Abstract
Triumphant technique. Destructive nihilism.
Cutting-edge topic. The scholarship describes the proportionality test in various ways and, undoubtedly, does so frequently.
Nonetheless, discussion of how the proportionality test stands within legal methodology remains rather underrepresented. In particular, it is not clear how the proportionality test relates to traditional methods of interpretation, to subsumption and to legal syllogism.
Does the proportionality test replace these tools? Does it complement them? And what role does it play in the application of the law? The article addresses these questions. First, I complement a traditional Czech legal scholarship by distinguishing two different contexts of the application of law: discovery and justification.
In this context, I describe the proportionality test as an instrument of so-called internal justifi-cation which requires further external justification by its very nature (especially external justification by traditional methods of interpretation, case-law and legal doctrine). Third, I show that the proportionality test can be integrated into a legal syllogism and that the proportionality test both requires the subsumption and results in the subsumption.
The article is analytical and normative. As analytically based, the article il-luminates the role and status of the proportionality test.
The normative dimension of the article is directed towards legal practice and can be summarized in one essential claim: the proportionality test cannot be used without other tools of the application of law, especially without subsumption and traditional methods of interpretation.