On the Migration of Proportionality

Abstract

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. It starts providing an overview of the specialized literature on the migration of proportionality and its reception in Brazil, where it has served the Supreme Federal Court (STF). Section 2.1 briefly reconstructs the three 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 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.