The proportionality test: Its use and application in the jurisprudence of the colombian constitutional court

Abstract

With the entry into force of the Political Constitution of 1991, one of the transcendental changes that took place was the creation of the Colombian Constitutional Court, which was entrusted with guarding the integrity and supremacy of the Constitution through the granting of functional competence to exercise the complex constitutional control in a State. For the exercise of such control, the Constitutional Court and before the new constitutional model provided in the 1991 Constitution, has resorted to what is called neo-constitutionalism, that is, the application of new forms, figures and institutions within constitutional law that allow him to fulfill this function, leaving aside the excessive formalism imposed by the rigorous positivist and exegetical model, to go to control models much more in line with the Social Rule of Law.
Within the so-called neo-constitutionalism, it is worth mentioning the use of the so-called tests by the constitutional courts, and in the case of Colombia, of the Colombian Constitutional Court.
For the present case, the object of study of the investigation focuses on describing and analyzing the figure of one of these, such as the proportionality test, as well as reviewing its use and methodology by the Colombian Constitutional Court, subject which is of great importance to us not only for constitu-tional law, but for everything related to the Colombian legal system. As such, the proportionality test has been one of the hermeneutical methods most used by the Constitutional Court for the exercise of constitutional control, abstract or concrete, in all the subjects of law, that is, in criminal, civil, labor, family, tax, police, disciplinary, etc.
This document focuses on describing and analyzing the proportionality test and its methodology of application by the jurisprudence of the Colombian Constitutional Court, which is developed in two sections, namely: a first section, in which the conceptual framework is described of the propor-tionality test, its definition and origin, and a brief reference to comparative law and a second section, in which the arrival of the principle of proportionality in the Colombian Constitutional Court is described, as well as the methodology of the proportionality test, for finally present some conclusions of the proportionality test in light of the use given by the Colombian Constitutional Court.
of the proportionality test in light of the use given by the Colombian Constitutional Court.