Le fondement normatif du principe de proportionnalité en théorie constitutionnelle

Abstract

In many jurisdictions, the principle of proportionality is actually used by judges as basic standard in the process of judicial review of laws limiting constitutional rights. But what is the normative foundation of the principle of proportionality ? The purpose of this text is to provide one answer to this question. In a first section, the author articulates the constitutive propositions for proportionality reasoning in constitutional adjudication. This «model of proportionality» does not presuppose a correct interpretive approach to constitutional text or a correct understanding of abstract political morality for the purposes of fixing the content of constitutional rights and the right balance of values. The analytical process is entirely contextual and pragmatic. In a second section, the author argues that the normative force of the principle of proportionality lies in two ethical or moral considerations : the moral principle of impartiality and the principle of legitimacy as unanimous acceptance of reasons justifying the exercice of power and coercion by the State. Although these considerations make the principle of proportionality very attractive from a normative point of view, the question whether they are sufficient for the purposes of judicial review is not answered.