Krytyka Prawa. Niezależne studia nad prawem

Proportionality as the Tool for Adjudicating Conflicts of Fundamental Rights – Criticism and Retort

Michalska, Magdalena

Jagiellonian University

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Abstract

Even though the proportionality principle is well-established for judicial review in matters pertaining to human rights in modern constitutional law in numerous jurisdictions, it has recently become subject to a growing tide of criticism. The article aims to describe and critically analyze the main arguments raised by the opponents of using proportionality as the tool for adjudicating conflicts of fundamental rights. After briefly describing the typical and the most common structure of the proportionality test as it is used in constitutional law, the author would present – and then dismiss – the three most significant allegations towards the proportionality analysis, namely: the problem of incommensurability, the alleged proportionality’s moral neutrality as well as the scope of judicial discretion that is claimed to be too wide according to some of proportionality’s opponents.

Metadata

Journal Krytyka Prawa. Niezależne studia nad prawem 
Volume 11 
Issue 2 
Issue date 2019 
Type Article 
Language pl
Pagination 253-269
DOI 10.7206/kp.2080-1084.309
ISSN 2080-1084
eISSN 2450-7938