Comparative and Empirical Insights into Judicial Practice: Towards an Integrative Model of Proportionality

The paper presents an empirical and comparative exploration of proportionality, based on its application by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The paper finds that the judicial practice deviates significantly from prevailing conceptions of proportionality in the normative literature. It demonstrates that courts often use the different stages of proportionality in an integrative manner to reach an overall judgement. We offer some potential causes for the gravitation of courts towards such an integrative model, tying it to the debatable nature of proportionality decisions and the institutional sensitivities courts face when conducting constitutional review. This integrative use of proportionality is desirable from a normative point of view if it is applied in a way that meaningfully engages with each stage of the analysis as it best reflects the role of courts in ensuring that rights are limited only when limitation is justified.