Proportionality in Social Rights Adjudication: Making it workable

Abstract

This paper supports the idea that the proportionality test works asan analytical framework in adjudicating social rights. In particular,suitability and alternative means tests should gain relevance and stopbeing the neglected steps of the proportionality test. Suitability andalternative means tests are reinforced by considering several aspects,such as quantitative, qualitative and probabilistic. In this vein, it servesto rebut the position which sustains that proportionality as a safeguardagainst the state not doing enough is pure balancing. Suitability andalternative means tests state what has been done and what is possible tobe done to promote the social rights in question. In sum, the work showsthat this basic structure of proportionality can be used as an analyticaltool to reconstruct decisions about social rights adjudication. Therefore,there is no reason for the Courts not to make more systematic use of thethree-part test of proportionality, at least seen from the analytical level.