Necessity or Balancing: The Protection of Rights under Different Proportionality Tests – Experimental Evidenc

Given the lack of a standard formulation for proportionality analysis, there is a debate over the optimal formulation of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical. This study presents the first experimental analysis of the effects of different subtests of proportionality on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of necessity results in greater protection of rights in policy decisions than does applying proportionality in terms of balancing. The findings suggest that including a necessity component within proportionality, and emphasizing it as a central stage of the analysis, can enhance rights protection in decisions regarding rights-restricting policy.