The Necessity of Proportionality
in the Application of Constitutional
Proportionality is one of the most successful ideas in constitutional law.
The phrase “migration of proportionality”, be it across Europe
the whole world, has become an oft-encountered metaphor.
ever, does not say that there exists no critique of proportionality analysis
in legal science and no resistance against it in legal practice. So, for in-
stance, Aharon Barak raises, concerning the United States, the question:
“Is American constitutional law ready for this change?”.
Carlos Bernal Pulido, “The migration of proportionality across Europe,” New Zealand Journal
of Public and International Law 11, n.º 3 (2013): 483-515, http://bit.ly/2ZDaUQi
A more general version of this metaphor is expressed by the concept of the migration of
constitutional ideas. See on this Sujit Choudhry (ed.), The Migration of Constitutional Ideas
(Cambridge: Cambridge University Press, 2006).
Aharon Barak, Proportionality. Constitutional Rights and their Limitations (Cambridge: Cambridge
University Press, 2012), 208.
* Philosopher of Law and jurist. He is currently Professor of Public Law at the Christian-Albrechts
University of Kiel. He studied Law and Philosophy in Göttingen where he began his studies in
1968. He received his Doctorate in Law in 1976 with a thesis on Theory of Legal Argumenta-
tion directed by Ralf Dreir where he indicates that the decisions of the judges must have a
“pretension of correction” and that the law has a double dimension: the institutional and
authoritarian character (the law, the precedent and the dogmatic) and the ideal and critical
character that is achieved through argumentation. This thesis received the prize of the Acad-
emy of Historical Philology of the Academy of Sciences of Göttingen. In 1984 he obtained
the habilitation with the book Theory of the Fundamental Rights where he introduces the
thesis of the differentiation of principialist norms and rules, and the resolution of conﬂicts
between fundamental rights through weighting.
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