Undecidabilities and Law

Legality and Proportionality in the Performance of Law: Introduction

2025-07-02T10:40:26+01:00

The fourth volume of Undecidabilities and Law is dedicated to the relationship between legality and proportionality in the context of practical performance (or realization) of law. To explain this thematic core, attention be paid primarily to its two crucial dimensions – legality and proportionality –,
both relevant for academic considerations in the field of the conflicting demands of political philosophy and legal philosophy, but also important for practical-normative dogmatic approaches, as well as for the process of interpreting the law in practice by law-enforcing Authorities.

Defeasibility and Balancing

2025-07-02T10:50:23+01:00

"Defeasibility" and "balancing" are expressions introduced in recent times to deal with longstanding legal phenomena, which in the context of the constitutional state acquire a special prominence. What is at issue, in fact, is the necessity to recognise exceptions implicit in the norms, in order to provide the legal system with the flexibility needed to maximise the chances of finding a correct—just—answer without abandoning the legal system; and (which to a large extent is another aspect of the same phenomenon) to resolve difficult cases (those for which there is no predefined rule, but only principles) argumentatively, by resorting to a procedure, balancing, the use of which does not necessarily imply an exercise in arbitrariness, although it does involve certain risks that recommend a prudent and limited use of this resource. The last part of the paper summarises the ideas that legal theorists and practitioners should bear in mind in order to understand and make proper use of these two controversial but indispensable notions.

The Normative Foundation of Proportionality

2025-01-09T11:29:52+00:00

Understanding the normative foundation of proportionality requires distinguishing between the reasons explaining its incorporation and content in legal systems and the reasons justifying its validity as membership in the legal system. The explanatory reasons include instrumental and substantive rationality, which underpin two additional explanatory considerations, namely justice and the protection of fundamental rights. However, these reasons do not address the justification for proportionality’s membership in legal systems. After rejecting Alexy’s thesis that proportionality logically derives from the existence of principles in legal systems and the argument that proportionality is a logical consequence of the rule of law, I conclude that the normative foundation of proportionality—except where explicitly enshrined in constitutional texts or derived from precedent—rests in customary law. This conclusion is grounded in the reiterated use of the principle by the legal community—particularly, though not exclusively, by courts—along with the accompanying conviction of its binding nature.

Ecoproportionality in a time of environmental and climate emergency

2025-02-14T21:10:04+00:00

Ecoproportionality lies at the heart of sustainable development. This paper examines how ecoproportionality is operationalized in legal and decision-making frameworks aimed at sustainability. It concludes that the pressing context of climate and environmental emergency demands a new perspective on ecoproportionality in public decision making to achieve truly sustainable outcomes.

Proportionality vs. legalism

2025-04-21T12:38:41+01:00

The rule of law is fundamentally anchored in the legality of state actions, ensures that state bodies operate within the legal frames. The interplay between legality and proportionality is crucial, as the legality test assesses whether actions are lawful, while the proportionality test evaluates the balance of interests involved. Together, these principles create an actual scope of individual autonomy against the potential overreach of state power, emphasizing the importance of justice based on individual rights rather than majority interests. The principles of legalism and proportionality are coherent in the task to limit state power and protect individual rights. While legalism provides a formal structure for governance, proportionality ensures that any limitations on rights are justified and balanced against the need to protect individual autonomy. The relationship between these principles is essential for maintaining a just legal order, where the protection of individual rights is prioritized, and the potential for political influence in judicial decisions is minimized. This coherence is vital for fostering a legal culture that respects individual freedoms while ensuring that state actions remain within lawful bounds.

Juridicity and Legality

2025-03-17T10:41:52+00:00

This text aims to explore the moments of divergence and convergence between the constructions that led to the emergence of the rule of law and the Rechtsstaat. The conceptual evolution of the two terms leads to a reinforcement of the material dimensions, notably through the affirmation of the subordination of public powers (not only) to legality (but also) to juridicity (Rechtsstaatlichkeit). This evolution finds one of its fundamental precipitations in the principle of proportionality – whether as a result of its jurisprudential origin, or due to its dissemination within a global judicial review.

Are There Really “Tragic Cases”?

2024-12-29T17:19:26+00:00

The aim of this article is to critically analyze the concept of the tragic case proposed by Manuel Atienza, starting from the same basis – the work of Robert Alexy –, but reaching very different conclusions. In the light of the parameters presented by Alexy (correctness, rationality, legal argumentation, human rights), the inadmissibility of some of Atienza's central assertions about tragic cases is exposed (such as the absence of a correct answer, the limitation of legal rationality, the option for the lesser evil), as well as the unsustainability of the very notion of tragic cases itself.

Is a new constitutive rule born or rather brought to life? Interpreting admissibility of evidence based on the judgment of the CJEU in the EncroChat case

2025-04-21T18:48:42+01:00

The article analyzes the admissibility of evidence under Directive 2014/41/EU, focusing on a new constitutive rule for evidentiary action recognized by the Court of Justice of the European Union in the EncroChat case (C-670/22) on April 30, 2024. It begins by introducing the concept of constitutive rules, particularly from the Polish Poznan School of General Theory of Law. The article then summarizes the ruling in the EncroChat case and examines its implications as a source for the new evidentiary rule within the European Investigation Order (EIO). Finally, it discusses the benefits of incorporating constitutive rules into the practical discourse on evidence admissibility, contributing to broader reflections on legitimate sources of such rules in legal systems.