Proportionality Allocation Between Governmental Branches: Lessons from the Czech Republic

The proportionality of legal rules can be ensured by the legislature, the executive or the judiciary. This article examines how the allocation of responsibility for proportionality assessments between the branches affects the protection of fundamental rights. Based on the distinction between individual (case-by-case) and general (model-based) proportionality tests, the article argues that legislatures should primarily be responsible for general proportionality and incorporate rights-sensitive standards into statutory texts. Through a qualitative doctrinal analysis of Czech jurisprudence, the article explores types of (mis)alignment between proportionality tests and institutional roles. Firstly, it examines project-specific statutes where Parliament decides on individual cases; secondly, it elaborates on vague legislative frameworks that delegate all proportionality considerations to administrative authorities and courts; thirdly, it evaluates judicial insistence on case-by-case balancing, despite reasonably clear legislative schemes; and finally it discusses the possibility of judicially striking down vague norms. These case studies demonstrate that an overreliance on individualised proportionality can undermine legal certainty, equal treatment and democratic accountability while encouraging legislative buck-passing. Conversely, striking down under-specified statutes and requiring legislatures to articulate clearer, more differentiated general standards can improve foreseeability without weakening judicial review.