Revista chilena de derecho
versión On-line ISSN 0718-3437
COVARRUBIAS CUEVAS, Ignacio. THE DISPROPORTION OF PROPORTIONALITY: SOME PROBLETIC ASPECTS IN ITS CONCEPTUAL DEVELOPMENT AND APPLICATION. Rev. chil. derecho [online]. 2012, vol.39, n.2, pp. 447-480. ISSN 0718-3437. http://dx.doi.org/10.4067/S0718-34372012000200009.
This work raises four objections to the theoretical formulation of the test of proportionality, warning the harmful effects that its usual application brings about for the guardianship of the fundamental rights in case that the consequentialist version of the alluded test is used. A non-utilitarian kind of proportionality is rescued and it is suggested, likewise, a conception that should allow to harmonize the satisfaction of the public interest with full respect to the absolute rights or to the inviolable content of these. Meanwhile, the article criticizes several of Robert Alexy's premises on rights. The conclusion is that the test of proportionality does not serve for all the cases and that in those in which it can offer a good service it must operate under certain securities in pursuit of the fundamental rights.
Palabras clave : Proportionality test; optimising balancing; core of rights; absolute rights.