The Historical Origins of the Proportionality Doctrine as a tool of Judicial Review: A Critical Analysis

  • Dr. Syed Raza Shah Gilani Assistant Professor, Department of Law, Abdul Wali Khan University Mardan
  • Dr. Ilyas Khan Assistant Professor, Department of Law, Abdul Wali Khan University Mardan
  • Shehla Zahoor Lecturer, Department of Law, Shaheed Benazir Bhutto Women University, Peshawar
Keywords: Legal History of Proportionality, Wednesbury Unreasonableness, Subsidiarity

Abstract

It is a fact that the doctrine of Militant Democracy is essential to protect society from the threat of terrorism. On the other hand, we should not ignore the element of its interpretive nature, which means that there is an apprehension that the states having a poor human rights record may use it to achieve their ulterior motives while damaging the fundamental rights of the individual. In Europe, the ECtHR and domestic courts at the national level are duty-bound to save these fundamental rights. Hence, the doctrine of proportionality is an essential tool to check the militant democracy measures on the fundamental freedoms and human rights. To understand the authenticity of the doctrine of proportionality, it is essential to establish its origin and stages of evolution, because this will enable me to explore the use of this doctrine, which is adopted by many nations, before analyzing its use in the UK’s legal system.

Published
2021-03-07
How to Cite
Dr. Syed Raza Shah Gilani, Dr. Ilyas Khan, & Shehla Zahoor. (2021). The Historical Origins of the Proportionality Doctrine as a tool of Judicial Review: A Critical Analysis. Research Journal of Social Sciences and Economics Review (RJSSER), 2(1), 251-258. https://doi.org/10.36902/rjsser-vol2-iss1-2021(251-258)