6 - The nature and function of proportionality

Summary

Proportionality and its components

At the foundation of the modern understanding of human rights is the distinction between the scope of the constitutional right (as determined by the constitution) and the justification for its limitation which determines the extent of its protection or realization (as determined by sub-constitutional norms). In the first part of this book, the first component of the distinction was discussed – the scope of the constitutional right. It was emphasized that most constitutional rights are relative – there is justification for not realizing them to the full extent of their scope. The criterion by which such a realization is measured is that of proportionality. This part of the book examines the nature, role, and sources (both legal and historical) of proportionality. It is assumed that the constitutional right in question has been limited by a sub-constitutional law (such as a statute or the common law). The issue presented, therefore, is what is the basis – both formal and substantive – of this limitation? The answer is that this basis can be found in proportionality, located in the limitation clause (whether explicit or implicit) in the constitution.

Proportionality is a legal construction. It is a methodological tool. It is made up of four components: proper purpose, rational connection, necessary means, and a proper relation between the benefit gained by realizing the proper purpose and the harm caused to the constitutional right (the last component is also called “proportionality stricto sensu” (balancing)). These four components are the core of the limitation clause. They are crucial to the understanding of proportionality. The limiting law must uphold these four components in order to pass constitutional muster. These components render the otherwise abstract notion of proportionality into a more concrete, usable concept.