Social Sciences in China (Chinese Edition)

No. 4, 2021

 

Paradigm Shifts in the Application of the Proportionality Principle

(Abstract)

 

Jiang Hongzhen

 

The proportionality principle is undergoing a paradigm shift. In terms of scope, its influence has expanded from countries to regions to the world and has permeated public and private law initially and then other sectors of law; in terms of functional position, it has retained its basic traditional function of rights protection while at the same time extending its function to complex patterns of power allocation; and in terms of applied forms, it is further manifested as the normative proposition of a legal principle and accompanies the progress of judicial application. As a methodology, it has become a criterion for the construction of “means/ends” rationality. Apart from the nature and characteristics of the proportionality principle itself, an inseparable reason for these paradigm shifts has been the transformation of the idea of rule of law and the influence of globalization amid generational change. We must give serious thought to exploring pathways to the sinicization of the proportionality principle’s paradigm shift. The basic position should be to break through the principle’s limited application in public law and follow the path of “unity amid differentiation.” The theoretical basis of unity is exploration of the transformative path of the proportionality principle in the sense of “no sectoral legal differences,” while “differentiation” means exploring the particularity of the principle’s application to specific disciplines.