About the fashionable postulate of proportionality: Its methodological liturgy and its irrationality

Abstract

In accordance with a new phase of constitutional law – “new constitutionalism” – proportionality was elevated to a constitutional principle in numerous constitutional courts in Europe, Asia and South America. This article seeks to refute the current conception of the principle of proportionality as a method of resolving confl icts between constitutional principles and of achieving the values inherent in democracy. Therefore, we argue that the supposed truth of the postulate of proportionality, which adjudicates principles through balancing, depends on a methodological liturgy whose method – embodied by the three steps of proportionality – legitimizes the high degree of irrationality of the decision made under this postulate. Under this approach, we believe that the transition between the three steps of proportionality creates a formalist and a-historical conception of fundamental rights, in so far as the real interests at stake are concealed by the thick methodological framework that underlies the decision.

Keywords: proportionality, balancing, methodology, irrationality, fundamental rights.