Der Verhältnismäßigkeitsgrundsatz. Herleitungsalternativen, Rechtsstatus und Funktionen

This article has argued that the requirements of suitability, necessity and proportionality in the narrow sense constitute maxims that should plausibly be applied in teleological interpretation, as they follow in particular from the ‘logic’ of ends (telos) and means and the interplay of rule and exception. Paradoxically therefore, the position – actually advanced ironically and disapprovingly – that the embodiment of these requirements is ‘everywhere and nowhere in the legal order’, is appropriate in view of the modes of inference just mentioned: these requirements then seem inherent in teleological interpretation, in the concept of law and in the structure of the legal order. It is merely a question of expediency whether one brings these requirements together under the heading of a ‘principle of proportionality in a wider sense’ consisting of three sub-tests. If it is made clear that the principle of proportionality is to be understood in this way, then the aim of simplification of argumentation and general legal linguistic usage (at least in German) favour such terminology. This article has also stressed that the third sub-requirement of proportionality in its narrow sense, often referred to as ‘balancing’, should be understood as a requirement of comprehensive reasoning laying open all relevant arguments. Subjective value judgments are unavoidable in this context: the need for ‘balancing’ (a term which can arguably be replaced by the standard terminology of systematic-teleological interpretation) is inevitable if relevant norms are vague. Crucially, this vagueness of relevant standards in conjunction with a tribunal’s duty to decide a case can only be read as an implicit competence (and obligation) to render these norms more concrete in a given case, although this necessarily includes some degree of subjective value judgments.