Proportionality is one of the most successful legal transplants. However, there is disagreement on whether there is any justification for the migration of proportionality across jurisdictions. This article aims to answer this question concerning the migration of proportionality across Europe. Existing literature justifies this migration as a matter of conceptual necessity. The claim is that there is a necessary conceptual connection between constitutional rights and proportionality such that proportionality must be used whenever and wherever constitutional rights adjudication exists. In contrast, this article offers a normative justification for borrowing proportionality. A variety of reasons can justify a migration of proportionality to a new context. However, there is a common denominator between the different migrations, namely, that proportionality is normatively necessary for the adjudication of constitutional rights.
|Number of pages||33|
|Journal||New Zealand journal of public and international law|
|Publication status||Published - 2013|