Fundamental Rights between the English common law and the principle of Proportionality in the Age of Emergency: the Case of the United States and Japan

The principle of proportionality has become one of the defining features of contemporary constitutional adjudication, providing courts across diverse legal systems with a structured method for balancing competing claims of individual rights and collective interests. Once primarily rooted in European administrative
and constitutional traditions, proportionality has now achieved a global presence, shaping the reasoning of constitutional and supreme courts in jurisdictions as varied as Germany, Canada, India, South Korea, South Africa, and Japan. Its diffusion reveals both its conceptual versatility and its normative ambition. Proportionality purports to translate abstract commitments to rights and the rule of law into an operational judicial technique that guides review of state measures in light of necessity, suitability, and the proportionality stricto sensu of their burdens and benefits. This principle, being extremely ‘flexible’ and lacking predetermined parameters, results—regarding the regulation of fundamental rights—in a significant shift of the centre of competence from the legislature to the judiciary. The
latter effectively assigns itself the power to determine the practical management of fundamental rights by means of a review which, in the absence of explicit constitutional criteria to that effect, can only prove to be highly discretionary and variable from case to case.
The volume explores this doctrinal and comparative evolution, focusing on how proportionality was mobilized during the most recent global pandemic.