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The Global Model of Constitutional Rights$
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Kai Möller

Print publication date: 2012

Print ISBN-13: 9780199664603

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199664603.001.0001

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Proportionality

Proportionality

Chapter:
(p.178) 7 Proportionality
Source:
The Global Model of Constitutional Rights
Author(s):

Kai Möller

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199664603.003.0007

This chapter argues that the principle of proportionality is a tool for the structured resolution of conflicts of autonomy interests. Each of the four stages of the proportionality test has its own role to play in this regard. The purpose of the legitimate goal stage is to exclude goals which are based on moralism or impermissible paternalism. The point of the suitability or rational connection stage is to establish the extent to which there is a genuine conflict between the two autonomy interests at stake. The necessity stage deals with alternative, less restrictive policies. At the balancing stage (sometimes called proportionality in the strict sense) the conflict is ultimately resolved, using the framework developed in Chapter 6. In assessing the balance, the courts grant the original decision-maker a ‘margin of appreciation’; this doctrine incorporates the reasonableness requirement proposed in Chapter 5 into constitutional rights law. Thus, the principle of proportionality, properly applied, guides judges through the reasoning process as to whether a policy is constitutionally legitimate.

Keywords:   proportionality, principle of proportionality, proportionality test, legitimate goal, rational connection, suitability, necessity, balancing, proportionality in the strict sense, moralism, paternalism, margin of appreciation

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