Suchergebnisse

For the last few decades, the doctrine of proportionality has demonstrated and corroborated that it is the most effective legal standard used around Europe for the adjudication of constitutional rights. From its German origins, proportionality has migrated across jurisdictions and areas of law and has become one of the most successful legal transplants. However, there is some confusion as to whether there is any justification for the intervention of this in the UK's legal system, as the UK's legal system is based on common law, and did not welcome this doctrine very much. Therefore, it is essential to analyze the basic principles of this doctrine and check its compatibility with the common law system, which is based on democratic norms. To test the similarity, this article would also reflect on the underlying characteristics of the theory of proportionality and equate it with the standards of a democratic society. To begin with, this article first endeavors to analyze the legal sources of the doctrine of proportionality and then examines its affinity with the democratic norms of the common law system to investigate the compatibility level with each other in protecting the constitutional rights of the people.

In Germany, many researchers – including judges – believe that the idea of proportionality should stem from the notion of Rechsstaat. The term, when translated into English, is Rule of Law, and "Etat de Droit" in French. Applying the rule of law as a reason for adopting proportionality as a factor for limiting constitutional rights via the constitutionality of sub-constitutional law has also been implemented by other legal organizations. To understand the liaison connecting the rule of law and the doctrine of proportionality, it is essential to determine whether the proportionality could have a harmony with the values of rule of law in five steps. First, it is necessary to enquire whether the rule of law principle has a constitutional position. Next, it must be determined whether the rule of law as a principle of the constitution includes a feature of Human Rights. Third, we must ascertain whether the rule of law, as a principle of the constitution, is based upon an equilibrium amid constitutional rights and their limitations. Fourth, it must be determined that such a balance is conducted through the use of limitation clauses (statutes or the common law). Fifth, it is essential to establish an opinion on whether limitation clauses, which advance the standard of the rule of law, are based on proportionality.