The Principle of Proportionality as An Obstacle to the Legitimacy of Courts in Constitutional Adjudication

The principle of proportionality is at the core of contemporary constitutional practices within the frame of a “culture of justification”. In this paper, I shall argue that, under certain conception of the principle, porportionality does not provide the conceptual tools for grounding the authority of a court in constitutional adjudication. In this vein, proportionality conceals the authority of courts, by not explaining why their rulings should be followed even when they are mistaken. This feature suggests that the use of the principle of proportionality by courts may be ideological in the sense that it distorts our understanding of our social world.