Lampposts for Dimly Lit Roads – Bringing Legitimacy Back into the Proportionality Principle

The proportionality principle is the crown jewel of German legal scholarship, which has long served as a valued framework for human rights and fundamental freedoms adjudication around the world. Despite abundant schol­ar­ship on its influence and shortcomings, relatively little addresses its first sub-test, ie, legitimacy of aims. Robert Gordon describes legitimacy testing as a ‘dimly lit road toward the brighter lights of the proportionality motorway’. Responding to Gordon and highlighting the importance of rigorously examining the ends normally overlooked by conventional proportionality analyses, this interdisciplinary project offers lampposts by which we might navigate and meaningfully connect conversations of ends and measures.
Recognizing the importance of questioning the legitimacy, validity, and indeed necessity of aims of the state and its implications for rights and freedoms protections, this project undertakes a revisionist account of legitimacy testing by expanding the limits of conventional proportionality analysis. Aiming to make descriptive, critical, and normative contributions, it begins by identifying blind spots both in substance (critically appraising the widely-accepted and best version of the four constitutive tests) and procedure (examining institutional traditions, prefer­ences, and assumptions). The normative component introduces innovative recommendations for constructing a new legitimacy test. This is accomplished through a change of perspective that does not simply accept the self-evident value and importance of social goods/interests, ie, grounds for limitations of rights and freedoms, but rather focuses on threats to or opportunities for their optimization. Linking this new perspective to the do­main/func­tion of the state shows that only threats or opportunities that are ripe for intervention ie, aims that not only allow but oblige the state to intervene, can be considered legitimate. Although some of these recommenda­tions are by no means novel, this project aims to reinvigorate and advance such discussions to establish the centrality of legitimacy testing.
Reflecting the Department’s research commitments to basic doctrinal structures and challenges to fundamental rights protection, the bulk of the project is grounded in theoretical work influenced by Critical Terrorism Studies scholarship and uses the text of the European Convention of Human Rights and the counterterrorism jurisprudence of its Court. Expected outcomes include demonstrating how the proposed test results in a tighter and more com­prehensive consideration of subsequent tests within proportionality, and improvements to human rights and fundamental freedoms adjudication.