The Limited Usefulness of the Proportionality Principle

50 Pages Posted: 26 Mar 2019 Last revised: 13 Feb 2021

See all articles by Yun-chien Chang

Yun-chien Chang

Cornell Law School

Xin Dai

Peking University - Peking University Law School

Date Written: December 27, 2019

Abstract

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making because it in essence is an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures as a result may fail to pass the test of proportionality analysis. Second, representative of legal scholars’ efforts to theorize proportionality, the German theorist Robert Alexy’s influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy’s weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing.

Keywords: The proportionality principle, Robert Alexy, weight formula, cost-benefit analysis, loss aversion

JEL Classification: K23

Suggested Citation

Chang, Yun-chien and Dai, Xin, The Limited Usefulness of the Proportionality Principle (December 27, 2019). International Journal of Constitutional Law, forthcoming 2021, NYU Law and Economics Research Paper No. 19-10, NYU School of Law, Public Law Research Paper No. 19-32, Available at SSRN: https://ssrn.com/abstract=3345798 or http://dx.doi.org/10.2139/ssrn.3345798

Yun-chien Chang (Contact Author)

Cornell Law School ( email )

310 Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Xin Dai

Peking University - Peking University Law School ( email )

5 Yiheyuan Road
Haidian District
Beijing, Beijing 100871
China

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