Alexy and the “German” model of proportionality: Why the theory of constitutional rights does not provide a representative reconstruction of the proportionality test

Abstract

Robert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy's theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court's application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.