Abstract

FERRERES-COMELLA, VÍCTOR. Beyond the principle of proportionality. Rev. Derecho Estado [online]. 2020, n.46, pp.161-188. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n46.07.

In this article, the very essence of proportionality is assessed in light of a substantive theory of justice and rights. Despite the existence of the principle of proportionality, a theory that is "external" to the mechanics of proportionality is deemed necessary. One that facilitates the work of judges when assessing the normative issues when they adjudicate using the principle of proportionality. The steps and probabilities of proportionality are not enough in order to draw qualitative distinctions among rights or balance the abstract weight of the right's limitation vis-à-vis the achievement of legitimate ends or the guarantee of other rights. Therefore, this article underscores the need of background substantive theories that underpin the application of the principle. Such theories should address, among other issues, the scope and enforcement of rights in the different spheres of social life, the horizontal effect of constitutional rights in the private domain, or the institutional consequences of the principle concerning the role of courts when exercising constitutional review.

Keywords : Proportionality; balancing; fundamental rights; horizontal effect.

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