THE CONSTITUTIONAL PRINCIPLE OF PROPORTIONALITY: A LEGAL-DOGMATIC METHOD

Abstract

Introduction: the paper develops a thesis about the interdependence between the interdisciplinary approach and the method of legal-dogmatic research on proportionality. The dogmatic method makes it possible to define the essence of this principle provided that research relies on judicial practice. Methods: the paper applies the technique of conceptual jurisprudence as one of the most common forms of dogmatic methodology. The purpose of the research was to provide systematic and coherent analysis of the principle of proportionality with the application of the legal-dogmatic method. With this purpose in view, the paper is divided into three sections. The first section starts with the comparison of two concepts most commonly used in Russian legal science –sorazmernost’ (which translates into English as proportionality, but linguistically closer to the word ‘commensurability’) and proportsional’nost’ (proportionality). The second section discusses the concepts of legislative reconciliation and judicial balancing of conflicting interests. Finally, the third section analyzes two opposite but interacting forms of the principle of commensurability/proportionality – the prohibition of excessiveness and the prohibition of insufficiency. Results: the paper provides arguments for the use of the term commensurability (sorazmernost’) in Russian national jurisprudence as a generic concept. The term proportionality (proportsional’nost’) is of a foreign origin. It could be used as a synonym of the term commensurability as applied to the English-language or international model of this principle. The concept of reconciliation can be considered to cover the sphere of lawmaking, while the term balancing can be applied in relation to judicial weighing of private and public interests. These two conceptual models predetermine the difference in legitimacy of the parliamentary and judicial application of commensurability. The paper also argues that two functions of commensurability are complementary. One of them is reflected in the classic liberal prohibition of excessiveness, which aims to prevent government interference in the individual freedoms. According to the other function, which emerged later, commensurability prohibits the passivity of public authorities in the protection of constitutional rights (prohibition of insufficiency). The difference between the two functions of commensurability is expressed in the distinction between the corresponding negative and positive obligations of the government. We come to a conclusion that legal dogmatics should not become an end in itself, turning into formalism and scholastic disputes about concepts. Of more significance are the social consequences to which the application of certain concepts in constitutional adjudication leads.