What would it take? The potential and limits of proportionality analysis in law

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ABSTRACT Proportionality has become one of the primary standards for violations of fundamental and human rights in various constitutional and international jurisdictions. Proportionality in the strict sense requires a comparison of the infringement of a right with the achievement of a state interest pursued by a measure. The incommensurability of the two is an often-raised challenge to this comparison. The Article does not adopt a fully-fledged sceptical stance. Instead, it looks to proportionality as a means of overcoming the challenge of incommensurability. It then examines the structure of comparisons in general and of comparisons of incommensurables employing proportionality in particular. As for the latter it focuses on its performance by exploring the example of decathlon, where this type of comparison works exceptionally well. The example allows us to analyse the preconditions for comparing incommensurables. Unfortunately, most of these preconditions are lacking in the law. This explains why the proportionality principle in law only produces convincing results in cases where the disproportionality is very pronounced. In many other cases, however, the courts decide based on proportionality as well. This raises the question: What is really going on in these cases? The article concludes with a brief account of a benevolent explanation.