The principle of proportionality and its criticism. An analysis of the case law.
The proposed research aims to assess the criticism advanced against the principle of proportionality, and to determine how this criticism can be relevant in refining that principle. This will be done through an in-depth analysis of the case law of the two courts at the heart of legal Europe: the Court of Justice of the European Union (“CJEU”) and the European Court of Human Rights (“ECtHR”).
Today, the principle of proportionality is ubiquitous in these courts’ jurisprudence. Whether in constitutional, administrative or human rights law, the principle is vital to the judicial decision making process. But the definition of the principle is unclear: there is confusion as to the exact meaning of the principle and as to the factors influencing judicial deference in its application. In addition, the principle is harshly criticized. Some claim there is no objective standard by which judges can apply the proportionality test. Others argue that applying the proportionality principle implies a betrayal of the nature of rights themselves.
The proposed research takes place in two steps. First, the principle of proportionality will be defined in accordance with the case law, in order to clear up the existing confusion. Second, this definition will be confronted with the criticism formulated in the literature. This will allow both to assess the validity of the criticism and to formulate proposals refining the principle.