HUMAN DIGNITY AND PROPORTIONALITY ANALYSIS / A DIGNIDADE HUMANA E A ANÁLISE DA PROPORCIONALIDADE

Abstract

The relation between proportionality analysis and human dignity is one of the most contested questions in the debate about the normative structure of human dignity. Two conceptions stand in opposition: an absolute and a relative conception. According to the absolute conception, the guarantee of human dignity counts as a norm that takes precedence over all other norms in all cases. Taking precedence over all other norms in all cases implies that balancing is precluded. This, in turn, means that each and every interference with human dignity is a violation of human dignity. Thus, justified interference with human dignity becomes impossible. By contrast, proportionality analysis is intrinsically connected to the distinction between justified and unjustified interferences. A proportional interference is justified and is, therefore, constitutional. The opposite applies in the case of disproportional interference. The absolute conception is incompatible with this conceptual framework. For this reason, it is incompatible with proportionality analysis. According to the relative conception, precisely the opposite is true. The relative conception says that the question of whether human dignity is violated is a question of proportionality. With this, the relative conception is not only compatible with proportionality analysis, it presupposes it.