We analyze theoretically and experimentally how features of proportionality analysis (PA) influence judicial decisions through behavioral effects. Subjects conduct a PA for cases that vary only in their framing, which nudges subjects to either support or oppose the act challenged as disproportional. We contrast three groups: administrative judges, law students, and non-law students. We find clear evidence of framing effects in some (but not all) contexts, as well as some differences between law and non-law students: (i) when the act’s purpose is framed as securing a gain (rather than avoiding a loss), non-law students were likelier to view the act as disproportional; conversely, (ii) when the act was framed as yielding a certain loss (rather than a certain gain), both law and non-law students were likelier to view it as disproportional. Our findings highlight the importance of framing but also the potentially debiasing effect of legal training.
The principle of proportionality is at the core of contemporary constitutional practices within the frame of a “culture of justification”. In this paper, I shall argue that, under certain conception of the principle, porportionality does not provide the conceptual tools for grounding the authority of a court in constitutional adjudication. In this vein, proportionality conceals the authority of courts, by not explaining why their rulings should be followed even when they are mistaken. This feature suggests that the use of the principle of proportionality by courts may be ideological in the sense that it distorts our understanding of our social world.
The paper aims to discuss the essence and the pattern of the principle of proportionality. The principle of proportionality plays a crucial role nowadays in both national constitutional – administrative law and international -european law. The scope of the paper is to suggest a uniform pattern of the principle of proportionality that does bot entail the principle of proportionality stricto sensu. The focal question is how do the courts exercise the proprtionality test. Is it possible to propose to all courts a sungle proportionality test? Before answering this question, the decisions of the ECJ, of the ECHR, the BVERFG and of the Greek Counsil of State will be taken in to consideration and discussed crtitically
Despite overwhelming scholarship on the influence, efficacy, or shortcomings of the proportionality principle, very little is discussed regarding its first subtest, i.e., legitimacy. Cognizant of the immense potential in putting due emphasis on legitimacy of aims pursued & implications such inquiry has on rights & freedoms protections, this paper offers a revisionist account of legitimacy by reconceptualizing conventional proportionality testing. It makes descriptive, critical, and normative contributions based upon a change of perspective that does not center the self-evident value and importance of social goods/interests, i.e., grounds for limitations of rights/freedoms, but rather threats against or opportunities to optimize them. It pinpoints substantive and procedural blind spots resulting abstractions. The normative component forwards possible elements for a new legitimacy test, a switch to which may result in a tighter consideration of subsequent tests & overall better outcomes