Proportionality as the Tool for Adjudicating Conflicts of Fundamental Rights – Criticism and Retort
Proportionality as the Tool for Adjudicating Conflicts of Fundamental Rights – Criticism and Retort

Summary/Abstract: Even though the proportionality principle is well-established for judicial review inmatters pertaining to human rights in modern constitutional law in numerous jurisdictions,it has recently become subject to a growing tide of criticism. The article aimsto describe and critically analyze the main arguments raised by the opponents ofusing proportionality as the tool for adjudicating conflicts of fundamental rights.After briefly describing the typical and the most common structure of the proportionalitytest as it is used in constitutional law, the author would present – and then dismiss– the three most significant allegations towards the proportionality analysis,namely: the problem of incommensurability, the alleged proportionality’s moralneutrality as well as the scope of judicial discretion that is claimed to be too wideaccording to some of proportionality’s opponents.

• Details
• Contents