The formal and substantive functions of the principle of proportionality

Abstract

This paper focuses on the principle of proportionality as a unique technique used in arguing judicial decisions dealing with fundamental rights disputes. I will contest that the principle of proportionality offers fixed steps of examination and makes the thought process of the court transparent. With this approach, conflicts of fundamental rights cannot be handled as zero-sum games, but as disputes in which it is possible to find a fair balance. Furthermore, the principle of proportionality offers a plausible method of controlling the quality of judicial decisions. The function of the principle of proportionality can be identified from different perspectives. Its formal function is to promote a valid and proper judgment. However, after closer examination one can argue that the formal function of the method is to support (a) the justifiability of the decision, (b) the correctness of the legal interpretation, and (c) the transparency of the arguments used. Besides, there are convincing arguments that the principle of proportionality has also an important substantive function in (a) offering more effective protection for human rights, (b) deepening the values of the rule of law, and (c) strengthening the democratic character of the decision-making process by the verifiability of the judicial argumentation.