The principle of proporcionality and the principle of double effect. A proposal based on the philosophy of law

Abstract

The principle of double effect, a classic in moral philosophy, is suggested in this article as a complement to the principle of proportionality, based on the philosophy of law. The principle of double effect is accepted by the dogmatic constitution, on the one hand, and by the constitutional or international courts that adjudicate on human rights. The article begins by posing the problem of proportionality analysis for the philosophy of law, in its fundamentally critical and ethical-political aspect. Then, it introduces the principle of double effect, pursuant to the latest research, followed by a summary of the principle of proportionality, with reference to several works that are representative of the dogmatic constitution. Finally, several comparisons and ways to retain the principle are suggested, despite its limitations. The idea is to improve its use by expressly incorporating the principle of double effect into constitutional adjudication on the protection of fundamental rights.