; Hofmann (1989), pp. 3177, 3184. 216 (1975), p. 222. 213 Constituição

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ing limitation clauses (general or specific) does not render the constitutional rights absolute.”217 That is noteworthy because, differently from the Basic Law and other European constitutions, the Federal Constitution does not provide for a generic limitation of fundamental rights, nor does it mention the existence of a core to be protected from the legislative activity. Interestingly, as scholars have pointed out, several clauses on fundamental rights in the Federal Constitution are copies of equivalent articles and sections from the Portuguese and Spanish constitutions currently in force.218 And the two Iberian constitutions contain general restriction clauses that resemble the Basic Law. The Portuguese Constitution mentions the scope of rights in Article 16, and Article 18 declares, “the law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution, and such restrictions must be limited to those needed to safeguard other constitutionally protected rights and interests.”219 Similarly, Section 53 (1) of the Spanish Constitution reads: “Only by an act which in any case must respect their essential content, could the exercise of such rights and freedoms be regulated.”220 The lack of an exact provision on the essential core of rights intrigued the first jurists who attempted to interpret the fundamental rights in the Federal Constitution under the light of the wide-scope theory.221 The existence of such a provision in the Constitutions of Portugal and Spain, which are known as having directly influenced the text of the Federal Constitution, could reveal that the Brazilian constitutional framers deliberately opted from omitting such a clause. Above all, it could signal a deliberate commitment to a conception of rights with narrow scope. Other normative features of the Brazilian legal system could provide evidence for this conclusion. The Federal Constitution lists in its catalogue of rights some writs that are typical from the Anglo-American system—the writ of injunction, e.g.—and contains clauses that are copies of sections of the U.S. Constitution. For instance, the provision for the due process of law in Article 5 is identical to the Fifth Amendment to the U.S. Constitution.222 As the U.S. Constitution is the main source for the conception of rights as trumps, one could bring about the wording of these and other clauses in making a case for a narrow approach to the structure of rights in Brazil. Nevertheless, that is not how the prevailing scholarship or the STF have interpreted the Federal Constitution. Most scholars have affirmed that, despite the lack of a clause undoubtedly declaring it, the Federal Constitution endorses a conception of fundamental rights with 217 Barak

(2012a), pp. 134–135. Tavares (1991), pp. 88–95. 219 Constituição da República Portuguesa, de 2 de Abril de 1976, Article 18 (2), translated in http:// www.tribunalconstitucional.pt/tc/en/crpen.html. 220 La Constitución Española de 1978, translated in http://www.lamoncloa.gob.es/lang/en/espana/ leyfundamental/Paginas/titulo_primero.aspx. 221 de Barros (1996), pp. 94–98. 222 U.S. Const. amend. V : “No person shall be … deprived of life, liberty, or property, without due process of law.” 218 de

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wide scope that is compatible with the proportionality test.223 An argument they frequently put forward for this conclusion is the constitutional admission of unenumerated rights.224 Although the Federal Constitution does not stipulate any overarching limit to the rights it provides for, it recognizes the existence of fundamental rights that are not expressly declared in its text. Article 5, Paragraph 2, states that “the rights and guarantees expressed in this constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party.” Such a clause indirectly admits the existence of unwritten limits to what is textually stated. As a renown Brazilian scholar explains,225 written fundamental rights are those listed in the text of the Federal Constitution, within the charter of rights (Article 5 through 17) or in other parts of the document, as well as other rights that are part of the treaties Brazil has signed. On their turn, unwritten fundamental rights are either implicit or derivative rights. Implicit are those rights that one can extract from the constitutional wording by means of deduction and traditional interpretative technics others than grammatical reading. By contrast, derivative rights are rights that one can derive from the fundamental principles (Article 1 through 4), which include democracy, rule of law, and human dignity. Importantly, the Federal Constitution does not connect any difference in effect and normative character to the distinction between written and unwritten rights. Inasmuch as they are equally enforceable, they will possibly collide. One can therefore infer that, at least in some cases, an unwritten right could limit a written one—which according to the wide-scope model, requires the proportionality test.226 Another argument can be given in support for the conclusion that the scholarship adherence to a wide-scope conception of rights was not exclusively due to the constitutional text. As Sarlet observed, clauses similar to Article 5, Paragraph 2, can be found in all Brazilian Constitutions promulgated after the Republic was proclaimed in 1889.227 Incidentally, the author traces the origins of the provision back to the Ninth Amendment to the U.S. Constitution, which is regarded as the source of the unenumerated rights within the U.S. legal system. The clause reads, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” We can notice that Article 5, Paragraph 2, of the Federal Constitution differs significantly from this. Among other dissimilarities, the U.S. Constitution does not mention principles as sources for unwritten rights, as the Brazilian provision does. The clause wording has been kept substantially the same in all Brazilian constitutions in which it appeared; however, its interpretation has changed significantly since 1988. That is most likely due to the change in the conception of “principles” to which the clause alludes. There is no doubt that the principles theory is a factor of primary importance for this change. 223 Mendes

(2001); (1994); de Barros (1996), pp. 98–125; da Silva (2006), pp. 23–51. (2009), pp. 71–72, 78–90; Bonavides (2008), pp. 434–436. 225 Sarlet (2009), pp. 79, 84–91. 226 Mendes (2012), pp. 54–55, 76–79, 101–112. 227 Sarlet (2009), pp. 78–79. 224 Sarlet

5.4 Borrowing a Particular Conception of Wide-Scope Rights

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5.4.3 ‘No Absolute Rights’ in Case Law The set of cases exposed above demonstrate that the STF has endorsed the principlestheory conception of fundamental rights as possessing wide scope. This account has been applied not only to the adjudication of cases concerned with freedom, but with equality as well. Alexy’s theses on equality reflect the character of this general right as an abstract prima facie right in contrast with specific equality rights, which result from the collision between the prima facie right and its unwritten limits, both optimized—considered in their wider scope. Following Alexy’s advice, the STF has solved such collisions by giving higher abstract weight to similar treatment and formal equality unless there is justification for deciding otherwise. This is the premise underlying Justices’ often-repeated assertion that the principle of equality is only breached when the difference of treatment is arbitrary. Such a premise entails that arbitrary differentiation is forbidden, for it violates the core of the equality right. Furthermore, by endorsing the principles-theory conception of wide-scope rights to freedom and equality, the STF has chosen a route that leads to a necessary conclusion: there can be no absolute rights in the Federal Constitution. Actually, this understanding has prevailed in the STF’s case law and among its Justices at least since the 1990s.228 It in fact preceded the explicit quotations to Alexy and the principles theory from 2002 on. Furthermore, it has been frequently reaffirmed in more recent judgements, as in the Anencephaly Case (2012) expounded in Chap. 3, and the Political Satire Case (2010),229 which will be discussed in the next chapter. Notwithstanding the absence in the Federal Constitution of a clause such as Article 19 (2) of the Basic Law, which expressly states that the essential core of rights shall be guaranteed, the STF has engaged in an interpretation that approximates the application of rights in Brazil to the German model. The Heinous Crimes Act Cases I (2005) and II (2006) and the Journalism Degree Case (2009) analysed above made it clear that Justices conceive fundamental rights as being wide in scope but possessing a core despite the constitutional silence about it. Besides, under the influence of Alexy, the STF has constantly affirmed that the Federal Constitution provides for unwritten limits to rights. That is in accordance to the principles theory, for Alexy affirms that the proportionality test presupposes the existence of such implicit limits, regardless of whether a constitution contains any explicit clause on the matter.230 Assuming that, as introduced in the beginning of this chapter, no legal system is compelled to adopt a wide-scope conception of fundamental rights instead of a narrower one, constitutional framers, as well as courts and legal scholarship, should 228 See

e.g., STF, MS 21729, Judgment of 5 October 1995, Relator: Min. Sepúlveda Pertence, D.J. 19 Oct. 2001; MS 23452, Judgment of 16 September 1999, Relator: Min. Celso de Mello, D.J. 12 May 2000; HC 79285, Judgment of 31 August 1999, Relator: Min. Moreira Alves, D.J. 12 Nov. 1999; AI 655298, Judgment of 4 September 2007, Relator: Min. Eros Grau, D.J. 28 Sep. 2007; HC 103236, Relator: Min. Gilmar Mendes, D.J.e. 3 Sep. 2010. 229 STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 230 Alexy (2010a), p. 196.

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make a choice. And it emerges from what was exposed above that the STF has decided in favour of the wide-scope conception. The court’s case law has maintained that there are no absolute rights in the Federal Constitution and that fundamental rights have a core that one cannot trespass without committing an outlawed act. What follows is a need of separating mere prima facie infringements, which do not affect the core of a right, from actual violations to it. This need leads to balancing and leaves no room for alternative approaches that argue for rights with narrow scope, such as Dworkin’s account of specific, free from external restriction, and possibly absolute rights.

5.5 Results In this chapter, I submitted that every legal community has to answer a central question about the structure of fundamental rights: which of the competing approaches and possibly their variant forms provides for the best understanding of the rights in the constitutional charter. Two basic substantive models dominate the debates on comparative constitutional law. The wide-scope approach conceives of general, externally limited, and relative fundamental rights; the narrow-scope approach claims that fundamental rights are rather specific, only internally limited, and possibly absolute. This twofold separation is somewhat rough because it places divergent, sometimes irreconcilable variants under the same umbrella. Yet it suffices here on account of the contrasting attitude they recommend that judges adopt towards the proportionality test. In spite of what a comparison between the architectures of the U.S. Constitution and the Basic Law may suggest at the first sight, the differences between the two approaches are not exclusively grounded on a choice made by the constitutional framers. The scholarship and practice of each country not only reverberate the choice of a side, but also play an active role in giving meaning to the dichotomy. Academics and courts whose writings and opinions fall under the wide-scope model put arguments forward for balancing, while those who endorse the narrow-scope model condemn it. Alexy and his principles theory endorse the former conception, which finds institutional support in the judgments the BVerfG has delivered under the Basic Law. By the way of contrast, Dworkin and his trump-model fostered the latter conception, of which the U.S. Supreme Court is the most famous representative. As I demonstrated, since the Federal Constitution of Brazil was promulgated in 1988, the STF has gradually aligned its case law with the wide-scope approach. The court did so by borrowing the principles-theory account of fundamental rights when deciding on the clauses on freedom and equality in the Federal Constitution. In fact, the STF did not expose the reasons supporting the borrowings. Notwithstanding, it does not follow from this that appropriation was unjustifiable. Several clauses in the Federal Constitution actually provide for either general or specific rights, making a case for the suitability of the principles theory. As a matter of fact, besides the textual resemblance of several clauses in both the Federal Constitution and the Basic Law,

5.5 Results

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Brazilian scholarship has performed a decisive role in facilitating the migration. Scholars have argued for a wide-scope conception of fundamental rights, in spite of a deafening silence from the constitutional framers in this respect. The Federal Constitution contains no express provision that authorizes for the restriction of fundamental rights beyond the limits it already provides for. Moreover, it does not mention the existence of a core to be protected from the legislative activity. Equivalent provisions are found in texts that inspired the framers of the Brazilian charter, namely the Basic Law, and the Portuguese and Spanish Constitutions. Furthermore, some of the Federal Constitution clauses are similar to U.S. Constitution sections that are deemed as categorically protected. One could adduce this as evidence of a deliberate option for a narrow-scope conception. Nonetheless, a considerable body of literature has pointed to the opposite conclusion. Scholars have resorted to other constitutional provisions to argue for the existence of unwritten limits to the constitutional rights. Parallel to this, since the mid-1990s, the STF has firmed the understanding that the Federal Constitution provides for no absolute rights and that fundamental rights have a core that no one can trespass without committing an unlawful action. On the whole, both the academic and judicial constructions direct the interpretation of the Federal Constitution towards a wide conception of rights that leaves no room for alternative approaches that condemn balancing.

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Pildes RH (1993) Avoiding balancing: the role of exclusionary reasons in constitutional law. Hastings LJ 45:711 Pildes RH (1998) Why rights are not trumps: social meanings, expressive harms, and constitutionalism. J Leg Stud 27(S2):725–763. https://doi.org/10.1086/468041 Pildes RH (2000) Dworkin’s two conceptions of rights. J Leg Stud 29(1):309. https://doi.org/10. 1086/468073 Poscher R (2015) Theory of a phantom: the principles theory’s futile quest for its object. In de Oliveira JA, Paulson SL, Trivisonno ATG (eds) Alexy’s theory of law proceedings of the special workshop ‘Alexy’s theory of law’ held at the 26th world congress of the international association for philosophy of law and social philosophy in Belo Horizonte, 2013. Franz Steiner Verlag, Stuttgart, 1. Aufl, pp 111–128 Rabe J (2001) Equality, affirmative action, and justice (Book on Demand). J. Rabe, Hamburg Rivers J (2010) A theory of constitutional rights and the British Constitution. In: A theory of constitutional rights. Oxford University Press, Oxford Sarlet IW (2009) A eficácia dos direitos fundamentais: uma teoria deral dos direitos fundamentais na perspectiva constitucional. Livraria do Advogado, Porto Alegre Sarmento D (2006) Legalização do aborto e Constituição. In: Livres e iguais: estudos de Direito Constitucional. Editora Lumen Juris, pp 95–137 Schauer F (1992) A comment on the structure of rights. Ga. L. Rev. 27:415 Schlink B (1976) Abwägung im Verfassungsrecht. Duncker und Humblot, Berlin, 1. Aufl Schlink B (1991) Open justice in a closed legal system. Cardozo Law Rev 13:1713 Schlink B (1992) German constitutional culture in transition. Cardozo Law Rev 14:711 Schlink B (1995) The dynamics of constitutional adjudication. Cardozo Law Rev 17:1231 Schlink B (2011) Proportionality in constitutional law: why everywhere but here. Duke J Comput Intl Law 22:291–302 Schlink B (2012) Proportionality. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 718–737 der Schyff GV (2008) Cutting to the core of conflicting rights: the Qiestion of inalienable cores in comparative perspective. In: Brems E (ed) Conflicts between fundamental rights. Intersentia, Antwerp; Portland : Portland, OR, pp 131–148 der Schyff GV (2013) When is a bill of rights fit for judicial review? The limitation of rights regime in the Netherlands considered. Utrecht Law Rev 9(2):6–18 da Silva JA (2008) Comentário contextual à Constituição, 5 edn, de acord. c. E.C. 56/2007. Malheiros Editores, São Paulo, SP da Silva VA (2006) O conteúdo essencial dos direitos fundamentais e a eficácia das normas constitucionais. Revista de Direito do Estado (RDE) 4:23–51 Strayer BL (1989) Life under the Canadian Charter: adjusting the balance between legislature and courts. Commonw Law Bull 15(3):1016–1033. https://doi.org/10.1080/03050718.1989.9986041 de Tavares ALL (1991) A constituição brasileira de 1988: subsídios para os comparatistas. Revista de informação legislativa 28(109):71–108 Tremblay LB (2014) An egalitarian defense of proportionality-based balancing. Int J Const Law 12(4):864–890. https://doi.org/10.1093/icon/mou060 Tsakyrakis S (2009) Proportionality: an assault on human rights? Int J Const Law 7(3):468–493. https://doi.org/10.1093/icon/mop011 Waldron J (1993) A right-based critique of constitutional rights. Oxford J Leg Stud 13(1):18–51 Waldron J (2000) Pildes on Dworkin’s theory of rights. J Leg Stud 29(1):301. https://doi.org/10. 1086/468072 van der Walt J (2014) The horizontal effect revolution and the question of sovereignity. De Gruyter, Berlin Webber G (2009) The negotiable constitution: on the limitation of rights. Cambridge University Press, Cambridge, UK; New York Webber G (2010) Proportionality, balancing, and the cult of constitutional rights scholarship. Can J Law Jurisprud 23(1). http://papers.ssrn.com/abstract=1322810 Weinrib L (2006) The postwar paradigm and American exceptionalism. In: Choudhry S (ed) The migration of constitutional ideas. Cambridge University Press, Cambridge, pp 84–111

Chapter 6

A Constitutional Court Looking for Justification

6.1 Constitutional Review and Separation of Powers Constitutional review involves two basic questions.1 The first, ‘what can be done?’, was the subject of the two previous chapters, where I addressed the principles-theory conception of rules and principles, firstly as objective norms, and secondly as fundamental rights—whether prima facie or definitive. I have demonstrated that the STF’s case law incorporates such conceptions in some of its judgements. So far, not much has been said about the second question involving constitutional review, ‘who can do it?’, and that is the subject of the present chapter. I shall discuss below the consequences that follow from the institutionalization of the optimization thesis and of wide-scope fundamental rights in a legal system. Institutionalization is the attempt to transform human rights into fundamental rights and constitutional principles—i.e., positive law.2 The incorporation of such rights and principles in a legal system imposes constraints upon the legislature, which is thereafter constitutionally prohibited or commanded to legislate on certain matters. In Brazil, as in many other legal systems, it is incumbent upon a constitutional court to review legislation in order to assess whether the legislature has correctly carried out these commands and refrained from acting in accordance with those prohibitions. Many theorists have attempted to overcome the problems raised by judicial review of legislative measures, and the theories formulated in response vary significantly.3 In particular, they

1 Robertson

(2010), pp. 9–10. (1999), pp. 45–49; (2012), p. 330. 3 I should advise that the phrases ‘constitutional review’ and ‘judicial review’ are interchangeably used in this chapter following a tendency initiated by McWhinney (1986), pp. 45–51, in the English-written literature. I am nevertheless aware that, as Kommers and Miller (2012), p. 4 and ff., explain, “German legal scholars have traditionally distinguished between constitutional review (Verfassungsgerichtsbarkeit) and judicial review (richterliches Prüfungsrecht).” 2 Alexy

© Springer Nature Switzerland AG 2018 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_6

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have questioned whether the institutional framework that a democracy presupposes can accommodate courts making use of the proportionality test.4 The principles theory upholds a procedural conception of constitutional rights that recognizes the conflict between legislature and constitutional court, but argues for the legitimacy of proportionality-based review. “Constitutional rights are positions which are so important that the decision to protect them cannot be left to simple parliamentary majorities,” Alexy says.5 As the proportionality test is required to determine what the state can do without violating a fundamental right, it is also required to determine which state branch ought to assure that the right at stake has not been violated. As explained in Chap. 4, because constitutional rights are principles, and principles are optimization requirements, they demand a further decision about the extent to which they ought to be applied in a concrete case. Judges in charge of deciding it have to make use of the proportionality test, Alexy says. Yet, although proportionality provides a rational structure for decision-making, it does not determine the outcome of any case. The court is, thus, permanently invited to engage in argumentation to justify its rulings. One can depart from the conception of wide-scope fundamental rights to reach the same conclusion. Chapter 5 showed that the proportionality test determines where the legislature can go to restrict a fundamental right without violating it. In other words, proportionality reveals the spaces within which the legislature can act free from interference and, conversely, where the constitutional court must not interfere. Altogether, not only a particular ruling but also the court’s own legitimacy to rule a case depends on the rationality of the outcomes that the proportionality test achieves. Alexy has devoted some works to argue for the adequacy of proportionality-based review vis-à-vis the objection that the authority of non-elected judges goes against the democratic principle. I refer to this objection as the legitimacy challenge. In reply to it, the principles theory provided for a particular conception of representation, called argumentative representation.6 Rather than simply insisting that the proportionality test suits a constitutional democracy, principles-theory scholars endeavour to demonstrate that the test provides adequate justification for judicial review and offers reasonable solution to the issue of proper allocation of authority between legislature and courts.7 This second issue can be called the operational challenge, for it raises practical questions about competence, particularly about who is responsible for running the proportionality test in a given case. In reply to the operational challenge, Alexy developed a theory of judicial discretion (Dogmatik der Spielräume).8 4 Barak

(2012), pp. 379–421; Sweet and Mathews (2008), pp. 94–97; Kumm (2009), p. 6; CohenEliya and Porat (2011), pp. 481–482. 5 Alexy (2010a, b, c), p. 3. See also Alexy (2004), p. 38. 6 Alexy (2005), p. 572. In fact, as Rivers (2012), noticed, questions about the authority for conducing the proportionality test were not originally a central concern of the principles theory. The German original version of A Theory of Constitutional Rights did not contain any chapter dedicated to the relationship between constitutional court and legislature, which was only added as a postscript in the English translation. 7 See, for instance, Klatt (2015), p. 15; Borowski (2010), pp. 33–35. 8 Alexy (2002a), p. 13.

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Specifically, the principles theory attempts to build a bridge between the two aspects of new constitutionalism that regard constitutional review. From where Alexy stands, the institutional change that empowered constitutional courts and the turning of decision-making into argumentation simultaneously justify and are justified by the proportionality test. It would thus not be a coincidence that in legal systems where constitutional framers adhered to the new constitutionalism, principles are seen as optimization requirements, and fundamental rights as possessing wide scope. My main task in this chapter is to demonstrate that the STF has borrowed Alexy’s principles theory in order to justify its own authority and the use it makes of proportionality. In Sect. 6.1, I provide an overview of how different scholars and courts have faced the legitimacy and operational challenges. Section 6.2 exposes the theses of judicial discretion and argumentative representation that the principles theory advocates in reply to those challenges. Section 6.3 demonstrates that the STF has showed adherence to these theses. Finally, Sect. 6.4 points out that, faced with a scenario of massive infringement of constitutional rights due to the inertia of executive and legislative authorities, the STF found support in Alexy’s theory to abandon its previous deferential attitude. By adhering to this conception, the court chose the path that led to proportionality and conduced to the culture of justification.

6.1.1 Formal Aspects of the New Constitutionalism As advanced above, the idea of a conflict between legislature and courts is an important element and also a distinctive aspect of Alexy’s work, for not all competing theories agree with it.9 As with other elements of the principles theory, such an understanding towards constitutional review was developed in attempt to make sense of the new role the BVerfG assumed in German polity after World War II. Germany, however, is far from figuring as an isolated case in the post-war scenario. A vast literature has been written about the increasing authority of constitutional courts in many countries and the growing demands for convincing arguments and justification of their rulings, a phenomenon that is part of a broader historical process sometimes called new constitutionalism.10 A profusion of theories have attempted to grasp the essentials of this legal phenomenon. But as advanced in Chap. 2, a majority of authors seem to agree on which would be its pillars: a written constitution, a charter of rights, and a mechanism for dealing with unlawful state acts that violate those rights.11 Respecting the third pillar, two aspects make the emerging constitutionalism “new”: (i) an institutional change that empowered constitutional courts and (ii) a shift in judicial thought that turned 9 Cf. Dworkin (1999), p. 24; (1986), pp. 211–214; Waldron (2001), p. 3; Allan (2012), pp. 133–134. 10 See

for instance, Sweet (2000, 2003, 2012), pp. 37–38; Sweet and Mathews (2008), pp. 83–84; Law and Versteeg (2011); Landfried (1988a); Ackerman (1997), pp. 775–796; Roesler (2007); Comella (2009, 2011); Hirschl (2004, 2007). 11 Sweet and Mathews (2008), p. 85, footnote 27.

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decision-making in general, and constitutional review in particular, into a matter of argumentation and justification. These two processes are not the same, but are closely related. From the first wave of European constitution making after World War II until the 1970s, the scholarly debate was mainly focused on the institutional change. The pressing issue was then whether judges should “make law or simply interpret constitutions in a value-neutral, mechanical way,” and any answer necessarily reflected scholars’ view about the separation of powers.12 After the 1980s, when the change in judges’ attitude became evident, the necessity of decoupling constitutional decisionmaking and legislation threw light on the argumentative shift. As a constitutional authorization to review proved not to be sufficient to legitimate the new judicial attitude, most scholars turned to the problem of justification in attempt to find a proper balance for the new division of labour between courts and legislature. But the shift in the case law preceded the scholarly debate. An emerging “culture of justification” made the legitimacy of every governmental decision dependent on its rationality and reasonableness.13 As a consequence, questions have arisen concerning the limits of constitutional adjudication, or in which cases judicial review is justified in practice and to which extent. Particularly in legal systems where the constitutional text expressly provides for a court which is entitled to review legislation, like in Germany and Brazil, the pressing question was not whether constitutional review should exist from the beginning, but rather how—under which circumstances and to which extent—the corresponding competence was to be exercised. Different is the situation in the U.S., for example, where the Constitution does not bring any specific provision about the Supreme Court’s power of review. Accordingly, what a U.S. scholar has named the “fundamental rights controversy” is a debate towards whether there is any justification for a constitutional court to constrain the legislature—and therefore the majority will—on behalf of constitutional principles.14 In contrast, in Germany the debates have evolved into the challenge of developing criteria to discern under which circumstances one would reach “a reasonable balance of power between parliament and the constitutional court.”15

6.1.1.1

Constitutional Supremacy

There are many differences among institutional arrangements with respect to the distribution of labour between legislature and judiciary. As a first, rough classifica12 Landfried

(1988a), p. 7.

13 Ibid., p. 87. Kumm (2009), p. 8, speaks of a ‘turn from interpretation to justification.’ Cohen-Eliya

and Porat (2011), p. 463, refer to a ‘shift from a culture of authority to a culture of justification.’ The first author to employ similar terms was Mureinik (1994), p. 32, in reference to the South African Constitution post-apartheid. 14 Brest (1981), p. 1105. See also Sweet (2003), p. 2779; Walen (2009). 15 Landfried (1988b), p. 147.

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tion, one can separate between judicial systems based on statutory supremacy and those based on constitutional supremacy.16 The distinctive feature of judicial systems based on statutory supremacy is that courts are mere agents of the legislature within such a scheme. Scholars who defend this arrangement do not necessarily deny the existence or force of fundamental rights, but reject the assumption that the only or best way to protect them is via judicial review.17 Very different are the systems based on constitutional supremacy, in which the constitutional court or the highest court in charge of judicial review is not under the supervision of any legal institution and acts as a trustee of the constitutional framers instead of an agent of the legislature. Accordingly, fundamental rights are paramount norms entrenched in the constitution and the main source of judicial review. A consequence of this arrangement is the so-called judicial supremacy.18 Historically, arrangements based on legislative supremacy or parliamentary sovereignty prevailed among Western countries before World War II. The scenario has been the opposite since 1945.19 Comparing the European constitutions that were written after that, Sweet spoke of “successive waves of constitution-making.”20 The first wave began with the post-war reconstruction in Austria, Italy, and Germany. The second wave marked the end of military dictatorships in Portugal and Spain in the 1970s. The third wave followed the collapse of communism in Central and Eastern Europe after 1989. In Sweet’s view, the framers of all these countries’ constitutions deliberately opted for turning the previous systems of legislative supremacy into systems of constitutional supremacy with some form of judicial review.21 The second wave of constitution-making in Europe was centred in the Iberian Peninsula and had a strong influence on the Brazilian constitution promulgated in 1988. Not surprisingly, the Federal Constitution expressly provides for a constitutional court, the STF, which is “responsible, essentially, for safeguarding the Constitution” and holds the corresponding powers to review legislative acts (Article 102, I, a). The institutional adherence to a model based on constitutional supremacy has not been an object of dispute in Brazilian scholarship. Therefore, only arrangements concerning judicial systems based on constitutional supremacy will be considered below.

16 Sweet

(2012), p. 822. Cf. Tushnet (2003), pp. 2782–2786, pointing out that Canada and New Zealand are representatives of a third model, called ‘weak-form system of judicial review;’ or Hiebert (2006) referring to this third model as a ‘parliamentary bill of rights model.’ I nevertheless consider this model to be a variant of the constitutional-supremacy system and I will discuss it below in the next sub-section. 17 See e.g., Waldron (2006), p. 1346; (1993), pp. 27–28. 18 Gardbaum (2010), p. 94. 19 Cappelletti (1970), p. 1052; Ferejohn and Pasquino (2003), p. 1675 ff. 20 Sweet (2003), p. 2745. 21 Ibid., p. 2745.

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Strong Forms of Constitutional Review

There are innumerous criteria for differentiating and classifying the arrangements that legal orders adopt when they separate the authority of the parliament and courts in systems based on constitutional supremacy. An interesting approach that has been adopted since the decade of 1980 differentiates between weak and strong forms of judicial review.22 Canada (since the Charter of Rights and Freedoms of 1982), New Zealand (since the Bill of Right Act 1990), United Kingdom (since the Human Rights Act 1998) and Australia’s Capital Territory and State of Victoria are representatives of the weak form of judicial review, also called the “parliamentary bill of rights model,”23 or the “new Commonwealth model of constitutionalism.”24 Characteristic of this model is that courts are granted power to review whether legislation was enacted in conformity to the constitution, but they do not hold the final word on the matter. The parliament is given power to override the court’s interpretation without being constrained to justify its act, provided that the requirements of a special procedure and a qualified majority were met. That is altogether different from how the German and U.S. current legal systems operate. Both the BVerfG and the U.S. Supreme Court practice what has been defined as a strong-form judicial review. That is due to the fact that, first, both courts are entitled to “determine what the Constitution means,” and second, the interpretation they put on constitutional clauses is “authoritative and binding on the other branches.”25 Thereinafter, only the strong-form judicial review will be taken into consideration, for the separation of powers as understood in Brazil points towards the institutionalization of this type of judicial review. The institutionalization of the strong-form judicial review in different legal systems has led to a variety of arrangements. With this in mind, before focusing on the particularities of the variant model implied by the principles theory, different arrangements will be considered below. Firstly, they will be put under the lenses of a formal classification, which takes the constitutional text as its main source and inquires which function is structurally assigned to each institution according to the text. There is some consensus that the strong form of judicial review gives raise to two formal arrangements. Formally, the U.S. Supreme Court and the German BVerfG point each towards opposing directions or archetypes, so-called American model and Austrian model, respectively, because of their origins.26 The American model allows constitutional review to initiate once “a litigating party properly pleads a right before a judge—any judge”27 and favours the incidenter type of review, in which constitutional issues are discussed “in connection with regular judicial pro22 Tushnet

(2003), pp. 2782–2786; (2011), pp. 321–322. (2006), p. 8. 24 Gardbaum (2001), p. 707. 25 Tushnet (2003), p. 2784. 26 Kelsen (1942), pp. 183–200; Robertson (2010), pp. 11–13. Authors like Sweet (2000), pp. 32–37, also refer to the Austrian model as the European or the Kelsenian model. 27 Sweet (2012), p. 823. 23 Hiebert

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ceedings.”28 Furthermore, it empowers judges to invalidate unconstitutional laws that, for being already in force, have produced concrete effects.29 By contrast, the Austrian model encourages the principaliter review, in which “constitutional issues [are brought] before the special constitutional courts via special actions initiated by various government authorities.”30 As ideally conceived, the constitutional court controls the constitutionality of legislation in abstract, that is, before it was enforced and therefore in the absence of litigation, controversy, or a concrete case.31 Idealization aside, the Austrian model as tailored by Kelsen provided the necessary mould for the BVerfG’s implementation.32 Owing to its positive results, this arrangement later inspired the drafters of several constitutions, such as in Portugal and Spain, not to mention South Africa, and countries in Central and Eastern Europe, as well as in Latin America.33 As any institutional arrangement, the dichotomy between American and Austrian models is contingent on historic elements that have changed significantly, leading to a “deep crisis” in the “traditional separation of powers doctrines.”34 Regarding Europe, the legislative-centred conception of separation of powers that inspired the constitutions of the eighteenth and nineteenth centuries has been abandoned at least since World War II in favour of a judicial state.35 Accordingly, neither the descriptive nor the prescriptive account of the classic separation of powers corresponds to what has happened in countries like Germany, Spain, Italy, and France. To mention just specialization, which is a tenet of the Kelsenian model, Sweet pointed out that, in all these countries, not only specialized courts, but also ordinary judges have refused application to or have filled gaps in statutory law while arguing obedience to constitutional norms.36 What follows is that the formal classification is not sufficient for the purposes of the present inquiry. Firstly, as Chap. 2 advanced, Brazil has mitigated both the influence of American and Austrian models and somehow merged both arrangements. Furthermore, as the dichotomy between the two models is in one way or another strictly focused on the archetypes behind the normative background, it does not pay enough attention to legal scholarship and, what is more relevant here, to the courts’ self-understanding. The allocation of authority among the state branches is a typical problem of constitutional culture.37 As such, the final arrangement depends 28 Cappelletti

(1971), p. 69. (2000), p. 34. 30 Cappelletti (1971), p. 69. 31 Sweet (2000), pp. 44–45; (2003), p. 2771. 32 von Beyme (1988), p. 34. 33 Sweet (2012), p. 819. 34 Sweet (2003), p. 2771. 35 Ibid., p. 2745; von Beyme (1988), p. 31; Robertson (2010), pp. 11–13, 18; Forsthoff (1959), p. 59; (1971), pp. 126–128. 36 Sweet (2003), pp. 127–129. 37 The concept of constitutional culture is adapted from that of ‘legal culture’ as employed by Robertson (2010), pp. 274–275; and of ‘judicial culture’ as in Bell (2006), pp. 5–6, 294–297. 29 Sweet

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on political and social issues as well, but mainly on how legal actors (or participants) interpret the principles embodied in the constitution and the task they have before them. Having in mind the methodological insufficiency of the formal classification, substantive classifications will be explained below.

6.1.2 Substantive Aspects Two substantive classifications are relevant for the present study. They are substantive because, instead of throwing light on institutional elements of the political arrangement, as does the formal classification, they are primarily concerned with the meaning participants in each arrangement assign to constitutional decision-making—which reflects the role reserved to constitutional rights and principles within the same legal system. The first is Habermas’s trifold classification into liberal, welfare-state, and republican arrangements.38 The second is Böckenförde’s classification of constitutions into a framework (Rahmenordnung) or a foundation (Grundordnung).39

6.1.2.1

Habermas’s Classification

According to Habermas, “it is not self-evident that constitutional courts should exist,” for not all legal systems that uphold the rule of law have incorporated such institutions, and those in which they are present frame their structure very differently and allocate diverse functions under their authority.40 In face of the variety of possible arrangements, Habermas suggested more than one criterion to assess constitutional courts. I will condense his thoughts and only consider the categories that were meant to designate historically realized models. Having this in mind, we can say that Habermas differentiates between three models regarding the task a constitutional court is entrusted to perform. The first is the liberal arrangement, in which the court ought to pay as much deference as possible to the democratically elected legislature. This model encapsulates the court’s power by limiting its scope of action to the review of past acts of lower judges or other state branches that encroached individuals’ negative freedoms, that is, negative individual rights. As an immediate consequence, the private relations of individuals among one another are set aside from the constitutional court’s authority. Furthermore, the liberal arrangement is easily coupled with a strictly positivist view of the legal order, Habermas said.41 Equally important, these characteristics point towards the narrow-scope conception of rights discussed in Chap. 5.

38 See

Habermas (1996), pp. 239–240. (1991), pp. 194–198. 40 Habermas (1996), pp. 238–239. 41 Ibid., pp. 244–246. 39 Böckenförde

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In contrast, the second arrangement is grounded on the welfare-state paradigm, in which state agencies and officers are expected to do more than simply abstain from acting vis-à-vis a fundamental right. As exposed in Chaps. 4 and 5 above, the BVerfG has been asserting since the Lüth Case that the Basic Law: (a) provides for an objective order of values, in contrast with a purely positivistic system of rules; (b) spreads its radiating effects to the entire legal system, instead of letting third parties aside from the constitutional influence; and (c) expressly determines that all state branches observe the fundamental rights that it provides for, no exception made to the legislature. Therefore, the BVerfG’s self-understanding could hardly match the liberal arrangement—and in fact it does not. It more adequately falls into the arrangement that Habermas, following Böckenförde, regards as typical of the welfare state. Under this model, the main function of a constitutional court is to develop a principled-based interpretation of the constitution, or favour an objective order of values, task that arguably requires striking a balance between fundamental rights.42 The third model, notably the one that Habermas presents as falling closer to his discursive theory, is called ‘republican.’43 The salient representative of such an arrangement is the U.S. Supreme Court, whose function is arguably “that of protecting the democratic legislative procedure,” at least in the view of American scholarship.44 According to Habermas, the republican arrangement shares with the liberal paradigm an understanding of the separation of labour between state branches that reduces the opportunities of judicial intrusion in the affairs of the legislature. But it differs from the liberal model because it does not endorse a conception of individuals as self-interested beings struggling for power—individuals to whom negative liberties against the state would suffice. Rather, it supposes that citizens can orient themselves towards common goods and engage in a cooperative debate about

42 Ibid.,

pp. 246–248; Böckenförde (1991), pp. 189–190.

43 Actually, Habermas (1996), p. 267, presents these three models of constitutional courts, but argues

for a fourth one, which he labels ‘proceduralist,’ which I do not considered in the text because it has never been historically realized. In fact, the insufficiency of historically realized models highlights a problem of the Habermasian perspective: over-idealization. It is very difficult and hardly improbable that any existing court could realize what his models aspire to. For instance, his description of the republican arrangement is intended to grasp the salient features of the functioning of the U.S. Supreme Court, as I expound in the text. Yet, he looks at the U.S. with rose-coloured glasses. Bowers v. Hardwick, 478 US 186 (1986), is an illustrative case in which, differently from what the republican model recommends, the court did not show the proper consideration for the right of self-determination. The decision ruled that a statute that had outlawed homosexual practices was constitutional. The main argument given in justification for the ruling was that the “majority belief that sodomy is immoral” could provide rational basis for the criminalization of homosexual behaviour. Nevertheless, this is not what we would expect from a republican court; admitting that the moral opinion of a majority offers sufficient grounds for constraining the personal autonomy of individuals is actually the opposite of granting the same individuals freedom as how to conduct their own lives. 44 Habermas (1996), p. 240.

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the government of their community. Hence, it claims that individuals hold positive liberties that guarantee their free and equal participation in the political life.45 Furthermore, the republican arrangement shares with the welfare-state model the understanding that constitutional rights are not exclusively subjective, at least not as a private lawyer would define this term, but also objective. That is, fundamental rights would be paramount principles of law and provide the pillars over which the legal order is erected. Nevertheless, the republican and the welfare-state models differ substantially owing to the content each attributes to such an objective order. The republican model places the right of self-determination among the highest ranked fundamental principles. What follows is that under this arrangement, the constitutional court would not impose on people any objective order of values apart from those principles that grant all men and women equal chances to freely engage in the political life of the community. However, if the BVerfG is to exemplify the welfare-state arrangement, Habermas’s view of the court’s case law is too pessimistic. It is true that the BVerfG has asserted since the Lüth Case (1958) that the Basic Law is the expression of an objective order of values. Yet, it is highly disputable whether, by saying so, the court implied that its task was to impose on all people under its jurisdiction an ethic order that suppressed individuals’ right to decide by themselves about moral issues—as Habermas’s criticism suggests. On the contrary, jurists such as Schlink say that it was never the BVerfG’s ambition to adhere to an ethic of values.46 The emphasis the BVerfG gave to the right to free development of the personality in the Lebach Case (1973), for instance,47 clearly contrasts with the features Habermas assigned to the welfare-state arrangement. A representative of this arrangement would not pay due respect to the individual right of self-determination, as the BVerfG did, for the centrality of self-determination is the distinctive feature of the republic arrangement.

6.1.2.2

Böckenförde’s Classification

Böckenförde was a Justice with seat in the BVerfG’s second senate between 1983 and 1985. Similarly to Habermas, he believed that each of the three conceptions of state—liberal, social, and democratic—reflected an arrangement of principles that decision-makers should take into consideration when judging a case.48 But more importantly for the present inquiry, the theory of judicial discretion developed by the principles theory attempted in some matter to overcome the dichotomy Böckenförde formulated between constitutions that establish a framework (Rahmenordnung) or a foundation (Grundordnung). According to him, a constitution is regarded as a foundation if it is able to determine the content of all legal decisions. Metaphors

45 Ibid.,

pp. 268, 272–273. (1995a), p. 1243. 47 BVerfG, Lebach Case, 35 BVerfGE 202, Judgment of 6 May 1973. 48 Böckenförde (1974), p. 1530. 46 Schlink

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commonly associated to this idea are those of the entire legal system in a nutshell49 or the world egg from which the existing legal order originated,50 both used to voice criticism. In fact, many scholars accuse the foundation model of serving to the total constitutionalisation of law.51 As critics see it, this purely substantive model of constitution goes too far since it removes from the legislature all possibilities of discretion.52 By contrast, a constitution would exclusively play the role of a framework if it executed the purely procedural function of allocating to government branches and officers the authority for future decisions without conveying any substantive commands or prohibitions. This is the typical view of a constitution within a liberal arrangement, in which the constitutional function is primarily to regulate the relation between state and citizens. Accordingly, while the foundational constitution is commonly understood as placing the judiciary in the centre of the state, the framework model turns the essential decisions about the public life into a matter of policy incumbent upon the legislature.53 One of the critiques more often addressed to the principles theory is that it favours a foundational conception of constitution because it allocates too much power with courts and reserves too little for the legislature.54 It is not completely clear, however, why this piece of criticism should be addressed to Alexy’s thoughts and not to the historical transformation that led to the post-war constitutional arrangement, of which the principles theory is intended to make sense. That is the aforementioned transformation of the German legal system from a previously legislative into a judicial state—or from a state of statutory supremacy into one of constitutional supremacy. At either way, in reply to such a common critique, Alexy argues that his model combines some elements of a foundational constitution with other elements of a constitutional framework. Indeed, the principles theory provides for a third model, which is neither purely substantive as the framework model, nor procedural as the foundational model, but substantive-procedural, as I shall demonstrate in the next section.

6.2 Constitutional Review According to the Principles Theory The principles theory shares with Habermas an understanding of legal argumentation, including constitutional adjudication, as a discursive enterprise. Alexy endorses 49 Böckenförde

(1991), p. 190. (1971), p. 144. 51 Kumm (2006). 52 Alexy (2010a, b, c), p. 392. 53 Böckenförde (1991), p. 190. 54 Kahn (1987), pp. 56–59; Clayton (2001), p. 516. For more on this debate, see Klatt and Meister (2012), chap. 4. 50 Forsthoff

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Habermas’s basic assumption that the correctness of a normative proposition depends on that “all possibly affected persons could agree [with the same proposition] as participants in rational discourses.”55 Habermas, however, supports a narrow-scope conception of fundamental rights, which counters the principles-theory conception of wide-scope rights I detailed above in Chap. 5. As advanced above, other classifications exist, as the one Böckenförde suggested. The principles theory attempts to overcome the dichotomy Böckenförde formulated between pure substantive or procedural models by endorsing a substantive-procedural model.56 The proportionality test has normally been regarded as a method for constitutional adjudication and therefore as incumbent upon courts. However, if balancing is indeed unavoidable, as Alexy believes it to be, a legislature cannot escape but to perform it when deliberating, assuming that congressmen have no interest in passing a law that, as can be anticipated by them, encroaches on a fundamental right. That is, if the proportionality test can be logically derived from the nature of principles as optimization requirements, there remains no choice to public officers, including those in political institutions, but to perform the test. The question is, thus, when the test as carried out by the constitutional court can override the test as performed by the legislature. The institutional changes that led to the empowerment of constitutional courts after World War II were accompanied by a turn in the view judges had about their main function: from interpretation to justification. Of course, judges were expected to justify their decisions long before the emergence of new constitutionalism. Yet, while interpretation has been traditionally directed towards authoritative materials, the legitimacy of which is supported by due enactment and social efficacy, substantive justification is ultimately grounded on correctness of content. This shift in emphasis corresponded to the turn of constitutional review into a matter of argumentation. Such a change did not occur without disruptions. On the one hand, the institutional rearrangement posed an operational challenge to courts, to which Alexy attempted to respond by developing a so-called theory of judicial discretion. On the other, the transformation of constitutional review into argumentation posed a legitimacy challenge, which the principles theory attempted to tackle with the thesis of argumentative representation.

6.2.1 A Theory of Judicial Discretion It is a central statement to the principles theory that a constitution like the Basic Law issues many commands and imposes several prohibitions, but does not command or prohibit everything. Alexy supports the idea that the normative influence of principles 55 Alexy (2005), p. 580. See Borowski (2011), p. 576, on how the principles theory incorporates the

discursive principle as suggested by Habermas (1996), p. 107. Klatt (2007), pp. 515–516, for a discussion on how Alexy (2002a), pp. 14–15, surpassed the dichotomy suggested by Böckenförde (1991), pp. 194–198.

56 See

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reaches all fields of law, consonant to the BVerfG’s case law that has followed Lüth. Accordingly, in his view, the Basic Law answers fundamental questions concerning German polity, as does a foundational constitution in Böckenförde’s terminology; nonetheless, it leaves open spaces for legislative discretion as well, thus functioning as a constitutional framework.57 Legislative discretion, Alexy says, “consists precisely of those alternatives in respect to which the legislature has been left at liberty.”58 These spaces of deliberation (Spielräume) have appeared with different names in the BVerfG’s case law, but are essentially of two types, structural (content-related) or epistemological (knowledge-related), Alexy affirms.59 Structural discretion refers to spaces of deliberation created by the constitutional silence about what is definitively commanded or prohibited. The existence of structural contours shapes the outer edges of the areas within which the legislature is left free. That is, the constitution does not do more than confining certain matters within surrounding commands and prohibitions and submitting them for legislative deliberation. By contrast, a space of epistemological discretion is not the result of what the constitution is silent about. Rather, it arises from the limits in our capacity to know whether the constitution definitively commands or prohibits something.60 It is noteworthy that in both cases, discretion, whether structural or epistemic, consists precisely of margins for legislative appreciation free from outer intrusion.61 This means that to a legislative space of discretion must correspond a duty to refrain from review addressed to the constitutional court. Both types of discretion are explained below.

6.2.1.1

Spaces of Structural Discretion

As Alexy asserts, the legislature is given structural discretion (Strukturelle Spielräume) as how to frame certain subject matter to the extent the constitution neither definitively commands nor prohibits certain results. Such a discretion is thus contentrelated and ought to be exerted strictly within the framework the constitution posed.62 What the constitution definitively commands is constitutionally necessary; therefore, the legislature has no power to dispose of it differently from what the constitution already required. What the constitution definitively prohibits is constitutionally impossible, which means that any attempt to enact laws on the matter will be in violation of the constitution. That being the case, only what is “neither necessary nor impossible” but “constitutionally merely possible,” falls within the structural space of discretion.63 57 Ibid.,

p. 15. (2010a, b, c), p. 393. 59 Ibid., pp. 393–401. 60 Alexy (2002a), pp. 16–17. 61 Alexy (2010a, b, c), p. 393. 62 Ibid., p. 395. 63 Alexy (2002a), p. 14; (2010a), pp. 393–394. 58 Alexy

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Two aspects are worth noticing. Firstly, it is a mistake to infer that the absence of principles, and thus of prima facie commands and prohibitions, is a condition for the existence of structural discretion. Because principles are optimization requirements, their normative force cover, at least in a prima facie fashion, all fields of the law without exceptions and therefore without leaving empty spaces.64 Secondly, not everything that is prima facie required by the constitution is subjected to judicial control. The constitutional court does not have unlimited authority to review legislative decisions on all matters and cannot impose its judgement in substitution of congressmen’s decisions. Alexy concedes that legislative deliberation is free from review if it does not violate any right that one can regard as definitive in the light of colliding principles.65 All state branches are bound to the duty to respect fundamental rights, and congressmen are left no option but to do what is constitutionally commanded and restrain for doing what is constitutionally prohibited, in any case only if those rights, commands, and prohibitions are definitive. As exposed in Chap. 4, definitive commands say what ought to happen after everything has been considered. By contrast, prima facie rights, albeit being also binding on the three state branches, neither command nor prohibit anything definitively. The legislature is required to take them into account, but what they exactly command or prohibit is a matter of argumentation and deliberation, altogether dependent on balancing. Therefore, when the legislature finds itself before a fundamental right, it has to separate between what falls within the core of that right and what surrounds such a core. What the constitution has already definitively commanded or prohibited constitutes the core of a right, hence it cannot be the object of deliberation. What remains outside the core can be prima facie commanded, prohibited, or permitted. In these three situations, the legislature has to shape the legal positions at stake through statutes, making them definitively commanded or prohibited or even granting individuals permission to act in one way or another. In either event, congressmen are not left free to do it as it pleases them, for legislative deliberation ought to meet the requirements posed by the proportionality test. There are three types of structural discretion, Alexy says.66 The types are connected, so that the presence of one of them does not rule out the others; it may instead require the others. Firstly, the legislature may be left free to deliberate about the end pursued by a constitution clause, case in which it holds end-setting discretion.67 In the Redundancy Case (1988), for example, the BVerfG granted the legislature some space to decide whether reinforcing employers’ freedom was more important than protecting employees from genuine redundancy.68 In cases as such, legislative freedom to choose the ends or determine to which extent they will be promoted ought to

64 Alexy

(2002a), p. 16, footnote 66. (2010a, b, c), p. 348. 66 Alexy (2009), pp. 15–17. 67 Alexy (2010a), pp. 395–396; Alexy (2002a), p. 17. See also Borowski (2010), pp. 31–33. 68 BVerfG, Redundancy Case, 97 BVerfGE 169, Judgment of 27 January 1998. 65 Alexy

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be proportionally exerted, but a space for discretion remains within the boundaries of what is proportional.69 Secondly, congressmen may also have to decide which are the best means to conduce a constitutionally required policy, case in which a means-selecting discretion is at play.70 The legislature is given means-selecting discretion when more than one way for realising a right exists, and the possible ways are interchangeable because they are equally suitable and necessary, that is, they all lead to the same results and the impact they cause on other principles do not significantly differ. As I shall demonstrate in Chap. 7, this type of discretion is peculiar to some rights to positive state action, and this is due to the alternative (or disjunctive) structure of these as opposed to the conjunctive structure of negative rights. When positive rights are at stake, proportionality protects competing rights from any excessive intrusion—which is known as “the prohibition of too much” (Übermaßverbot)—, but also lays down a minimal degree of satisfaction that has to be accomplished—a “prohibition of too little” (Untermaßverbot).71 These prohibitions of excessive and insufficient means draw the outer lines of the space of discretion the legislature has in such cases. Finally, the legislature may have to deliberate about which principle to promote in a concrete situation of stalemate, where principles collide, but after all the legal arguments have been considered, none of the colliding norms override the others. That is the third type of structural discretion: discretion in balancing.72 Since no principle takes precedence over the other, none of them determine the results of balancing, and the action that they command or prohibit remains only prima facie commanded or prohibited. A decision about what to do once balancing, properly conduced, has led to a stalemate remains political. Within the principles theory, the situation of a statement in balancing and the consequent discretion that follows are of great importance for determining whether, in a concrete case, authority is invested with the parliament for legislating or with the constitutional court for reviewing. Legislation strictly enacted within the space of structural discretion opened by a stalemate falls outside the reviewing competence of the constitutional court, formal issues aside.73

6.2.1.2

Spaces of Epistemic Discretion

Epistemic discretion (epistemische Spielräume) is knowledge-related and presupposes that the information available for decision-making is limited.74 The legislature holds this type of discretion when it is not clear, firstly, whether the factual conditions described or supposed by a constitutional norm are actually present, and secondly, 69 Alexy

(2002a), p. 17; (Alexy 2009), p. 16. (2010a), p. 396; (2002a), p. 17. 71 Alexy (2009), p. 12, footnote 21. 72 Alexy (2010a), p. 410; (2002a), pp. 18–27; (2008a), pp. 81–89. 73 Alexy (2003), p. 443; Alexy (2010a, b, c), pp. 348, 421. 74 Alexy (2010a, b, c), p. 414. 70 Alexy

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whether the constitution asserts something or is silent about certain subject matter. In both cases of uncertainty, it is not possible to affirm whether some action is definitively commanded, prohibited, or permitted, which means the legislature has authority to determine which rights and duties the constitutional norms definitively convey. Alexy speaks of normative epistemic discretion if, under the circumstances of a case, it is not possible to be sure about what the constitution says because the importance of the colliding principles is uncertain; by contrast, he refers to empirical epistemic discretion if what is uncertain is the relevance of the facts at play.75 Normative epistemic discretion (normativer Erkenntnisspielraum), also known as epistemic discretion in balancing, is given to decision-makers if it is impossible to precise which weight to assign to the constitutional rights in the weight formula.76 As in such cases no one can ascertain the value of a principle in relation to the colliding norms, the legislature is given a space to evaluate by itself the relative importance of each right at stake. Alexy recognizes that epistemic-normative discretion may be very similar to and difficult to distinguish from a stalemate in balancing. Nevertheless, he observes that a real stalemate presupposes that all legal considerations have been taken into account, which makes the remaining choice necessarily political. On the contrary, if the space of discretion is epistemic-normative, the remaining choice is rather between legal possibilities, Alexy says.77 The second type of epistemic discretion is called empirical discretion (empirischer Erkenntnisspielraum), for it regards the knowledge of facts. Alexy observes that a constitution may authorize, as it often does, the restriction of some rights under conditions, among which the factual existence of certain states of affairs. To grant the legislature competence to assess whether these factual conditions are present, especially if there is not enough certainty about it, is the same as to grant congressmen a space of action. Here, uncertainty surrounds the conditions for norm-application, and in this sense, it differs considerably from the discretion the legislature holds due to the existence of a structural space, where the constitution neither commands nor prohibits anything definitively.78 How wide this space of empirical discretion should be is a very controversial issue. The wider is the degree of legislative discretion, the narrower is the space for judicial review, and vice versa. The question of the optimum degree of knowledge can be thus reformulated in terms of intensity of review. In an attempt to answer this question, the BVerfG established a connection between the intensity of review it was authorized and required to perform, on the one hand, and the degree of certainty about the premises of a case, on the other. In the Cannabis Case (1994), the court assented that the scientific knowledge currently available could not firmly answer whether the criminally sanctioned ban on soft drugs such as cannabis was the most effective and less intrusive way of attaining the goals as pursued by the Intoxicating Substances

75 Alexy

(2002a), pp. 28–30; (2008a), pp. 91–92; (2010a), p. 393. (2010a, b, c), pp. 415, 420–421. 77 Ibid., pp. 420–421; (2002a), pp. 28–30; (2008a), pp. 91–92. 78 Alexy (2002a), p. 27; (2008a), p. 89; (2010a), pp. 400, 414. 76 Alexy

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Act (Betäubungsmittelgesetz), from 1981.79 As a result, the BVerfG consented on the existence of a space for legislative discretion regarding the matter. The repercussion of this judgement on German scholarship is noteworthy,80 but its impact trespassed the borders of Germany,81 as the references to it in STF’s decisions show.82 Even before this judgement, the BVerfG had established a relation between the intensity of review it ought to perform, on the one hand, and the reliability of the factual premises present at a case, on the other. In the Codetermination Case (1979), the court had already set forth criteria to determine to which extent it ought to carry out judicial review.83 As stated, the intensity of review depends not only on the certainty of the information supporting the judgment, but also on the specific nature of the issue and the importance of protecting the interests at stake. Altogether, the court held that the intensity of review is variable and moves up and down on a triadic scale of low, moderate, and high, according to whether certainty about the facts is evidential, plausible, or intense, respectively. The same understanding was later repeated in other judgments such as the Chemical Weapons Case (1987).84

6.2.1.3

The Second Law of Balancing

Alexy drew on the BVerfG’s case law to conclude that the intensity of review a court is entitled to perform ought to vary in accordance with the degree of certainty over the facts that support the judgment. Based on this, he formulated the so-called second law of balancing: “The more heavily an interference in a constitutional right weights, the greater must be the certainty of its underlying premises.”85 The first law of balancing, introduced above in Chap. 4, is a “substantive law of balancing,” for it indicates the degree of realization of a principle vis-à-vis a colliding right. Conversely, the second law can be called the “epistemic law of balancing,” for it indicates the degree of certainty required to pronounce a sound judgment given the relative importance of the rights at stake.86 As regards empirical premises, principles as optimization requirements demand that the more severe is the interference with a right, the greater should be the certainty towards facts, Alexy says.87 In this sense, the triadic scale the BVerfG has based its 79 BVerfG, Hashish Drug Case/Cannabis Judgement, 90 BVerfGE 145, Judgment of 3 September 1994. 80 Alexy (2010a), pp. 414–415; (2002b), p. 53; (2003), p. 437. See also Klatt and Schmidt (2012a, b), pp. 17–29. 81 See e.g., de Souza Neto (2005), pp. 217–220; Benvindo (2010), pp. 11–18; Sullivan and Frase (2009), pp. 29–30. 82 References to the Cannabis Case appear in the Disarming Act Case II, III, and IV, exposed below in this chapter. 83 BVerfG, Codetermination Case, 50 BVerfGE 290, Judgment of 3 January 1979. 84 BVerfG, Chemical Weapons Case, 77 BVerfGE 170, Judgment of 29 October 1987. 85 Alexy (2010a, b, c), p. 419. 86 Ibid., p. 418; Klatt and Schmidt (2012a), p. 72. 87 Alexy (2010a, b, c), p. 418.

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judgments on since at least the Codetermination Case can be read as follows. Ranging from the more to the less intensive, the authority in charge of review ought to seek for “a high degree of certainty about the underlying empirical premises” if the legislative measure under analysis represents a highly intense interference with a fundamental right.88 An example is given by the Life Imprisonment Case (1977).89 The BVerfG declared then that the proportionality of a statute that sanctioned cruel murder with lifelong imprisonment ought to be especially scrutinized, for the penalty typified a harsh interference in the individual right of freedom. By contrast, the certainty the court obtains if the premises are simply plausible or maintainable should suffice if the act under analysis only moderately interferes with a right90 —as the Cannabis Case and the Abortion Case II (1993) illustrate.91 A moderate (or intermediate) degree of control takes place if the legislature has some discretion as to how “the means and scope of the protection of the unborn life” is determined in detail, as in the Abortion Case II.92 Finally, a lower degree of certainty, obtained if the court merely assures that the legislative premises are not evidently false, should be enough to support a statute that impinges on a right, but only lightly. A light degree of control corresponds to a large degree of deference to the legislature, which does not authorize the court to search for more than “evident mistakes.”93 In such situations, the legislative decision is to be overridden only if its failure to respect the right was complete. The Chemical Weapons Case (1987) is an example. All things considered, the decision about the degree of control a court must exert is case-sensitive. As Klatt noticed, a consequence of the second law of balancing is that the same intensity of review is not suitable for all cases.94 It is not to say that the triadic model the principles theory derived from the BVerfG’s case law is the only acceptable option. The point is that, even if a legal system adopts a different scale of intensities, certain flexibility is required. As I shall argue at the end of this chapter, the STF has drawn from the second law of balancing a command addressed to the court to interfere with special intensity in the activities of the legislative and executive branches, in order to enhance the effectiveness of the fundamental rights the Federal Constitution provides for.

6.2.2 The Legitimacy Challenge My task until now has been to explore the answer that the principles theory gives to the operational challenge. As explained above, Alexy developed a theory of judicial 88 Ibid.,

p. 419. Life Imprisonment Case, 45 BVerfGE 18, Judgment of 21 June 1977. 90 Alexy (2010a, b, c), p. 420. 91 BVerfG, Abortion Case II, 88 BVerfGE 203, Judgment of 28 May 1993. 92 Klatt (2015), p. 13. 93 Ibid., p. 12. 94 Ibid., pp. 13–14. 89 BVerfG,

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discretion in order to answer the practical question of which circumstances allow for the judicial review of a legislative act and to which extent—or, in other words, when the legislature is free to act within the limits of its space of discretion. So far, little has been said about the legitimacy challenge that objects the very authority a constitutional court holds to perform review. Respecting this objection, the distinctive element of the principles theory is its account of adjudication. Alexy says that constitutional adjudication is a type of legal argumentation, which means that, firstly, it pertains to the field of general practical argumentation, and secondly, it is constrained by the requirements of correctness. Principles-theory scholars refer to the assumption that legal argumentation is a special case of general practical discourse as the special case thesis.95 And they use the phrase claim to correctness to designate the postulate that decision-makers necessarily imply that the legal decisions they deliver are rational and justified, and so are the arguments they put forward for the same decisions.96 Applied to constitutional review, these two theses lead to a more specific thesis, that of argumentative representation, which aims at reconciling constitutional review with democracy. By definition, fundamental rights are paramount within the legal system, which means that they enjoy priority over statutory law enacted by the parliament. From a procedural viewpoint, this is the same as to say, “fundamental rights … are so important that the decision to protect them cannot be left to simple parliamentary majorities.”97 Consequently, when a court fulminates a statute that contradicts fundamental-rights norms by declaring it null and void, it reinforces the influence of the constitution over the legal system and the general exigency of compliance with law, Alexy affirms.98 In spite of this, Alexy believes that every time a court declares that a statute is unconstitutional, a double contradiction is at play. Firstly, the declaration is grounded on a normative contradiction between a statute and the constitution, which are norms of lower and higher hierarchy, respectively. Secondly, the declaration itself denies validity to another proposition, which gives rise to an argumentative contradiction. Alexy understands that both parliament and court claim that the acts they bring in are legally correct, or conform to the law.99 The legislative body claims, usually implicitly, that all laws it enacts are constitutional. Conversely, if the court declares a legislative act to be unconstitutional, its explicit proposition (‘x is unconstitutional’) necessarily contradicts the legislature’s implicit proposition (‘x is constitutional’).100 Of course, as the court has the final word about what the constitution says, its declaration is not only propositional or discursive. It has an institutional or authoritative character as well, which allows it to invalidate or override the parliamentary act.

95 Alexy

(2010b), pp. 212–220. (2010c), pp. 35–40. 97 Alexy (2004), p. 38. 98 Alexy (2005), p. 577. 99 Alexy (1994a), p. 234. 100 Alexy (2005), pp. 577–578. 96 Alexy

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The BVerfG expressly recognized the argumentative issues posed by constitutional adjudication in a decision from 1990, which according to a commentator, illustrates very well the shift in judicial thought that turned constitutional review into a matter of justification.101 In fact, this shift started decades before, right after World War II, and although the BVerfG had a leading role in the process, the phenomenon did not remain circumscribed to Germany. It has been observed in countries like South Africa, Canada, and Israel, to name just a few.102 Indeed, it was the South African scholar Mureinik who coined the expression “culture of justification.”103 Mureinik did not have in mind the proportionality test when he devised the idea; his intention was to contrast the ideals that inspired his country’s new constitution with the culture of bare authority that had prevailed during the apartheid regime.104 Only later, authors would appropriate the expression, transfer it to the framework of a liberal democracy, and connect it to the spread of the proportionality test.105 In what is relevant here, Cohen-Eliya and Porat advanced illuminating explanation about the intrinsic connections that exist between proportionality and justification.106 In their view, under the culture of authority that prevailed in Europe before World War II, state officers were only required a formal authorization to act. That is because a culture of authority is grounded on three basic premises: clearly traceable boundaries between state branches, a formalistic account of the separation of powers, and almost exclusively authoritative sources of law. By way of contrast, in a culture of justification, “reliance on legal precedent or the legal authority to decide” does not necessarily grant legitimacy to act.107 Substantive justification is required, and officers responsible for deciding must be prepared to give persuasive reasons for their decisions.

6.2.2.1

The Thesis of Argumentative Representation

As Alexy sees it, to say that constitutional review is argumentative means, firstly, that it is constrained by the rules of general practical and legal discourses.108 The rules of discourse are commands, prohibitions, and permissions that anyone should observe more or less strictly if her argument is to be sound. These standards of correction range from basic rules of logic, like the requirement of coherence or the prohibition of contradiction, to justification rules, like the one that says: “practical discourses 101 Kumm

(2009), p. 8, refers to BVerfG, Kirchhof Exclusion Case, 82 BVerfGE 30, Judgment of 4 May 1990. 102 Dyzenhaus (1998), pp. 18–22; Huscroft (2014), p. 186; Cohen-Eliya and Porat (2013), pp. 5–7. 103 Mureinik (1994), p. 32. 104 Huscroft (2014), p. 197. 105 For instance, Dyzenhaus (2012), pp. 109–112; (2014), pp. 247–256; Gardbaum (2014), pp. 261–266; Kumm (2009), p. 15. 106 Cohen-Eliya and Porat (2011), pp. 474–480. 107 Ibid., p. 475. 108 Alexy (2005), p. 580.

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must yield results which are practically realizable.”109 They also include rationality rules, forms of argument, transitional rules, and rules for allocating the burden of argument. Besides other functions, they allow for the possibility of distinguishing what is discursively impossible, necessary, or possible and assessing whether legal reasons are correct. With their help, it is possible to formulate arguments that all reasonable men could recognize as good or at least plausible. That is to say, the rules of discourse make argumentation rational and objective to a certain degree.110 They pose conditions under which courts can claim that judicial decisions are based on something other than judges’ personal opinions.111 The thesis that constitutional review is argumentative implies a second idea. As Alexy affirms, constitutional review must cohere with representation both ideally and actually. Ideal representation is linked to the assumption that “rational persons are able to accept an argument on the ground that it is correct or sound.”112 Provided that the requirements posed by the rules of discourse were met, and considering the constrains posed by institutionalization, a court can claim that its arguments are the arguments of the people, at least from an ideal perspective, because they are arguments rational men and women could agree with if they were sufficiently informed about the law of the case. In any event, a degree of actual representation is also required: “a sufficient number of people must, at least in the long run, accept these arguments for reasons of correctness.”113 This imposes on judges and courts a duty to deliver decisions that are justified and correct.114 A further question concerns the relation between correctness of content and the authority of judges, to which Alexy replies: in a democracy, the legitimacy of any act of authority must ultimately rely on representation.115 Alexy conceives of representation quite differently from theorists who see the concept as naturally coupled with majoritarian decisions. In his view, whereas representation can be either democratic or argumentative, only democratic representation is “centred around the concepts of election and majority rule” and therefore requires free and general elections as a means to legitimate the exercise of state authority.116 Argumentative representation, which links a constitutional court to the people it represents, differs significantly from this common image because it is only indirectly affected by the majority rule. The principle theory endorses a conception of democracy that is rather deliberative than purely decisional. As Alexy defines it, a purely decisional model of democracy rests on the trust in majoritarian processes as the proper decision-making meth-

109 Alexy

(2010b), p. 205. pp. 187–188, 206–208. See also Alexy (1993), p. 172; Aarnio et al. (1981), pp. 263–273; Alexy and Peczenik (1990), pp. 131–143. 111 Beatty (2004), p. 5. 112 Alexy (2005), p. 580. 113 Ibid., p. 580. 114 Alexy (2010c), pp. 13, 65; (1994b), p. 101. 115 Alexy (2005), p. 578. 116 Ibid., p. 578. 110 Ibid.,

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ods.117 By contrast, deliberative democracy attempts to accommodate these majoritarian processes and methods within the institutional framework that argumentative decision-making implies. According to this deliberative model, constitutional review is justified because it favours the rationality of legal argumentation in general. That is to say, its institutionalization inclines the legislature to concern about the correctness of the laws it enacts, and in doing so, builds a bridge between decision and discourse. If the constitutional court is effectively accepted as another participant in the public sphere, together with the legislature and the citizens they both represent, and the court’s arguments are considered and debated, fundamental rights and democracy are reconciled, Alexy argues.118 A consequence of this arrangement is that correctness turns into an essential element of representation.119

6.2.2.2

Constitutional Review and Justification

The argumentative nature of constitutional review, on which its representative role and thus its legitimacy are ultimately grounded, demands that judicial decisions be correct, that is, rationally justifiable. The principles theory supposes the existence of criteria for assessing correctness. It was aforementioned that the rules of discourse in general constrain legal argumentation and therefore judicial decision-making. Those who take part in legal processes, whether as parties, lawyers, or judges, have to follow these rules, without which they could not claim, as they do, “to speak in such a way that every rational person would have to agree with their viewpoint.”120 However, as Alexy explains, judicial decisions have to conform to more than the general rules that apply to any practical reasoning; judges also carry a special duty to justify their decisions by virtue of positive law.121 These demands for correct justification based on positive law pose difficulties when associated with the constitutional openness to principle-based interpretation. That several fundamental-rights clauses are open in the principles-theory view is an issue already discussed in Chap. 4 above. Openness consists in the fact that, as Alexy reads, “value-judgements are needed which do not emerge necessarily from authoritative pre-existing material.”122 And yet, from the fact that the legal system inevitably shows an open-texture that invites principle-based reading, one cannot draw the conclusion that it allows for “arbitrariness or mere decisionism.”123 On the contrary, as Alexy explains, it follows that “the rationality of legal discourse depends

117 Alexy

(2004), p. 44; (2005), p. 579; (2008c), p. 35. (2008b), p. 54. 119 Alexy (2005), p. 581. 120 Alexy (2010b), p. 219. 121 Ibid., p. 215. 122 Alexy (2010a, b, c), p. 369. 123 Ibid., p. 387. 118 Alexy

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largely on whether and to what extent these additional value-judgements are capable of rational control.”124 Other scholars agree that, exactly for not being democratic representatives of the people, judges lack the legitimacy for deliberately deciding under the influence of “their own biases and personal points of view.”125 This conclusion calls for a theory about the way constitutional review ought to be conducted. The principles theory claims to have provided an answer for this pressing issue by means of the theory of judicial discretion expounded above, which indicates the occasions when review is required, and the proportionality test, which albeit not saying how concrete issues are to be decided, points out what is in need of justification in each case. Proportionality requires that decision-makers who conduce constitutional review engage in an argumentative enterprise, as they ought to supply external justification for the values they assign to the variables in the weight formula.126 This connection between the proportionality test and the argumentative nature of constitutional review should be kept in mind, as the references to the principles theory in the STF’s case law advance the same idea.

6.3 STF’s Case Law on Constitutional Review I shall discuss fifteen cases in this section. The set makes explicit the influence of either the theory of judicial discretion or the thesis of argumentative representation on the STF’s case law. The references made to the principles theory had secondary impact in five decisions, three of which will be detailed below. In the Disarming Act Case I (2007)127 and the Stem Cells Case (2008),128 Justice Gilmar Mendes quoted Alexy in dissenting opinions. In the Political Satire Case (2010), it was Justice Toffoli who dissented from the majority.129 By contrast, three cases were selected due to the primary impact principles-theory theses had for the second panel final rulings: the Disarming Act Cases II, III, and IV (2012).130 In these judgments, Justice Mendes and the majority of Justices who followed his votes manifested adherence 124 Ibid.,

p. 369. (2004), p. 5. 126 Alexy (2005), p. 572. 127 STF, Disarming Act Case I, ADI 3112/DF, Judgment of 2 May 2007, Relator: Min. Ricardo Lewandowski, D.J. 26 Oct. 2007. 128 STF, Stem Cells Case, ADI 3510/DF, Judgment of 29 May 2008, Relator: Min. Ayres Britto, D.J.e. 28 May 2010. 129 STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 130 STF (Second Panel), Disarming Act Case II, HC 102087/MG, Judgment of 28 February 2012, Relator (acórdão): Min. Gilmar Mendes, D.J.e. 159, 14 Aug. 2012; STF (Second Panel), Disarming Act Case III, HC 96.759/CE, Judgment of 28 February 2012, Relator: Min. Joaquim Barbosa, D.J.e. 113, 12 Jun. 2012; STF (Second Panel), Disarming Act Cases IV , HC 104410/RS, Judgment of 6 March 2012, Relator: Min. Gilmar Mendes, D.J.e. 62, 27 Mar. 2012. 125 Beatty

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to Alexy’s conception of constitutional review as a type of legal argumentation, and of constitutional-court judges as argumentative representatives of the people. Furthermore, the court endorsed the theory of judicial discretion by recognizing that the means-selecting discretion the legislature had was subjected to the prohibition of both excessive and insufficient means. Finally, Justice Mendes maintained that a decision-maker responsible for reviewing legislation had to apply the proportionality test consonant with the second law of balancing. The six decisions are analysed below in chronological order; nine other judgements that mention the principles-theory account of constitutional review are subsequently exposed.

6.3.1 The Disarming Act Case I (2007) The Disarming Act Case I (2007) dealt with the question of whether the legislature held unfettered discretion to define crimes and their corresponding punishments when enacting a new criminal law.131 In 2003, the National Congress passed the Disarming Act, which regulated the registration, possession, and sale of firearms and ammunition.132 The statute turned into crimes and established more severe punishment for acts that were regarded as minor offenses by laws previously in force, which were thus revoked. Against the new criminal policy that the Disarming Act represented, political parties and associations, such as the National Association of Arms Owners and Sellers (Associação Nacional dos Proprietários e Comerciantes de Armas) filed a petition with the STF. The petitioners alleged that several clauses of the Disarming Act were invalid, for they violated either formal or material provisions in the Federal Constitution. The petitioners argued for the unconstitutionality, among other clauses, of the Sole Paragraphs of Articles 14 and 15, which banned the application for bail of defendants accused of possessing or shooting with firearms, and Article 21, which prohibited the provisional release of prisoners under arrest for selling or trafficking firearms or carrying firearms restricted to the exclusive use of the army or security forces. The petitioners claimed that the paragraphs and article breached the presumption of innocence embodied in Article 5 of the Federal Constitution and the principle of proportionality. The STF accepted the petition in part and handed down a majority opinion declaring that Article 14 Sole Paragraph, Article 15 Sole Paragraph, and Article 21 of the Disarming Act were void. Justice Gilmar Mendes rendered a partially dissenting opinion declaring that only Article 21 was unconstitutional. Before reaching this conclusion, he disserted about the role of a constitutional court in reviewing a legislative act that either criminalized conducts that were permitted beforehand or punished more severely conducts that 131 STF,

Disarming Act Case I, ADI 3112/DF, Judgment of 2 May 2007, Relator: Min. Ricardo Lewandowski, D.J. 26 Oct. 2007. For more comments on this decision, see Benvindo (2010), pp. 126–127. 132 Lei 10.826, de 22 de dezembro de 2003, D.O.U., 23.12.2003.

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were minor offenses previously. From where he stood, the case raised questions on the allocation of authority between judiciary and legislature. These questions would be intrinsically connected to the type of fundamental right at stake. Justice Mendes maintained that the criminal provisions in the Federal Constitution addressed a duty to the National Congress: to protect citizens from third parts by outlawing certain conducts. In his view, a similar clause providing for a protective duty could be inferred from Article 2 (2) of the Basic Law of Germany,133 in accordance with the interpretation the BVerfG gave to this clause in the Chemical Weapons Case.134 Another remarkable example in German case law was the Abortion II Case.135 Citing Alexy, Justice Mendes affirmed that the discretion the Federal Constitution granted to National Congress to legislate on the matter was not unfettered, but fell within the limits posed by the proportionality test.136 The constitutional court would be in charge of reviewing whether the legislature trespassed those limits, and Justices should perform the task in accordance with the importance of the fundamental right in question. As criminal laws generally impose grave punishment upon individuals and strongly interfere with individual freedom, the court ought to act with rigor. In Justice Mendes’s view, that was a necessary consequence of applying the second law of balancing to judicial review.137 Justice Mendes draw from the case in question a collision between freedom and security. He emphasized that the Federal Constitution grants those arrested for crimes the right of release from prison as long as they commit to appear before the court to answer the charges at a later date.138 And the provisional release would be in accordance with the presumption of innocence, which the Federal Constitution also ensures to everyone. Nevertheless, Article 21 of the Disarming Act contradicted the constitutional provision on the right of release on own recognizance, for it prohibited the provisional release of prisoners, Justice Mendes explained. Such a peremptory prohibition of provisional release would treat the imprisonment as a rule and the release as an exception, inverting the purpose implicit in the wording of the Federal Constitution, which gives the presumption of innocence precedence over competing principles. In sum, Justice Mendes declared that Article 21 was disproportional and, thus, void. His opinion dissented from the majority, which also ruled out the constitutionally of paragraphs of Articles 14 and 15.

133 Grundgesetz für die Bundesrepublik Deutschland, Article 2 (2): “These rights may be interfered

with only pursuant to a law.”. Chemical Weapons Case, 77 BVerfGE 170, Judgment of 29 October 1987. The name ‘Chemical Weapons Case’ was taken from Kommers and Miller (2012), p. 800, footnote 134. 135 BVerfG, Abortion II Case, 88 BVerfGE 203, Judgment of 28 May 1993. 136 Alexy (2002b), cited in STF, Disarming Act Case I, ADI 3112/DF, Judgment of 2 May 2007, Relator: Min. Ricardo Lewandowski, D.J. 26 Oct. 2007. 137 Alexy (1998), paraphrased in STF, Disarming Act Case I, ADI 3112/DF, Judgment of 2 May 2007, Relator: Min. Ricardo Lewandowski, D.J. 26 Oct. 2007. 138 Constituição da República Federativa do Brasil de 1988, Article 5, LXVI: “No one shall be taken to prison or held therein, when the law admits release on own recognizance, subject or not to bail.”. 134 BVerfG,

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6.3.2 The Stem Cells Case (2007) The main question raised by the Stem Cells Case (2008) was whether the use of human embryonic stem cells for scientific purposes breached the constitutional right to life.139 In 2005, the National Congress passed the Biosecurity Act, which allowed research with and therapeutic use of surplus stem cells of human embryos created through in vitro fertilisation, provided that the embryos were not viable or had been kept frozen in laboratory for 3 years or more. Article 5, Paragraph 1, added: “In any case, parental consent is required.”140 The General-Attorney of the Republic placed the statute before the STF and requested the law to be declared invalid. He argued that the Biosecurity Act had not observed Article 5 of the Federal Constitution, which provides for the inviolability of the right to life. In his view, the human life started when a woman’s egg was fertilized; it was thus incumbent upon the state to protect embryos from acts that one would regard as attempting against the dignity of human beings. That would be the case of scientific experimentation. As he asserted, experiments with embryonic stem cell paid little respect for the value of life, for the same results could be reached with less intrusive means, namely by employing adult stem cells instead. Yet, the arguments did not convince most STF’s Justices. They considered that the potential benefits that research could bring in curing diseases and disabilities justified the freedom granted to scientific initiative. The court rendered a majority opinion declaring that the Biosecurity Act was constitutional and the National Congress had not trespassed the limits of its authority to legislate on the matter. Justice Mendes delivered a partially dissenting vote. He affirmed that the court should rather answer the question whether the statute was proportional, which required more than simply acknowledging that the National Congress held authority to legislate on the matter. He assented that the legislature was vested with power to regulate the use of surplus stem cells of human embryos for research and therapeutic purposes; nonetheless, he considered that the Biosecurity Act was disproportional. That was not because the statute had exceeded the constitutional limits posed by the rights to life and human dignity, but rather due to the opposite: it would have granted insufficient protection to those rights. In Justice Mendes’s view, every legislative act should be proportional in two ways: it should not excessively (or unnecessarily) interfere with the opposing principles, nor should it fall short before reaching the minimum extent of protection the constitution requires. That is, both excessive and insufficient means were prohibited. Comparing the Biosecurity Act with laws on scientific research with human stem cells from Germany, Australia, France, Spain, and Mexico, Justice Mendes held that the statute in question was incomplete. Firstly, it omitted a subsidiary clause or any equivalent that allowed the manipulation of embryos only if one could not 139 STF,

Stem Cells Case, ADI 3510/DF, Judgment of 29 May 2008, Relator: Min. Ayres Britto, D.J.e. 28 May 2010. See Benvindo (2010), pp. 127–130, addressing sharp criticism to the use of Alexy’s theory in the case. 140 Lei 11.105, de 24 de março de 2005, D.O.U., 28.03.2005, Article 5, Paragraph 1 (my translation).

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reach identical results by means of adult cells. Secondly, it lacked provisions and regulations for an ethics committee upon which it should be incumbent to control whether laboratories, scientists, and research centres were complying with legal conditions, Justice Mendes said. In his opinion, Brazil should follow the example of the Stammzellgesetz (StZG), the German statute that made it mandatory to submit researches to the consideration of an ethics committee framed to deliberate on the matter, the Zentrale Ethik-kommission für Stammzellenforschung. Albeit regarding Article 5 of the Biosecurity Act as granting insufficient protection to both the right of life and human dignity, Justice Mendes recognized that many researches were already in course. To simply declare the statute void would open a legislative gap with unpredictable consequences, he conceded. Thus, he voted for the constitutionality of Article 5 provided that every experiment was previously submitted to a central ethics committee, which should attest their observance to legal conditions. Concluding, Justice Mendes held that, by assessing the arguments for and against the Biosecurity Act, the STF was engaging in a rational discourse with the National Congress and society, rather than regarding the parliamentary will as superfluous or unimportant. Before proclaiming his vote, Justice Mendes argued for the legitimacy of judicial review in general and particularly for the authority the STF held to assess whether the National Congress had fallen before its duty to enact laws that were neither excessive nor insufficient. Accordingly, he quoted Alexy assertion that both the parliament and the constitutional court represented the people, but in two different ways. The authority of the legislature would be supported by political legitimation, whereas the authority of a constitutional court would be based on an argumentative representation.141 As Justice Mendes explained, the premise underlying Alexy’s argument is that rational individuals are able to recognize the rationality of a discourse and can therefore be convinced by it. Once the rationally of the legal framework is accepted, one must accept that a decision made in accordance with such a framework is also rational, he said. As a result, a court that decided within the framework posed by the legal order would do so rationally and on behalf of the people.142 Justice Mendes would later employ the same arguments in the judgment of the Same-Sex Union Cases (2011).143

141 Alexy

(1999), p. 66, quoted in STF, Stem Cells Case, ADI 3510/DF, Judgment of 29 May 2008, Relator: Min. Ayres Britto, D.J.e. 28 May 2010. 142 Alexy (1997), paraphrased in STF, Stem Cells Case, ADI 3510/DF, Judgment of 29 May 2008, Relator: Min. Ayres Britto, D.J.e. 28 May 2010. 143 STF, Same-Sex Union Case I, ADI 4277/DF; Same-Sex Union Case II, ADPF 132/DF, Judgment of 5 May 2011, Relator: Min. Ayres Britto, D.J.e. 198, 14 Oct. 2011.

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6.3.3 The Political Satire Case (2010) The Political Satire Case (2010) was about the statutory ban on political satires during electoral campaigns.144 Article 45 of the Elections Act, enacted in 1997, prohibited radio and TV stations from either broadcasting audio and video that made fun of candidates or political parties or spreading political propaganda 3 months before the Election Day.145 The Brazilian Association of Radio and TV Stations (Associação Brasileira de Emissoras de Rádio e Televisão—ABERT ) filed a petition with the STF alleging that the statute was in breach of the Federal Constitution, particularly of the provisions on freedom of the press and expression and the right to information. The petitioners affirmed that the ban was disproportional and Article 45 was null and void. The arguments convinced a majority of Justices, and the STF granted a temporary order that suspended the effects of the clauses in question. Justice Dias Toffoli was part of the minority. He delivered a dissenting opinion suggesting that Article 45 of the Elections Act was not declared void, but read in accordance to the Federal Constitution. He maintained that the clause should be interpreted as only prohibiting parties and candidates from conveying political satires on their electoral opponents during the time they had by law to expose their proposals on radio and television. Additionally, radio stations and TV channels should remain free to express criticism or appraisal for parties, candidates, and their proposals during regular journalistic programmes, but could neither intentionally nor directly engage in political propaganda. In his view, the best solution for the case was not to invalidate the statutory rules, but to determine the way they ought to be interpreted, for this solution would simultaneously take the fundamental rights into consideration and pay due deference to the legislative authority on the matter. Citing Alexy’s collision law, Justice Toffoli affirmed that at least two principles were in question: freedom of the press and equality between candidates running for election.146 Both were optimization requirements in routes of collision in that case, and therefore the law of balancing also applied.147 According to him, the Federal Constitution granted all persons, including politicians, journalists, actors, and comedians, a prima facie right to freely express their opinions. However, such a right had to yield to opposing principles “in conformity with the circumstances and according to the weight-formula.”148 One of these circumstances that dictated another result to the proportionality test was the importance to grant equality of opportunities to candidates running for election. This principle opposed and prevailed over freedom of 144 STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 145 Lei 9.504, de 30 de setembro de 1997, D.O.U., 30.09.1997, Article 45. 146 Alexy (1986), pp. 78–84, cited in STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 147 Alexy (1986), p. 84, cited in STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 148 Alexy (1986), pp. 78–79, cited in STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011 (my translation).

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expression in the months that preceded the Election Day, Justice Toffoli said. Within this period, opinions that deliberately outraged opponents should not be admitted in the time candidates and parties had by law to broadcast their political agenda and argue for their proposals on radio and television. Another pressing circumstance concerned the fact that the vehicles transmitting the opinions were public concessions, like radio stations and TV channels. Due to the responsibility they carried of conveying information to the public, they could not engage in political campaigns or spread propaganda, although they had the right to criticize or praise for candidates’ and parties’ proposals in the exercise of journalistic activities. From where Justice Toffoli stood, these restrictions did not violate any fundamental right, for there were no absolute rights within the legal system. As examples in comparative law, he mentioned the Case of von Hannover v. Germany, decided by the ECtHR,149 and the Tucholsky II Case, handed down by the BVerfG’s first senate.150 As construed by him, in these cases and others,151 the respective courts agreed on that reasonable restrictions were imposed to freedom of press or expression. Furthermore, Justice Toffoli asserted that the STF should not encroach on the discretion the National Congress was given to legislate on the matter. As he stated, inasmuch as “one cannot speak of absolute fundamental rights, … freedom, whatever it might be, including freedom of expression, is prima facie unlimited, but it is limited as a definitive right.”152 As a result, the legislature was allowed to enact limits to freedom of expression and the press during the electoral period. He inferred this allowance from the phrase “according to the law” in Article 14 of the Federal Constitution, which allegedly commanded the National Congress to pass limits to rights while legislating on elections. Besides the explicit limits, there were unwritten limits to the constitutional rights into question, and the legislature had authority to shape these limits with positive law by means of balancing, he said, mentioning Alexy once again.153 In conclusion, Justice Toffoli asserted that it was at the discretion of the legislature which limits to impose on the freedom of expression of candidates and parties running for election, as well as on the freedom of the press of radio and TV stations in the months that preceded the Election Day, provided that journalistic activities were kept out of restrictions. Nevertheless, his opinion dissented from the majority, which upheld the temporary order due to the unconstitutionality of the statute. 149 Von

Hannover v. Germany, Judgment of 2004, 2004-VI Eur. Ct. H.R. 41. Tucholsky II/Soldiers Are Murderers, 93 BVerfGE 266, Judgment of 10 October 1995. The name ‘Tucholsky II Case’ was given by Kommers and Miller (2012). The case addressed the question whether the legal prohibition of insulting public officials should prevail over freedom of speech. In the centre of the controversy was the accusation ‘Soldaten sind Mörder’ (soldiers are killers), which pacifists displayed in banners and leaflets and published in a letter. 151 E.g., BVerfG, CDU-NPD Case, 61 BVerfGE 1, Judgment of 22 June 1982. 152 STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 153 Alexy (1986), pp. 300–307, quoted in STF, Political Satire Case, ADI 4451 MC-REF/DF, Judgment of 2 September 2010, Relator: Min. Ayres Britto, D.J.e. 125, 1 Jul. 2011. 150 BVerfG,

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6.3.4 The Disarming Act Cases II, III, and IV (2012) Similarly to the Disarming Act Case I (2007), the main issue of the Disarming Act Case II (2012) was the limits of the power vested in parliament to legislate on criminal matters.154 Article 14 of the new Disarming Act outlawed anyone from carrying, bearing, buying, selling, transporting, or having in custody firearms or ammunition without proper authorisation.155 A public attorney filed with the STF a petition for a writ of habeas corpus on behalf of a prisoner who had been arrested and sentenced under this article for carrying a gun. The attorney sustained that the imprisonment was unlawful because the sentence was based on an unconstitutional law. As he explained, the gun was unloaded and the prisoner had no access to ammunition. There was no actual threaten to society that justified imprisoning someone who possessed a firearm without bullets, he argued. Contrary to the attorney’s arguments, the STF’s second panel handed down a majority opinion denying the order. Justice Mendes delivered the determinant vote for the judgement, which constituted a turn in the STF’s case law. Several times before, the court’s first panel held that performing acts without direct victims, such as simply possessing an unloaded gun, was not to be deemed as a criminal offense.156 But that was not how Justice Mendes voted. In his view, outlawing anyone from carrying weapons even without ammunition fell within the space for means-selection discretion the legislature had and was altogether in accordance with the principle of proportionality as presented by Alexy.157 In particular, Justice Mendes deemed Article 14 of the Disarming Act to be suitable, necessary, and proportional in the narrow sense. For considering that the statute was valid law, he concluded that the imprisonment was lawful and denied the order. In what concerns the scope of judicial review and the relationship between parliament and courts, Justice Mendes maintained that the principle of proportionality imposes limits not only to the activities of interpreting and applying legal norms, which the judiciary is responsible for, but also commands law-making, in charge of the legislature. Therefore, a constitutional court held authority to review legislative acts in order to assess whether they are proportional. Concerning criminal law, it also fell under the scope of judicial authority to review the parliamentary decision of criminalising certain acts instead of others. Citing Alexy, Justice Mendes explained that the constitution granted the legislature a space of decision, within which it was

154 STF

(Second Panel), Disarming Act Case II, HC 102087/MG, Judgment of 28 February 2012, Relator (acórdão): Min. Gilmar Mendes, D.J.e. 159, 14 Aug. 2012. 155 Lei 10.826, de 22 de dezembro de 2003, D.O.U., 23.12.2003, Article 14. 156 See, for instance, STF (First Panel), RHC 81057/SP, Judgment of 25 May 2004, Relatora: Min. Ellen Grace, D.J. 29 Apr. 2005. 157 Alexy (1998), quoted in STF (Second Panel), Disarming Act Case II, HC 102087/MG, Judgment of 28 February 2012, Relator (acórdão): Min. Gilmar Mendes, D.J.e. 159, 14 Aug. 2012.

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at the discretion of congressmen which behaviours to outlaw, but it also demanded that the legislative decision be proportional, that is, justifiable.158 As asserted by Justice Mendes, a statute on the matter is justifiable if it takes into due consideration that there are both a positive and a negative right in question. The positive right required the National Congress to pass laws that granted life, body integrity, and property protection against the actions of other individuals. This protective right was fulfilled by means of statutes that outlawed murdering, injuring, or stealing, for instance. Justice Mendes emphasized that the Federal Constitution recognized the existence of protective rights, by expressly stating that “the law shall punish any discrimination which may attempt against fundamental rights and liberties” (Article 5, XLI). Recurring to foreign sources, he mentioned that one could find similar provisions in the constitutions of Spain, France, and Italy, and that according to the BVerfG, the state was obliged to protect individuals from harms caused by third parties and to eventually criminalize certain acts.159 As Justice Mendes asserted, the legislature has to act in between two extreme borders when enforcing positive rights: on the one hand, a prohibition of insufficient means, on the other, a prohibition of excessive means. Additionally, Justice Mendes maintained that there was also a negative right to consider when the Federal Constitution commanded that an act was outlawed. Individuals had a negative right against the state; by virtue of this right, congressmen were prohibited from using their legislative power to disproportionally interfere with individual freedom, for example. In his view, this idea had especial impact when criminal laws were in question, for these laws strongly interfere with one’s fundamental rights, remarkably in the case of imprisonment. In accordance with the second law of balancing, which reads, “the greater the interference with a fundamental right, the greater must be the reasons given to justify such interference,” Justice Mendes agreed on that the STF acted with special rigor in reviewing criminal statutory law. As he put it, the more intensely a criminal law interferes with a fundamental right, the more intensely the constitutional court ought to scrutinize its constitutionality. Justice Mendes declared that Article 14 of the Disarming Act passed the proportionality test. In his opinion, the statutory provision was suitable and necessary to prevent crimes other than homicide, like gun trafficking, for instance. Imprisoning under those circumstances was also proportional in the narrow sense, he said. The measure was neither insufficient nor excessive punishment considering the high rates of criminality in Brazil, to which the previous lack of control on dangerous weapons certainly contributed. Concluding, he asserted that outlawing anyone from simply possessing a firearm was conform to the Federal Constitutional, and so was the sentence based on that statutory clause. His vote convinced other Justices, who upheld 158 Alexy (2002b), cited in STF (Second Panel), Disarming Act Case II, HC 102087/MG, Judgment

of 28 February 2012, Relator (acórdão): Min. Gilmar Mendes, D.J.e. 159, 14 Aug. 2012. e.g., BVerfG, Abortion I Case, 39 BVerfGE 1, Judgment of 25 February 1975; Schleyer Kidnapping Case, 46 BVerfGE 160, Judgment of 16 October 1977; Chemical Weapons Case, 77 BVerfGE 170, Judgment of 29 October 1987; Aircraft Noise Case, 56 BVerfGE 54, Judgment of 14 January 1981; Arms Deployment Case, 66 BVerfGE 39, Judgment of 16 December 1983; Kalkar I Case, 49 BVerfGE 89, Judgment of 8 August 1978. 159 See

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his opinion. The Disarming Act Case II became a standard for later decisions on the same matter handed down by the STF’s second panel, namely the Disarming Act Case III and IV .160

6.3.5 Other Cases In at least eight other cases, the STF quoted to Alexy’s thesis of argumentative representation and his theory of legislative discretion. In three judgements, references to the principles theory had only secondary impact. The Basic Sanitation Case (2013) was about the executive competence to offer basic sanitation service and the legislature authority to legislate on the matter.161 As an obiter dictum, Justice Rosa Weber quoted to Alexy in defining that the legislature had the competence to interfere with private legal relations when this fell under its space of discretion. In the same year, the STF judged the “Mensalão” Scandal Cases I and II (2013),162 which put the court in the spotlight by getting national and international media coverage. The government of Lula da Silva, the most popular in Brazilian history back then, was facing a public accusation of buying congressmen’s votes by means of a monthly payment. Suspicions about the President’s direct involvement in the scheme brought the case to the STF. Justice Celso de Mello voted with the majority to admit the appeals of two convicts. In his vote, he made express reference to Alexy’s idea that the court represents the people in legal argumentation. However, in six other cases, references to the principles theory had primary impact. In the Minor Offences Act Case (2014), Justice Mendes advanced arguments altogether similar to those he had deployed in the Disarming-Act Cases II, III, and IV .163 This time, the STF had to decide whether a criminal act that was a misdemeanour pursuant to the Minor Offences Act was actually unlawful. A man who had been convicted for the possession of goods that are commonly used for thievery filed a petition to appeal with the STF questioning whether the statutory provision that criminalized such an act was conform to the constitutional standards for criminal liability. The STF granted the appeal and declared that the Minor Offences Act, from 1941, had been partially revoked. Justice Mendes, who was the rapporteur and delivered the 160 STF (Second Panel), Disarming Act Case III, HC 96.759/CE, Judgment of 28 February 2012, Relator: Min. Joaquim Barbosa, D.J.e. 113, 12 Jun. 2012. STF (Second Panel), Disarming Act Cases IV , HC 104410/RS, Judgment of 6 March 2012, Relator: Min. Gilmar Mendes, D.J.e. 62, 27 Mar. 2012. 161 STF, Basic Sanitation Case, ADI 1842/RJ, Judgment of 6 March 2013, Relator (acórdão): Min. Gilmar Mendes, D.J.e. 181, 16 Sep. 2013. 162 STF, “Mensalão” Scandal Case I, AP 470 AgR-vigésimo quinto/MG, Judgment of 18 September 2013, Relator (acórdão): Min. Teori Zavascki, D.J.e. 32, 17 Feb. 2014; STF, “Mensalão” Scandal Case II, AP 470 AgR-vigésimo sexto/MG, Judgment of 18 September 2013, Relator (acórdão): Min. Roberto Barroso, D.J.e. 32, 17 Feb. 2014. 163 STF, Minor Offences Act Case, RE 583523/RS, Judgment of 3 October 2014, Relator: Min. Gilmar Mendes, D.J.e. 28, 22 Oct. 2014.

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leading vote, concluded that the legislature held no discretion in the case and could not turn a possession of goods that were not unlawful into a misdemeanor. The five last cases where the quotations had primary impact concerned the new laws enacted for the 2016 general elections. The Election Law Mini-Reform Cases I, II, and III,164 the Election Debate Case,165 and the Election Broadcast Time Case (2016)166 were about political parties’ rights to take part in electoral debates on radio and television and to broadcast slots on those services at election time. In an attempt to reduce the number of political parties, the Congress targeted those that had obtained less than nine chairs in the previous election for the Deputy Chamber. A new statute passed in 2015 gave to their candidates no right to participate in debates and reduced the free airtime on radio and television reserved to them. Quoting Alexy, Justice Fux voted with the majority. He held that the Federal Constitution imposed limits to legislative discretion, but conceded that in those cases such limits had not been trespassed. The STF declared that the statutory clauses in question were valid, but should be interpreted in a certain way, so as to permit that candidates from parties that had less than nine representatives took part in debates since they were invited by the broadcasters.

6.4 The Principles-Theory Influence on the STF’s Self-understanding We should be sceptic about whether the references to the theory of judicial discretion and the thesis of argumentative representation as they appeared in the Political Satire Case (2010), the Stem Cells Case (2008), the Basic Sanitation Case (2013), and the “Mensalão” Scandal Cases (2013) played any substantive role for the rulings. It is reasonable to question whether citations to Alexy reflected sincere adherence to his thoughts in these decisions, or whether Justices cited the principles theory only to benefit from its academic reputation. In fact, rather than offering logical support for the conclusion, the references played an ornamental role in the reasoning, a fallacious function close to an appeal to authority. In either event, the strategic use respected only these five cases and not the entire set. Very different was, for instance, the Disarming Act Case I (2007), in which Justice Mendes rendered a partially dissenting opinion arguing that the second law of balancing should apply. Taking into account the importance of the fundamental right at stake, Justice Mendes concluded that the National Congress had little discretion 164 STF,

Election Law Mini-Reform Case I, ADI 5577/DF, Judgment of 25 August 2016, Relator: Min. Rosa Weber; Election Law Mini-Reform Case II, ADI 5487/DF, Judgment of 25 August 2016, Relator (acórdão): Min. Roberto Barroso; Election Law Mini-Reform Case III, ADI 5423/DF, Judgment of 25 August 2016, Relator: Min. Dias Toffoli, D.J.e. 292, 19 Dez. 2017. 165 STF, Election Debate Case, ADI 5488/DF, Judgment of 31 August 2016, Relator: Min. Dias Toffoli, D.J.e. 292, Dez. 19, 2017. 166 STF, Election-Broadcast Time Case, ADI 5491/DF, Judgment of 25 August 2016, STF, Relator: Min. Dias Toffoli, D.J.e. 202, 6 Sep. 2017.

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over the matter; conversely, the STF was authorized to perform an intense review. He pictured the case as a collision between two constitutional principles, freedom and security, and affirmed that criminal laws that favoured security imposed grave restrictions on individual freedom. Accordingly, he continued, the National Congress had the duty to protect citizens against violent acts from third parts by passing criminal laws; nonetheless, this duty was to be carried out without disproportionally restricting the freedom of respondents in criminal proceedings. Justice Mendes concluded his vote ruling that the statutory clause was null and void because it banned the provisional release that the Federal Constitution granted defendants. Although his arguments were not able to convince a majority of Justices then, they would do so five years later. The Disarming Act Cases II, III, and IV (2012) brought the same statute to the attention of the STF again. This time, however, the contentious issue regarded the constitutionality of another provision, and the references made to Alexy had primary impact, as the court’s final ruling upheld Justice Mendes’s opinion. Moreover, the cases represented a turning point in the STF’s case law. Until then, the prevailing understanding of the first panel was that statutes outlawing acts that caused no direct harm, such as possessing an unloaded gun, were disproportional.167 This changed when the second panel judged the Disarming Act Case II. Justices denied then the petition for a writ of habeas corpus on behalf of an offender arrested and sentenced for carrying a non-registered firearm. The court did so, even though the gun was unloaded, and the offender had no access to ammunition. Justice Mendes’s main argument was that outlawing anyone from carrying weapons without ammunition fell within the space for means-selection discretion the legislature had and was altogether in accordance with the principle of proportionality as presented by Alexy. In particular, he deemed Article 14 of the Disarming Act to be suitable, necessary, and proportional in the narrow sense. Considering that the statute was valid law, he concluded that the imprisonment was lawful and denied the petition for a writ of habeas corpus. Justice Mendes and the majority of Justices who followed his vote endorsed Alexy’s thoughts about the argumentative nature of constitutional review and particularly the thesis of argumentative representation. Furthermore, the court manifested adherence to the theory of judicial discretion by recognizing that the means-selecting discretion the legislature had was subjected to the prohibition of both excessive and insufficient means. Finally, Justice Mendes maintained that a decision-maker responsible for constitutional review had to apply the proportionality test consonant with the second law of balancing. The citations in the Disarming Act Cases II, III, and IV (2012) show that both the theory of judicial discretion—particularly the second law of balancing—and the thesis of argumentative representation borrowed from the principles theory played a significant role in the court’s reasoning. Arguments that had already appeared in Justice Mendes’s dissenting opinion in the Disarming Act Case I (2007) were later repeated with primary impact. They offered then the justification needed to 167 See,

for instance, STF (First Panel), RHC 81057/SP, Judgment of 25 May 2004, Relatora: Min. Ellen Grace, D.J. 29 Apr. 2005.

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convince a majority of Justices that the court’s previous understanding gave to the legislature a too narrow space of discretion to legislate on criminal matters. That is, the STF would have conduced constitutional review with disproportional intensity in preceding cases. And as Justice Mendes argued, by doing so, the court violated the tacit clauses that entrusted Justices to act as argumentative representatives of the people. Furthermore, the selected decisions demonstrated that the STF was not seriously concerned with the justification needed for taking from the principles theory the idea of judicial discretion and the thesis of argumentative representation—which does not mean that the borrowings are unjustifiable. Indeed, no Justice explicitly stated in her opinion the normative premises on which the references could be grounded, nor can we assure that the STF was aware of the theoretical premises underlying the quotations. Nonetheless, as in other cases, their argument can be reconstructed, and their tacit assumptions disclosed. In what follows, justification for resorting to Alexy’s theses on constitutional review is to be found in the wording of the Federal Constitution, as well as in system-independent reasons the principles theory provides for its own universality, particularly the optimization thesis, the wide-scope rights conception of rights, and the second law of balancing. Combined, these justificatory reasons give rise to the judicial duties to guard the constitution, justify decisions, and enhance the effectiveness of fundamental rights.

6.4.1 The Duty to Guard the Constitution The ultra-detailed Federal Constitution is a better candidate than the Basic Law to instil Forsthoff’s fear that a foundational constitution could promote the constitutionalisation of the entire legal system.168 Its extensive and sometimes prolix text goes into many details and seems to leave few matters at the unfettered disposal of the legislature. Nevertheless, one could not reasonably say that the Federal Constitution contains in a nutshell all commands or prohibitions, leaving no space for legislative deliberation. On the contrary, the effectiveness of several clauses depends “on the National Congress to enact laws that implement and develop the programmatic aims of the Constitution.”169 Any systematic interpretation that intended to make constitutional clauses cohere would have to reserve spaces for legislative deliberation and, conversely, estipulate the occasions and conditions for constitutional review. Article 102 in particular dispels any doubts about the STF’s power to review legislative acts by providing that “the Supreme Federal Court is responsible, essentially, for safeguarding the Constitution.” The Federal Constitution, however, silences about what “safeguarding the constitution” substantially means. Its text does not provide any definitive answer either to the operational challenge or the legitimacy challenge.

168 Forsthoff 169 Freire

(1971), p. 144. (2007), p. 3.

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Concerning the first, the Federal Constitution does not require the theory of judicial discretion, but the solution provided for by the principles theory is certainly not incompatible with the constitutional text. Noticeably, Article 5, XXV, states that the judicial duty to enforce fundamental rights prevails over statutory provisions enacted by the legislature that undermine the authority of judges. As the clause reads, “the law shall not exclude any injury or threat to a right from the consideration of the Judicial Power.” This means, firstly, that the judicature has the duty to act as to make injuries and threats to rights cease. Secondly, it entails that the legislature can enact laws to conform the judiciary and regulate the circumstances under which judges can act, but in no way the corresponding regulation can create obstacles to judicial enforcement of rights. Hence, the clause makes a strong case for the STF’s duty of engaging on substantive constitutional review.170 In what respects the thesis of argumentative representation, Article 1, Sole Paragraph, states the democratic principle by saying that “all power emanates from the people.” The people exercises this power, the clause continues, either “by means of elected representatives or directly, as provided by this constitution.” Following a strict, textual reading, one would conclude that the Federal Constitution admits only two exceptions to democratic representation. First, instead of voting for representatives, citizens may be called to vote directly in a referendum or plebiscite (Article 14). Second, citizens have the right to trigger the legislative procedure by filing a bill of law directly with the Chamber of Deputies (Article 61, Paragraph 2). Outside these alternatives, the people shall exercise their political power by means of democratic representation, the constitution textually says, leaving no room for the thesis of argumentative representation. Indeed, one could hardly find in the constitutional text normative reasons that support the shift in constitutional review from interpretation towards argumentation. Admittedly, the Federal Constitution explicitly commands all judges to justify their decisions.171 But it does not necessarily follow from the fact that the STF needs to justify its rulings that Brazilian polity has abandoned a strictly formal approach to judicial authority or adhered to what has been described above as a culture of justification. Rather than based on the constitutional text, the argumentative shift finds its justification in the gap that for long existed between the wording of constitutional provisions and the social reality in Brazil. Jurists had recognized the so-called “lack of efficacy of constitutional norms” as a problem even before the Federal Constitution was promulgated.172 As I will show below, this lack of effectiveness offers both explanation and justification for STF’s recourse to Alexy’s theses on constitutional review.

170 Vieira

(1994), p. 77. República Federativa do Brasil de 1988, Article 93, IX: “All judgements of the bodies of the Judicial Power shall be public, and all decisions shall be justified, under penalty of nullity.”. 172 Freire (2007), p. 3. 171 Constituição da

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6.4.2 The Duty to Enhance the Effectiveness of Fundamental Rights It has been said that the institutional changes in Germany after World War II were followed by a shift in the self-understanding of the BVerfG and the way judges pictured constitutional review. Alexy and his principles theory illustrate the scholarly attempt to make sense of the emerging scenario. Similarly, Brazilian re-democratization in the 1980s restored the autonomy of both the judiciary and the legislature, seriously compromised during the years of military dictatorship. The promulgation of the Federal Constitution in 1988 marked a shift in the paradigm that had structured constitutional review in Brazil. Using the terminology that Habermas suggested, we can say that, in substitution to the liberal arrangement that prevailed during almost the entire twentieth century, the STF emerged from the Federal Constitution in the centre of an institutional arrangement with characteristics of a welfare state.173 It is nonetheless noteworthy that it took around a decade after the re-democratization for the court to assume a salient role in the public life of the new democratic regime,174 which only became evident during the Mendes Court era. Comparing constitutional review in Germany and in Brazil, a Brazilian scholar confirmed that the shift in the attitude of both the BVerfG and the STF towards a culture of justification occurred under similar historical situations of discredit upon executive and legislative officials.175 As Benvindo sees it, likewise the BVerfG, the STF is entrusted the responsibility of protecting the constitutional polity against “any possible re-emergence of authoritarianism,” task that the court performs “by strengthening and enforcing the democratic constitution.”176 Nonetheless, the similarities between historical contexts should not throw shadow on relevant differences. While a time of adjustment is expected after authoritarian periods, for democratic institutions have to re-build the basis of their social efficacy, the lack of effectiveness of fundamental rights in Brazil preceded the dictatorial regime. The Federal Constitution only exposed the problem, as its extensive list of fundamental-rights provisions was far from finding correspondence in the country’s social reality. To be fair, the Federal Constitution reflects somehow Brazilian polity, and its text was drafted under great social pressure and expresses the political expectations of civil society along with the opinions of renowned constitutional scholars. Nevertheless, there was a clear deficit between the generous promises the new constitution announced and the governmental capacity of delivering what has been promised. Several of the fundamental rights provisions remained ‘underenforced’ for around

173 Baracho

Jr (2003), p. 513. It is however disputable whether the model that offers the best understanding of the Federal Constitution is not Habermas’s proceduralism. That is the opinion of de Oliveira (2001), pp. 177–207, for example. See Freire (2007), p. 8, for a list of Brazilian scholars that adopt a Habermasian perspective and criticize the STF for making use of the principles theory. 174 da Silva (2012), p. 17. 175 Benvindo (2010), p. xv. 176 Ibid., p. 92.

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a decade after the Federal Constitution was promulgated.177 We can grasp the idea of constitutional underenforcement either as a historical fact that explains the emergence of new constitutionalism in Brazil, or as a normative reason that justifies it. That something is a normative reason for an action means that it commands or permits that action. Accordingly, to say that the historical deficit in effectiveness of fundamental rights justifies the shift in the STF’s understanding of constitutional review is the same as to affirm that judges felt compelled to interfere more intensely with the decisions of other state branches in order to enforce those rights. This provisional conclusion respects the rationale behind the second law of balancing. The judiciary should remove the obstacles that artificially refrain principles from been realized to the extent they ought to be, according to the optimization thesis. To sum up, it is incumbent upon the constitutional court to eliminate all unjustified restrictions that encroach on the core of rights. I shall focus below on the institutional changes that empowered the STF with procedural means to do so by increasing its opportunities for review. Then I will return to the normative dimension of the idea that fundamental-rights provisions lacked effectiveness. I submit that the STF had a duty to enhance the effectiveness of the Federal Constitution. This duty justified the increased intensity of the court’s review and the abandonment of the previous deference with which Justices had been treating the legislature and executive. As the new attitude poses the operational and legitimacy challenges mentioned above, the court responded by resorting to Alexy’s theory of judicial discretion and his thesis on argumentative representation.

6.4.2.1

Increasing Opportunities for Review

The STF preceded the Federal Constitution from 1988 and the German BVerfG—its origins can be traced back to the Imperial Constitution of Brazil, from 1924. However, it possessed then few of the features normally attributed to constitutional courts. Only in the early years of the Old Republic (1889–1930), at the end of the nineteenth century, the STF was officially assigned the task of judicial review, initially under the influence of the American model and the liberal arrangement.178 Since the Republican Constitution, from 1891, judges and courts of appeal performed judicial review incidenter to ordinary lawsuits, and so did the STF, but exclusively via extraordinary appeals. Before the Federal Constitution, diffuse control in the moulds of the U.S. prevailed, coexisting only marginally with some forms of specialized, concentred constitutional review in European moulds.179 Historically, the move from orbiting around the American model to the gravitational influence of the Austrian model began before the Federal Constitution was enacted, precisely in the process that led to its formulation. As Chap. 2 anticipated, 177 The

expression ‘underenforced constitutional norms’ was coined by Sager (1977), p. 1213. It also appears in Perju (2012), p. 23. 178 Rodrigues (1973), pp. 1–11. 179 Bonavides (2008), pp. 325–327; Benvindo (2010), pp. 89–90; Corrêa (1987), p. 6.

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under the direct influence of Portuguese and Spanish scholars, but also looking for answers in German new constitutionalism, Brazilian constitutionalists from the 1980s assisted the parliamentary commission responsible for drafting the new constitution. These scholars maintained that the Federal Constitution should transform all the human rights of the UN Universal Declaration into fundamental rights and provide for an institutional arrangement that could enforce them. In particular, it was consensual among the jurists assisting the commission that a specialized constitutional court in the moulds of Germany and Italy should be placed at the centre of the arrangement.180 In fact, the parliamentary commission did not adopt jurists’ suggestion integrally, and the STF never replicated completely the templates of the Austrian model. Nonetheless, the final text of the Federal Constitution transferred some competences the STF previously held as a court of appeal to a higher federal court especially framed for that. Simultaneously, the Federal Constitution provided for new proceedings for abstract, concentrated constitutional review.181 As a result, the STF was empowered to perform constitutional review similarly to its European equivalents. In Justice Mendes words, “the multiplicity of procedural mechanisms and the strength of our Constitution, which includes one of the most extensive lists of fundamental rights in the world, have allowed the Brazilian Federal Supreme Court to conduct judicial review with quite a great degree of freedom.”182 Interestingly, the institutional changes that would contribute for empowering the court did not stop with the promulgation of the Federal Constitution. As scholars explain, from 1988 on, Brazil watched the STF gain “superlative competences” and its authority expand remarkably.183 This expansion was due to the “ambitious” text of the Federal Constitution as originally promulgated, but also to successive constitutional amendments and statutory laws that have multiplied the powers of the STF since the 1990s.184 This so-called judicial reform did not pass without protests of scholars and judges, especially because it resulted in a significant depletion of both the scope of lower courts’ review and their independence.185 Particularly the Constitutional Amendment n. 45, from 2004, changed considerably the dynamics of the judicial system, binding lower courts to STF’s rulings and approximating the effects of judgments on extraordinary appeals to the abstract review.186

180 Cittadino

(2009), pp. 12, 31–43. pp. 41–43, 60–64; Verissimo (2008), p. 417. 182 Mendes (2008), p. 2. 183 Vieira (2008), pp. 447–450. 184 Benvindo (2010), pp. 88–109; Vieira (1994), pp. 444–445. 185 See, for instance, de Oliveira (2001), p. 202; de Carvalho Netto (2003), p. 163; (2001), pp. 13–18. 186 Mendes (2008), p. 3. 181 Ibid.,

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Increasing Intensity of Review

Despite the great amplitude of the recent changes in the institutional arrangement, authors agree that neither the original wording of the Federal Constitution, which placed the STF in the centre of the legal system, nor the subsequent judicial reform, which expanded its powers, suffice to explain the prominence the court has exhibited. As Schlink noticed about constitutional courts in general, it is too simplistic too assume that “broad jurisdiction makes for an activist court.”187 Once judges attain the “critical mass of power to start playing an activist role …, the constitutional courts embark on a journey into increasing activism regardless of the broader or narrower definition of their jurisdiction.”188 Fundamental is that the court accepts “a leading role” in affecting the legal system or social order and in allowing “political conflicts to be continued on a new legal, but non-parliamentary level.”189 In Schlink’s view, the BVerfG has accepted this new role, and as the case law analysed above demonstrates, so did the STF. Schlink is correct in saying that a change in a constitutional court’s attitude does not follow automatically from modifications in the institutional arrangement. The STF’s history is illustrative. During virtually the entire twentieth century, the court treated the legislature with great, sometimes excessive, deference. In the Old Republic (1889–1930), for example, STF’s review focused exclusively on whether the formal aspects of the legislative process had been followed by the National Congress.190 Albeit the court advanced later to the substantial review of legislation, its attitude was still “passive,” in Justice Mendes’s words, especially during the decades of dictatorial ruling in which military regimes subverted the judiciary.191 Not so different was STF’s behaviour in the years that followed the Federal Constitution, when the court was targeted with criticism for its feigning modesty. Curiously, Justices publicly showed that they disapproved the inertia into which the government lapsed after the preceding phase of fast institutional change. Through informal declarations to the press and academic speeches, they voiced concern that legislative and executive omissions impaired the effectiveness of fundamental rights. Nonetheless, for around a decade the court’s case law did not reflect the political dissatisfaction of its members. In decision-making, Justices chose “to make scrupulous use of the remedies introduced by the 1988 Constitution, in spite of growing pressure for the Court to expand its power.”192 As Benvindo explained, “the STF had a very timid activity … and, in many cases, even created legal interpretations and precedents to avoid entering into some sensible areas that could expose a judicial encroachment

187 Schlink

(1995b), p. 269. p. 269. 189 Schlink (1992), p. 724. 190 Vieira (1994), p. 77. 191 Benvindo (2010), p. 93. 192 de Castro (1997), p. 247. 188 Ibid.,

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upon the other powers.”193 At the end of the 1990s, however, the situation would change dramatically. The words of Justice Mendes are revealing about what motivated the shift in the court’s attitude. In an academic article, he pointed out that the STF’s recently acquired “freedom … to conduct judicial review” was indeed a condition for assuming a new role.194 Yet he remarked that the reasons compelling the court to act differently were the “administrative and legislative omissions concerning the extensive social agenda in the Constitution.”195 These governmental omissions hindered the realization of constitutional rights and maintained the gap between constitution and social reality. Following the rationale behind the second law of balancing, they can thus be seen as a normative reason that justifies the transformation in the STF’s self-understanding. As the governmental inertia caused serious infringement to people who depended on state action to enjoy their rights, particularly rights to positive state action, judges were commanded to act with proportional rigour, intensely interfering with omissive authorities so as to prevent the infringement. Or so did the court believe in the Mendes era. One could raise the following objection to the use of the effectiveness gap as a normative reason that justifies a court’s shift in its adjudicative practice. Respecting the enforcement of the constitution, some gap between “law in books” and “law in action” is common and somehow tolerated. As Horwitz puts it, “constitutions often perform symbolic or aspirational functions that have little relationship to the ways in which constitutional law actually operates.”196 Nevertheless, distinctive of tolerable gaps is the fact that they are justifiable. One can accept that reasonable constrains, whether factual or legal, limit the extent to which constitutional rights are realized. That idea is in the core of the optimization thesis, as discussed in Chap. 4. There are nevertheless situations in which constrains imposed on the implementation of constitutional clauses are unjustifiable and thus arbitrary. And Brazilian scholars and judges believed that to be the case with the Federal Constitution. The causes of its underenforcement would lie on intolerable institutional inertia, rather than on understandable difficulties with policy making, for example.197 At any rate, in response to the duty to enhance the effectiveness of the Federal Constitution, the STF left behind the liberal paradigm that had for long inspired its case law. The court’s endorsement to a wide-scope conception of fundamental rights, in substitution to the narrow-scope conception that was characteristic of the liberal paradigm marks this transition. It also entails that Justices have entered the path that leads to the culture of justification. That is so because as the STF started to advance 193 Benvindo 194 Mendes

(2010), p. 95. (2008), p. 1.

195 Ibid. 196 Horwitz

(2009), p. 536. to da Silva (2012), p. 17, “a certain measure of rights awareness [that] was already present in the first 10 or 15 years after the promulgation of the 1988 Constitution … was somehow damped down by legislative inertia.” See also Freire (2007), pp. 2–3; de Barcellos and Barroso (2006), p. 328; de Souza Neto (2006), pp. 288–298.

197 According

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towards matters that were traditionally and until very recently reserved to legislative deliberation, it had to convince other political actors that Justices were required to take this next step—that is, required by the Federal Constitution. The recently increased responsibilities, together with a perception that purely authoritative arguments could not suffice anymore, made substantive justification necessary. As the STF “[undertook] the role of defining many relevant political and social matters,”198 the court faced the challenge to justify its increased authority, in which borrowing the principles theory has seemingly helped.

6.4.3 The Duty of Justification As the STF assumed responsibilities that are typical of constitutional courts under the new-constitutionalist paradigm, both operational and legitimacy challenges arose. As explained in Chaps. 4 and 5, the court has approached constitutional principles and fundamental rights in the principles-theory manner, as optimization requirements and wide-scope rights, respectively. This conception of constitutional rights and principles, combined with an extra detailed charter of rights as the Federal Constitution provides for, submits for the court’s consideration matters that were previously deemed as constitutionally irrelevant. In view of that, a scheme such as the theory of judicial discretion, which preserves some space for legislative deliberation free from the review of the judiciary, seems to help the court avoid the temptation of encapsulating all legal thought in its case law. Admittedly, it is too soon to affirm that the references to the theory of judicial discretion point to a long-lasting commitment and not to a mere fluctuation in the court’s case law. On the one hand, the thesis had primary impact in only half of the cases analysed above: the Disarming Act Cases (2012), the Minor Offences Act Case (2014), the Election Law Mini-Reform Cases (2016), the Election Debate Case (2016), and the Election Broadcast Time Case (2016). On the other, those judgements were delivered from 2012 on, the majority of which very recently in 2016, which may signal a tendency towards a deeper endorsement of the principlestheory tenets. At any rate, a trait of the theory of judicial discretion makes it an advantageous alternative to more traditional divisions of labour between courts and parliament. Delivering contra-majoritarian decisions throws a political burden upon judges’ shoulders that the theory seems to lighten. That is also the case with the thesis of argumentative representation. By borrowing the optimization thesis and the wide-scope conception of rights, the STF simultaneously borrowed the duty of justification intrinsically attached to these theoretic constrictions. Chap. 4 demonstrated that the idea of optimization implies that decision-makers have to decide to which extend principles ought to be realized in a particular case. That is because, as Alexy says, constitutional rights are optimization requirements one ought to realize to the greatest extent possible considering legal and 198 Benvindo

(2010), p. 88.

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factual possibilities. The identification of these possibilities is only the beginning of the work; the court ought to justify why and how they constrain a principle. Similarly, Chap. 5 showed that there are constitutional limits to the power of the legislature. Legislative authority to limit a fundamental right is constrained by proportionality. But the proportionality test only partially justifies a limit to a fundamental right, Alexy affirms. It is devised to provide internal justification, not external. Courts are still under the duty to advance substantive justification. But in as much as judges justify their decisions, they justify their own positions as decision-makers—and that is the thesis of argumentative representation. Benvindo raises an objection to this conclusion. He suggests that STF’s recourse to the principles theory is no more than a deliberate strategy to preserve the court’s authority in the long run. The theory of judicial discretion and the thesis of argumentative representation would actually hide the STF’s feebleness in some cases and its intemperance in others. On the one hand, the court could avoid a direct confront where it was foreseeable that Justices would not have enough political power to guarantee the enforcement of their decisions against the resistance of other state branches. On the other, the court could cover under a façade of apparent legitimacy its interventionism on political matters where other state branches would most likely not react—or their reaction would not jeopardize the chances that the decisions were carried out.199 I agree with Benvindo that the principles theory might serve to instrumental functions, but I cannot see how this could help the STF to evade the question of normative justification. Benvindo has in mind functional explanations in his analysis: the alleviative and illusory functions commonly attributed to the proportionality test. But again, if recourse to the principles theory was strictly strategic, and Justices had no convincing reasons for doing so, the unjustified attitude of the court would sparkle a crisis of legitimacy instead of relieving the burden of contra-majoritarian decisionmaking. That would threaten rather than reinforce the maintenance of the court’s authority in the long run, which has not been observed until now.

6.5 Results This chapter demonstrated that the institutional change that empowered the BVerfG after World War II and the subsequent turn of constitutional adjudication into a matter of justification posed two challenges to constitutional review: the operational challenge and the legitimacy challenge. The principles theory dealt with these issues by means of a theory of judicial discretion and a thesis of argumentative representation, respectively. In summary, Alexy argues that decisions about how to limit fundamental rights ought to be left to legislative discretion either if structural spaces are in the constitution, in virtue of which nothing is definitively commanded or prohibited, or if epistemic gaps exist in our knowledge about what is definitively commanded or 199 Ibid.,

pp. 116–130.

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prohibited. Using the terminology the principles theory suggests, one can say that the former indicates structural discretion, whether over setting the ends, selecting the means, or balancing. The latter designates epistemic discretion, whether empirical or normative. While the theory of judicial discretion concerns the operational challenge, the thesis of argumentative representation is an attempt to respond to the legitimacy challenge. This challenge was aggravated by the erosion of the traditional culture of authority that had prevailed in Europe. After World War II, decision-makers could not purely rely on their legal authority to decide anymore. In particular, the recently empowered constitutional courts were challenged to provide substantive justification for both their more immediate decisions and their own authority to decide. The turn of constitutional review from interpretation into justification provides the historical background to Alexy’s thesis that both parliament and constitutional court represent the people, but the former does so democratically, while the latter argumentatively. Both the theory of judicial discretion and the thesis of argumentative representation are ultimately grounded on a conception of constitutional review as a discursive enterprise, which as such claims to be correct, rational, and justifiable (if not justified). By making use of the principles theory, STF Justices showed adherence to its underlying conceptions. Whereas the theory of judicial discretion and the thesis of argumentative representation lighten the justificatory burden carried by the STF, the legitimacy of borrowing these ideas from the principles theory still had to be justified. One cannot reject the hypotheses that borrowing fulfils strategic aims. Yet, should this hypothesis prove to be true, it would only have explanatory force. Resource to Alexy’s theses on constitutional review would still lack normative grounds. In this chapter, I demonstrated that justification is to be found in the wording of the Federal Constitution, the optimization thesis and wide-scope conception of rights, and the second law of balancing. Firstly, the Federal Constitution, albeit not undoubtedly pointing to these theories, offers a ground for their application. Constitutional provisions make incumbent upon the STF to guard the constitution, act against threaten and violation of rights, and expound the justification for its decisions. Admittedly, these clauses say little about what justification consists in. Secondly, however, the principles theory offers system-independent reasons for its own universality that had been incorporated in the STF’s case law, as the previous chapters demonstrated. The optimization thesis commands decision-makers to realize constitutional principles to the greater extent possible, given factual and legal conditions. This means that judges ought to identify these conditions and put arguments forward for why they constrain the principle at hand. Similar conclusion is reached if one departs from the wide-scope conception of rights. Because fundamental rights possess wide scope, restrictions are tolerated, provided that they are not arbitrary. In sum, a restriction is arbitrary if it encroaches on the core of a right, that is, if it trespasses the line up to which it was justifiable. Therefore, both the optimization thesis and the wide-scope conception of rights point to a duty of substantive justification. Thirdly, the second law of balancing commands courts to adjust the intensity of review they perform to the degree of interference with a fundamental right in

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the case at hand. STF’s Justices seemingly derived from this command a duty to enhance the effectiveness of the constitution. Particularly in what respects rights to positive state action, which will be explained in the next chapter, this duty provides normative justification for a more intensive review as it exhorts the judiciary to remove the obstacles that unreasonably stop principles from being realized to the extent they ought to be. And that was the case in Brazil a decade after the Federal Constitution was promulgated. Fundamental-rights clauses lacked effectiveness as a gap persisted between the generous promises that the new constitution announced and the reduced institutional capacity of delivering what had been promised. Faced with this scenario where constitutional provisions remained underenforced due to the unjustifiable inertia of executive and legislative authorities, the STF ought to meet the duty to enhance the effectiveness of the Federal Constitution. It attempted to do so by abandoning its excessively deferential attitude before other state branches. In what respects the principles theory, this change in attitude corresponded to the court’s adherence to the optimization thesis and the conception of wide-scope rights—and, consequently, to its engagement with the proportionality test.

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Borowski M (2011) Discourse, principles, and the problem of law and morality: Robert Alexy’s three main works: Robert Alexy’s three main works by Martin Borowski. Jurisprudence 2(2):575–595. https://doi.org/10.5235/204033211798716899 Brest P (1981) The fundamental rights controversy: the essential contradictions of normative constitutional scholarship. Yale Law J 90(5):1063. https://doi.org/10.2307/795941 Cappelletti M (1970) Judicial review in comparative perspective. Calif Law Rev 1017–1053 Cappelletti M (1971) Judicial review in the contemporary world. Bobbs-Merrill, Indianapolis de Carvalho Netto M (2001) A contribuição do direito administrativo enfocado da ótica do administrado: para uma reflexão acerca dos fundamentos do controle de constitucionalidade das Leis no Brasil. Um pequeno exercício de Teoria da Constituição. Fórum Administrativo, Belo Horizonte 1(1):11–20 de Carvalho Netto M (2003) A hermenêutica constitucional e os desafios postos aos direitos fundamentais. In: Sampaio JAL (ed) Jurisdição Constitucional e Direitos Fundamentais. Del Rey, Belo Horizonte, pp 141–161 de Castro MF (1997) The courts, law, and democracy in Brazil. Int Soc Sci J 49(152):241–252. https://doi.org/10.1111/j.1468-2451.1997.tb00019.x Cittadino GG (2009) Pluralismo, direito e justiça distributiva: elementos da filosofia constitucional contemporânea. Editora Lumen Juris, Rio de Janeiro Clayton R (2001) Regaining a sense of proportion: the human rights act and the proportionality principle. Eur Hum Rights Law Rev 5:504–525 Cohen-Eliya M, Porat I (2011) Proportionality and the culture of justification. Am J Comp Law 59(2):463–490 Cohen-Eliya M, Porat I (2013) Proportionality and justification (SSRN Scholarly Paper No. ID 2205702). Social Science Research Network, Rochester, NY Comella VF (2009) Constitutional courts and democratic values: a European perspective. Yale University Press, New Haven Comella VF (2011) The rise of specialized constitutional courts. In: Ginsburg T, Dixon R (eds) Comparative constitutional law. Edward Elgar, Cheltenham, UK, Northampton, MA, pp 265–277 Corrêa OD (1987) O supremo tribunal federal, corte constitucional do brasil. Forense, Rio de Janeiro Dworkin R (1986) Law’s empire. Belknap Press, Cambridge, Mass Dworkin R (1999) Freedom’s law: the moral reading of the American constitution. Oxford University Press, Oxford Dyzenhaus D (1998) Law as justification: Etienne Mureinik’s conception of legal culture. S Afr J Hum Rights 14:11 Dyzenhaus D (2012) Dignity in administrative law: judicial deference in a culture of justification. Rev Const Stud 17:87 Dyzenhaus D (2014) Proportionality and deference in a culture of justification. In: Huscroft G, Miller BW, Webber GCN (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, NY, pp 234–258 Ferejohn J, Pasquino P (2003) Constitutional adjudication: lessons from Europe. Tex L Rev 82:1671 Forsthoff E (1959) Die Umbildung des Verfassungsgesetzes. In Barion H, Forsthoff E, Weber W (eds) Festschrift für Carl Schmitt zum 70. Geburtstag: dargebracht von Freunden und Schülern. Duncker & Humblot, Berlin, pp 35–62 Forsthoff E (1971) Der Staat der Industriegesellschaft: dargestellt am Beisp. d. Bundesrepublik Deutschland. Beck, München Freire AR (2007) Evolution of constitutional interpretation in Brazil and employment of balancing “Method” by the Federal Supreme Court in judicial review. In: Workshop 15: The Balancing and Proportionality in the Constitutional Review. http://www.enelsyn.gr/papers/w15/Paper%20by% 20Prof%20Alonso%20Reis%20Freire.pdf Gardbaum S (2001) The new commonwealth model of constitutionalism. Am J Comp Law 49:707–760 Gardbaum S (2010) A democratic defense of constitutional balancing. Law Ethics Hum Rights 4(1):79–106

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Gardbaum S (2014) Proportionality and democratic constitutionalism. In: Huscroft G, Miller BW, Webber GCN (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, NY, pp 259–283 Habermas J (1996) Between facts and norms: contributions to a discourse theory of law and democracy. MIT Press, Cambridge, Mass Hashish Drug Case/Cannabis Judgement, No. 90 BVerfGE 145 (BVerfG 3 September 1994) Hiebert JL (2006) Parliamentary bills of rights: an alternative model? Modern Law Rev 69(1):7–28 Hirschl R (2004) The political origins of the new constitutionalism. Indiana J Glob Leg Stud 11(1):71–108 Hirschl R (2007) Towards juristocracy: the origins and consequences of the new constitutionalism. Harvard University Press, Cambridge, Mass, London Horwitz MJ (2009) Constitutional Transplants. Theor Inq Law 10(2):535–560 Huscroft G (2014) Proportionality and the relevance of interpretation. In: Huscroft G, Miller BW, Webber GCN (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, New York, NY, pp 186–202 Kahn PW (1987) The court, the community and the judicial balance: the jurisprudence of Justice Powell. Yale Law J 1–60 Kelsen H (1942) Judicial review of legislation: a comparative study of the Austrian and the American constitution. J Polit 4(2):183–200. https://doi.org/10.2307/2125770 Klatt M (2007) Taking rights less seriously. A structural analysis of judicial discretion. Ratio Juris 20(4):506–529 Klatt M (2015) Positive rights: who decides? Judicial review in balance. Int J Const Law 13(2):354–382. https://doi.org/10.1093/icon/mov019 Klatt M, Meister M (2012) The constitutional structure of proportionality, 1st edn. Oxford University Press, Oxford Klatt M, Schmidt J (2012a) Abwägung unter Unsicherheit. Archiv Des Oeffentlichen Rechts 137(4):545–591. https://doi.org/10.1628/000389112804720023 Klatt M, Schmidt J (2012b) Epistemic discretion in constitutional law. Int J Const Law 10(1):69–105. https://doi.org/10.1093/icon/mor056 Kommers DP, Miller RA (2012) The constitutional jurisprudence of the Federal Republic of Germany, 3rd edn rev. and expanded. Duke University Press, Durham, N.C Kumm M (2006) Who is afraid of the total constitution? Constitutional rights as principles and the constitutionalization of private law. Ger Law J 7:341 Kumm M (2009) Democracy is not enough: rights, proportionality and the point of judicial review. NYU School of Law, (Public Law Research Paper n. 09–10). http://www.law.harvard.edu/faculty/ faculty-workshops/kumm.paper.i.pdf Landfried C (ed) (1988a) Constitutional review and legislation: an international comparison. Nomos, Baden-Baden Landfried C (ed) (1988b) Constitutional review and legislation in the Federal Republic of Germany. In: Constitutional review and legislation: an international comparison. Nomos, Baden-Baden, pp 147–167 Law DS, Versteeg M (2011) The evolution and ideology of global constitutionalism. Cal L Rev 99:1163–1257 McWhinney E (1986) Supreme courts and judicial law-making: constitutional tribunals and constitutional review. Martinus Nijhoff Publishers, Dordrecht, Lancaster, UK, Hingham, USA Mendes G (2008) New challenges of constitutional adjudication in Brazil. In: Brazil Institute (ed) Special reports. Woodrow Wilson International Center for Scholars, Washington, DC. http:// www.wilsoncenter.org/sites/default/files/brazil.gilmarmendes.constitution.pdf Mureinik E (1994) A bridge to where: introducing the interim bill of rights. S Afr J Hum Rights 10:31 de Oliveira MAC (2001) Uma Justificação Democrática da Jurisdição Constitucional Brasileira ea Inconstitucionalidade da Lei no 9.686/991. Revista Da Faculdade de Direito Da UFPR, 36, 177

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Perju V (2012) Constitutional transplants, borrowing and migrations. In: Rosenfeld M, Sajó A (eds) The oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 1304–1327 Rivers J (2012) Constitutional rights and statutory limitations. In: Institutionalized reason: the jurisprudence of Robert Alexy. Oxford University Press, Oxford, New York, pp. 248–271 Robertson D (2010) The judge as political theorist: contemporary constitutional review. Princeton University Press, Princeton, N.J Rodrigues LB (1973) História do supremo tribunal federal, vol 1. Senado, Brasília Roesler S (2007) Permutations of judicial power: the new constitutionalism and the expansion of judicial authority. Law Soc Inq 32(2):545–579 Sager LG (1977) Fair measure: the legal status of underenforced constitutional norms. Harv Law Rev 91:1212 Schlink B (1992) German constitutional culture in transition. Cardozo L Rev 14:711 Schlink B (1995a) The dynamics of constitutional adjudication. Cardozo L Rev 17:1231 Schlink B (1995b) The journey into activism. Cardozo L Rev 17:269 da Silva VA (2012) Discovering the court: or, how rights awareness puts the brazilian supreme court in the spotlight. Century’s Rev J Ration. Legal Debate 1:16–20 de Souza Neto CP (2005) Ponderação de Princípios e Racionalidade das Decisões Judiciais: Coerência, Razão Pública, Decomposição Analítica e Standards de Ponderação. Boletim Científico ESMPU 15:207–227 de Souza Neto CP (2006) Fundamentação e Normatividade dos Direitos Fundamentais: uma reconstrução teórica à luz do princípio democrático. In: Barroso LR (ed) A nova interpretação constitucional: ponderação, direitos fundamentais e relações privadas. Renovar, Rio de Janeiro, pp 285–325 Sullivan ET, Frase RS (2009) Proportionality principles in American law: controlling excessive government actions. Oxford University Press, New York Sweet AS (2000) Governing with judges: constitutional politics in Europe. Oxford University Press, Oxford, New York Sweet AS (2003) Why Europe rejected American judicial review: and why it may not matter. Mich Law Rev 2744–2780 Sweet AS (2012) Constitutional courts. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law, 1st edn. Oxford University Press, Oxford, pp 816–830 Sweet AS, Mathews J (2008) Proportionality balancing and global constitutionalism. Columbia J Trans Law 47:68–149 Tushnet M (2003) Alternative forms of judicial review. Mich Law Rev 2781–2802 Tushnet M (2011) The rise of weak-form judicial review. In: Ginsburg T, Dixon R (eds) Comparative constitutional law. Edward Elgar, Cheltenham, UK, Northampton, MA, pp 321–333 Verissimo MP (2008) A Constituição de 1988, vinte anos depois: Suprema Corte e ativismo judicial “à brasileira”. Revista Direito GV 4(2):407–440 Vieira OV (1994) Império da lei ou da corte? Revista USP 21:70–77 Vieira OV (2008) Supremocracia. Rev. Direito GV 4(2):441–463 Waldron J (1993) A right-based critique of constitutional rights. Oxford J. Leg. Stud. 13(1):18–51 Waldron J (2001) Law and disagreement. Oxford University Press, Oxford, New York Waldron J (2006) The core of the case against judicial review. Yale Law J 1346–1406 Walen A (2009) Judicial review in review: a four-part defense of legal constitutionalism a review essay on political constitutionalism. Int J Const Law 7(2):329–354. https://doi.org/10.1093/icon/ mop007

Chapter 7

A Final Argument in Favour of Proportionality

7.1 Rights to Positive State Action According to the Principles Theory The previous chapter advanced an argument in justification for borrowing the proportionality test. It demonstrated that Brazilian Justices have resorted to the test in the belief that doing so helps to enhance the effectiveness of the rights the Federal Constitution provides for. To recapitulate, the principles-theory variant of proportionality is grounded on three normative premises. Firstly, the optimization thesis postulates that principles are optimization requirements that judges ought to realize to the greatest extent possible. The STF drew from this conception theoretical support for removing obstacles that prevented or hindered the proper enforcement of rights. In Justices’ view, the main obstacle was an unjustifiable governmental inertia. Secondly, Alexy posits that fundamental rights drag into their wide scope every act that somehow affects the state of affairs they point to. Based on this premise, the STF could expand the scope of its own power of review so as to encompass subject matters that were previously left aside in constitutional adjudication. Thirdly, Alexy claims that judges represent the people in legal argumentation. This conception of argumentative representation justifies the very authority of a constitutional court and recommends that the intensity of judicial review should be proportional to the degree of interference with a fundamental right in a given case. This is the rationale underlying the second law of balancing in the view of many Brazilin Justices, and the STF resorted to this argument to abandon the deferential attitude adopted in the past in favour of a more rigorous constitutional check on legislative abuse or omission. In this chapter, I shall revisit this argument. As I shall demonstrate, the shift in the court’s case law becomes even clearer when social constitutional rights are considered. The sections below will reinforce the conclusion reached so far, that the STF could only justify the borrowings of proportionality with recourse to normative premises that make the test necessary. The main task here is to offer a final argument for the moderate thesis on the migration of proportionality expounded in Chap. 2. I do so © Springer Nature Switzerland AG 2018 J. Andrade Neto, Borrowing Justification for Proportionality, Ius Gentium: Comparative Perspectives on Law and Justice 72, https://doi.org/10.1007/978-3-030-02263-1_7

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by focusing on a particular category of rights: constitutional rights to positive state action. In A Theory of Constitutional Rights, Alexy advanced a complex conception of fundamental rights with clear differences from liberal approaches, especially in respect to the nature and analytical structure of rights. According to him, fundamental rights are “positions which are so important that the decision to protect them cannot be left to simple parliamentary majorities.”1 Based on this definition, he explained that, in the completely developed form, such positions encompass at least a right to something, a liberty, and a power.2 Admittedly, scholars supporting the liberal conception of rights, who claim that rights demand from the state a negative action—a restrain from acting—, could share this basic understanding on fundamental rights.3 But Alexy goes further. He differentiates between two types of rights to something, both addressed to the state: rights to negative acts, with which liberal scholars would agree, and rights to positive acts, which a more traditional liberal doctrine would deny.4 Within the group of rights to positive acts, Alexy places rights to factual performances and rights to normative performances. The former impose upon public officers duties of carrying out certain measures; the latter impose duties of enacting norms. Among the rights to positive state action that require public authorities to enact norms are protective rights to organization and procedure; among those rights demanding that government should carry out certain measures are social rights. Alexy argued that social rights are not only part of German law, but also subjective rights with constitutional status, in spite of not being expressly mentioned in the Basic Law. In the sections below, I shall make some remarks on Alexy’s conception of rights to positive acts focusing on the sub-categories of protective rights, procedure rights (rights to organization and procedure), and social constitutional rights. Section 7.1 demonstrates that despite some additional complexity that follows from their alternative structure, positive rights imply the proportionality test, and vice versa, as do negative rights in Alexy’s view. Section 7.2 expounds twelve decisions in which the STF referred to Alexy’s conception of rights to positive state action. Amongst these judgements, the most relevant are the Healthcare Cases (2010), delivered under the Mendes Court. Section 7.3 discloses system-dependent and system-independent 1 Alexy

(2010a), p. 297. (2012a), p. 285, refers to this as a “three-stage model of rights.” 3 See Nozick (1974), ix, for a conception of rights as side constraints that exemplify a liberal theory from the twentieth century. According to him, “individuals have rights, and there are things no person or group may do to them (without violating their rights) … . Any more excessive state [than the one limited to the functions of protection against force, theft, fraud, breach of contracts, and so on] will violate persons’ rights not to be forced to do certain things, and is unjustified.” 4 In fact, not only traditional liberal theorists have opposed the division of rights into positive and negative. Cf. Sunstein (2005), pp. 93–95, raising objections to the criteria traditionally employed to differentiate; Palmer (2009), pp. 20–23, saying that the dichotomy has been ‘overplayed’ and arguing for a ‘unified approach to rights’; Mantouvalou (2010), pp. 11–15, claiming that social rights impose negative and positive obligations, simultaneously; and Davis (2012), p. 1025, arguing that ‘it is not that easy to distinguish between positive and negative rights,’ for ‘some negative rights involve material consequences’; Klatt (2015), speaking of positive and negative dimension of rights, instead of positive and negative rights. 2 Alexy

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justification for the borrowings. I argue that the text of the Federal Constitution provides for the sub-categories of positive rights suggested by Alexy and, finally, I put arguments forward for the inadequacy of the strong thesis and the insufficiency of the weak thesis. To conclude, I shall reinforce that borrowing proportionality is justifiable provided that the moderate thesis holds valid in a given legal system, as it does in Brazil. But first I will give an overview on Alexy’s understanding of rights to something.

7.1.1 Rights to Something Alexy analytically decomposes individual rights in their constitutive elements and simultaneously connects these elements in three ways: with one another, with the other rights of the individual, and with the rights of other people. Four statements summarize his understanding of constitutional rights. First, rights are basically individual positions. Second, there are three basic positions: rights to something, liberties, and powers. Third, these basic positions can be qualified as either definitive or prima facie positions, which is to say an individual has definitive and prima facie rights to something, definitive and prima facie liberties, and definitive and prima facie powers. Fourth, definitive and prima facie rights to something, liberties, and powers do not solely exist by themselves, in isolation; they are related, as well. Finally, there may be three possible relationships among definitive and prima facie rights to something, liberties, and powers: relations of precision, means to ends, and balancing. As a result, a right-holder not only “has” the positions that her right encompasses. One who intends to list the elements of a right would also have to consider the relationships between these positions. In Alexy’s words, the formula of a complete constitutional right is as follows: “the [definitive and prima facie] individual positions of the citizen and the state, along with the clearly definable relations between these positions, relations of precision, of means to ends, and of balancing.”5 For now, the elements requiring explanation in the formula are those of rights to something, liberties, and powers. Alexy defines rights to something as legal positions that entitle their holders to claim an action (or no action) from others.6 He analytically decomposes such rights into a three-point relation among a beneficiary (x) and the subject matter (G), which is an act of the addressee (y). Therefore, the most general form of stating that someone has a right to something is: “x has a right to G as against y.”7 Differently, a liberty is a legal position that entitles its holder to act or not act as she pleases. Following the analytical structure of rights to something, one could also describe liberties as a three-point relation, but in this case, among a liberty-holder (x), a liberty-obstacle (y), and a liberty-object (z). The object of liberty is a choice of 5 Alexy (2010a), p. 162. Relations of precision were explained in Chap. 5 regarding equality, while relations of means to ends and balancing were discussed in Chap. 3 regarding proportionality. 6 Alexy (2012a), p. 285. 7 Alexy (2010a), p. 120.

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action, which corresponds to the deontological concept of permission—an absence of command and prohibition. “Legal liberty can be defined as the conjunction of the permission to perform an act and the permission to omit it,” Alexy says.8 Hence, the most general form of a liberty reads: “x is free from y, to do or not to do z,” or “x is legally permitted to do or not to do z.”9 Finally, a power or competence is a legal position that entitles its holder to alter her own legal status, or the legal status of other people or things. Employing the scheme of a three-point relation, we have a holder (x), an addressee (y), and a legal position (LP). And the general form of a power reads as follows: “x has a power as against y to create a legal position LP for y.”10 I shall focus below on rights to something, which “are the centre of the theory of constitutional rights,”11 and put aside liberties and powers.

7.1.1.1

Rights to Negative State Action

According to Alexy, there are two basic categories of rights to something. The first is that of negative rights, also known as defensive rights or rights to negative acts.12 This category encompasses three types of rights: rights to the non-obstruction of acts (“the state should not prevent or hinder certain acts of the right-holder”), rights to the non-affecting of characteristics and situations (“the state should not adversely affect certain characteristics or situations of the right-holder”), and rights to the nonremoval of legal positions (“the state should not remove certain positions of the rightholder”).13 The two former types of negative rights are normally mentioned by liberal conceptions of individual rights. The free expression of opinions and the inviolability of the home are examples of an act and a situation constitutionally protected from obstruction and interference, therefore being a right to non-obstruction and a right to non-affecting, respectively. By contrast, the third type, that of rights to non-removal, is not found in more liberal theories.14 Liberal theories do not recognize rights to non-removal because the main object of these rights is not a social fact that exists regardless of law. Rights to non-removal 8 Alexy

(2012a), p. 287. (2010a), p. 141. 10 Ibid., p. 155. 11 Alexy (2012a), p. 288. 12 See Borowski (1998), pp. 183–236, for an extensive analysis of the structure of negative rights (Abwehrrechte). 13 Alexy (2010a), p. 122. 14 Rights such as property, which presuppose the existence and non-removal of certain norms, fall into the category of rights to non-removal in Alexy’s scheme and are also found in liberal theories. In these theories, however, such rights are normally seen as social facts that exist independently of law or even as natural facts. They thus appear for liberal authors as rights to the non-obstruction of acts or to the non-affecting of situations, rather than as rights to the non-removal of legal positions. Nozick (1974), pp. 10–12, 171–172, offers again a good example, for his theory is ultimately inspired by a Lockean conception according to which property precedes the social contract and any legal institutions. 9 Alexy

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offer protection against the institutional repeal of constitutive norms, i.e. norms that establish the conditions under which people can change their own legal status or the legal status of others. Simply by repealing those norms, the state could make some legal acts impossible and thus deprive individuals of choices they previously had. This would be the case if the congress repealed laws on marriage and adoption, for example. Given a scenario where the legal conditions for marrying or adopting ceased to exist, couples could actually enter into new agreements on a life together, and families could in fact take care of children other than their own, but the law would no longer recognize and protect these situations. In short, there are important social institutions and states of affairs that depend on laws to prosper or to come into existence. Once these institutions and states of affairs fall under the scope of certain constitutional principles, the decision to maintain in force the laws providing for them does not belong to simple parliamentary majorities anymore. Rights to the non-removal of legal positions stop legislators from revoking these laws, Alexy says.15

7.1.1.2

Rights to Positive State Action

The second category of rights to something is that of positive rights, also known as entitlements or rights to positive acts, whether factual or normative.16 In general, positive rights orient public authorities and agencies by indicating the purposes they should achieve. Alexy admits that it is controversial “whether and to what extent the state’s pursuit of certain purposes can and should be tied to the constitutional subjective rights of the citizen.”17 Nonetheless, he claims that positive rights are subjective rights and that “each person has those entitlements which, from the perspective of constitutional law, are so important that their granting or denial cannot be left to simple parliamentary majorities.”18 As subjective rights, positive rights can be described, following the principles theory, as “three-point relations between a constitutional right-holder, the state, and a positive act by the state.”19 Particularly depending on the object—i.e., the positive act the entitlement requires—, an individual can have against the state rights to factual acts or rights to normative acts. Rights to factual acts grant to their right-holders a “factual performance, which could in principle be carried out by private individuals.”20 Noticeable examples are healthcare and education, which either public or private institutions 15 Alexy

(2010a), p. 124. rights have been the subject of a vast literature. See, for instance, Levenbook (1990), pp. 156–166; Klatt (2011), pp. 704–718; Klatt and Meister (2012), pp. 85–108; Kreide (2001); Möller (2009), pp. 757–786; Fredman (2008), Chap. 3; Mowbray (2004), pp. 1–7; Gardbaum (2012), pp. 181–185; Sunstein (1993), pp. 35–38; Pereira-Menaut (1988), pp. 359–384. 17 Alexy (2010a), p. 296. 18 Ibid., p. 300. 19 Ibid., p. 296. 20 Ibid., p. 127. 16 Positive

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can supply, depending solely on constitutional or legal dispositions about the matter. The second type of positive rights, rights to normative acts correspond to the duty carried with exclusivity by the state to enact certain legal norms, such as criminal and procedural laws. Despite the analytical utility of these categories, identifying the type of positive rights is not a-problematic. In fact, most of them cannot be strictly put under one category. Normally, they are a set of legal positions requiring both factual and normative performances from the state. Furthermore, this classification does not exclude different schemes, based on criteria other than the normative or factual nature of the required act. Notably, Alexy suggests an alternative categorization that takes into account the type of goals each group of positive rights pursue: rights to protection (protective rights), rights to organization and procedure (procedure rights), and social rights.21 Each of them is explained below.

Protective Rights Protective rights grant to each right-holder a sphere of legal inviolability that the state ought to protect against the threats posed by third parties, particularly other citizens.22 As Alexy noticed, every state enacts criminal laws to protect individuals from being murdered, for instance. From the fact that every existing state does so, he inferred that what is at stake here is not only a political tendency or a sociological phenomenon. There must be a normative duty into play, he concluded: “The state is obligated to do this [to protect the individual against murder and manslaughter] by way of criminal prohibitions and sanctions,” and “the decision how this duty is to be fulfilled, … ‘in principle’ is a matter for the legislature.”23 Despite some apparent similarities with the classic negative rights a liberal theorist could uphold, in Alexy’s view, the two categories differ mainly due to what they require from the state. While negative rights impose on public authorities a duty to abstain from acting, protective rights command the same officers to protect an individual from her fellow citizens. By the same token, while the state violates negative rights by acting, it violates protective rights by non-acting when it ought to.

Procedure Rights The second type of positive rights is that of procedure rights (Rechte auf Organisation und Verfahren). Alexy broadly conceives of procedures as “systems of rules and/or

21 Alexy

(2002a), pp. 6–8; (2009), p. 3. Cf. Gardbaum (2012), p. 181. (2010a), p. 300; (2009), p. 4. See Borowski (1998), pp. 237–288, for a complete analysis of the structure of protective rights (Schutzrechte) based on Alexy’s definition. 23 Alexy (2010a), pp. 302, 309. Cf. Levenbook (1990), p. 156, arguing for a “natural positive right, which might be called a right not to be allowed to die.” 22 Alexy

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principles for the production of outcomes.”24 So widely defined, the term encompasses a whole range of situations and refers to how one should proceed to reach lawful outcomes in each of them. It extends from norms establishing proceedings before courts (procedural law) to norms about how a contract comes into existence (contractual law), for instance. Individuals have the right that the legislature passes laws making available these and other procedures that substantive constitutional rights require, Alexy says. In the given example, procedural law and contractual law are prerequisites for the right to petition (which includes a right to file suits in a court of law) and freedom of contract, respectively. Following this conception, the object of procedure rights may be either the enactment of certain procedural norms (rights to organization) or a certain interpretation and concrete application of pre-existing procedural norms (rights to procedure). In the former case, we have rights to law making addressed to the legislature; in the latter, rights to effective legal protection addressed to courts and executive authorities. Essentially, rights to procedure impose on the judiciary and executive branches the duty to take actions pursuant to the process of law. Furthermore, they command judges, officers, and agencies to enforce procedural rules in a way that realises the fundamental rights at stake to the greatest degree possible, considering both factual circumstances and substantive standards of correctness that are procedurally independent.25 In contrast, what rights to organization demand is that the legislature should make available norms of procedure and organization, whether enacting new laws or not repealing laws that already exist. Alexy advocates, inspired by the BVerfG’s case law, that “every substantive constitutional right contains a procedural right.”26

Social Rights The third and last class of positive rights is that of social rights, also known as entitlements in the narrow sense. Social rights are, for instance, “rights to welfare, work, accommodation, and education.”27 They have in common the fact of requiring the state to provide “something which the individual could obtain from other private individuals, if only he had sufficient financial means, and if only there were sufficient offers on the market.”28 Alexy alleges that there are more social rights than those expressly mentioned in the text of the Basic Law. In his words, “everyone has those entitlements as social constitutional rights which, from the perspective of 24 Alexy

(2010a), p. 316. pp. 316–317, 326–328. 26 Ibid., p. 318. 27 Ibid., p. 335. For a comparative perspective on social rights, see Kothari (2007), pp. 171–192; Davis (2007), pp. 193–212, about South Africa; Davis (2011), pp. 521–528, comparing Brazil, India, and South Africa; Barak-Erez and Gross (2007a), pp. 243–261, about Israel; Macklem (2007), pp. 213–242; Brems (2007), pp. 135–167, about the ECtHR; Piovesan (2009), pp. 182–191, about Brazil. 28 Alexy (2010a), pp. 334–335. 25 Ibid.,

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constitutional law, are so important that their granting or non-granting cannot be left to simple parliamentary majorities.”29 It is thus possible to speak of interpretatively derived and expressly enacted social rights. While the latter are clearly mentioned by the constitution, the former require an interpreter to put arguments forward for their existence.30 Whether a constitution commands one “to derive norms granting social constitutional rights from [other] constitutional rights provisions” or prohibits such derivation will depend on reasoning.31 Regarding expressly enacted social rights, the framers of the constitution have affirmatively settled the question whether they exist or not. But even so, there may be disagreement about their structure, specifically concerning whether they are subjective rights or merely objective norms, binding norms or merely programmatic statements, and definitive or prima facie rights.32 Jurists often disagree about their content as well. Some see social rights as part of “a minimalist programme [that] aims at securing ‘for the individual … a minimal scope for life and social status’;” others maintain that social rights are exactly what people have in mind when speaking of “a ‘full realization’ of constitutional rights.”33 The debates about interpretatively derived social rights have been even more intense and concerned not only their structure and content, but also existence, which is understandable owing to the variety of principles one can derive from the constitutional provisions grouped under the category of social constitutional rights. Concerning the first structural question, Alexy puts two independent arguments forward for the proposition that social rights are really rights and not merely objective norms.34 The first is that of subjective importance. Individuals, especially those without any other means of support, regard factual freedom as important for themselves, and “it is precisely the point of constitutional rights” to legally secure “things that are particularly important to the individual.”35 The second argument is connected to the objective value and importance of factual conditions to the free development of one’s personality. Being completely deprived of education and health, for instance, severely compromises the choices someone could have as how to better conduce her life if such deprivation did not exist. And as the BVerfG has held, “far from being a value-free system, the Constitution erects an objective system of values in its section 29 Ibid.,

p. 343. Gauri and Brinks (2008a), p. 4 ff., speaking about stages of the legalization process that involve legislatures and courts; Gearty and Mantouvalou (2011), pp. 138–146, comparing legislative and judicial determination of social rights; Michelman (2007), pp. 21–40, on the debates about the constitutionalisation of social rights; and Young (2012), pp. 33–132, on the possibility of constituting social rights by interpretation. 31 Alexy (2010a), p. 335. 32 Barak-Erez and Gross (2007b). 33 Alexy (2010a), p. 337. 34 According to Alexy (2010a), p. 339, “it is not sufficient to say that constitutional rights are supposed to secure freedom, that factual freedom is also an element of freedom, and that constitutional rights are also therefore supposed to secure factual freedom. That is precisely the question, whether constitutional rights are supposed to secure factual freedom.” 35 Ibid., p. 339. 30 See

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on basic rights … centring on the freedom of the human being to develop in society.”36 Alexy thus concludes that the state carries the duty of improving citizens’ factual freedom, and citizens have individual rights corresponding to that duty.37 As regards to the three other questions—whether social constitutional rights are binding norms or merely programmatic statements, are definitive or prima facie rights, and command minimal or full realization—, their answers depend on recognizing that the social rights of one person are most likely to conflict with other citizens’ liberties and social rights, as well as with collective goods. Alexy maintains that, instead of taking these conflicts as arguments against the existence of social constitutional rights, one should treat them the same way we would treat other cases of competing rights within the framework of the principles theory. That is to say, we should treat the conflicts as posing the question of “which social constitutional rights the individual definitively has,” question we can only answer by means of balancing, he says.38 Additionally, by connecting the existence of social constitutional rights to balancing, Alexy makes a strong case for their judicial enforcement.39 In fact, social constitutional rights give rise to complex problems of balancing. Conflicts between the social constitutional rights of an individual and the liberties of another arise because the state is not allowed to breach others’ negative rights when granting factual freedom to someone. By contrast, conflicts between the social constitutional rights of an individual, on the one side, and the social constitutional rights of other people and the collective goods pursued by society, on the other, arise because “the realization of both [social constitutional rights and collective goods] has significant budgetary consequences.”40 Particularly “in satisfying social constitutional rights, the state can only distribute what it has taken from others, perhaps in the form of income tax.”41 On one side of the weight formula, Alexy places the principle of factual freedom; and on the other, the competing rights: substantive rights and social constitutional rights of other individuals, and other collective goods. According to this formula, we can only affirm that a social constitutional right is guaranteed if, after balancing, it is confirmed that the principle of factual freedom takes precedence—either because factual freedom is very strongly required in the case, or because the competing principles (freedoms, social rights of others, and collective goals) “are relatively slightly

36 BVerfG

(First Senate), Lüth Case, 7 BVerfGE 198, Judgment of 15 January 1958, translated by Basil Markesinis in the website of The University of Texas School of Law. 37 Alexy (2010a), pp. 337–348. C.f. Marshall (1950), p. 46 ff., resorting to the right to equality, specifically to “the diminution of inequality,” to justify the importance of social rights. 38 Alexy (2010a), p. 343. 39 C.f. Langford (2009), pp. 3–45, discussing the justiciability of social rights, i.e. the possibility of their judicial enforcement; Roach (2009), pp. 46–58, referring to ‘remedies for violations of socioeconomic rights’; Gauri and Brinks (2008b), p. 304 ff., speaking of ‘judicialization’ of social rights; and Tushnet (2008), pp. 238–250, differentiating between merely declaratory, substantive weak, or substantive strong social rights, depending on whether and to which extent they are justiciable. 40 Alexy (2010a), p. 343. 41 Ibid., p. 342.

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affected.”42 To summarize, “the individual has a definitive entitlement whenever the principle of factual freedom has greater weight than competing … substantive principles taken together.”43 Alexy concludes that while “the model does not determine which definitive social constitutional rights the individual has,” it succeeds in showing that a ‘full realization’ of social constitutional rights is not feasible.44 Besides pointing out that the thesis of minimum realization of social constitutional rights is the correct one (when compared to the alternative of full realization), applying the weight formula as suggested might answer the structural questions posed before, regarding firstly, whether social constitutional rights are definitive or prima facie rights, and secondly, whether they are binding norms or merely programmatic statements. In conformity with the principles theory, only principles can enter the proportionality test and thus be balanced against each other. This is to say that social constitutional rights are principles, optimization requirements, and as such prima facie rights. Affirming that social rights are prima facie rights implies recognizing their binding, not-merely-programmatic character.45 “A prima facie duty can give rise to a definitive duty,” Alexy affirms, which is the case if “the principle of factual freedom has greater weight than competing … substantive principles taken together.”46

7.1.2 Positive Rights and Proportionality Alexy affirms that rights to positive state action are fundamental rights, which means that the main propositions the principles theory formulates about fundamental rights in general must also apply to this particular category. In which interests this study the most, they must fit the three theses Alexy puts forward for the universality of the proportionality test, as advanced in Chap. 2. According to the incorporation thesis, “every legal system that is at least minimally developed necessarily comprises principles.”47 The identity thesis claims that fundamental rights are principles. Finally, the necessity thesis postulates that a necessary connection exists between proportionality and fundamental rights (or constitutional principles).48 This connection is conceptual, Alexy says, but only because normative conditions were met, I submit. 42 Ibid.,

p. 344. p. 347. Originally, Alexy referred to “competing formal and substantive principles taken together,” but as explained in Chap. 4, his opinion about the participation of formal principles in balancing was later reconsidered. 44 Ibid., p. 344. For similar conclusions, see BVerfG, Tax-Free Subsistence Minimum Case, 82 BVerfGE 60, Judgment of 29 May 1990, at 85; and Borowski (2003), p. 145: “The typical object of the social rights is the existential minimum, together with the provision of education and medical assistance to a minimum extent.” (my translation). 45 Alexy (2010a), p. 346. 46 Ibid., pp. 347–348. 47 Alexy (2010c), p. 71. 48 Alexy (2012b), p. 333; (2010a), p. 66; (2010b), p. 24. 43 Ibid.,

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Let us put the identity thesis and the incorporation thesis aside and focus on how the necessity thesis can accommodate rights to positive state action. The sections below show that this particular category of fundamental rights points to proportionality, as do rights to negative state action, but with some remarkable differences.

7.1.2.1

Positive Rights as Principles

According to Alexy, rights to positive state action are fundamental rights, and every fundamental right correspond to a constitutional principle. To recall what was expounded in Chap. 3, principles imply proportionality because they are optimization requirements, which ought to be realized to the greatest extent possible given the factual and legal possibilities of a case. Proportionality is the tool available to weight these possibilities and hence precise how far one ought to go in promoting a principle under certain circumstances. The first two of proportionality’s sub-tests, suitability and necessity, determine the factual possibilities, while the third sub-test, balancing, determines the legal possibilities to which Alexy alludes. The structure of proportionality reflects the essential features of principles because one is deduced from the other, Alexy claims. This scheme does not hold valid for negative rights only, but also for rights to positive state action. A measure that allegedly promotes a positive right ought to pass the three sub-tests that proportionality embraces; it will not be constitutional otherwise. The sub-test of suitability shall pose no special difficulty when positive rights are concerned. Any legislative act that affords protection to a state of affairs which a positive right points to is a suitable means to promote the corresponding constitutional principle. For instance, a governmental policy that aims at reducing illiteracy rates is a suitable means to promote the right to education. Problems arise in the second sub-test, necessity. If, for instance, a protective right is at play, “the means of protection cannot simply be divided into two classes, effective and ineffective,”49 as it would be the case if a negative right, say freedom of speech, was at stake. Distinctive of positive rights like protective rights is the fact that they are subjected to greater or lesser degrees of realization.50 The relation between the structure of negative rights and proportionality is easier to determine. These rights are “prohibitions on destroying, adversely affecting, and so on.”51 Hence, if a negative right is at stake, “every act that represents or brings about destruction or an adverse effect is prohibited.”52 Or as Alexy puts it, negative rights have a conjunctive structure, for their realization has only one counterpart: their violation. Things are altogether more complex when positive rights are concerned. They command an action in order to bring about the state of affairs they point to, which generally speaking, can be brought about by several means. Alexy exemplifies 49 Alexy

(2010a), p. 309.

50 Ibid. 51 Alexy 52 Ibid.,

(2009), p. 5. p. 5.

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this with the help of the right to be rescued. “The command to rescue does not imply a command to carry out every possible act of rescuing,” Alexy affirms.53 Positive rights have an alternative or disjunctive structure, which “implies that unconstitutional omission has no definitive counterpart, but as many possible counterparts as alternatives exist.”54 This structural peculiarity is not without consequences. The means-selecting discretion discussed in Chap. 6, which is peculiar to positive rights, steams exactly from their alternative structure.55 The disjunctive structure of positive rights has reflexes on the sub-test of balancing as well. Negative rights are violated by action. To give an example, the state interferes with individuals’ freedom of speech by passing a law that outlaws certain type of expression, even if it aimed at favouring another principle. This is represented in the weigh formula by the contrast between the realization of a right and the nonsatisfaction of the colliding principle. Everything considered, the interference may be justified, but one can only assert this after applying the proportionality test. Positive rights differ from negative rights because they may be violated by either complete omission (total inaction) or insufficient action.56 This opens a window of possibilities that the decision-maker ought to take into account. As Klatt realized, where positive rights are concerned, there are three lines of values to consider, instead of two.57 The decision-maker must have account of the importance of promoting the right and the intensity of its inference with the opposing principle, as she would do if a negative right were at stake. Yet, in the application of positive rights, another line of values is relevant, too: how intensely an omission interferes with the same principle the measure was intended to promote. That is to say, when rights to positive state action are at stake, it is necessary to determine whether the measure disproportionally affected with the opposing principle (prohibition of excessive means), as one would do with negative rights, but also check whether it realized the positive right to a satisfactory degree (prohibition of insufficient means).58 Positive rights add some complexity to balancing, but do not escape the proportionality test. The necessity thesis, according to which principles imply proportionality and vice versa, also applies to rights to positive state action. As optimization requirements, the decision-maker ought to realize what they command to the greatest extent possible, given factual and legal circumstances. This aspect acquires special importance when social rights are concerned. Alexy explains that their own existence can only be demonstrated with the help of proportionality. “The question of which social constitutional rights the individual definitively has is a question of balancing between principles,” he asserts.59 53 Ibid.,

p. 5. p. 5. 55 Ibid., p. 16. 56 Klatt (2011), p. 704. 57 Ibid., pp. 706–707. 58 Alexy (2009), pp. 10–12; Klatt (2011), p. 707. 59 Alexy (2010a), p. 343. 54 Ibid.,

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In order to determine whether a social interest, say access to health care, is important enough to be regarded as a fundamental right, one must balance factual freedom against the competing principles. One can claim to have a social right provided that “the principle of factual freedom requires it very strongly” and “the competing substantive principles … are relatively slightly affected by the constitutional guarantee of the entitling position and the decisions of the constitutional court which take account of it,” Alexy says.60 A decision-maker that has recourse to a social right to decide a case confirms the necessary connection between proportionality and principles, which is a distinctive tenet of the principles theory.

7.1.2.2

Positive Rights as Fundamental Rights

The sub-sections above reproduced the arguments Alexy advances for conceiving of positive rights as subjective rights, that is, fundamental rights properly speaking, not merely objective norms with programmatic function. These arguments will not be repeated here. This sub-section departs from the assumption that positive rights are rights to explain how this particular category relates to the proportionality test. The connection between proportionality and fundamental rights was detailed in Chap. 5. According to the principles theory, fundamental rights possess wide scope, so that any act that minimally relates to their content will be pulled into their orbit of influence. Anything falling under the wide scope of a right is prima facie guaranteed, but not definitively. “More is prima facie required than definitively,” Alexy warns.61 It follows that, in order to determine what the all-things-considered right really guarantees, one must resort to the proportionality test. Another way to put it is to say that fundamental rights first declare protection to something, but subsequently accept limitations that remove some content from their protective shelter, provided that these restrictions do not affect the right’s core. What falls outside the core of a right and under a limiting clause is not definitively guaranteed. By means of proportionality analysis, one determines what the core really covers and whether a limiting clause is justified or not. The principles theory says that this scheme is valid for both positive and negative rights, although the former add some complexity to the necessary connection between fundamental rights and proportionality. With regard to negative rights, the situation is simpler. As this type of rights commands the state to refrain from acting, any action that interferes somewhat with the right at stake is a potential violation to it. Of course, after applying the proportionality test, one may conclude that the measure was suitable, necessary, and proportionate in the narrow sense, which means it infringed on the expanded scope of the right in question without however violating it. At any rate, negative rights have a conjunctive structure, which means they can only be violated by action (and fulfilled by non-

60 Ibid., 61 Ibid.,

p. 344. p. 345.

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action). Thus, applied to negative rights, proportionality prohibits only excessive measures.62 By contrast, positive rights have an alternative or disjunctive structure. They are fulfilled by action, which can usually take many forms and make use of different means, and violated by inaction, whether complete omission or insufficient action. They prima facie require that one should carry out any of the means that realize them to the greatest extent, without concern for factual possibilities, e.g. an inadequate budget, or competing rights and principles, like the freedoms of fellow citizens.63 But all things considered, a definitive positive right demands much less. It definitively requires only means that are neither excessive nor insufficient, considering the factual and legal possibilities available.64 According to the principles theory, only by resort to the proportionality test a decision-maker can ascertain which means fit into these parameters and are therefore commanded in definitive.65 “These two prohibitions [of too much (Übermaßverbot) and too little (Untermaßverbot)] are elements of proportionality and not independent rules,” Alexy explains.66 Because positive rights demand action that is neither excessive nor insufficient, they add complexity to the proportionality analysis, which led authors like Klatt to suggest that refinements are introduced to the exercise of balancing.67 In either event, despite the additional complexity, the proportionality test applied to positive rights and the one applied to negative rights are essentially the same and charge decision-makers with similar duties. To determine whether the action taken by the state was neither excessive nor insufficient, courts have to put arguments forward for why the measure under analysis neither encroaches upon the right’s core nor leaves it uncovered.

7.1.2.3

Positive Rights as Reasons: The Role of Courts

Alexy affirms that, as any existing rights, positive rights must be justiciable.68 This means that courts ought to enforce rights to positive state action, which as suggested by the principles theory, must happen with recourse to proportionality and balancing.69 These positive rights are considered in two different ways. Faced with a definitive right to positive state action, the court responsible for reviewing legisla62 Borowski

(2003), p. 143. (2009), p. 5. 64 Borowski (2003), pp. 159–171. 65 Alexy (2009), pp. 10–17. 66 Ibid., p. 12. 67 Klatt (2011), pp. 706–707. See also Alexy (2009), p. 10, affirming that “two lines of values always have relevance” on the side of the positive right, standing for its excessive and insufficient realization. 68 Alexy (2010a), p. 345. 69 On alternatives other than proportionality for enforcing positive rights, see Tushnet (2004), p. 1897; (2008), p. 245. 63 Alexy

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tion ought to repeal a legislative act that either encroaches upon the right or provides for factual conditions that make its exercise less than adequate. Under opposite circumstances, the court ought to declare that the same act is constitutional. But not everything that is prima facie required by a right to positive state action is to be satisfied by judicial orders.70 Much of the scope of a prima facie right remains outside its core and is not the determinant law of cases in which counterarguments are weightier. However, this does not mean that the overridden norm is not binding on the constitutional court. As it happens with prima facie negative rights, prima facie positive rights offer reasons that “have to be considered in the process of balancing,” Alexy says, “while legally non-binding duties [and their correlative rights] do not.”71 To summarize, in the face of a prima facie positive right, the constitutional court ought to control whether lower courts and the legislature have “sufficiently taken account of [the right] in the light of competing principles.”72 By offering reasons in justification for courts’ rulings, rights to positive state action help to uphold the legitimacy of judicial review more generally. This idea underlies the thesis of argumentative representation that is a tenet of the principles theory. We should keep it in mind while examining how the STF has made use of the principles-theory account of positive rights.

7.2 Rights to Positive State Action in the STF’s Case Law The previous section concluded by pointing out that the essential properties of constitutional principles and fundamental rights, those that make proportionality necessary according to the principles theory, are traits of rights to positive state action as well, Alexy says. This means that where positive rights are at stake, courts ought to have recourse to the proportionality test, which may include balancing. The STF has expressly referred to the principles-theory classification of positive rights into protective rights, procedure rights, and social rights. Furthermore, the court has also acknowledged their status as fundamental rights and their connection to proportionality. In order to expose the presence of these and other tenets of the principles theory in the STF’s case law, I have selected eleven cases that are explained below. They all made reference to Alexy’s categories of positive rights mentioned above, as well as to his understanding about their nature and intrinsic features. The set encompasses opinions of the full court and its Justices regarding different issues. In five judgements, the references had secondary impact on the court’s final ruling. Four of them are detailed below. The principles-theory conceptions of procedure rights and protective rights appeared in the Expropriation Procedure Case (2003)73 70 Alexy 71 Ibid.,

(2010a), p. 348. p. 348.

72 Ibid. 73 STF, Expropriation Procedure Case, MS 24547/DF, Judgment of 14 August 2003, Relatora: Min. Ellen Gracie, D.J. 23 Apr. 2004.

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and Same-Sex Union Cases I and II (2011),74 respectively. The Justices who quoted Alexy, Justice Gilmar Mendes and Justice Luiz Fux, voted with the majority, and their opinions had no special impact on the judgement. In the Press Law Case (2009), the reference to Alexy’s conception of positive rights was made in a dissent.75 Another decision where Justice Edson Fachin referred to the principles theory but delivered a dissent is mentioned at the end: the Rousseff’s Impeachment Case (2015).76 In six other cases, the references to the principles-theory account of rights to positive state action had primary impact. Three of them should receive special attention. They are the Prosecutors’ Investigative Power Case (2010)77 and the Healthcare Cases I and II (2010).78 In all these, Justice Mendes was the rapporteur and delivered the vote that shaped the majority opinion. The Healthcare Cases in special represented a landmark in the STF’s case law on social rights, particularly the constitutional right to health. As the analysis conducted in the following sub-sections demonstrates, Justice Mendes convinced other Justices that the proportionality test ought to be employed to solve collisions between principles whenever the right to health was concerned, and the STF ruled the case accordingly. References that had primary impact in three other cases are also mentioned in the end: the Period of Prescription Case (2014),79 the Court Hearing Case (2015),80 and the Inmate’s Death Case (2016).81

7.2.1 The Expropriation Procedure Case (2003) A first mention to Alexy’s conception of procedure rights occurred in the judgment of the Expropriation Procedure Case (2003).82 The case involved the administrative 74 STF, Same-Sex Union Case I, ADI 4277/DF, Judgment of 5 May 2011, Relator: Min. Ayres Britto,

D.J.e. 198, 14 Oct. 2011; and STF, Same-Sex Union Case II, ADPF 132/DF, Judgment of 5 May 2011, Relator: Min. Ayres Britto, D.J.e. 198, 14 Oct. 2011, respectively. 75 STF, Press Law Case, ADPF 130/DF, Judgment of 30 April 2009, Relator: Min. Carlos Britto, D.J.e. 208, 6 Nov. 2009. 76 STF, Rousseff’s Impeachment Case, ADPF 378 MC/DF, Judgment of 17 December 2015, Relator (acórdão): Min. Roberto Barroso, D.J.e. 43, 8 Mar. 2016. 77 STF, Prosecutors’ Investigative Power Case, HC 93.930/RJ, Judgment of 7 December 2010, Relator: Min. Gilmar Mendes, D.J.e. 22, 3 Feb. 2011. 78 STF, Healthcare Case I, SL 47 AgR/PE, Judgment of 17 March 2010, Relator: Min. Gilmar Mendes, D.J.e. 76, 30 Apr. 2010; STF, Healthcare Case II, STA 175 AgR/CE, Judgment of 17 March 2010, Relator: Min. Gilmar Mendes, D.J.e. 76, 30 Apr. 2010, respectively. 79 STF, Period of Prescription Case, HC 122694/SP, Judgment of 12 October 2014, Relator: Min. Dias Toffoli, D.J.e. 32, 19 Feb. 2015. 80 STF, Court Hearing Case, ADI 5240/SP, Judgment of 20 August 2015, Relator: Min. Luiz Fux, D.J.e. 18, 1 Feb. 2016. 81 STF, Inmate’s Death Case, RE 841526/RS, Judgment of 30 March 2016, Relator: Min. Luiz Fux, D.J.e. 159, 1 Aug. 2016. 82 STF, Expropriation Procedure Case, MS 24547/DF, Judgment of 14 August 2003, Relatora: Min. Ellen Gracie, D.J. 23 Apr. 2004.

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proceedings adopted by the Federal Government for taking of private lands for a public purpose. The applicant, a farmer, pleaded for a writ of security to declare void and null the act of the President of the Republic that had considered his farm as of public interest for land-reform purposes. His main argument was that he had never been formally notified of experts’ reports about the extension and productivity of his property. According to him, specific laws required that the government should give citizens information prior to performing any acts that could lead to taking one’s property away. By not notifying the owner before declaring the public utility of his farm, the President would have violated the legal proceedings under the laws of expropriation. A majority of STF’s Justices accepted the lawsuit and held the presidential act to be illegal. Justice Gilmar Mendes was part of the majority. In his written opinion, he paraphrased Alexy’s definition of “rights to organization and procedure (Rechte auf Organisation und Verfahren)” as “two separate complexes of rights to organization [on the one hand] and rights to procedure [on the other],” addressed to legislature and courts, respectively. According to him, procedure rights are fundamental rights that demand state measures for their realization. These measures may consist in either the creation and organization of bodies, offices, and departments or the enactment of norms “with the purpose of ordering the fruition of certain rights and guarantees, such as the constitutional guarantees of a due process (right to a trial, right to judiciary protection).”83 Justice Mendes reproduced Alexy’s assertion that rights to organization are “rights to law-making,” for “their object [is] the enactment of procedural norms,” whereas rights to procedure are “right[s] to effective legal protection.”84 In several pages of his opinion, he quoted other excerpts of Theorie der Grunderechte. He highlighted that “rights to court and administrative procedures are rights to an effective legal protection” that are fulfilled whenever “the outcome of the procedure protects the substantive rights of the right-holder affected.” He finally concluded that “procedural rights in the proper sense serve primarily the protection of existing legal positions against the state and third parties. It is therefore also possible to consider such rights as protective rights.”85

83 Alexy (1986), p. 430, and (2010a), p. 315, quoted in STF, Expropriation Procedure Case, MS 24547/ DF, Judgment of 14 August 2003, Relatora: Min. Ellen Gracie, D.J. 23 Apr. 2004 (my translation). 84 Alexy (2010a), p. 317. 85 Alexy (1986), pp. 444–446, quoted in STF, Expropriation Procedure Case, MS 24547/DF, Judgment of 14 August 2003, Relatora: Min. Ellen Gracie, D.J. 23 Apr. 2004; here, Alexy (2010a), pp. 326, 328.

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7.2.2 The Press Law Case (2009) Alexy’s conception of rights to positive state action was also cited in the judgement of the Press Law Case (2009).86 The Brazilian Press Law was enacted in 1967, during the military dictatorship that lasted from 1964 to 1985.87 In 2008, the Democratic Labour Party (Partido Democrátido dos Trabalhadores—PDT) filed a petition with the STF arguing that the statute’s reception under the Federal Constitution was doubtful because it had been formulated in a non-democratic period. The plaintiff claimed that many clauses of the Press Law were either irreparably void or in need of an interpretation adapting them to the current legal order. In particular, the party sustained that the statute violated freedoms of the press and speech, rights to have access to information and pursue professional activities, and the constitutional prohibition against censorship. Convinced by those arguments, the majority of the STF stood for the non-reception of the entire statute under the Federal Constitution. Justice Gilmar Mendes delivered a partially dissenting opinion. He agreed on the non-reception of some clauses, but dissented from the thesis that none of the Press Law provisions were valid under the Federal Constitution. The majority held that it was beyond the legislature’s authority to enact rules on the matter because the Federal Constitution, Article 220, Paragraph 1, invalidated any legislative attempt to hinder freedom of press.88 By contrast, Justice Mendes stated that freedom of press was not an absolute right, and the legislature could thus regulate it. He emphasized that the wording of the Federal Constitution expressly admitted limiting both freedom of expression and the right to information since restrictions were established “with due regard to the provisions of this constitution.”89 Specifically in regard to the Press Law, he declared that the clauses regulating the individual right of reply were in accordance with the Federal Constitution and should therefore remain valid. Nonetheless, his opinion was not followed by any of the other Justices. In Justice Mendes’s view, freedom of press encompasses simultaneously two different types of rights. It is a negative right, as defined by Alexy, for it is a right that citizens hold against the state: “that the state should not prevent or hinder certain acts of the right-holder,” nor “remove certain legal positions of the right-holder.”90 But it is a right to a positive act as well—more specifically, a right to a normative performance—for the state is required by the Constitution to create and maintain certain legal norms, he affirmed. And for being a right to a positive act, it “not 86 STF,

Press Law Case, ADPF 130/DF, Judgment of 30 April 2009, Relator: Min. Carlos Britto, D.J.e. 208, 6 Nov. 2009. 87 Lei 5.250, de 2 de maio de 1967, D.O.F.C., 10.02.1967. 88 Constituição da República Federativa do Brasil de 1988, Article 220, Paragraph 1: “No law shall contain any provision which may represent a hindrance to full freedom of press in any medium of social communication, with due regard to the provisions of article 5, IV, V, X, XIII and XIV.” 89 Constituição (1988), Article 220, Main Body: “the manifestation of thought, the creation, the expression and the information, in any form, process or medium shall not be subject to any restriction, with due regard to the provisions of this constitution.” 90 Alexy (1986), p. 174, cited in STF, Press Law Case, ADPF 130/DF, Judgment of 30 April 2009, Relator: Min. Carlos Britto, D.J.e. 208, 6 Nov. 2009; here, Alexy (2010a), p. 122.

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only permits, but also demands legislative intervention to give [the press] structure and enforce the constitutional guarantee [of freedom] afterwards.”91 Furthermore, Justice Mendes ruled that the law was also necessary to regulate the rights that protect citizens against possible abuses committed by the mass media.

7.2.3 The Same-Sex Union Cases (2011) The Same-Sex Union Cases I and II (2011)92 were about the Civil Code provision that reads: “The state shall recognize as a family entity the stable union between a man and a woman in a public, continuous, and lasting relationship with the purpose of constituting a family.”93 The General-Attorney of the Republic and the governor of the State of Rio de Janeiro claimed that the clause was in violation of the Federal Constitution. They argued that the exclusion of same-sex couples from the legal protection granted to opposite-sex couples breached constitutional principles such as equality, liberty, and human dignity. Agreeing with the plaintiffs, the STF declared that the Civil-Code clause ought to be read in accordance with the Federal Constitution. The unanimous decision, handed down on May 5, 2011, stated that differential treatment was not justified, and identical rights ought to be granted to opposite- and same-sex unions. Justice Luiz Fux’s opinion was based on two elements of the principles theory: the existence of protective rights and Alexy’s theses on equality. Justice Fux claimed that fundamental rights not only encompassed negative rights, but also protective rights (to positive action). Paraphrasing Alexy, he stated that protective rights were “granted to right-owners who can therefore claim before the state protection against third-parties’ interference.” Justice Fux also remarked that protective rights were “thus ‘performance rights in the wide sense,’ for demanding from the state a positive action in guaranteeing the regular exercise of fundamental rights.”94 According to him, same-sex couples hold a