Austrian roots run deep in Brazil’s constitutionalism

Brazilian judiciary leaders moving assertively against swelling authoritarian threats

hans-centre-brazil via Twitter | @Stefan Scholz

As Brazilian democracy navigates turbulent crosscurrents, the distant echo of Austrian scholars rings timely counsel and consequential echoes of a long silent jurist find new resonance in Brazil's national capital. The launching of a new research centre devoted to constitutional law in Brasilia reflects the country’s enduring legal and philosophical ties with Austria.

This November, Brazilian Supreme Court Justice Gilmar Mendes and Austrian Ambassador Stefan Scholz inaugurated the Hans Kelsen Centre for Studies on Constitutional Jurisdiction evoking Kelsen’s formative philosophical foundations underpinning liberal self-governance worldwide.

The Centre for Constitutional Jurisprudence summons the legacy of its intellectual namesake at a pivotal juncture.

Over nine decades since Kelsen's groundbreaking legal theories first permeated Latin America, contemporary jurists have come full circle tapping that wellspring again to reinforce fragile institutions against resurgent authoritarian threats.

In linking Austrian philosophies to contemporary Brazilian debates, the launch signifies judiciary leaders asserting safeguards forged from Austrian-Brazilian ties strong enough to brace tempests past and present.

The symbolic christening signifies deeper currents swirling beneath the surface of routine academic additions. It suggests Brazilian judiciary leaders are moving assertively to brace against swelling authoritarian threats by consecrating Kelsen’s rights-focused legal theories to light pathways out of looming darkness after nearly a century. As such, the Centre is set to shape discourses beyond scholarly circles into the polarised public square.

By summoning Kelsen as watchful patron in trying times, Brazil’s justices invoke inherited wisdom through an Austrian connection running deeper than is widely known. For it was the Habsburg archduchess Leopoldina who helped gift Brazil nationhood two centuries ago.

Her descendants included literary lions like Stefan Zweig, another Austrian intellectual exile who found new home under Brazil’s palm fronds. What was lauded as “one more step” is, in fact, the recovery of a special relationship where principles proved mightier than tyrants.

Bridging academia to bolster bastions against instability, the Kelsen Centre adds cross-border bonds on justice, equipping societies worldwide to transcend toxic polarisation. Its Austrian-Brazilian founding thus consecrates the struggle bound by shared conviction—that rights supremely defended now might secure democracy's endurance beyond immediate storms darkening the horizon.

The Centre, part of the prominent IDP, Instituto Brasiliense de Direito Público, which is a legal research and educational institution, aims to promote scholarship and debate on democratic governance and the rule of law in Brazil and beyond. Kelsen, was a seminal influence on constitutional courts and rights jurisprudence worldwide.

In his dedication remarks, Ambassador Scholz spotlighted Kelsen’s seminal contributions in conceptualising constitutional review and enshrining checks against tyranny of the majority. The envoy praised Justice Mendes as the “founding father” of a centre spreading Kelsen’s formative ideas across Latin America for the first time.

Scholz also invoked Brazil and Austria’s shared historical ties, referencing Austrian Archduchess Leopoldina’s pivotal role in declaring Brazil’s independence from Portugal in 1822. The Habsburg connection makes the Kelsen Centre a natural extension of bonds rooted in a 19th century struggle for national liberation.

Centrality of constitutional review

The new Brasília Kelsen Centre is set as a base for lectures, debates, conferences and seminars centered on leading scholarship related to constitutions and judicial review. Its initial activities include translating seminal German-language legal works into Portuguese to widen their impact in Brazil.

An inaugural publication is a collection of essays by eminent German law professor Dieter Grimm reflecting on constitutional courts’ democratic legitimacy and public reception.

Titled Constitutional Jurisdiction and Democracy: Selected Essays, the volume marks the debut of the Austria-Brazil Collection spearheaded by the Centre.

Grimm himself attended the inaugural events. The visit reflected the Centre’s core mission of fostering transatlantic dialogue between scholars on contemporary best practices and normative debates surrounding governance and public law.

The Kelsen Centre will collaborate with Austria’s preeminent Hans Kelsen Institute for Legal Theory in Vienna as well as experts from institutions worldwide like Freiburg University and the Austrian Parliament. By bridging academics across continents, it hopes to place Brazil at the heart of a global exchange of ideas on constitutions.

Austrian thinkers’ lasting imprint

Kelsen (1881-1973), stands out as one of the most influential legal philosophers of the 20th century. As a scholar based at the University of Vienna starting in the 1910s, Kelsen broke new ground by proposing a “Pure Theory of Law” grounded in rational norms rather than sociological customs or morality.

Kelsen’s jurisprudential approach studies law as a unified system of objective rules divorced from politics or ideology. Central to his normative theory was conceptualising constitutions as supreme “grundnorms” underpinning an ordered legal hierarchy. He advocated strict oversight of legislation to ensure compliance with formal constitutional validity.

It was in developing institutional mechanisms for such oversight that Kelsen made his most lasting impact. As an author of the 1920 Austrian Constitution following the Austro-Hungarian Empire’s collapse, he inserted novel provisions for abstract judicial review of statutes and administrative acts.

His model of concentrated scrutiny of laws for constitutionality took form in a dedicated Constitutional Court. This unprecedented Verfassungsgerichtsbarkeit, or constitutional jurisdiction, created an apex guardian of democratic norms against transient partisan pressures. In time, Kelsen’s brainchild became the globally dominant model for checking abuses by governmental organs.

The new Brasília centre bearing Kelsen’s name recognises his towering influence as the wellspring of 20th century constitutionalism. It also reflects his personal history advising Brazilian scholars in exile like Vicente Rao during periods of dictatorship. Through its activities, the entity aims to cement Kelsen’s rightful place in Brazil’s legal pantheon alongside pioneering local thinkers.

Architect of Austrian democracy

Kelsen’s impact extended far beyond theory into architecting Austria’s democratic revival after four centuries of imperial dynastic rule. As the young constitutional law professor became a state advisor when the Habsburg Empire dissolved in late 1918, Kelsen seized the historic opening to shape a modern republican order.

When appointed chairman of Austria’s Constitution Drafting Commission in 1920, he fused his academic blueprint into enduring provisions for checks on majoritarian excess. The new Constitution anchored a Constitutional Court empowered to review legislation and protect minority rights. This was enshrined alongside expansive rights protections and social welfare guarantees reflecting Kelsen’s progressive vision.

For nearly a decade, Kelsen left an imprint on Austrian jurisprudence himself as one of the Constitutional Court’s first justices in the 1920s. His opinions upheld individual rights while averting confrontation with conservative factions. By skillfully insulating the Court’s authority from partisan attacks, Kelsen entrenched its legitimacy to defend the Constitution.

However, escalating ideological clashes with Austria’s rising authoritarian right eventually forced Kelsen into exile by 1930. Despite persecution of his liberal principles, Austria restored Kelsen’s legacy in ceremonies marking his 90th birth anniversary in 1971. Leading jurists called Kelsen the “architect of Austrian democracy” whose institutions withstood Nazi terror and resurgent post-war factions.

The official Hans Kelsen Institute established in Vienna thereafter has leading scholars documenting the enduring relevance of the Austrian thinker’s legal theory and lifespan of public service. As custodians of Kelsen’s intellectual estate, the Institute will collaborate with Brasília’s new center to introduce Kelsen’s work to new generations of jurists in Brazil and beyond.

Guarding Brazilian democracy

For hosts Brazil, showcasing Kelsen’s rights-based constitutionalism has growing resonance as the country wrestles with familiar stresses on liberal democracy. Recent years witnessed alarming executive aggrandizement, demands of law and order over civil liberties from empowered authoritarians, and elections yielding highly polarized results.

These strains on self-governance made studying the nuts and bolts of strong institutions ever more vital. The Brazilian Supreme Court has itself been called upon to issue key rulings reining in autocratic moves by political factions hostile to checks. But Justice Mendes has warned even independent judges need to develop deeper persuasion skills to bring society along on such decisions.

It is in this context that relaunching focus on Kelsen makes particular sense given his wisdom working within fragile democracies. Through Germany’s ill-fated Weimar Republic to Austria’s fractious First Republic, Kelsen displayed pragmatism in politically immunising constitutional courts. His balancing of prudence and principle holds lessons for Brazil’s judiciary and policymakers at a delicate moment.

Beyond the academy, the Kelsen Centre in the Brazilian capital forms a platform for judges, lawmakers, officials and civil society advocates to engage each other on shoring up shared democratic values. Grounding these activities in Kelsen’s writings, it anchors Brazil’s Constitution in a rich tradition of similar charters worldwide rather than seeing its institutions as sui generis creations.

Through exchanges between scholars like Germany’s Grimm and local experts on comparative jurisprudence, the Kelsen Centre also promotes methodologies for responsible constitutional adaptation and comparative jurisprudence. In engaging a rising Brazilian generation on rights and the state, it pays tribute to Kelsen’s own teaching and research which spanned Latin America alongside Europe.

Challenging nature of comparative law

The wider vision reflects Justice Mendes’ long public service at the nexus of law and statecraft. A veteran of Brazil’s human rights and national security agencies before joining the top bench, his tenure has seen landmark engagement abroad alongside stewarding the Court’s role safeguarding Brazilian democracy.

Appointed special rapporteur in the premier Inter-American Commission on Human Rights, Justice Mendes helped refine regional rights norms and their domestic application by national judiciaries. He brings that key insider experience championing constitutionalism across borders to directing the Kelsen Centre’s agenda and research priorities.

Yet in an inaugural seminar on comparative jurisprudence, guests flagged the complexities of transplanting legal frameworks across diverse societies with radically distinct trajectories.

Veteran Austrian parliamentarian Harald Dossi cautioned transplanting Kelsen’s Walter Benjamin” given political and social contexts informing what constitutions can achieve greatly differ.

Realising Kelsen’s vision relies on cultural transmission and dissemination to shape mentalities, not mere copying of statutes.

Through sustained, collaborative examination of constitutional systems’ historical development alongside theory, the Kelsen Centre in Brazil aims to avoid simplistic legal cloning. Instead, it seeks reviving natural connections between Brazil and Austria’s mutual heritage embodied in Kelsen’s scholarship.

By fusing academia with practice, it hopes to yield lessons that tangibly advance rights and representation in both societies and consolidate their democracies.

Enduring historical ties

Justice Mendes hailed the Hans Kelsen Centre as a step strengthening the Brazil-Austria relationship. Indeed, the judicial cooperation launched in Brasília builds on multiplying recent initiatives between the countries and their citizens.

Student exchanges in law and other fields reached records highs in 2022, over three dozen university partnerships thrived, and scientific collaboration advanced on medical technology.

Diplomatic goodwill saw three rounds of high-level consultations since 2021 to align Latin America’s largest country with one of Europe’s most innovative small states as “global partners.”

This flourishing bilateral relationship has its roots in the Habsburg imperial family itself, which furnished Brazil’s first empress as well as the iconic Stefan Zweig as one of South America’s most beloved authors.

Contemporary luminaries like Kelsen belong to that heritage. In coming full circle through Brasília’s new institute reviving the jurist’s memory, Brazil and Austria look well poised to further a special friendship befitting two pluralistic societies joined by bonds of history and shared conviction in rights, reason and the rule of law.

Broader Austria-Brazil ties have also flourished recently, anchored by shared values like social inclusion, sustainable development and human rights. Two-way trade approached $2 billion in 2022 as partnerships multiplied in science, technology, and innovation. These bonds will strengthen through initiatives bringing scholars together like the pioneering Kelsen Centre.

As Austria's Ambassador Scholz observed, today's trying times make Kelsen's constitutionalist legacy more relevant than ever in Brazil.


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