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from Part III - The components of proportionality
Published online by Cambridge University Press: 05 June 2012
The nature of the proper purpose
One of the main characteristics of a constitutional democracy is that legal authorization to limit a constitutional right is not sufficient. Legality does not equal legitimacy. Rather, a constitutional democracy requires, in addition to legality, a justification for the limitation on the constitutional right to be valid. In other words, the legitimacy component is required. This element is made up of the proper purpose and the means to achieve that purpose, which limit the constitutional right in a proper manner. This chapter discusses the first of these – the proper purpose component of proportionality.
The element of proper purpose reflects a value-laden component. It reflects the notion that not every purpose can justify a limitation on a constitutional right. One of the unique features of a constitutional right is that it can be limited only to realize such purposes that can justify a limitation of a constitutional right. The purposes that justify limitations on human rights are derived from the values on which society is founded. In a constitutional democracy, these values are democratic values. Indeed, a proper purpose is one that suits the values of the society in a constitutional democracy.
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