Proportionality as a universal constitutional principle

Authors

  • Matthias Klatt University of Graz
  • Moritz Meister Dr. iur. Moritz Meister • born 1982 in Heidelberg • studies of law in Hamburg and Bayreuth • First State Exam in Law 2009 in Hamburg • Scholarships awarded by the University of Hamburg and the DAAD • visiting researcher, University of Bristol, spring 2011 • PhD arwarded in April 2011 • attorney at Wendelstein LLP Publications • Das System des Freiheitsschutzes im Grundgesetz. Berlin 2011 • Proportionality – a benefit to human rights? Remarks on the ICon controversy. International Journal of Constitutional Law 10 (2012), S. 687–708 (co-author Matthias Klatt) • Verhältnismäßigkeit als universelles Verfassungsprinzip, Der Staat 51 (2012), S. 159-188 (co-author Matthias Klatt) • The Constitutional Structure of Proportionality. Oxford: Oxford University Press 2012 (co-author Matthias Klatt)

DOI:

https://doi.org/10.12957/publicum.2015.20217

Keywords:

Principle of proportionality, Theory of Principles

Abstract

Both in German constitutional theory and practice, the principle of proportionality has established itself as an essential element of the rule of law. However, in an International level, its results reflect a rather nuanced picture. Considering the tension between the visible success of the proportionality test on one hand, and the sharpness of the criticism towards it on the other hand, this paper aims to analyze to what extent the principle of proportionality can be considered an element of global constitutionalism, thus, justifying an universal constitutional principle. Focus will be on the objections that determine the latest international debates. We clarify the relationship between the principle of proportionality and the conceptions that understand rights primarily as interests or assets, and the role of moral arguments in the proportionality test. The objection of incommensurability, as well as the objection that proportionality would claim, in vain, a mathematical precision, will also be discussed. Towards the end, we will address the relationship between proportionality and a narrow or wide interpretation of fundamental rights’ facticity. As a whole, the rule of proportionality and the methodical instrument of weighing are the best means available to solve complex collisions between fundamental rights. The principle of proportionality should have an important role in the unified language of a global constitutionalism.

Author Biographies

Matthias Klatt, University of Graz

Matthias Klatt is Chair of Jurisprudence at the Faculty of Law, University of Graz. Previously, he had been a Junior Professor of Public Law, EU Law, Public International Law and Legal Theory in Hamburg. Still previous positions included the Juliana Cuyler Matthews Junior Research Fellowship at New College, Oxford, and an Emmy Noether Research Fellowship, funded by the German Research Foundation (DFG).

Matthias Klatt had also served as a law clerk at the German Federal Constitutional Court in Karlsruhe, after completing his legal education in Goettingen, Munich, Kiel, and Duesseldorf. He also held the position of a research and teaching assistant at the Chair for Public Law and Legal Philosophy, University of Kiel (Prof. Dr. Dr. h.c. mult. Robert Alexy). His doctoral thesis was addressed to questions of the theory of legal argumentation. He has taught in various places abroad. He was elected member of the Young Academy, Berlin, from 2007-2012. Matthias Klatt is married and has three children.

Moritz Meister, Dr. iur. Moritz Meister • born 1982 in Heidelberg • studies of law in Hamburg and Bayreuth • First State Exam in Law 2009 in Hamburg • Scholarships awarded by the University of Hamburg and the DAAD • visiting researcher, University of Bristol, spring 2011 • PhD arwarded in April 2011 • attorney at Wendelstein LLP Publications • Das System des Freiheitsschutzes im Grundgesetz. Berlin 2011 • Proportionality – a benefit to human rights? Remarks on the ICon controversy. International Journal of Constitutional Law 10 (2012), S. 687–708 (co-author Matthias Klatt) • Verhältnismäßigkeit als universelles Verfassungsprinzip, Der Staat 51 (2012), S. 159-188 (co-author Matthias Klatt) • The Constitutional Structure of Proportionality. Oxford: Oxford University Press 2012 (co-author Matthias Klatt)

Dr. iur. Moritz Meister
  • born 1982 in Heidelberg
  • studies of law in Hamburg and Bayreuth
  • First State Exam in Law 2009 in Hamburg
  • Scholarships awarded by the University of Hamburg and the DAAD
  • visiting researcher, University of Bristol, spring 2011
  • PhD arwarded in April 2011
  • attorney at Wendelstein LLP
Publications
  • Das System des Freiheitsschutzes im Grundgesetz. Berlin 2011
  • Proportionality – a benefit to human rights? Remarks on the ICon controversy. International Journal of Constitutional Law 10 (2012), S. 687–708 (co-author Matthias Klatt)
  • Verhältnismäßigkeit als universelles Verfassungsprinzip, Der Staat 51 (2012), S. 159-188 (co-author Matthias Klatt)
  • The Constitutional Structure of Proportionality. Oxford: Oxford University Press 2012 (co-author Matthias Klatt)

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Published

2015-12-29

How to Cite

Klatt, M., & Meister, M. (2015). Proportionality as a universal constitutional principle. Revista Publicum, 1(1), 30–70. https://doi.org/10.12957/publicum.2015.20217

Issue

Vol. 1 No. 1 (2015)

Section

Artigos Científicos

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