Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-23T21:21:37.116Z Has data issue: false hasContentIssue false
  • English
  • Français

Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’

Published online by Cambridge University Press:  20 July 2015

Francisco J. Urbina
Get access

Extract

The proportionality test is the subject of much debate, both in academia and in the legal community. In a recent article, Kai Möller presents a powerful defence of proportionality in reply to objections made against it. The reply is premised on a distinct account of proportionality, which has become prominent in recent writings of proponents of this test, and which is different from other more traditional accounts. Here I aim to clarify this change in the understanding of proportionality, its importance for the proportionality debate, and to offer a critique of it. This version of proportionality would sacrifice many important features of the rule of law, and, crucially, it would offer no guidance to judges, thus diminishing the likelihood of judges arriving at a reasonable solution to the case and fulfilling important values at stake in legal adjudication.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 1 , January 2014 , pp. 167 - 192
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2014 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. For this particular formulation of the four prongs see R v Oakes [1986] 1 SCR 103 at paras 60-70Google Scholar and Webber, Grégoire, The Negotiable Constitution: On the Limitation of Rights (Cambridge: Cambridge University Press, 2009) at 71–72 CrossRefGoogle Scholar. Rivers expresses more precisely the fourth prong of the test: ‘Does the act represent a net gain, when the reduction in enjoyment of rights is weighed against the level of realization of the aim?’ Rivers, Julian, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge LJ 174 at 181CrossRefGoogle Scholar.

2. The most important and complete statement of the objections against proportionality in human rights adjudication is Webber, supra note 1. See also Webber, Grégoire, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) 23 Can JL & Jur 179 Google Scholar. An important paper is also Tsakyrakis, Stavros, ‘Proportionality: An assault on human rights?’ (2009) 7 Int’l J Const L 468 Google Scholar. Kai Möller, whose defence of proportionality I criticize here, and who attempts to overcome mainly Webber’s and Tsakyrakis’ criticism, engages in his paper with the objections I mention above, though his formulation of the objections is somewhat different. Though not much depends on my argument or his stating the objections more or less precisely, I chose to restate them as precisely as I can for the sake of clarity. Below I mention directly Möller’s engagement with the objections as he presents them (see text accompanying n 38-42 and 77-82).

3. Webber, supra note 1 at 89.

4. A complete account of the use of proportionality worldwide can be found in Barak, Aharon, Proportionality: Constitutional Rights and Their Limitations (Cambridge: Cambridge University Press, 2012) at ch 7CrossRefGoogle Scholar; See also Sweet, Alec Stone & Mathews, Jud, ‘Proportionality, Balancing and Global Constitutionalism’ (2008) 47 Colum J Transnat’l L 72 at 97-152Google Scholar.

5. Even when the formulation of the specific parts of the test vary according to jurisdictions. See Grimm, Dieter, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 UTLJ 383 at 387-95CrossRefGoogle Scholar.

6. Möller, Kai, ‘Proportionality: Challenging the Critics’ (2012) 10 Int’l J Const L 709 at 710Google Scholar.

7. See ibid at 710-11.

8. Cf ibid at 711. The distinction is hinted at in Panaccio, Charles-Maxime, ‘In Defence of Two-Step Balancing and Proportionality in Rights Adjudication’ (2011) 24 Can JL & Jur 109 at 119, 128 n 62Google Scholar.

9. The distinction between the moral and the technical perspective is different from Dworkin’s famous distinction between the dimensions of ft and justification in interpretation. See Dworkin, Ronald, Law’s Empire (Cambridge: Belknap Press of Harvard University Press, 1986) at ch 7Google Scholar, especially at 255 ff. The distinction between moral and technical perspective offers two distinct criteria for evaluating institutions and technical doctrinal categories. It is aimed at improving our understanding and evaluation of the legal materials that Dworkinean interpretation must ‘ft’.

10. See the concept of determinatio in Finnis, John, Natural Law and Natural Rights, 2d ed (Oxford: Oxford University Press, 2011) 284-90Google Scholar.

11. Similarly, Rivers talks about the “optimization conception of proportionality” in Rivers, supra note 1 at 176-82, though it is not clear to me if he would distinguish it, and to what degree, from what I bellow call “proportionality as unconstrained moral reasoning”.

12. See Alexy, Robert, A Theory of Constitutional Rights, translated by Rivers, Julian (Oxford: Oxford University Press 2002)Google Scholar (first published in German in 1986). Beatty, David, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004)CrossRefGoogle Scholar. I have explained in greater detail how Alexy and Beatty’s theories rely on the maximization logic in Urbina, Francisco J, ‘A Critique of Proportionality’ (2012) 57 Am J Juris 49 at 52-54.Google Scholar

13. Tsakyrakis, supra note 2 at 474; Webber supra note 1 at 90-91.

14. This is stressed in Klatt and Meister’s version of the test, which essentially follows Alexy’s theory. See Klatt, Matthias & Meister, Moritz, ‘Proportionality—a benefit to human rights? Remarks on the I•CON controversy’ (2012) 10 Int’l J Const L 687 at 692.Google Scholar

15. See Beatty, supra note 12 at 166, and the careful review of Beatty’s thesis in Jackson, Vicky C, ‘Being Proportional About Proportionality’ (2004) 21 Const Commentary 803 at 819-25Google Scholar.

16. See Webber, supra note 1 at 89-100. A defence of balancing against the incommensurability objection can be seen in Alfonso, Virgilio Silva, Da, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision’ (2011) 31 Oxford J Legal Stud 273 Google Scholar. For a reply, see Urbina, supra note 12 at 56-57.

17. See Tsakyrakis, supra note 2 at 490; and Urbina, supra note 12 at 57-62.

18. See Tsakyrakis, supra note 2 at 488; and Jackson supra note 15 at 828.

19. I have argued against conceiving rights as values in Urbina, supra note 12 at 62-66.

20. Klatt and Meister provide a more sophisticated account of the maximization account of proportionality, which aims to avoid the objections. See Klatt, Matthias & Meister, Moritz, The Constitutional Structure of Proportionality (Oxford: Oxford University Press, 2012).CrossRefGoogle Scholar

21. Möller, supra note 6 at 715.

22. Ibid.

23. Ibid at 715-16.

24. Ibid at 717.

25. Ibid.

26. Ibid at 721.

27. Cohen-Eliya, Moshe & Porat, Iddo, ‘Proportionality and the Culture of Justification’ (2011) 59 Am J Comp L 463 at 479Google Scholar.

28. Ibid at 474.

29. Ibid at 490; see also Cohen-Eliya, Moshe & Porat, Iddo, Proportionality and Constitutional Culture (Cambridge: Cambridge University Press, 2013) at 120.CrossRefGoogle Scholar

30. Cohen-Eliya & Porat, supra note 27 at 475.

31. I have engaged with Kumm’s account of proportionality in Urbina, supra note 12 at 74-80.

32. Kumm, Mattias, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Hum Rts 142 at 147Google Scholar.

33. Ibid at 150.

34. Ibid at 146.

35. Ibid at 142.

36. For other instances where this version of proportionality is at work, see Barak, supra note 4 at 489-500; Schlink, Bernhard, ‘Open Justice in a Closed Legal System?’ Symposium, Closed Systems and Open Justice: The Legal Sociology of Niklas Luhmann (1991) 13 Cardozo L Rev 1713 at 1717-18Google Scholar and Panaccio, supra note 8 at 119-20, and at 128.

37. Möller, supra note 6 at 715.

38. Ibid at 716-18.

39. Ibid at 718.

40. Ibid at 719-24. Though one may call this ‘weak commensuration’ (see Waldron, Jeremy, ‘Fake Incommensurability: A Response to Professor Schauer’ (1993) 45 Hastings LJ 813 at 815-18Google Scholar). Regardless of the terminology, it is a different kind of method from the quantitative and maximizing one at which the incommensurability objection is aimed.

41. Ibid at 724-27.

42. Ibid at 727-30.

43. See ibid at 710-11, 718, 722, and 728. For a similar argumentative strategy see Khosla, Madhav, ‘Proportionality: An assault on human rights? A reply’ (2010) 8 Intn’l J Const L 298 at 302-06Google Scholar.

44. This section follows, with some changes, my treatment of the subject in Urbina, supra note 12 at 67-72.

45. See Webber, Grégoire, ‘Rights and the Rule of Law in the Balance’ (2013) 129 Law Q Rev 399 at 416Google Scholar.

46. On an analysis of courts’ epistemic advantages and disadvantages, see Vermeule, Adrian, Law and the Limits of Reason (New York: Oxford University Press, 2008)CrossRefGoogle Scholar. On the problem of institutional capacities see Sunstein, Cass & Vermeule, Adrian, ‘Interpretation and Institutions’ (2003) 101 Mich L Rev 885.CrossRefGoogle Scholar

47. What I have to say on the benefits of legally directed adjudication does not depend on (nor do I see it as being in tension with) any of the contesting views on the debate regarding whether there is normally one right answer to hard cases.

48. Endicott, Timothy, ‘Legal Interpretation’ in Marmor, Andrei, ed, The Routledge Companion to Philosophy of Law (New York: Routledge, 2012) 109 at 110Google Scholar.

49. I have illustrated some of these negative effects in Urbina, supra note 12 at 72-74.

50. See Möller, supra note 6 at 728 (in relation to objection 6)) and 718 (in relation to objection 5) and 7), though in addressing the latter objection Möller’s does not have in view so much a wrong judicial decision but more generally the conception of proportionality of “a specific author”).

51. As Möller acknowledges in ibid at 727-28.

52. Aleinikoff notes that courts that balance claim to be assessing all the relevant interests, but they seldom do, leaving out of their reasoning the interests of one or more persons. Aleinikoff, Alexander, ‘Constitutional Law in the Age of Balancing’ (1986) 96 Yale LJ 943 at 977CrossRefGoogle Scholar.

53. Möller, supra note 6 at 726. See also Möller, Kai, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012) at 179.CrossRefGoogle Scholar

54. See Kumm, supra note 32 at 144, quoted in Möller, supra note 6 at 726.

55. Möller, supra note 6 at 727 [emphasis in original].

56. Ibid.

57. Kumm, supra note 32 at 142.

58. This claim is challenged in Webber, supra note 1 at ch 4; and Finnis, John, “Human Rights and Their Enforcement” in Human Rights and the Common Good: The Collected Essays of John Finnis Volume III (Oxford: Oxford University Press, 2011) 19 at 40CrossRefGoogle Scholar. For a response to these challenges, see Panaccio, supra note 8 at 115-17.

59. Webber, supra note 45 at 411.

60. See Möller, supra note 6 at 725 and Kumm, supra note 32 at 159.

61. For examples of rival positions see Sandel, Michael, Public Philosophy: Essays on Morality in Politics (Cambridge: Harvard University Press, 2005) at ch 23Google Scholar, and Raz, Joseph, The Morality of Freedom (Oxford: Oxford University Press, 1986) part II.Google Scholar

62. See, for example, Handyside v United Kingdom (1976) 1 EHRR 737 para 52Google Scholar. Particularly in some cases where the law requires considering the well being of children, it seems somehow unavoidable for legal reasoning to include some understanding of what constitutes a good life. For a recent example, see Re G (Children) [2012] EWCA Civ 1233 at para 29: “Very recently, Herring and Foster have argued persuasively […] that behind a judicial determinations of welfare there lies an essentially Aristotelian notion of the ‘good life’. [The notion of the good life] can include such things as the cultivation of virtues and the achievement of worthwhile goals, and all the other aims which parents routinely seek to inculcate in their children.” (Munby L J).

63. Rawls, John, Justice as Fairness: A Restatement (Cambridge: Belknap Press of Harvard University Press, 2001) at 91.Google Scholar

64. See Rawls’ example of what he considers an argument “clearly cast in the form of public reason” against “a decision to grant a right to abortion” in Rawls, John, Political Liberalism (New York: Columbia University Press, paperback ed, 2005) at liv, n 32Google Scholar.

65. Ibid at liv-lv.

66. Möller, supra note 6 at 714.

67. Ibid.

68. Möller, supra note 53 at 196.

69. Möller, supra note 6 at 714 and supra note 53 at 194-95.

70. Möller, supra note 53 at 196: “The proper way to handle such a situation must be to assess all possible policies relative to each other.”

71. Möller, supra note 6 at 716.

72. Ibid at 717.

73. Odievre v France (2004) 38 EHRR 43 Google Scholar, quoted in Möller supra note 6 at 717.

74. Ibid at 717 [emphasis added].

75. Ibid at 727.

76. Ibid at 727-28.

77. Ibid at 727.

78. Ibid at 728.

79. Ibid.

80. Ibid at 729.

81. See supra note 74.

82. Ibid at 729.

83. See Tsakyrakis, supra note 2 at 493.