Optimizing Principles vs. Limiting State Action: Two Doctrinal Conceptions of the Proportionality Analysis in Rights-Based Judicial Review

This paper offers a comparative study of two doctrinal conceptions of the proportionality analysis in rights-based judicial review: on one side, the "principle-optimizing" proportionality, and, on the other, the "state-limiting" proportionality. In particular, the current study focuses on three interconnected questions: the nature of the analysis and its components, the structure of basic rights, and the role of judges in a well-functioning democratic society. The study concludes that the "state-limiting" conception, in contrast with the "principle-optimizing" one, is not incompatible with the liberal notion of rights as immunities, but rather presupposes it, even though its aim is not to guarantee a particular substance of political morality, but to promote a democratic culture of justification.