Fundamental Premises for the Correct Legal Use of Proportionality

Abstract

This article aims to lay the fundamental premises for the correct use of proportionality in Law. Thus, it will refute two understandings contained in the doctrine and jurisprudence on the use of proportionality. The first one, is the mistaken use of proportionality as normative ground of a supposed public interest primacy over the private’s fundamental rights. The second one is the impossibility of using the proportionality as a magical solution to hard cases. This is because its use in specific cases must aim to avoid the prohibition of excess (Ãœbermassverbot) or to oppose the low protection of any fundamental right (Untermassverbot). Keywords: fundamental right, proportionality, public interest, prohibition of excess, deficient protection