Jusletter IT

The Principle of Proportionality

  • Category: Short Articles
  • Region: Slovenia
  • Field of law: Legal Theory
  • Collection: Q-Justice 2011
  • Citation: , The Principle of Proportionality, in: Jusletter IT 29 June 2011
The principle of proportionality is the balance between too much and too little. It isolated itself at the beginning already, not only from purpose, which is self-sufficient, but also from the medium, which is blind and obedient. The most important is just the question, how can one obtain the right balance between rights and legal obligations, goods and cost or between purpose and means. The principle of proportionality must consider and make sure that all rights and obligations are correlative.
[1]
None of the arguments can substantiate a court decision independently in this sense. Every argument must be considered and accepted in the context and related with other arguments, explaining individual elements of court decisions and mutual relations. If it is considered to be an element, which is announced to be not independent, that is the principle of proportionality. A viewpoint was extracted from this theory, namely the principle of proportionality «does not embody and protect the individual values; it’s the means to protect the rights or interest or means to harmonize such interests or rights in the situations, in which their simultaneous and full implement is impossible, so all above shall be strictly limited within the definite range».1
[2]
If one deduces a theory, that the principle of proportionality is just an «instrumental principle», then he must have missed what this principle should have at the very beginning. Principle of proportionality is based on theright balance between too much and too little, which keeps itself ana priori distance from self-sufficient purpose (value, scale) and from the blind and obedient means. The most important question is how one can obtain the right proportionality between rights and legal obligations, between goods and cost or between objective and conflicting means.
[3]
The principle of proportionality must consider and make sure that all subjective rights and obligations are correlative. The correlativity canalso be formed when the legal entity may not cross its limit (namely the limit of its legal rights) and the obligor is entitled to ask the others not to hinder his activities.2 This aspect of correlativity is always neglected or at least paid not enough attention to, although this aspect is just the one demanding our behavior to coincide accordingly with others.
[4]
At first, we must make sure, if the conflict between two or more legal activities are legally permitted. The classic example of the allowed competition is thefair competition ; if the rules of the competition are followed, then activities of the two competing parties arelegally allowed . The second possibility is:two subjective rights have aconflict . Then the weaker (less important) one in this conflict mustgive in and hand over the right to beimportant role under certain circumstance (just as the protection of private sphere is stronger than the freedom of expression of opinion) to the stronger (more important) one. We will come back to this question later and ask ourselves, how would a person react when the fundamental right and the government (state) action conflicts.
[5]
The third possibility is, two subjective rights have a conflict, but both of them require a togetherness and coexistence. If it concerns 2 such kinds of right, you can’t quote the principle, that one can exercise his right without harming the other one (Qui suo iure utitur neminem laedit ). The activity is thus not based on his individual rights but only an «apparent exercise of subjective rights» (Art. 7/3 of the Slovene law of obligations), and it is totally forbidden (pure violation of law).
[6]
It’s a common principle, that the right of a legal entity is «restrained by right of other individuals» (see Art. 7/1 of the Slovene law of obligations; Art. 14/2 and Art. 15/3 of the constitution of Republic of Slovenia). When an entity exercises his right and partly or fully intercedes the right of another, the exceeded right must be restrained and recovered to the former situation, if the reinstatement is possible, according to nature of the intervention. The key to our problem is to find the corresponding rule to tell us how could conflicting rights be defined, restrained and limited in content. Basically, you can say, the subjective right may not exceed a certain limit, which allows another entity to exercise and active his rights within arange of same quality . If the entity crosses this limit, then it’s an abuse of right instead of the exercise of right3 .
[7]
The rule ofrange of same quality of both subjective rights is very imprecise and must be used with regard to nature of the rights and concrete situations. The Slovene law of obligations demands, an individual must exercise its right according to the principle of the law (with the principle of good faith) and the purpose of law (see Art. 7/11). Some rules were already implemented in the judicial practice, such as purpose of the right, action with good faith [e.g.Venire contra factum proprium (nemini licet) ], legal interest, inexistence of benefits (legally permitted benefits), the nature of the thing, the appropriate means (namely the least burdened means, which still can fully realize the legal interest), «equal fighting chances» of parties (in process), the unsubstantiated delay of process (abuse of procedural law) etc. Among those rules, the law protected interests and the law protected exercise (as purpose of the right), the principle of least burdened activities and proportional consideration of the others about their rights are ofspecial importance . If an upstream farmer (owner of a farmland) and a downstream owner of a vacation home conflict, they surely have the rights of water in the river but indifferent quantitative range , because the right of water of the farmer is different from that of the owner of the vacation homeon the quality.
[8]
In all the examples above, we stand on a very sensitive basis. We can’t avoid judging and slightly changing, considering the concrete situations. The task of judicial practice is to standardize these situations and newly attach them with the already formed types of activity or at least add the subspecies of the standardized situations. It’s about a standardization, which should explain the right balance between two conflicting rights. The balance is only right, if it’s able to find a proportionality to make both of the conflicting rights be able to live together, according to their qualities.
[9]
Mutatis mutandis also applies it to a fundamental right, which the authority of state may intervene in and restrain, and totally for the legislative activity, which cannot narrow the right without any reasons or increase the legal obligations. The Principle of proportionality is also implemented4 in foreign theory (for example German5 ) and in judicial practice (for example before the Court of European Commission6 and the European Court of Human Rights7 ), which was adopted by Slovene Constitutional Court8 . ThePrinciple of proportionality hastwo stages . On thefirst stage , we must make sure, if the purpose of the legal activity (for example, a statute) and the means (medium) to achieve the purpose are legal (especially, if they accord with constitution and law). That is the so calledLegitimacy test . It should verify if «the purpose of the state authority is legitimate, namely factually legal» and «if the state authority used means is legally allowed»9 . Thesecond stage s task is to verify the quality of the means and determine if there is a right (legally right) proportionality between purpose and medium (the so called principle of proportionality in narrower sense). Thequality of means would be examined by the rule of suitability and necessity of the means. The relevance issuitable , if it has the ability to lead to achievement of the purpose (otherwise it’s a wrong means). A means isnecessary , if it brings the least intervention and excludes any other milder means – that can also achieve this purpose (the principle of mildest or lowest burdened means10 ). The core of two stages is theproportionality in narrower sense , which concentrates on the proportion between purpose and means: the purpose, that one wants to achieve, may not require disproportional big (too big) burden compared to the acquired benefit. The classic example is a dangerous brain test in order to diagnose the insanity: in specific case, such test was rejected, because ten percent of the inspected has got a health problem (some of them are even severe)11 .
[10]
Principle of proportionality is anature with stages and plays a significant role in legal practice. Constitutional Court in Slovenia has most intensively been dealing with it and has already held the leading position12 . The basic consideration is disclosed by the so calledlegitimacy test , which could be misleading. The misunderstanding could also be resulted, if the constitutional court plays the role as legislator and judges, if the purpose of legislator is legitimate. Constitutional court doesn’t have this responsibility. It could «only» verify, if the purpose of legislator is allowed by the constitution (also legal, if it’s about a legal act under the law).Hassemer would probably say that it must be about a purpose within the limit of constitutional democracy.13
[11]
The Slovene constitutional court has already made its own attitude about all the elements of proportionality. If you view these sequentially, the first one is «legitimate aims of legislator»controversial .14 The word combination legitimate aim or legitimate interest must be understood aslegitimate (constitution allowed) purpose (interest) . It’s about achieving a legitimate purpose (with regard to content substantiated) with a legal way (constitutional allowed, legitimate). In another decision (already invoked), the constitutional court said expressly that it must be about a «constitution allowed purpose»15 . More over the next element is about constitutional rule (legitimacy) of means (measure) that could achieve the constitution allowed (legal) purpose. A classic example is violation of ban on torture (unconstitutional means), in order to achieve a constitution allowed purpose16 . More: a means is not suitable (suitability of means ), if a «restriction of the choice of position of a law firm» is used as «measure, to ensure the impartiality of the decision of judge and attorney»17 . More: a means is notnecessary , if the law «can only ensure the safety of people by imprisonment but not any other milder preemptive measures»18 . And more: the right balance requires the balance between purpose and means; if «fee of the reserved parking lot (…) is in an obvious wrong proportionality with the value of use of exclusive common good», the balance would be destroyed19 .
[12]
The balance between purpose and means leads back to core of the question – the correlativity of legal proportionality, which is the central feature of right. We usually talk about correlativity, when it’s aboutmutual dependence of acts between two or more legal entities. The correlativity also exists between entities and rights holders, which are mandatory according to their content (for instance relation between parents and children) and between the individuals subjected to legal obligation, who are related to the content. The correlativity of obligations penetrates especially into the administration and public rights. Citizen is always the holder of legal obligations in the common-legitimate relationship (for instance tax obligation). It corresponds to the «entitlement» of state authority that citizens must carry out their own obligations. According to its content, the «entitlements» of state authorities are legal obligations, which cannot be given up, otherwise it would be punished20 .
[13]
The correlativity of legitimately possible acts (correlativity of rights, correlativity of rights and obligations, correlativity of obligations) cannot avoid the relation with others. The quality of rights always depends on the relationship betweende iure andde facto21 . Under appropriate circumstance, people will certainly reveal this side of the rights and accordingly analyze it.


Prof. Dr. Marijan Pavčnik
Pravna fakulteta (Faculty of Law)
Poljanski nasip 2, 1000 Ljubljana, Slovenia

Marijan.Pavcnik@pf.uni-li.si

  1. 1 Dobrinka Taskovska : Proportionality as a General Principle of Law (Its Articulation in Legal Theory and Comparative Pblic Law). Dissertation: Ljubljana 2000, p. 295.
  2. 2 Marijan Pavcnik : Teorija prava (Theory of Law). 3. Aufl. Ljubljana 2007, p. 206.
  3. 3 Cf my paper onAbuse of a Right [in Archiv für Rechts- und Sozialphilosophie – Beiheft 67 (1997), p. 64–71] and my articleMissbrauch des subjektiven Rechtp. Beitrag zum Verständnis des subjektiven Rechts und dessen Natur (in Verbot des Rechtsmissbrauchp. VI. Rechtstage von Luby. Bratislava 2001, p. 69–143).
  4. 4 Cf.Nicholas Emiliou : The Principle of Proportionality in European Law. A Comparative Study. London (etc.) 1996.
  5. 5 E.g. cf.Karl Larenz : Methodenlehre der Rechtswissenschaft. 5. Aufl. Berlin (etc.) 1983, p. 392 et seq.;Horst Dreier , in :Horst Dreier (Hrsg.): Grundgesetz. Kommentar. 2. Aufl. I. Tübingen 2004, p. 128 et seq. andBodo Pieroth ,Bernhard Schlink : Grundrechte. Staatsrecht II. 18 Aufl. Heidelberg 2002, p. 65 et seq.
  6. 6 Cf.Paul Craig , Grainne de Burca: EU Law. 3. Aufl. Oxford, New York 2003, p. 371 et seq.
  7. 7 Cf z.B.P. Van Dijk, G.J.H. Van Hoof (edp.): Theory and Practice of the European Convention on Human Rights, 3. Aufl. The Hague 1998.
  8. 8 Cf. OdlUS (Decisions of the Constituional Court of the Republic of Slovenia) III, 62; IV/2, 67 und 131; VI/1, 69; IX/1, 21; X/2, 192; XI/1, 49 und XII/1, 7.
  9. 9 Lovro Sturm , in:Lovro Sturm (Hrsg.): Komentar Ustave Republike Slovenije (Comment on the Slovenia Constitution of Rights). Ljubljana 2002, p. 55.
  10. 10 Ibidem , p. 56.
  11. 11 BverfGE 16, 194.
  12. 12 Cf.Dragica Wedam Lukic : The Principle of Proportionality in the Case Law of the Constitutional Court of the Republic of Slovenia, in: Human Rights, Democracy and the Rule of Law. Liber amicorum Luzius Wildhaber. Hrsg.Stephan Breitenmoser ,Bernhard Ehrenzeller ,Marco Sassoli ,Walter Stoffel ,Beatrice Wagner Pfeifer . Dike, Nomos: Baden-Baden 2007, p. 1599–1617.
  13. 13 Cf.Winfried Hassemer : Ustavna demokracija (Verfassungsdemokratie), in: Pravnik, 58(2003) 4–5, p. 207–226.
  14. 14 OdlUS IV/2, 67, p. 121.
  15. 15 OdlUS IV/2, 131, p. 487.
  16. 16 Bostjan M. Zupancic , in: Kommentar (Fn. 12), p. 209 ff.
  17. 17 OdlUS V/1, 27.
  18. 18 OdlUS V/1, 40.
  19. 19 OdlUS V/1, 21. and OdlUS X/2, 193.
  20. 20 Cf.Wesly Newcomb Hohfeld (1879–1918): Fundamental Legal Conceptionp. New Haven – London 1964, p. 35 ff., p. 65 ff.
  21. 21 CfLouis E. Wolcher : Law`s Task. The Tragic Circle of Law, Justice and Human Suffering. Aldershot, Burlington 2008.