© 2018

Borrowing Justification for Proportionality

On the Influence of the Principles Theory in Brazil


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

Table of contents

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

About this book


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.


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

Authors and affiliations

  1. 1.Pontifical Catholic University of Minas Gerais (PUC Minas)Belo HorizonteBrazil

About the authors

Dr. iur. João Andrade Neto, Lecturer at the Pontifical Catholic University of Minas Gerais (PUC Minas) and Padre Arnaldo Janssen Faculty of Law, in Brazil; Court Legal Advisor at the Regional Electoral Court of Minas Gerais (TRE-MG); PhD with the highest distinction (summa cum laude) at the University of Hamburg 2016; Brazilian federal prize for a monograph in election law in 2012; author of essays on legal theory, election law, constitutional law, and comparative law; member of the Brazilian Academy of Election and Political Law (ABRADEP).

Bibliographic information

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