THE CONSTITUTIONAL COURT, THE LAW AND THE BEGINNING OF PROPORTIONALITY

It does not seem to be problematic the use of the proportionality principle by the Constitutional Court in order to control the interpretation and aplication of the fundamental rights made by the administration or the courts. This postulate arises in the area of the Administrative law, but only when it is assumed by the constitutional theory becomes an instrument to control also the legislator. It seems also that the control that can exercise the Constitutional Court on the Administration or on the courts by this principle is major that the one that can exercise on the legislation; the democratic essence of this juridical norm seems to impose it. Nevertheless, this is a controversial question, still unresolved and subject to debate, that, might be explained because of the discussion on the nature of the law and on the nature of the Constitutional Court. In the light of these conflicts might fit a better understanding the initial debate about proportionality, the potential for constitutionalism, but also the risks involved.