Principle of Proportionality in Foreign Legal Doctrine and Practice and its Interpretation in Russia in the Context of Providing Protection of Subjects’ Rights and Legal Interests

Abstract

The subject of this research springs from the fact that the principle of proportionality is extremely under-researched in the Russian jurisprudence. The main goal is identifying the essence of the proportionality principle and its properties compared to the American “balance of interests” method. Methodology: general scientific methods – dialectic, historical, formal logic, analytical; specific scientific methods – formal dogmatic, historical and legal, comparative jurisprudence. The research method is the method of interpreting legal texts, generalizing and analyzing the practice. Key findings: 1. The essence of the European principle of proportionality is identified; 2. Social, historic & cultural and other sources of the proportionality principle are demonstrated; 3. A comparative analysis is performed for the European proportionality principle and the American “balance of interests” method; 4. A contrastive analysis of the Russian principle of balancing private and public interests vs. the European principle of proportionality is conducted; 5. Its interpretation in the Russian legal doctrine and features of its practical application are demonstrated. Conclusions: the European principle of proportionality and the American “balance of interests” method are essentially non-contradictory; the proportionality principle and the method of balancing interests are different in a number of features like methods of inquiry, but these differences are not paradigmatic by nature and are most probably caused by historical and cultural features and other traditions characteristic of the development of Romano-Germanic and Anglo-Saxon legal systems; both of the above methods of inquiry are closely interconnected and quite comparable, which can hardly yield methodology grounds for contrasting them to each other as completely different conceptual approaches; the purpose of imposing limitations on certain basic rights must have a very important public character; the principle of proportionality should only be applied in practice as a systemic whole of all its elements.