Milena Korycka-Zirk

Proportionality vs. legalism

Introduction

Proportionality vs. Legalism. Discover the interplay of proportionality and legalism in the rule of law. These principles limit state power, protect individual rights, and foster a just legal order by balancing legality with interests for individual autonomy.

Abstract

The rule of law is fundamentally anchored in the legality of state actions, ensures that state bodies operate within the legal frames. The interplay between legality and proportionality is crucial, as the legality test assesses whether actions are lawful, while the proportionality test evaluates the balance of interests involved. Together, these principles create an actual scope of individual autonomy against the potential overreach of state power, emphasizing the importance of justice based on individual rights rather than majority interests. The principles of legalism and proportionality are coherent  in the task to limit state power and protect individual rights. While legalism provides a formal structure for governance, proportionality ensures that any limitations on rights are justified and balanced against the need to protect individual autonomy. The relationship between these principles is essential for maintaining a just legal order, where the protection of individual rights is prioritized, and the potential for political influence in judicial decisions is minimized. This coherence is vital for fostering a legal culture that respects individual freedoms while ensuring that state actions remain within lawful bounds.

Review

This paper, titled "Proportionality vs. legalism," offers a compelling argument for the fundamental coherence of legalism and proportionality within the framework of the rule of law. The abstract effectively posits that while legality provides the formal structure and ensures state actions remain within lawful bounds, proportionality acts as a crucial check, evaluating the balance of interests and ensuring any limitations on rights are justified. The core thesis is that these principles work in tandem to limit state power, protect individual rights, and establish a tangible scope for individual autonomy against potential governmental overreach, prioritizing justice based on individual rights over majority interests. A significant strength lies in the abstract's clear articulation of the complementary roles of these principles. It highlights how their combined application forms a robust mechanism for maintaining a just legal order, minimizing the potential for political influence in judicial decisions, and fostering a legal culture that respects individual freedoms. The focus on creating an "actual scope of individual autonomy" and distinguishing justice based on individual rights from mere majority interests is particularly insightful, suggesting a sophisticated understanding of the philosophical underpinnings of liberal constitutionalism. While the abstract convincingly asserts the coherence of legalism and proportionality, the "vs." in the title suggests an initial tension that the full paper will presumably explore and ultimately resolve through its argument for complementarity. It would be beneficial for the paper to delve into specific jurisprudential examples or even hypothetical scenarios where these principles might appear to conflict, to further solidify the case for their inherent coherence in practice. Nonetheless, the abstract lays a strong foundation, promising a valuable contribution to the discourse on public law, constitutionalism, and the enduring challenge of balancing state authority with individual liberties.

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