About The Workshop
SW 86– Proportionality in Challenge
Convenors: Arnulfo Daniel Mateos Duran; Martin Borowski; Wei Feng
Contact: sw.ivr26.proportionality@gmail.com
In the current context of emerging wars, AI reshaping social and political life, and new threats originating from climate change or aggressive corporate interest, the implementation of extraordinary measures is required. Whether such extraordinary measures can be justified depends on, not least of all, whether they are proportionate. Either as a moral requirement, a legal critierion, or merely an adjudication tool in the hands of the judiciary, proportionality has become an inherent part of constitutional doctrine. In particular, proportionality has now become commonplace in assessing claims stemming from constitutional and human rights and it is also key in realizing collective goods and competing rights and goods. Even at the international level it has been firmly established in many contexts.
From an institutional perspective, proportionality has often been criticized for giving too much power to judges to declare democratically legitimated decisions taken by parliament null and void. From a substantive perspective, proportionality raises not only important questions regarding the moral content of fundamental rights and their limits, but also regarding the morality of state actions.
With changing and shifting conditions our intuitions regarding proportionality are challenged. Among the questions that arise are, not least of all, the following: Is proportionality an inherent principle of law or merely an umbrella concept that covers a set of legal methods? Can proportionality be completely detached from fundamental rights? Do the classical three prongs suffice to explain the proper scope of proportionality, or are there other prongs that can be identified within or beyond these classical ones? Are there true alternatives to proportionality for assessing interferences with rights? Can proportionality be replaced by utilitarian or economic approaches? Is proportionality analysis only adequate at the constitutional level, or can it be implemented, without further changes, at the international level? Does proportionality analysis change depending on the dimension of protection afforded by the right at stake?
All the questions above imply that the discussion on and the development of proportionality are far from over. These questions also imply several topics related to the current discussion on proportionality analysis, for instance:
1) Proportionality as a Legal or Moral Principle.
2) The Reconstruction of the Classical Prongs of Proportionality.
3) Proportionality in the Legitimate Use of Force at the International Level.
4) Proportionality in the Reconstruction of the Public Interest.
5) Proportionality in the Discretion of the Different Branches of Government.
6) Proportionality as an Integral Part of the Rule of Law.
7) Proportionality and Theories of Justice.
8) Proportionality Beyond Fundamental Rights.
9) Proportionality and Legal Interpretation.
10) Proportionality and Algorithms
11) Proportionality and Environmental Protection
12) Alternatives to Proportionality.
All these topics related to proportionality are just a few of a great many examples for our inquiry into the new horizons opened by current challenges. Whether the classical reconstruction and understanding of proportionality are up to the task can only be assessed through an in-depth analysis of its core functions and its structure. The full and comprehensive understanding of the reasons that undergird the existence and the use of proportionality is an issue that requires ongoing debate.
The submission of papers and/or presentations that develop ideas in the frame described above in English language are welcome. Please send your abstract (max. 500 words) before 30 May 2026 to us (sw.ivr26.proportionality@gmail.com).
