Rule of Law and the Doctrine of Proportionality; Appraisal, Rational and Validation

Abstract

In Germany, many researchers – including judges – believe that the idea of proportionality should stem from the notion of Rechsstaat.  The term, when translated into English, is Rule of Law, and “Etat de Droit” in French. Applying the rule of law as a reason for adopting proportionality as a factor for limiting constitutional rights via the constitutionality of sub-constitutional law has also been implemented by other legal organizations. To understand the liaison connecting the rule of law and the doctrine of proportionality, it is essential to determine whether the proportionality could have a harmony with the values of rule of law in five steps. First, it is necessary to enquire whether the rule of law principle has a constitutional position. Next, it must be determined whether the rule of law as a principle of the constitution includes a feature of Human Rights. Third, we must ascertain whether the rule of law, as a principle of the constitution, is based upon an equilibrium amid constitutional rights and their limitations.  Fourth, it must be determined that such a balance is conducted through the use of limitation clauses (statutes or the common law). Fifth, it is essential to establish an opinion on whether limitation clauses, which advance the standard of the rule of law, are based on proportionality.