The role of the principle of proportionality in the development of modern constitutionalism

Abstract

The article examines the formal and substantive interrelationship between the principle of proportionality and modern constitutionalism, elucidating the essence of the phenomenon of constitutionalism through its characteristics and the role of the principle of proportionality in its establishment and development. Based on the works of domestic and foreign researchers on constitutionalism, it has been assumed that the key value and feature of modern constitutionalism is the limitation of state arbitrariness, the inadmissibility of unjustified interference (restriction) of human rights and freedoms, and the partnership relations between the individual and the state. This, in turn, must be guaranteed, ensured, measured, and evaluated by specific legal instruments, one of the most important and applicable of which is the principle of proportionality. The impact of the principle of proportionality on the development of constitutionalism is analyzed through its function and purpose, demonstrating the direct dependence of the exercise of state power based on the constitution and in accordance with the principle of the rule of law on the adherence to the principle of proportionality by public administration. The provision that real constitutionalism can only be discussed when all its values are considered and protected in the process of law-making and law enforcement, not at an abstract-formal level, but in each specific case of interference (restriction) of human rights, subjected to a consistent and structured proportionality test, has received further development. It is concluded that the principle of proportionality plays a key role in the development of modern constitutionalism. Considering the contemporary challenges faced by human rights and freedoms, it has been concluded that the principle of proportionality is the safeguard intended to protect human rights and freedoms by addressing questions regarding the legitimate aim of certain state actions, the necessity of such actions, the adequacy and relevance of the means chosen by the state to achieve such an aim, the balance between the potential benefit for public interests and the extent of the restriction of rights, etc., which is a crucial factor not only in ensuring but also in developing modern constitutionalism.