Jorge Silva Sampaio

The Normative Foundation of Proportionality

Introduction

The normative foundation of proportionality. Explore proportionality's normative foundation in law. This analysis distinguishes explanatory from justificatory reasons, arguing its validity rests on customary law.

Abstract

Understanding the normative foundation of proportionality requires distinguishing between the reasons explaining its incorporation and content in legal systems and the reasons justifying its validity as membership in the legal system. The explanatory reasons include instrumental and substantive rationality, which underpin two additional explanatory considerations, namely justice and the protection of fundamental rights. However, these reasons do not address the justification for proportionality’s membership in legal systems. After rejecting Alexy’s thesis that proportionality logically derives from the existence of principles in legal systems and the argument that proportionality is a logical consequence of the rule of law, I conclude that the normative foundation of proportionality—except where explicitly enshrined in constitutional texts or derived from precedent—rests in customary law. This conclusion is grounded in the reiterated use of the principle by the legal community—particularly, though not exclusively, by courts—along with the accompanying conviction of its binding nature.

Review

This paper presents an ambitious and thought-provoking analysis of the normative foundation of proportionality, seeking to move beyond mere explanations of its presence in legal systems to a deeper justification of its validity. The author carefully distinguishes between the instrumental and substantive rationalities, justice, and fundamental rights that explain proportionality's incorporation, and the more profound reasons for its legitimate membership within a legal framework. This analytical clarity sets the stage for a critical re-evaluation of established jurisprudential positions, promising a fresh perspective on a widely debated concept. A significant strength of this work lies in its bold challenge to prevailing theories. The abstract clearly indicates a direct engagement with, and subsequent rejection of, Dworkinian and Alexyan positions that assert a logical derivation of proportionality from the existence of principles or from the rule of law itself. This critical stance paves the way for the paper's central and most novel contribution: the argument that, in the absence of explicit constitutional entrenchment or derivation from precedent, the normative foundation of proportionality rests in customary law. This thesis, grounded in the "reiterated use of the principle by the legal community—particularly, though not exclusively, by courts—along with the accompanying conviction of its binding nature," offers an original pathway for understanding the principle's pervasive influence. While the customary law thesis is innovative and intriguing, its full development would require robust defense. The abstract's concise presentation leaves several questions for the full paper to address: How does the author delineate the specific criteria for "reiterated use" and "conviction of its binding nature" across diverse legal cultures and traditions? A deeper exploration of the *opinio juris* and state practice elements of customary law, applied to proportionality, would strengthen the argument significantly. Furthermore, clarifying the interplay between customary proportionality and instances where it is explicitly codified or precedent-based would enhance the analytical framework, particularly concerning potential conflicts or interpretive hierarchies. The paper's ultimate impact will hinge on its ability to thoroughly substantiate this claim against alternative justifications and potential criticisms from a comparative law perspective.

Full Text

Comments

You need to be logged in to post a comment.