Demonstrating the Purpose of the Principle of Proportionality Through the Lens of Rawlsian Concepts of Fairness and Justice

Abstract

Rawls put forward two principles of justice in his theory of justice, one is the priority of liberty rights, and the other is distributive justice. Although this differential justice has caused a lot of discussions, there is no shortage of it as a guide to our thinking. From Rawls’ justice, civil liberties are the first things we should protect, but society has the least beneficiaries. How to regulate rights, opportunities and incomes in the face of the fewest beneficiaries require a role for public power, but the public power cannot be expanded. The principle of proportionality can timely limit public power and excessively damage citizens’ personal liberty. At present, the principle of proportionality adopted in our country is appropriateness, that is, the measures taken by public power authorities are for administrative purposes, necessity, it is necessary to take measures to achieve administrative purposes, and the principle of narrow proportionality, that is, when there are a variety of means to take measures that will cause the least damage to citizens; There is no review of the legality of public authorities. The legitimacy of purpose is to examine the legitimacy of the administrative purpose to be achieved by the legislature or the executive branch of public power. In Germany, the birthplace of the principle of proportionality, we have examined whether the purpose is legitimate as early as the pharmacy law case. Although the legitimacy of purpose is not explicitly stated, a number of courts have practiced the principle in practice and the normative inclusion of the legitimacy of purpose in the principle of proportionality cannot be ignored.