Robert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory and tests it empirically. It argues that Alexy’s reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation 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.
The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, Jamal Greene argued in a provocative article, titled “Rights as Trumps?”, that proportionality should be openly adopted in the U.S. as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the U.S., taking into consideration the populist shift in the U.S. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach, that better serves the purpose of red-lining and the enhancement of the democratic process.
Proportionality analysis (PA) is ever more widely used by national and international courts to balance public goals and/or private rights. Proportionality itself is a frame within which we often think as lawyers. Hitherto, it mostly seen as a rational process of decision-making. But is it? How far does the frame of the PA itself frame the decision-making of (judicial) actors? Do biases and heuristics influence the decision qua the way PA is set up; qua its decision-architecture? The paper aims to shed light on certain features of PA which might, depending how the analysis is conducted, influence the outcome of the decision due to biases and heuristics of the relevant decision-makers. We plan to test several biases and heuristics using experimental methods with German Administrative Judges later in 2020 and will present the Vignettes. This helps to understand the psychology of different decision architectures in order to better understand outcomes.
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.