It is no coincidence that the modern doctrine of state responsibility bares close resemblance to German public law. In addition to the US–led practice of international arbitration, another early source of state responsibility was the German theorization of international law. German lawyers were grappling with the growing political power of the state and sought to relate these political realities to legal norms. These lawyers were not concerned with alien protection in particular, but with state power in general. They looked at state responsibility through a wide lens – that is, as it relates to the violation of any international obligation. The trajectory of state responsibility within German theory shows a pattern: as the German approach to statehood became abstracted from monarchical conceptions, the idea of responsibility became increasingly possible and robust. These streams of thought shared an assumption about philosophy’s vital role (and arbitration’s minor part) in constructing and legitimating state responsibility.

This chapter argues that, first, the adoption, application, and adaptation of proportionality in Taiwan mirror the nation’s political development from an authoritarian regime to a stable democracy. Second, the TCC has developed its own variant of Proportionality Analysis by concurrently using the tiered-standard of review, applied by the United States Supreme Court, in equal protection cases. In the words of a sitting TCC Justice, proportionality in Taiwan is like a restaurant with a German menu that also serves American dishes. Third, the application of proportionality in Taiwan, particularly the four subtests, is similar to that applied in many other jurisdictions: While the Taiwan Constitutional Court occasionally strikes down legislation for failing the legitimacy, suitability, or balancing sub-tests, most laws are invalidated for failing the necessity subtest. In practice, the Constitutional Court invokes proportionality mostly in the domain of civil and political rights, which is similar to many other apex courts in the world, and it has less frequently used PA to rule against the government in cases concerning socioeconomic rights.

The creation of the Constitutional Court of Korea by the 1987 South Korean Constitution symbolizes a new era of democracy after three decades of military dictatorship in the country. Throughout the thirty years of the Court’s practice, proportionality has been central to its constitutional adjudication. While the structured four-stage doctrine of proportionality was adopted from German public law, this principle has been concretized and deepened through its application by the Constitutional Court. Variations and deviations have emerged in cases involving different types of constitutional rights. The Court uses proportionality to enforce civil-political rights more than socioeconomic rights. Political considerations have also played a role in cases such that the Court has been more deferential to the government, especially on national security issues. The case study of South Korea provides a vivid example of proportionality’s local contextualization and at the same time illustrates the doctrine’s capacity to function as common grammar for rights claims and debates across different segments of society and beyond state borders.