The Spread and Origins of the German Proportionality Doctrine

Abstract

The three-part proportionality test (suitable, necessary and adequacy in balance) developed by Germany’s Federal Constitutional Court has conquered the world. But almost nothing is known of its origins. This essay proposes, on the basis of several items of circumstantial evidence, that Gerhard Leibholz (1901–1982), Judge of the Court from 1951 to 1971 and professor of law, may have had the leading role in its development. His early writings from the mid-1920s strikingly presage the development of the test; it suited his broader judicial agenda; he was a Judge when it was developed, even if on the “wrong” side of the Court; and it was developed in an area of law in which he was the acknowledged expert.