Lampposts for Dimly Lit Roads: Bringing Legitimacy Back to the Proportionality Principle

Despite overwhelming scholarship on the influence, efficacy, or shortcomings of the proportionality principle, very little is discussed regarding its first subtest, i.e., legitimacy. Cognizant of the immense potential in putting due emphasis on legitimacy of aims pursued & implications such inquiry has on rights & freedoms protections, this paper offers a revisionist account of legitimacy by reconceptualizing conventional proportionality testing. It makes descriptive, critical, and normative contributions based upon a change of perspective that does not center the self-evident value and importance of social goods/interests, i.e., grounds for limitations of rights/freedoms, but rather threats against or opportunities to optimize them. It pinpoints substantive and procedural blind spots resulting abstractions. The normative component forwards possible elements for a new legitimacy test, a switch to which may result in a tighter consideration of subsequent tests & overall better outcomes