The Jurisprudence Reasoning Of Universality Of Proportionality

The principle of proportionality was born and developed in Germany.Once it was put forward,it became the basic principle of administrative law and was imitated by other countries in the civil law system.In recent years,however,the proportionality principle is undergoing a transformation in the scope of application,and has gradually evolved into a common principle with universal applicability in different legal systems and even different legal departments,that is,the trend of universality.This phenomenon of the universality of the proportionality can be understood from the horizontal and vertical dimensions.From a horizontal perspective,the proportionality principle,as an important principle at the German domestic level,gradually breaks through the geographical boundaries and spreads to EU countries.and penetration in many countries or regions outside of Europe.From a vertical point of view,the principle of proportionality has breakthroughs in the field of departmental law and deepening of its own meaning.and its application in both public and private law has important theoretical and practical significance.As for why the proportionality principle has its current influence and radiation,Jurisprudence should respond,that is,it should not only seek the original basis at the normative level,but also expand the value connotation behind it,and explore its implications such as fairness,justice,rights and other value demands.The phenomenon of the universality of the proportionality implies the process of its own connotation tending to the theory of jurisprudence.The first part of the paper mainly inspects the horizontal dimension of the universality of the principle of proportionality.By examining the practical application of the principle of proportionality in the European Union,the member states of the European Union and the United States,the applicability of the principle of proportionality in different legal systems and its theoretical interface are presented as evidence of the principle’s ability to be generalized "across geographical boundaries",while noting the different modes of application of the principle of proportionality in different legal orders.The second part of the paper mainly inspects the vertical dimension of the universality of the principle of proportionality.The principle of proportionality has the characteristics of interdisciplinary development.In the field of public law,it is no longer limited to the original field of administrative law,but can also regulate the relationship between power and rights in the field of criminal law based on criminal facts.What can best reflect the universality of the principle of proportionality is the expansion of the principle of proportionality into the field of private law.This paper discusses the background of the socialization of private law as the principle of proportionality applied to private law,and elaborates the theoretical basis of the connection between the principle of proportionality and private law at both macro and micro levels.The third part of the paper mainly justifies the universality of the principle of proportionality through the normative approach.The universal applicability of the principle of proportionality comes from two understandings of the principle of law:On the one hand,in the content of the norm,the principle of proportionality,as a tool to examine the relationship between power and right,has the priority in the rank of law and the weight in the legal argumentation.And the principle of proportionality can play a dominant role in the whole legal order through the objective aspect of basic rights.On the other hand,at the level of normative form,the mode of application of the principle in the normative structure of the rule-principle cannot be separated from the weighing structure of the principle of proportionality.The fourth part of the paper mainly justifies the universality of the principle of proportionality through the value approach.At the level of natural value,the ultimate value in the field of jurisprudence-justice,right and purpose-means rationality contain the idea of proportionality.The principle of proportionality corresponds to justice as equality and justice as purposefulness.And,the principle of proportionality is also inherent in the right,and the principle of proportionality is an expression of the ends-means rationality.