[i][b]The Role of the Principle of Proportionality in Determining the Limits of Property Rights[/b][/i]
Journal Title: Krytyka Prawa. Niezależne studia nad prawem - Year 2009, Vol 1, Issue 1
Abstract
The principle of justice is the aim and the means to achieve this aim is the principle of equality as well as proportionality. Even if unequal treatment is justified, then the guarantee of a different protection of property rights under a different kind of property law should stay in proportion to the justified differences.The principle of proportionality is characterised as an instruction of rational behaviour. By way of constitutional decisions this instruction gains legal value. This way proportionality becomes an intrinsic value of the law and applying it allows to implement the postulate of limiting legislative power. Consequently, the principle of proportionality fulfils, on constitutional level, a protective function, prohibiting excessive interference in the rights and freedom of individuals. The limit of this protection is determined by the interrelation between individual constitutional values, since applying this principle is based on comparing and weighing up values. Considering the current scheme of preferences of constitutional values, it seems justified to adopt the notion that it is possible to point out a relative rule to make a judgement call regarding the conflict between the principle of equality and the principle of proportionality, assuming that the first one has priority in the area of property rights.
Authors and Affiliations
Przemysław Krawczyk
Keywords
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