Chapter

Proportionality

Kai Möller

in The Global Model of Constitutional Rights

Published in print October 2012 | ISBN: 9780199664603
Published online January 2013 | e-ISBN: 9780191745751 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199664603.003.0007

Series: Oxford Constitutional Theory

Proportionality

More Like This

Show all results sharing this subject:

  • Constitutional and Administrative Law

GO

Show Summary Details

Preview

This chapter argues that the principle of proportionality is a tool for the structured resolution of conflicts of autonomy interests. Each of the four stages of the proportionality test has its own role to play in this regard. The purpose of the legitimate goal stage is to exclude goals which are based on moralism or impermissible paternalism. The point of the suitability or rational connection stage is to establish the extent to which there is a genuine conflict between the two autonomy interests at stake. The necessity stage deals with alternative, less restrictive policies. At the balancing stage (sometimes called proportionality in the strict sense) the conflict is ultimately resolved, using the framework developed in Chapter 6. In assessing the balance, the courts grant the original decision-maker a ‘margin of appreciation’; this doctrine incorporates the reasonableness requirement proposed in Chapter 5 into constitutional rights law. Thus, the principle of proportionality, properly applied, guides judges through the reasoning process as to whether a policy is constitutionally legitimate.

Keywords: proportionality; principle of proportionality; proportionality test; legitimate goal; rational connection; suitability; necessity; balancing; proportionality in the strict sense; moralism; paternalism; margin of appreciation

Chapter.  12175 words. 

Subjects: Constitutional and Administrative Law

Full text: subscription required

How to subscribe Recommend to my Librarian

Buy this work at Oxford University Press »

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.