Procedural rationality: : giving teeth to the proportionality analysis

• Autores: Patricia Popelier, Catherine Van De Heyning
• Localización: European Constitutional Law Review, ISSN-e 1574-0196, Vol. 9, Nº. 2, 2013, págs. 230-262
• Idioma: inglés
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• Dialnet Métricas: 1 Cita
• Resumen

  • Proportionality has become a dominant principle of constitutional adjudication in most legal systems across Europe and the Commonwealth. Nonetheless, the constitutional debate instigated by proportionality review has not yet been settled to a satisfying degree. This debate concerns the role of the court as a constitutional lawmaker in balancing rights and public interests. Opponents argue that courts, when operating a proportionality analysis, cross the line between legal and opportunity review. Proportionality review comes down to a balance of interests and values, which lies at the heart of the political function. As a reaction, courts often display a reserved attitude. This, in turn, is criticized for failing to restrain the legislature from enacting arbitrary legislation. This article examines proportionality analysis.