How to Use, and Not to Use, Proportionality Principle

Abstract

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making because it in essence is an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures as a result may fail to pass the test of proportionality analysis. Second, representative of legal scholars’ efforts to theorize proportionality, the German theorist Robert Alexy’s influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy’s weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing.