20 - The future of proportionality

Summary

Regarding the need for renewal

Proportionality is not perfect; yet none of the suggested alternatives – with categorization as the central one – ensures a more appropriate arrangement. We should therefore focus on proportionality and ways to improve it. Indeed, by now it has been several decades since proportionality was first introduced to the Western legal systems. During this period, no significant changes have occurred in its components or its understanding as a constitutional tool. It seems that the time is ripe, therefore, for a reexamination. It is in this context that the subjects which require a reconsideration are raised, in order to refresh and develop the doctrine of proportionality.

When considering improvements to proportionality, it is important to make use of the legal and judicial experience provided by comparative law. Obviously, of particular interest are those legal systems that have adopted proportionality; it is appropriate that they learn from each other’s perspective, but this is insufficient. The American academic literature and case law are of particular interest. The difference between proportionality and the American system of categorization in relation to the protection of human rights can be reduced to the issue of specific (ad hoc) balancing, or proportionality stricto sensu. Other than in this component, however, the two methods are in fact quite similar. That is also the main reason for the two methods drawing closer in recent decades, at least with respect to the portions in which they are similar.