The migration of proportionality: narratives and questions

Abstract

Much has been written about the migration of proportionality, as a form of constitutional rights adjudication, from Germany to all around the world. Proportionality seems to have bought a one way ticket. The narrative is not written all the way around. For example, it does not sufficiently include the transformation of proportionality ‘as it crosses the border’. Or, it does not sufficiently include whether the idea of proportionality has ‘deeper indigenous roots than one might think, deeper even than the prevalence of citations to nondomestic sources would indicate´, as Mark Tushnet warns in general regarding the research in the field of constitutional comparative law. I will take the case of Argentine constitutional praxis and sustain that one cannot explain the discussion about the reception/rejection of the modern test of proportionality there as a matter of pure transfer from Germany to Latin America. In doing so, I will address later, what could be a “matter” of migration, and which interactions (or not) are producing at the constitutional and human rights praxis in Latin America. Therefore, I will distinguish the idea of proportionality from the structured test of proportionality as a methodology. This delimits the matter that could be transferred. Additionally, it serves me to point out, what in the narrative of the transfer seems to be opaque: the importance of the sequence of the steps in the German proportionality test. I will conclude that narratives of migration should pay more attention to the context of the so called ‘receipted´ practice. The ‘narrative’ of the migration of proportionality should buy a round trip ticket.