The Role of the Principle of Proportionality in Identifying Legal Capacity to Fundamental Rights
The Role of the Principle of Proportionality in Identifying Legal Capacity to Fundamental Rights

Summary/Abstract: The legal capacity to fundamental rights gives the right-holder the ability to exercise and enforce fundamental rights. In the absence or questionable status of the legal capacity of a right-holder, there is a need to justify such a position. In this regard, no general standards based on legal doctrine and jurisprudence can be identified. The paper focuses on the question of whether the principle of proportionality could play a role in identifying and justifying the legal capacity to fundamental rights. Based on a review of the literature, two functions of the proportionality analysis can be identified as relevant in this regard: it supports the justification of the decision to restrict fundamental rights and it precludes arbitrary decisions in relation to the limitation. The author argues that, based on its justificatory function, proportionality can play a role in identifying the legal capacity to fundamental rights in the case of human persons. In the case of autonomous organizations, in addition to its justificatory function, its function related to the exclusion of arbitrary decisions can be taken into account when using it as a standard for identifying legal capacity. In the case of human persons and autonomous organizations, there is a need for a negative justification of the limitation of legal capacity, based on proportionality. In the case of new challengers in fundamental rights disputes (such as future generations), a positive justification is required to determine legal capacity. The proportionality analysis does not play a role here, but rather other standards that require a rationality-based justification.

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