Overview
- Investigates judicial borrowing as a legally contentious phenomenon
- Analyzes more than 40 decisions of the Supreme Court of Brazil
- Suggests how to reformulate the delicate questions raised by judicial borrowings in normative terms
Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice (IUSGENT, volume 72)
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Table of contents (8 chapters)
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Front Matter
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Back Matter
Keywords
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.
Authors and Affiliations
About the author
Bibliographic Information
Book Title: Borrowing Justification for Proportionality
Book Subtitle: On the Influence of the Principles Theory in Brazil
Authors: João Andrade Neto
Series Title: Ius Gentium: Comparative Perspectives on Law and Justice
DOI: https://doi.org/10.1007/978-3-030-02263-1
Publisher: Springer Cham
eBook Packages: Law and Criminology, Law and Criminology (R0)
Copyright Information: Springer Nature Switzerland AG 2018
Hardcover ISBN: 978-3-030-02262-4Published: 20 November 2018
eBook ISBN: 978-3-030-02263-1Published: 11 November 2018
Series ISSN: 1534-6781
Series E-ISSN: 2214-9902
Edition Number: 1
Number of Pages: XIV, 340
Number of Illustrations: 1 b/w illustrations
Topics: Private International Law, International & Foreign Law, Comparative Law , Constitutional Law, Theories of Law, Philosophy of Law, Legal History