German jurist Peter Häberle, whose work influenced Brazilian law and, in particular, the minister of the (Federal Supreme Court), one of the main disseminators of his doctrine in the country, died on Monday (6), aged 91.
An influential thinker of constitutional law, Häberle coined a theory that breaks with a notion of closed interpretation and begins to see it beyond the written text, expanding society’s participation in the interpretative process.
He argued that “he who lives the Constitution is its true interpreter”, as Gilmar stated to Sheet. The STF minister defines Häberle as a “universal jurist” who exerted a strong influence on the Brazilian constitutional process.
Born in 1934, Häberle studied law in Tübingen, Bonn and Freiburg, in , and Montpellier, in . He obtained his doctorate in 1961, with a dissertation that gained repercussion in constitutional law circles.
His positions earned him a reputation abroad, especially in . The jurist’s works were published in 18 languages, including “Constitutional Hermeneutics: the Open Society of Constitutional Interpreters”, translated into Portuguese by Gilmar in the 1990s.
“Peter Häberle’s legacy transcends borders and generations. His humanist and plural reflection will continue to illuminate the path of those who see the Constitution not as a closed text, but as a living work, committed to human dignity, peace and cooperation between peoples”, .
Lawyer and professor at PUC-RS, Ingo Sarlet says that the theorist formulated a new dimension linked to the functions of fundamental rights: the idea of active procedural citizenship and an open community of constitutional interpreters.
“It is not just judges who interpret the Constitution. In fact, the process of interpreting and influencing the Constitution, constitutional law, its application, is a collective process, in which society also participates, various actors participate”, explains Sarlet.
“The very idea of constitutionalism, that the Constitution is a process, a cultural process, is very important. A multidimensional vision of the very dignity of the human person”, he states.
The legacy in Brazil can be seen in the increasingly frequent public hearings called by the STF and in the idea of so-called amici curaie (friends of the court), interested third parties who can join the process to support the judgments.
Paulo Sávio Maia, executive coordinator of the IDP’s Hans Kelsen Center and member of the STF’s Center for Constitutional Studies, says that, from Häberle’s perspective, it is possible to observe anthems, flags and preambles as sources of normativity.
“You have to look inside, not at physics, at the sky. You have to look here at the earth and see that this Constitution is a cultural product of a Republic that is organized democratically and whose protagonists are citizens.”
For him, Häberle also offers a lesson in combating populism. By defending that citizens are protagonists, the theory points to inclusion, so that the population recognizes itself in the constitutional text.
“The Constitution is plural and needs to be plural, a democratic Constitution. And being plural means that it needs to remain democratic. For this, citizens need to see themselves in it.”
Maia, who edited a book on Häberle’s theory, says that countries in which the population found themselves deprived, injured in their dignity and unable to access basic benefits were more susceptible to nationalist, exclusionary appeals and hate speech.
“An open Constitution presupposes citizens as the beginning, middle and end of this country, as authors, recipients of this Constitution, and obliges us to take these citizens into due account”, he states. “The population is immune to the populist siren call when they feel included.”
