When a theory emigrates: what became of Alexy in Brazil

When a German professor of law dies, does Brazil's highest court publish a note of condolence?

This week it did.

Following the death of Robert Alexy on 5 September, the Supreme Federal Court of Brazil (Supremo Tribunal Federal) issued an official message of condolence. Gilmar Mendes, one of the court's most senior members, wrote that Alexy had shaped a generation of lawyers and deeply influenced the way the law is interpreted.

This is rather more than a piece of academic courtesy. And that is exactly what makes it an interesting case philosophically.

What the numbers say#

Brazilian lawyers agree on one thing: since the 1988 Constitution, hardly any foreign author has been read in Brazil as widely as Alexy.

In the words of Otavio Luiz Rodrigues Jr. of the law faculty of the University of São Paulo, Alexy's influence on Brazilian constitutional law, on the jurisprudence of the Supreme Federal Court and on legal education has become "unavoidable, for better and for worse".

Luis Greco, the Brazilian jurist who holds the chair of criminal law at the Humboldt University in Berlin, called Alexy the German constitutional lawyer with the widest resonance of recent decades, and the head of a genuine school of thought: an effort to reconstruct the case law of the German Federal Constitutional Court with the conceptual apparatus of analytical legal theory.

Type Alexy's name into a database of court decisions and you will turn up more judgments than academic articles.

And why should that be a problem?#

Here the story turns around.

For years now Brazilian lawyers have used a term among themselves: "ponderação à brasileira" — balancing, Brazilian style.

They do not mean it as praise.

The heart of the criticism is this. When Alexy's theory of proportionality reached Brazil, it stopped being a method and turned into a formula. In fact into rather less than a formula: into a form of words.

Judgments contain the sentences "the principles were weighed", "in accordance with the principle of proportionality", "balancing was undertaken in the concrete case" — but the three-stage test Alexy demanded, the criteria of weight, and the explicit statement of empirical assumptions are for the most part absent.

The result, in the critics' account, is an argument from authority dressed in technical clothing: the judge picks the outcome first and adds the word "proportionality" afterwards.

The same criticism points out that the Supreme Federal Court occasionally uses proportionality and reasonableness as synonyms, and has not developed a consistent standard of application.

The name of the irony#

The irony here is worth an entire course in the philosophy of law.

Alexy's whole project was directed against arbitrariness. He developed the theory of balancing in order to stop judges deciding cases on the strength of their own consciences. The weight formula existed so that the reasoning would be visible.

And in some places the theory has been accused of performing precisely the opposite function: a technical vocabulary that conceals arbitrariness.

Is this Alexy's fault?

Probably not. But it does show that a theory cannot be measured by its author's intentions.

How does a theory travel?#

Here is the real philosophical question.

What happens to a legal theory when it is torn out of the institutional setting in which it was born?

Alexy's theory arose in a particular context: the attempt to rationalise sixty years of case law from a constitutional court founded in postwar Germany out of the trauma left by Nazi law. That case law already existed; what Alexy did was reconstruct it.

Carried into a different judicial culture — a different case load, a different tradition of writing judgments, a different pattern of political polarisation — the same theory may not do the same work.

That was exactly the warning issued by the Cambridge School, which we followed this week in our file on J. G. A. Pocock: a concept acquires its meaning within the political language in which it is used. Change the language and the concept becomes something else.

And our file on Macit Gökberk, published yesterday, asked the same question of Turkish: is translating a concept a matter of carrying it across, or of transforming it?

Seen from Turkey#

This argument is not a distant one for Turkish lawyers.

Proportionality is settled doctrine in Turkish constitutional law too. Article 13 of the Constitution refers explicitly to the principle of proportionality in the limitation of fundamental rights and freedoms, and the trio of suitability, necessity and proportionality is regularly invoked in the judgments of Turkey's Constitutional Court.

So the question asked in Brazil can be asked here as well: is proportionality a piece of reasoning that produces the decision, or a heading that explains a decision already produced?

The answer is not to be found in Alexy's theory. It is to be found in the judgments themselves — in how openly, how reviewably and how arguably the reasons are written.

That, after all, was Alexy's entire insistence.

In closing#

There are two ways of measuring a thinker's influence.

One is the number of people who have read him.

The other is whether, in the places where his name is invoked, his thought is actually doing any work.

By the first measure Alexy is among the most influential legal philosophers of the twenty-first century.

The second measure is still being argued over — and the argument is itself proof that his theory is alive.

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We examined Alexy's legal philosophy and his theory of the dual nature of law in detail in our file in the Agenda section.