Abstract
The proportionality analysis is an argumentative mechanism that judges use to invalidate rules when they consider that their application would disproportionately affect a constitutional right. The new Civil and Commercial Code of the Argentine Republic gives wide recognition to the proportionality analysis when, in its first article, it orders judges to review the rules of the Code if their application resolves the case in disagreement with the provisions of the Constitution. This article studies the impact of this connection. I will describe Savigny’s thought considering the structure and dynamics of the legal relations (which had great influence on the development of the Argentine private law) to argue that the application of the proportionality analysis to private law cases mitigates three virtues of the system; legal certainty, the economy in decision making, and formal justice.
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