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Summary and Evaluation of the Monograph

Law is fragmented, states the new monograph Defragmentation of Law of Pavel Ondřejek. The legal system has gaps, legal rules clash, and legal principles collide. Such fragmentation appears at different levels, from inconsistencies within a single statute to collisions between general principles and values in a legal system. Ondřejek defines fragmentation as an undesirable weakening of ties between legal branches, sources of law, and institutions.Pavel Ondřejek. Defragmentation of Law: Reconstruction of Contemporary Law as a System. Intersentia, 2023.²⁾ Fragmentation complicates the application of law and causes legal uncertainty. As such, it must be decreased.Ibid., p. 35, 121, 149.³⁾

Accepting such premises raises an important question: how can we avoid the fragmentation? How to overcome gaps in legislation, normative conflicts, and legal uncertainty prevailing in our legal systems?Ibid., p. 35.⁴⁾ By normative coherentism, answers Ondřejek. Defragmentation of Law is an original book that does not focus solely on the description of fragmentation. It is primarily concerned with how to reduce the fragmentation of the legal system and strengthen its unity. Ondřejek's crucial argument is that de-fragmentation—the reinforcement of legal unity — can be reached through adequate legal reasoning and proper law making. To this end, the monograph introduces a new approach to law, which Ondřejek calls normative coherentism.Ibid., p. 149.⁵⁾

Defragmenatation of Law draws inspiration from the works of Mads Ardenas and Eirik Bjorge, who describe the issue of fragmentation in international law, where it is often linked to the lack of a unified legislative authority or a central adjudicating body. Ondřejek argues that fragmentation should not be examined solely within the context of international law, and it is a notable feature of Ondřejek's work that it innovatively applies the concept of fragmentation to national law. The book uses the theoretical framework of Robert Alexy, particularly his dual nature thesis (thesis about the real and ideal dimension of law) and principles theory. In the real dimension, the legal system suffers from imperfections and inconsistencies as it is a product of political compromises. At the same time, legal system asserts the claim to correctness, which means, in the context of the monograph, striving for coherency, unification, and rationality. Concerning principles, Ondřejek aligns with Alexy's view that principles are optimisation requirements, meaning they should be fulfilled to the greatest extent possible within the factual and legal constraints of a particular case.Ibid., p. 60, 88.⁶⁾ Methodologically, conflicts between principles should be resolved through the proportionality test rather than mere subsumption.

The book significantly contributes to existing discussions both in terms of questioned raised and methods of answering them. The monograph consistently connects seemingly unrelated phenomena with an interdisciplinary approach in order to achieve one clear goal — de-fragmentation. Specifically, the monograph discusses fragmentation in connection with three main topics: the legal system, legal argumentation (including proportionality test), and legal pluralism. Thus, Ondřejek synthesizes and originally processes his previous research on argumentation with the proportionality test, which he comprehensively described in his dissertation thesis,Pavel Ondřejek. Princip proporcionality a jeho role při interpretaci základních práv a svobod [Proportionality Principle and its Role by Interpretation of Fundamental Rights and Liberties]. Leges, 2012.⁷⁾ with his work on legal systems, which he comprehensively elaborated in his habilitation thesis.Pavel Ondřejek. Koncepce práva jako systému [A Conception of Law as a System]. Wolters Kluwer, 2020.⁸⁾ The book integrates Alexy's non-positivist conception of law with systems theory, from which it derives normative conclusions for the methodology of law’s application. All this to achieve de-fragmentation and to introduce normative coherentism.

Normative coherentism strives for coherency and unity, for a legal system free of contradictory rules as well as free of conflicts between legal principles or values.Ondřejek (n. 2), p. 149.⁹⁾ Its requirements address both legislation and application of law. Concerning legislation, normative coherentism imposes three criteria on the enactment of laws: normative-systemic, institutional, and procedural.Ibid., p. 157, 159.¹⁰⁾ The normative-systemic criterion asserts that legal norms must be coherent with the existing legal order and not contradict higher laws or the established legal order, including consistent use of terminology. The other two requirements are formal; they pertain to the legislative process, ensuring that relevant stakeholders participate in the legislative process (institutional requirement) and that they have a sufficient timeframe to genuinely influence the proposed laws (procedural requirement).Ibid., p. 161.¹¹⁾

Concerning the application of law, the monograph claims that the unity of a legal system shall be achieved by argumentation. The second chapter outlines three types of arguments to achieve defragmentation: argument of elimination of contradictions, arguments of consistency and arguments based on conforming interpretation. In the third chapter, the monograph claims that the proportionality test can reduce the fragmentation of a legal system when it is applied to justify decisions of fundamental rights conflicts.

In the following part of my contribution, I will propose a possible elaboration of Fragmentation of Law. I claim that the monograph overlooks the broader potential of the proportionality test in sub-constitutional law, such as private law, despite laying a solid foundation for its widespread use and despite the clear goal of the book. In particular, I find it problematic that the monograph confines the proportionality test only to constitutional law despite having much more of an ambitious aim — de-fragmentation of the legal system in general.Ibid., p. 86.¹²⁾ The rest of this essay addresses the question whether the proportionality test could and should extend beyond constitutional law. I advocate for its application in private law.

Proportionality Beyond Constitutional Law

Introduction

Is such a question, i.e., whether to use the proportionality test to apply private law, even relevant? I believe it has fundamental importance, especially given the aim of the Ondřejek’s monograph. According to normative coherentism, the proportionality test represents an essential tool for strengthening the unity of law.Ondřejek (n. 2), p. 119.¹³⁾ As Ondřejek claims, arguments based on the proportionality test ensure the relationship between conflicting values or principles; the test preserves these conflicting values to the greatest extent possible. Moreover, proportionality serves as a neutral and universally applicable analytical framework for the application of law, with a variable intensity of review.Ibid., p. 113.¹⁴⁾ Within the realm of fragmented law, the proportionality test reinforces coherence and unity of the law as it ensures elementary transparency, predictability, and justifiability. If the proportionality test could be extended beyond constitutional law, from the standpoint of normative coherentism, it would be a significant step in the direction indicated by Ondřejek in Defragmentation of Law, a step of normative coherentism towards de-fragmentation.

Narrowing the Focus – Proportionality Without Constitutional Infusion

Before going further, let me narrow the scope of my essay. Firstly, it is essential to clarify what I do not mean when I discuss the application of the principle of proportionality in private law. In agreement with the monograph Defragmentation of Law, I distance myself from the concepts of 'total constitution' and 'constitutionalization of private law'.Mattias Kumm. Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law. German Law Journal, 7(4), 2006, p. 341.¹⁵⁾ This means that I do not propose to seek a human rights dimension in all private law relationships, to transform these relations into a matter of public law, and to deal with them irrespective of the applicable private law norms. Just like Ondřejek, I believe it is crucial to reflect the legislatures’ will as expressed in sub-constitutional law, considering the democratic legitimacy of the legislature and the crucial value of legal certainty. I also refrain from discussing the topic of horizontal effects of fundamental rights, which has been discussed in length by Ondřejek in his monograph and other texts.Pavel Ondřejek. A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law. European Constitutional Law Review, 13(2), 2017, p. 281.¹⁶⁾

In the rest of my essay, I focus solely on the cases without a constitutional aspect.Similarly, Zhong Xing Tan. The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory? Canadian Journal of Law & Jurisprudence, 33(1), 2020, p. 243: ‘The use of proportionality language in general contract doctrine is distinct from the invocation of a public law-proportionality analysis in the constitutionalised private law context.’¹⁷⁾ Thus, I address a question not explicitly tackled by Ondřejek as I pose the question whether the proportionality test can be employed in purely private law relationships as a universal methodological tool for applying principles of private law. In simple words, I focus solely on the sub-constitutional level and my primary concern are private law principles.

The typical case to which my analysis applies is a case with an indeterminate private law rule where two colliding private law principles apply.To orient my approach within the illustrative analytical framework of Bauer, my essay examines proportionality as ‘an evaluative standard for private law’ and ‘Genuine private law proportionality’ in contrast to ‘Constitutionally infused Proportionality’. For details, see Franz Bauer. Proportionality in Private Law: An Analytical Framework. In: Franz Bauer and Ben Köhler (eds). Proportionality in private law. Mohr Siebeck, 2023, p. 25.¹⁸⁾Using the words of Alexy, I am concerned with the ‘perspective of a participant, namely, a judge who is to decide a doubtful case, that is, a case that falls within the open area of preset authoritative material alone’Robert Alexy. The Argument from Injustice: A Reply to Legal Positivism. Oxford University Press, 2010, p. 72. ¹⁹⁾.

I focus on the judge who needs to strike a balance between competing reasons, each of which is by itself a good reason for a decision and only fails to lead directly to a definitive decision because of the other reasons; as Alexy claims, reasons like that are usually principles or supported by principles – private law principles given the scope of this essay.Ibid.²⁰⁾

The Current Discussion on Proportionality Test in Private Law

In the last thirty years, scholars in Europe, Canada, and even the United States have discussed the role of proportionality beyond the bounds of constitutional law, particularly in private law.The topic is most often discussed in German legal theory, recently in monograph edited by Bauer and Köhler: Franz Bauer and Ben Köhler (eds). Proportionality in Private Law. Mohr Siebeck, 2023. From the older work, see a dissertation from Steffen Heinrich Dey. Der Grundsatz Der Verhältnismässigkeit Im Kündigungsrecht. P. Lang, 1989.; habilitation from Hans Hanau. Der Grundsatz der Verhältnismäßigkeit als Schranke privater Gestaltungsmacht: zu Herleitung und Struktur einer Angemessenheitskontrolle von Verfassungs wegen. Mohr Siebeck, 2004.; or Marcus Bieder. Das ungeschriebene Verhältnismäßigkeitsprinzip als Schranke privater Rechtsausübung. Beck, 2007. Kähler introduces a critique of proportionality in private law in Larenz Kähler. Raum für Maßlosigkeit. Zu den Grenzen des Verhältnismäßigkeitsgrundsatzes im Privatrecht. In: Matthias Jestaedt (ed). Verhältnismäßigkeit. Mohr Siebeck, 2021. For discussion outside Germany, see Caroline Cauffman. The Principle of Proportionality and European Contract Law. In: Pietro Sirena and Jacobien W. Rutgers (eds). Rules and principles in European contract law. Intersentia, 2015.; Duncan Kennedy. A Transnational Genealogy of Proportionality in Private Law. In: Roger Brownsword (ed). The foundations of European private law. Hart Publishing, 2011.; Tan (n. 17). ²¹⁾ As I will show below, a significant portion of scholars both acknowledge that proportionality applies beyond constitutional law and claim it should apply within private law.

Unsurprisingly, most of the debates take place in Germany, proportionality’s home destination. German authors are generally supportive of applying proportionality in private law. Interestingly, Köhler points out that the roots of proportionality can be traced not only to 19^th century administrative law, as is often acknowledged, but also to 19^thcentury private law.Ben Köhler. Proportionality in Private Law: A Primer. In: Franz Bauer and Ben Köhler (eds), Proportionality in private law. Mohr Siebeck, 2023, p. 7. Even more surprisingly, D. Kennedy claims that proportionality has its roots in early 1900s American Jurisprudence: Kennedy (n. 21), p. 195.²²⁾ Besides this brief historical overview, Köhler acknowledges that proportionality, despite being mostly elaborated in constitutional law, has left its ‘natural habitat” and needs to be integrated into the private law. German Civil Law scholar Stürner claims that proportionality serves to balance different interests and principles in contract law;Michael Stürner. Der Grundsatz der Verhältnismäßigkeit im Schuldvertragsrecht: zur Dogmatik einer privatrechtsimmanenten Begrenzung von vertraglichen Rechten und Pflichten. Mohr Siebeck, 2010, p. 356.²³⁾ for instance, proportionality helps to assess (un)reciprocity of performance, contract penalties, or abuse of rights.Ibid., p. 385, 392, 431.²⁴⁾ Stürner understands proportionality to be a formal tool that can be used to balance optimisation requirements in contract law, i.e., to balance private law principles or interests of private parties.Ibid., p. 356.²⁵⁾ Also Hanau and Dey support the application of proportionality in private law.Hanau (n. 21), p. 121. Concerning Dey, see Dey (n. 21) : ‘(…) proportionality (is) a general legal principle reflected in civil and constitutional law which applies when two legal goods conflict.’²⁶⁾

The debate spills beyond Germany. According to C. Cauffman, proportionality is a key principle in European contract law as it plays a crucial role in balancing the rights and obligations of the contracting parties. Cauffman presents both an empirical thesis suggesting that the principle of proportionality is indeed applied in European private contract law, particularly the balancing step of proportionality, which involves a weighing and balancing of interests. Additionally, Cauffman puts forward a normative thesis advocating that the principle should be applied. Cauffman claims that the test must be applied in its entirety, encompassing all three sub-steps.Cauffman (n. 21), p. 24.²⁷⁾ D. Kennedy acknowledges, with scepticism,According to Kennedy, the move to proportionality represents the simultaneous de-rationalisation and politicisation of legal technique. See Kennedy (n. 21), p. 187. ²⁸⁾ that private law theory in Europe has entered a phase of balancing/proportionality.Ibid., p. 212.²⁹⁾

Private law proportionality extends the continent. For instance, Canadian scholars recognize the applicability of the proportionality test in employment law. The proportionality test serves to evaluate cases concerning termination of a working contractPnina Alon-Shenker and Guy Davidov. Applying the Principle of Proportionality in Employment and Labour Law Contexts. McGill Law Journal, 59(2), 2014, p. 375, 383.³⁰⁾ or an invasion of employee’s privacy. As such, it is explicitly used by the Canadian courts.Ibid., p. 386.³¹⁾ Similar to Cauffman, the Canadian authors Davidov and Shenker make two claims about the proportionality test in private law: an empirical and a normative one. First, they acknowledge that courts use the test in private law. Second, they claim the court must do so.Ibid., p. 406.³²⁾ Because the three-stage structure of the proportionality test ensures a balance between competing interests, the Canadian scholars advocate for the full application of the proportionality test. Besides striking a balance, the three-stage test shall ensure coherency, determinacy, and predictability in labour law.Ibid., p. 419.³³⁾ Similarly, in British contract law, Tan highlights the application of the proportionality test in cases involving contractual penalties, compensation for damages, and raising the so-called illegality defence. According to Tan, using the proportionality test in civil law is anti-formal and anti-ideological.Tan (n. 17), p. 235–236.³⁴⁾ She supports using the proportionality test in its the three-stage variant structure which could rationalise the case law.Ibid., p. 224–232. The abovementioned scholars are divided on whether courts should implement the three-step proportionality test in private law disputes. Tan, along with Cauffman, Shenker, and Davidov, advocates for the full application of the test. However, authors like the abovementioned Stürner disagree, arguing that only the final stage, proportionality in the strict sense, should be used. While I endorse the three-step thesis – particularly supported by analytical defense – a detailed discussion of this debate falls outside its scope. ³⁵⁾

There are some authors advocating for proportionality in private law, so far so good. In the remaining part of my contribution, I will support the thesis that the proportionality test can and should be applied to strike a balance between colliding private law principles. I will present three arguments to support this thesis which have not been properly discussed in the abovementioned literature. These are:

1.     Argument from the structure of principles (so called analytical defence of proportionality),Matthias Klatt. Proportionality and Justification. In: Ester Herlin-Karnell and others (eds). Constitutionalism justified: Rainer Forst in discourse. Oxford University Press, 2020, p. 161.³⁶⁾

2.     Argument from the normative coherentism, and

3.     Argument from the right to justification (so called normative defence of proportionality).Ibid.³⁷⁾

The common feature of the arguments is that they are independent of particular private law norms (e.g., the argument from the structure of principles relies on the universal structure of principles, and not on particular legal principles prevailing in a certain legal system, the argument from the right to justification relies on the universal right to justification).The reason for that is that this essay operates on the level of what Bauer calls evaluative standard for private law. The inquiry of this essay is independent of the fact whether a legislature prescribed some kind of proportionality requirement in a particular legal code (as is often so in cases of self-defence etc.) For more details, see Bauer’s analytical framework Bauer (n. 18), p. 25.³⁸⁾

Argument from the structure of principles 

The first argument makes clear that the proportionality test both can and must be applied when two private law principles collide, and it does so from an analytical perspective. This argument is based on a relation between a structure of principles and proportionality. In summary, the argument can be put as follows: because private law principles are optimisation commands, they shall be applied by the proportionality test. The argument from the structure of principles is what M. Klatt calls an ‘analytical defence’, a defence of proportionality which relies on the theory of principles.Klatt (n. 36), p. 161.³⁹⁾

R. Alexy differentiates rules and principles. Rules are definitive commands, whereas principles are prima facie commands. Rules stipulate something determinately, whereas principles, as optimisation requirements, stipulate that something be realized to the greatest extent given the factual and legal possibilities.Robert Alexy. A Theory of Constitutional Rights. Oxford University Press, 2010, p. 47–48.⁴⁰⁾ Principles often clash, leading to different possible outcomes. For example, in cases of defamation, the principles of free speech and personal protection may conflict. Free speech might suggest dismissing the case, whereas personal protection could lead to awarding damages. In such cases, judges can't simply apply these principles directly; they must balance them to find a correct decision.

As Alexy puts it, the nature of principles determines their application. He argues that the proportionality test, which includes evaluating the suitability, necessity, and proportionality (in a strict sense), is the necessary way to decide how much each of the colliding principles should apply in a particular case:

‘The nature of principles as optimisation requirements leads straightaway to a necessary connection between principles and proportionality. The principle of proportionality consists of three sub-principles: the principles of suitability, of necessity and of proportionality in the narrower sense. All three sub-principles express the idea of optimisation.’Robert Alexy. The Absolute and the Relative Dimension of Constitutional Rights. Oxford Journal of Legal Studies, 37(1), 2016, p. 31.⁴¹⁾

Thus, Alexy concludes,

‘one who accepts the character of constitutional rights as principles must accept the principle of proportionality.’Ibid., p. 36.⁴²⁾

Although Alexy usually focuses on fundamental rights, it would be wrong to think that Alexy’s analytical defence is restricted to fundamental rights only. The opposite is true.

When we apply private law, we are also applying principles, which collide as they are to be realized to the maximum possible extent. Both constitutional and private law are optimisation requirements, and they therefore share the attribute that mandates the application of the proportionality test. That is why, solely on the basis of their structure, the private law principles require the proportionality test for their own application.

The argument from the structure of principles provides an analytical basis for applying the proportionality test in private law. It shows that the test is not just a tool for interpreting constitutional rights, but also a general principle for balancing conflicting optimisation commands, regardless of their content or the branch the commands belong to.

Argument From Normative Coherentism

The second argument for applying the proportionality test in private law stems from normative coherentism, as developed by Ondřejek in his Defragmentation of Law.

Ondřejek emphasizes that the law is characterized by conflicts and plurality of values. In the chapter dedicated to fragmentation, he elaborates that the legal order is marked by contradictions among norms, principles, and values. He also suggests that the requirement for coherence should be broadly understood, encompassing teleological and axiological coherence—that is, a coherence of principles, purposes, and values laying behind concrete rules.Ondřejek (n. 2), p. 83.⁴³⁾

Examined through this lens, private law reveals a remarkable similarity to constitutional law in the sphere of conflicting interests, values, and principles. This clash is not confined to extreme cases like self-defence or distress. The principle of legal autonomy, for instance, often finds itself at odds with the protection of the weaker contractual party (e.g., when a bank lends money to small entrepreneur). Similarly, the provisions governing limitations periods reflect the principle that the law favours the vigilant, which stands in opposition to the principle that agreements must be kept (after some time, the promise needs not be kept anymore). Legal systems also frequently impose statutory restrictions on property rights, making one property right stand against another (e.g., the right of passage over another's property). Another example of conflicting principles is the concept of usucaption, which embodies the tension between the principle 'the laws serve the vigilant' and the protection of property rights (i.e., after several years of using someone’s property, one becomes the owner).

A sceptic might question the applicability of the proportionality test in private law based on the distinction between sub-constitutional and constitutional law. Simply put, the sceptic might claim that there is nothing to balance in private law; private law's comprehensive codifications, crafted with legislative intent, renders balancing unnecessary. However, this argument overlooks the existence of hard cases, where actions are not clearly prohibited or permitted. Proportionality becomes crucial in these grey areas. As has been demonstrated above, the apparent certainty of private law regulations masks underlying complexities, such as conflict of principles, contradictory rules, legal gaps, new legislation, and interpretative disputes.Ibid., p. 45.⁴⁴⁾ These factors align private law with human rights disputes, as both involve conflicts of principles or values, rather than solely the interpretation of specific provisions.

How, then, should such situations be resolved in private law?

As Ondřejek states, the proportionality test preserves conflicting values to the greatest extent possible, ensuring a relationship between values or principles through arguments based on the test. Moreover, proportionality can serve as a common analytical framework for both private and public law, which is neutral, universally applicable, and with a variable intensity of review. In cases of uncertainty, the proportionality test ensures at least elementary predictability, reviewability, and justifiability (see below). Therefore, if two principles collide in a private law matter and a clear solution to the case is lacking, we should strengthen the unity of the law and reduce its fragmentation by employing the proportionality test.

Argument From the Right to Justification

This argument is based on law’s ideal dimension and has two-fold structure.Klatt (n. 36).⁴⁵⁾ First, I will establish a right to justification. Based on Klatt and Alexy, I claim that right to justification extends constitutional law as it originates from our discursive nature as humans and the general claim to correctness of every legal act. Second, I will describe a link between justification and proportionality test. As a result, I will introduce the proportionality test as a justification tool that is to be used to justify the correctness of private law decisions.

Right to Justification and Claim to Correctness

Normative coherentism holds that the law assert a claim to correctness.Ondřejek (n. 2), p. 155.⁴⁶⁾ Besides the general legal norms, such a claim is asserted by every official deciding in a legal system. An official issuing a decision implicitly asserts that the legal act is both substantively and procedurally correct. Robert Alexy. Law’s Ideal Dimension. Oxford University Press, 2021, p. 293.⁴⁷⁾ Correctness of the legal act simply means that the law is being applied correctly.Alexy (n. 19), p. 38–39.⁴⁸⁾ Even when applying indeterminate rules and colliding principles, the decision asserts to be correct.Ibid., p. 72.⁴⁹⁾

Correctness is inherently linked to justification. The claim to correctness carries with it a commitment to give proper reasons for the decision. Alexy articulates this, stating:

 ‘The claim to correctness implies a claim to justifiability.’Ibid., p. 78.; or Alexy (n. 47), p. 293. Alexy describes a procedural conception of correctness where justification and its criteria guarantee a correctness of legal decision. See Robert Alexy. Recht, Vernunft, Diskurs: Studien zur Rechtsphilosophie. 2. Auflage, Suhrkamp Taschenbuch Verlag, 2016, p. 95–99, 136–137.; or Matthias Klatt. Robert Alexy’s Philosophy of Law as System. In: Matthias Klatt (ed). Institutionalized reason: the jurisprudence of Robert Alexy. Oxford University Press, 2012, p. 15.⁵⁰⁾

The right to justification thus serves as a direct counterpart to the claim to correctness. Whenever humans engage in communication or action, including legal officials, they participate in a Brandomian ’game of giving and asking for reasons’.Klatt (n. 36), p. 162.⁵¹⁾ Every action carries an implicit commitment to provide reasons.Robert Brandom. Action, Norms, and Practical Reasoning. Noûs, 32(S12), 1998, p. 127.⁵²⁾ Klatt grounds the right to justification in an ’anthropological-existentialist basis’, recognizing humans as ’discursive beings that are capable of and in need of reasons’.Klatt (n. 36), p. 165.⁵³⁾

Consequently, any legal decision, whether grounded in civil or constitutional law, asserts its claim to both correctness and justifiability.

From Justification to Proportionality and Beyond Constitutional Law

I established that the legal decision is need of justification.

Klatt bases his normative defence of proportionality on the idea of Space of Reasons. He portrays the proportionality test as a structure of justification that enhances ‘transparency, inclusiveness, and general quality of reasoning‘.Ibid., p. 175. ⁵⁴⁾ The proportionality test, being a tool for internal justification, requires the reasoning official to elucidate the premises of the decision and to externally justify them.A decision is internally justified when it follows from its premises. A decision is externally justified when its premises are correct, i.e., justified with further (external) reasons. In case of proportionality test, being internally justified means that the decision follows from the propositions about the three sub-steps, i.e., propositions about suitability, propositions about necessity and propositions about abstract weight, intensity of interference/fulfilment and reliability. Externally justification means that these propositions (premises) are further justified. The distinction is usually mentioned with regards to legal syllogism already by R. Alexy who bases the distinction on J. Wroblewski. See Robert Alexy. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Oxford University Press, 2010, p. 221–331.; Jerzy Wróblewski. The Judicial Application of Law. Springer Science, Business Media, 1992, p. 178. Only recently M. Klatt has elaborated the distinction in connection with proportionality test. The distinction shows that the proportionality test both requires and depends on a theory of legal argumentation. Klatt accepts Alexy’s discourse theory of legal argumentation and plausibly claims that external justification is a special case of moral reasoning restricted mainly by the text of the constitution, doctrine, and precedents. For more details, see Klatt (n. 36), p. 178–180.; or Tomáš Koref, Test proporcionality jako nástroj zdůvodňování, nikoli nalézání rozhodnutí [Proportionality Test as an Instrument of Justification, not Discovery]. Právník, 162(12), 2023, p. 1156–1175.⁵⁵⁾ As an internal justification tool, the proportionality test requires the reasoning official to make explicit the decision's premises and provide external justifications for them. Similarly to Alexy, even Klatt seems to make his normative defence more general:

‘On an even more basic level, the proportionality test can be interpreted as a formal rule which serves to establish the space of reasons which is inhabited in common by human beings as justificatory beings. That way, the proportionality test is not a specific feature of rights reasoning, but bears upon more fundamental characteristics of a shared practice of reasoning in general.‘Klatt (n. 36), p. 176.⁵⁶⁾

 

I consider Klatt’s remarkable defence of the proportionality test useful for the application of private law principles. Given that:

1.              a judge can be easily tasked with striking a balance between two competing private law principles,Alexy (n. 19), p. 72.⁵⁷⁾

2.              private law principles are optimisation requirements,Alexy (n. 41), p. 36.⁵⁸⁾

3.              the final decision of the judge will assert a claim to correctness and justifiability,Alexy (n. 47), p. 293.⁵⁹⁾ and

4.              the addressees, as discursive beings, have the right to justification,Klatt (n. 36).⁶⁰⁾

there is a normative argument for the judge to use such a tool that will structure the space of reasons and enhance the transparency, inclusiveness, and general quality of reasoning. As I mentioned elsewhere, the proportionality test (i) brings hidden premises to light, (ii) expresses the relationships between premises, and (iii) demonstrates the need for further (external) justification of premises.Koref (n. 55), p. 1156.⁶¹⁾ The argument from the right to justification is even stronger in cases where interpretation and its methodology provide no assistance or only an indeterminate outcome. In such cases, the proportionality test might even be the only option.

Conclusion

In this essay, I have introduced the monograph Defragmentation of Law as a novel and inspiring approach to counter the fragmentation of national law. Building on the book's main ideas, I have expanded the normative coherentism (as described in the monograph) to support the central argument – the possibility to develop tools for achieving de-fragmentation. In particular, I have proposed to apply the proportionality test beyond constitutional law. Three arguments were introduced to support this claim: the argument from the structure of principles, argument from normative coherentism, and argument from the right to justification.

The analytical argument from the structure of principles was based on Alexy’s principles theory. Private law principles are not optimisation requirements any less than fundamental rights. Thus, should two or more principles of private law apply in a particular case, the proportionality test determines the extent of their application in that specific situation. The argument from normative coherentism aligns with Ondřejek's approach to law, which seeks to reduce fragmentation and strengthen the unity of the legal order. The proportionality test, as a universal and neutral method applicable across different branches of law, contributes significantly to this goal, and should therefore be used even in private law. According to the third argument, proportionality helps to satisfy right to justification and claim to correctness and should therefore be used to meet these requirements applicable in private law decision-making.

In addition to these arguments, I have also shown that the private law proportionality test is already being discussed by number of scholars as well as being used in many jurisdictions, including the United Kingdom, Canada, and Germany. This suggests that the test is a widely accepted method for resolving legal disputes.

In conclusion, I believe that the proportionality test is a valuable tool that should be used in private law. It is a necessary tool for resolving conflicts between competing private law principles, and it is consistent with the normative coherentism of Ondřejek's monograph.