Proportionality and the Bindingness of Fundamental Rights
Proportionality in Crime Control and Criminal Justice, Billis/Knust/Rui (eds.) Hart Publishing, forthcoming
27 Pages Posted: 2 Mar 2021
Date Written: January 27, 2021
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
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