Normative Basis and Methodological Positioning of the Principle of Proportionality
The principle of proportionality is only a"relationship formula"that deals with the two categories of means and ends.It is only an argumentative framework rather than a substantive standard,and only puts forward a"thin"rather than a"thick"rational requirement.As an"upstream theory",theory of principle forms the normative basis of theory of the principle of proportionality.The structural isomorphism between the principle of proportionality and(legal)principles determines that wherever legal principles are applied,there is room for the principle of proportionality to be used.Therefore,the principle of proportionality is a general methodological principle in the field of law,which is not limited to the protection of basic rights and the restriction of state power,and even applies to absolute rights and status of emergencies.As a method of balancing,the principle of proportionality has an independent methodological status,but needs to be more objectively and accurately applied through the weight formula as a"downstream theory"and the theory of rational argumentation(discourse theory)as a"supplementary theory".The principle of proportionality is not equal to,but can properly introduce cost-benefit analysis methods,and when specifically applied,it should also pay attention to the knowledge of legal dogmatics.
Principle of ProportionalityTheory of PrinciplesBalancingWeight FormulaTheory of Rational Argumentation
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