18 - The criticism on proportionality and a retort

Summary

The scope of the criticism on proportionality

Proportionality is under constant attack. The criticism against proportionality is primarily aimed at its balancing component, proportionality stricto sensu. This balancing has been referred to as “the enfant terrible of modern judging.” The criticism on judicial balancing does indeed abound. The criticism can be divided into two main categories. The first is internal criticism, examining proportionality from within. The second is external criticism, examining proportionality from a larger legal context. Each of these critiques will be referred to individually. This chapter strives to provide a satisfactory retort. In any event – and that, at the end of the day, is the very basis of my replies – the suggested alternatives are no better. In fact, their defects exceed those of proportionality.

The nature of the internal criticism

The internal criticism on proportionality can be described from two separate viewpoints. The first focuses on the lack of standards by which proportionality stricto sensu can be determined; the second focuses on the non-rational nature of the balancing component on which proportionality stricto sensu is based. A closer look, however, reveals that these two viewpoints are, in fact, two different aspects of the same argument. According to this claim, the balancing act – on which proportionality is based – is nothing but a manifestation of intuition and improvisation. It has neither consistency nor coherence. It lacks accuracy. In fact, it is based on a false sense of a scientific method which stems from the unsuccessful use of balancing and weight metaphors. These arguments will be addressed in turn.