Proportionality and the Bindingness of Fundamental Rights

Proportionality in Crime Control and Criminal Justice, Billis/Knust/Rui (eds.) Hart Publishing, forthcoming

Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2021/02

27 Pages Posted: 2 Mar 2021

See all articles by Ralf Poscher

Ralf Poscher

Max Planck Institute for the Study of Crime, Security and Law

Date Written: January 27, 2021

Abstract

The success of proportionality tests in national fundamental and international human rights contexts can be explained as a reaction to the problem of the legal bindingness of these guarantees. Fundamental and human rights guarantees are often accompanied by provisions that allow legislatures to limit their exercise. But how is it possible for legislatures, which are empowered to limit the exercise of rights, to be bound by them? This paper focuses on the legal bindingness of such rights in the German constitutional context and evaluates the principle of proportionality as a solution to this hermeneutical issue. It will show how the original hermeneutical problem of bindingness resurfaces within the proportionality principle, a principle that would be misunderstood if viewed solely as an instrumental and normative rationality test. With the help of the appropriateness criterion – proportionality in the narrow sense – doctrinal structures specific to the different fundamental rights are shaped, which contribute significantly to the substantive bindingness of these rights. This tendency becomes very prominent in a more recent series of decisions of the German Federal Constitutional Court in national security cases. The development in Germany has been very influential in the international reception of the principle of proportionality and enables us to better understand and reconstruct the mechanics of its workings in other constitutional and international human rights contexts as well.

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Keywords: constitutional theory, constitutional law, proportionality, fundamental rights, human rights, evaluative reason, incommensurability

Suggested Citation

Poscher, Ralf, Proportionality and the Bindingness of Fundamental Rights (January 27, 2021). Proportionality in Crime Control and Criminal Justice, Billis/Knust/Rui (eds.) Hart Publishing, forthcoming, Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2021/02, Available at SSRN: https://ssrn.com/abstract=3774260

Ralf Poscher (Contact Author)

Max Planck Institute for the Study of Crime, Security and Law ( email )

Guenterstalstr. 73
Freiburg, 79100
Germany

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