Author(s)

Jianqiang Song ¹

Affiliation(s)

¹ Law School, Fudan University, 200438, Shanghai, China

Corresponding Author

Jianqiang Song

ABSTRACT

The paper studies the complicated and interacting relationship between the principle of proportionality and the interpretation of the constitution in the adjudication and guaranteeing of basic rights. While fundamental rights are very important indeed in a democratic state, they are seldom unqualified ones and often require some sacrifice of them for public benefit or others' rights. The proportionality principle is now becoming a global standard to judge the legitimacy of such kinds of restrictions, which will require structured inquiry on the legitimacy of the aim, the appropriateness and need of the measures applied, and the balance between the benefit and harm to the right due to the measure. But the use of each antechamber of that principle is not a mechanical process, it's full of interpretive choices. Constitutional interpretation, encompassing various methods such as textualism, originalism, the purposive approach, and the living constitution, offers a prism through which to view the world of judging and law. It is through these methods that judges, lawyers, and others define the scope of rights in a case, identify legitimate state aims, determine the extent to which empirical questions of cause and alternative can be answered, and evaluate the balance of competing values. It is argued here that proportionality and constitutional interpretation are related in an interdependent or symbiotic way; that interpretation lends substantive meaning to the form of proportionality, and on the other hand that proportionality provides a framework within which interpretations can be disciplined and their rationale made transparent. Through analysis of existing theories and hypothetical data analyses the paper demonstrates how different interpretation methodologies can lead to different results within the proportionality matrix, thus having an effect over the actual level of rights protection. The paper then examines how the inherent flexibility within both proportionality and interpretive methods can be problematic, potentially leading to judicial overreach or excessive deference. However, this flexibility also presents an opportunity for a more contextual and nuanced rights jurisprudence. It highlights how vital a nuanced understanding of this interaction between legal scholars, practitioners and the judiciary is to ensuring that fundamental rights are both robustly and justly protected.

KEYWORDS

Fundamental Rights; Proportionality Principle; Constitutional Interpretation; Judicial Review; Legal Methodology; Human Rights Adjudication; Balancing; The Rights Limitation

CITE THIS PAPER

Jianqiang Song. Unpacking the Interaction between the Proportionality Principle and Constitutional Interpretation in the Safeguarding of Fundamental Rights. Science of Law Journal (2025) Vol. 4: 8-16. DOI: http://dx.doi.org/DOI: 10.23977/law.2025.040402.

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