Proportionality Test

In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming

Posted: 1 Mar 2018

See all articles by Tomáš Sobek

Tomáš Sobek

Masaryk University - Faculty of Law

Josef Montag

Charles University, Faculty of Law - Department of Economics

Date Written: February 19, 2018

Abstract

Proportionality test is a legal method used by courts, typically constitutional courts, to decide hard cases, that is cases where legitimate rights collide. In such a case, a decision necessarily leads to one right prevailing at the expense of another. In order to decide such cases correctly, the court must balance the rights and the damage to them resulting from a judgment. This entry overviews the proportionality test and its individual steps. We also briefly discuss the incommensurability problem, which is the main criticism of the balancing approach.

Suggested Citation

Sobek, Tomáš and Montag, Josef, Proportionality Test (February 19, 2018). In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3126389

Tomáš Sobek

Masaryk University - Faculty of Law ( email )

Veveri 70
Brno, 61180
Czech Republic

Josef Montag (Contact Author)

Charles University, Faculty of Law - Department of Economics ( email )

nam. Curieovych 7
Prague 1, 11640
Czech Republic

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