ADEQUACY, NECESSITY AND PROPORTIONALITY IN THE STRICT SENSE: THE ALEXYAN TRIAD AS A BINDING STANDARD FOR THE GRANTING OF ATYPICAL EXECUTIVE MEASURES AFTER ADI 5,941/DF AND THEME 1,137/STJ

Abstract

This article examines the proportionality test, as formulated by Robert Alexy through the triad of suitability, necessity and proportionality in the strict sense, as a binding standard for the judicial review of the atypical enforcement measures authorised by Article 139, IV, of the Brazilian Code of Civil Procedure of 2015. It departs from the hypothesis that the merely rhetorical invocation of proportionality by the higher courts, without an examination of its internal structure, drains the test of normative content and restores to the judge the very discretion it was meant to constrain. The analysis proceeds in three stages: it reconstructs Alexy’s theoretical framework; it identifies the structural collision between the effectiveness of enforcement and the debtor’s fundamental rights; and it assesses how the triad was received by the Federal Supreme Court in ADI 5,941/DF and by the Superior Court of Justice in Theme 1,137. The article argues that a combined reading of these two binding precedents imposes on the judge a duty of qualified reasoning, ordered by the relationship of subsidiarity among the three sub-rules, whose breach constitutes a defect of reasoning, rendering the decision subject to reversal or annulment for infringement of Article 489, § 1, of the Code. It concludes that the Alexyan triad offers the soundest methodological path for granting atypical enforcement measures, precisely because of the constant collision of principles that such measures entail.