Doctrines
Proportionality
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Origin Developed within German administrative and constitutional law from the late nineteenth century; adopted by the Court of Justice of the European Union as a general principle of EU law from the 1950s onward.
Proportionality is the doctrine that a measure interfering with a protected right or interest, most often a government or administrative action, must be suitable to achieve a legitimate aim, necessary in that no less restrictive measure would achieve the same aim, and proportionate in the strict sense that its benefits are not outweighed by the harm it causes. Developed within German administrative and constitutional law, it was adopted by the Court of Justice of the European Union as a general principle of European Union law and now structures rights review across the EU's member states and, through the European Convention on Human Rights, the wider Council of Europe. It has also become increasingly influential in common law judicial review, notably in the United Kingdom following the Human Rights Act 1998, where it now operates alongside, and in some contexts in place of, the older Wednesbury unreasonableness standard.
Facts
Disputed
Core PrincipleUnited States constitutional law has generally declined to adopt a general proportionality test of the kind used in Germany and the European Union, relying instead on categorical tiers of scrutiny (rational basis, intermediate and strict scrutiny); whether the United States should move toward a general proportionality approach is a live debate among constitutional scholars, some arguing it would make the balancing that tiered scrutiny already performs implicitly more transparent, others arguing it would hand courts too open-ended a licence to override legislative judgments. 2 Whether proportionality or tiered categorical scrutiny is the more disciplined method of constitutional review is a genuinely unsettled comparative law debate, not a resolved one. Origin PeriodDeveloped within German administrative and constitutional law from the late nineteenth century; adopted by the Court of Justice of the European Union as a general principle of EU law from the 1950s onward. 1 Core PrincipleA measure limiting a protected right must be suitable to its aim, necessary in that no less restrictive measure would achieve the same aim, and proportionate in that its benefits are not outweighed by the harm it causes. 1 Cross-Tradition Connections
Associated With
Established By
R v Oakes is the Canadian origin of the modern proportionality test; other jurisdictions (Germany, the ECHR) developed parallel proportionality doctrines independently, so this edge names one strand, not a single global origin.
In Legal System
Originated in German civil law administrative and constitutional doctrine and remains most fully developed there and across the EU's civil law member states; increasingly adopted in common law judicial review as well, notably in the United Kingdom.
Sources
1. The Oxford Handbook of Comparative Law
Mathias Reimann and Reinhard Zimmermann, editors, Oxford University Press, 2006In Legal System: Civil Law
2. Proportionality (Law) (Wikipedia)
Jurisdictional approaches (German origin)Quote, Jurisdictional approaches (German origin)
A concept of proportionality that was testable in law was first developed in the German administrative courts in the late 19th century, notably the Prussian Oberverwaltungsgericht (appeals court of general administrative jurisdiction), to reign in the discretion to act granted to the police by statute.
Rechtsstaat (Wikipedia)
R v Oakes (Wikipedia)
WikipediaEstablished By: R v Oakes, Holding and Oakes test section - established-by proportionalityQuote, Established By: R v Oakes, Holding and Oakes test section - established-by proportionality
an objective related to concerns which are pressing and substantial in a free and democratic society
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