A workshop on the topic Proportionality Principle in Constitutional Law organized by the IACL Research Group on Constitutional Interpretation took place at the IACL World Congress of Constitutional Law.
The aim of the discussion was to examine the principle of proportionality, which is almost universally accepted in modern constitutional law, and has continuously been in the focus of constitutional scholarship in recent years. At the same time, however, we have recently witnessed a number of global trends that have posed a significant challenge to the traditional understanding of proportionality. The application of the principle played an important role in the famous PSPP judgment of the German Federal Constitutional Court in 2020 which gave great impetus to the debate on who should have the ultimate power in constitutional controversies in the era of multilevel constitutionalism. Then, the Covid-19 pandemic has also raised the question of whether there are special standards for the proportionality test in emergency situations, and if so, what they should be. In addition, it is clear that the packed constitutional courts of populist countries invoke the principle of proportionality to defend illiberal measures in the same way as the high judicial tribunals of genuine constitutional democracies. This sheds new light on the traditional key questions of proportionality, such as what criteria it has, i.e. how it can be standardised and, how it as a judicial construct can be separated from political discretion. It may even be asked whether the proportionality principle has not become a standard reference in constitutional argumentation which trumps all other arguments, but which does not in fact have a well-developed legal doctrine behind it. Among the questions worth discussing are the extent to which standards of proportionality can be transformed into different constitutional systems, and how and why the specific versions and requirements of the principle differ in the various countries.
The program of the Workshop:
Proportionality Principle in Constitutional Law – New Challenges to a Conventional Judicial Construction
Workshop organized by the IACL Research Group on Constitutional Interpretation
Johannesburg, South Africa, 8 December 2022, 9.30 a.m.
Chair: Zoltán Szente
9.30– Zoltán Szente (Research Professor, Institute for Legal Studies, Centre for Social Sciences, Professor, National University of Public Service, Budapest): Opening remarks
9.30–9.45: Keynote speech: Judith Froese (Professor, Universität Konstanz): The rationalising capacity of the principle of proportionality in the Covid-19 pandemic
9.45–9.55: Jörn Axel Kämmerer (Professor, Chair of Public Law, Bucerius Law School, Hamburg): The principle of consistency (principe de cohérence) in the jurisprudence of constitutional courts
9.55–10.05: Mariana Canotilho (Associate researcher, Institute for Legal Research, Faculty of Law, University of Coimbra): The constitutional principle of proportionality and constitutional interpretation: doubts and questions
10.05–10.15: Zoltán Pozsár-Szentmiklósy (Associate Professor, ELTE Eötvös Loránd University, Budapest): The limits of proportionality reasoning
10.15–10.25: Zdeněk Červinek (Assistant Professor, Palacký University in Olomouc): Proportionality: In search of limits of the concept
10.25–10.45: Discussion
10.45–10.55: Coffee break
Chair: Fruzsina Gárdos-Orosz
10.55–11.05: Virgilio Alfonso da Silva (Professor of Law, University of Sao Paulo): What is proportionality, really? A well-defined method or just a vague idea?
11.05–11.15: Louise Laperche (Teaching Assistant, Université de Liège): The judicial review of the proportionality principle over time in changing circumstances
11.15–11.25: Benjamin Meeusen (PhD Researcher, Ghent University): (Re)defining the relationship between the legislative and judicial branch: An empirical study of intensity of review
11.25–11.35: Andrej Lang (Emile Noel Fellow, NYU School of Law, Senior Lecturer, Martin-Luther-University Halle-Wittenberg): Comparative and empirical insights into judicial practice: Towards an integrative model of proportionality
11.35–11.50: Discussion
11.50–12.00: Coffee break
Chair: Zoltán Szente
12.00–12.15: Keynote speech: Mark A. Graber (Regents Professor, University of Maryland Carey School of Law): Proportionality and politics: The case of the United States
12.15–12.25: Tania Groppi (Professor, DIPEC-University of Siena): Judicial dialogues on proportionality: The Italian experience
12.25–12.35: Yi-Li Lee (Assistant Professor, Institute of Law for Science and Technology National Tsing Hua University): Proportionality principle, policy directive, and interpretations of socioeconomic rights: The cases of South Korea and Taiwan
12.35–12.45: Fruzsina Gárdos-Orosz (Associate Professor, ELTE Eötvös Loránd University, Senior Research Fellow, Institute for Legal Studies, Centre for Social Sciences, Budapest): Proportionality in the state of danger in relation to normalcy – focus on Hungary
12.45–13.00: Discussion
13.00: The closing of the workshop