Search

This article examines the application of proportionality in Chinese administrative litigation over the last two decades and argues that courts in administrative litigation that serve the party-state and tend to uphold state/collective interest have altered proportionality to be state-centric. It finds that the courts invoked proportionality in a negligible portion of all administrative litigation judgments and had inadequate emphases on protecting individual rights. Proportionality has not appreciably assisted the courts in enhancing their oversight of governmental power and protection of individual rights. This article suggests that this is attributable to the restricted function of administrative litigation in China's party-state governance structure and owing to the country's long-held belief that public interest takes precedence over individual rights. Administrative litigation, which China's ruling party employs to resolve principal–agent issues, is seriously constrained. The courts are expected to review the formal legality of executive actions, but not their substance. Informed by the Chinese human rights belief, which favors collectivism over individualism, the courts are skewed toward public interest in the balancing analysis when applying proportionality. [ABSTRACT FROM AUTHOR]

The necessity test is one of the steps of the proportionality test. However, in the literature on the subject, written both by supporters as well as by critics of proportionality, the role of the necessity test has been frequently downplayed, sometimes plainly ignored. The spotlight has always been on balancing. This article shows that proportionality is not just about balancing, and that the necessity test has a much more important role to play than has been acknowledged so far. Its strengths are emphasized, especially its connection to politics, knowledge from other areas, time, and technological development. The article argues that shedding the appropriate light on these strengths has important implications for several ongoing debates around the proportionality test. [ABSTRACT FROM AUTHOR]

Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application 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 specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test—whether there are less restrictive means—results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test—balancing the benefit against the harm. The findings suggest that including a necessity component within the proportionality doctrine, and emphasizing it as a central stage of the analysis, can enhance the protection of rights in decisions regarding rights-restricting policy. [ABSTRACT FROM AUTHOR]

After a survey of the proportionality principle and its discontents (irrationality, conceptual flaws, and bias), this article addresses the dual remedy proposed by proportionality critics, which consists in: (i) skipping the first to third prongs of the proportionality analysis (legitimate objective, suitability, and necessity) and (2) concentrating on balancing in the metric form of a cost-benefit analysis. I argue that discarding the three prongs, and thus abandoning the asymmetrical structure of the sequential proportionality analysis, would kill off the specific quality and function of rights which is to constitute a special protection that triggers the obligation to explain and justify interference. Although recent empirical studies have demonstrated that the proportionality test indeed does not deliver predictable legal outcomes, a simple cost-benefit analysis is worse. It would not secure more reliable outcomes either but only offers a sham-rationality. Assigning numbers to the goods and interests at stake cannot replace the work of a multidimensional assessment and argumentative explanation in natural language which is needed for making not only a sound, but also a transparent and thus contestable, decision. What legal life needs is a culture of justification, not a culture of calculation. [ABSTRACT FROM AUTHOR]

In this article, we analyze Yun-chien Chang and Xin Dai's proposal for replacing the proportionality test with cost-benefit analysis in their article "The Limited Usefulness of the Proportionality Principle." We assess this proposal by considering the objections generally raised against the proportionality test. We claim that such objections also apply to cost-benefit analysis, thus raising concerns about its adequacy for rights adjudication. [ABSTRACT FROM AUTHOR]

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making, because it is, in essence, an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures, as a result, may fail to pass the test of proportionality analysis. Second, representative of legal scholars' efforts to theorize proportionality, the German theorist Robert Alexy's influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy's weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing. [ABSTRACT FROM AUTHOR]

In a highly controversial decision, the German Federal Constitutional Court (FCC) decided that the Public Sector Purchase Program (PSPP) of the European Central Bank (ECB) was ultra vires because it violated the principle of proportionality. The FCC took a procedural approach to proportionality, finding that the ECB had failed to substantiate its balancing assessment. Therefore, the Court considered itself unable to review whether PSPP was substantively proportionate, but announced that it might do so in a future case. The judgment raises the fundamental question of how courts should review monetary policy. The article begins by exploring the role of central banks between independence and accountability. Then, it analyzes, in three steps, what role the principle of proportionality should play in the realm of monetary policy. First, I argue that a traditional substantive balancing test as part of proportionality review is not applicable to monetary policy decisions and highlight the pitfalls of the FCC's approach. Second, I claim that the imposed procedural "duty to substantiate" is not suitable to promote the democratic accountability of the ECB. Third, I contend that, therefore, the PSPP ruling creates an impetus for strengthening the ECB's supranational accountability. I suggest that improving the monetary dialogue with the EU Parliament and establishing a comprehensive transparency regime for the ECB could further this goal. Ultimately, I propose that a narrow reading of the PSPP ruling could reconcile the current conflict between the FCC and the ECB and still provide a sufficient level of judicial accountability for the ECB's monetary policy-making. [ABSTRACT FROM AUTHOR]

Aharon Barak and I agree on many questions of proportionality analysis. But there are also points of disagreement. One point concerns the relation between constitutional rights and proportionality. Barak argues that my connection between constitutional rights and proportionality is too narrow. The connection I defend implies that proportionality has effects at the constitutional level. In contrast to this, Barak defends the thesis that proportionality only operates at the sub-constitutional level. In this article, I attempt to show that proportionality, already at the constitutional level, must have effects. Naturally, these constitutional effects have, in turn, effects at the sub-constitutional level. [ABSTRACT FROM AUTHOR]

This article is a critique of the legal reasoning of the Court of Justice of the European Union (CJEU) in its free movement case law, which relies mainly on the principle of proportionality. The Court initially presents free movement cases as involving fundamental clashes between conflicting considerations of the highest order, most often between market freedoms and non-economic interests (including the preservation of the competences of member states, fundamental rights, national policies and EU-wide values), and thus frames its role as that of a balance--a truly Herculean task. However, the Court does not actually solve these cases by balancing. Instead, it (implicitly) resorts to an alternative, technocratic framework, through which it reduces the cases to technical issues of pure fact and, on the basis of Pareto efficiency, limits itself to weeding out objectively superfluous regulations. The reasoning of the Court is thus characterized by a certain form of bathos: it abruptly and radically shifts from a Herculean balancing of values framework to a seemingly innocuous and purely factual review of Pareto efficiency. It ambitiously, and yet awkwardly, combines an exalted appeal to values with the objectivity and irresistible innocuousness of efficiency review. It is nevertheless doubtful whether the Court's argumentative structure is at all persuasive: value statements are reduced to declamatory devices of no operational importance, while the Court's recourse to Pareto efficiency only serves to hide the (obviously) controversial implications of its free-movement case law. [ABSTRACT FROM AUTHOR]

The role of proportionality in the jurisprudence surrounding social rights during times of economic crisis is the subject of this stimulating exchange between Contiades, Fotiadou and myself. Contiades and Fotiadou persist in maintaining that proportionality is a doctrine that can in fact serve to give content to social rights. In this brief rejoinder, I seek to show why conceptually proportionality cannot perform the role they suggest it can; why their approach significantly weakens social rights and their status as fundamental rights; and, through an example drawn from the recent economic crisis in Europe, demonstrate why judicial practice in fact supports the role I contend proportionality should have. [ABSTRACT FROM AUTHOR]

In his interesting criticism of our article, “Social Rights in the Age of Proportionality,” David Bilchitz rejects the potential of proportionality to give content to social rights. Proportionality is perceived as a “formal test . . . that helps decision-makers reach determinations as to the circumstances in which it is permissible to limit rights,” which “only works where we have a preexisting understanding of the content of particular rights and the weight to be accorded to them.” This preexisting content idea is central to the author’s argumentation, being considered a precondition for the examination of necessity and stricto sensu proportionality as well as for the dialogical approach, which he thus also rejects as a content-creating device. His criticism will be addressed at two interrelated levels. First, we will examine whether the conceptualization of proportionality and its relation to the content of rights employed by Bilchitz is theoretically sound; and, second, we will check whether the financial crisis experience so far offers arguments for or against his position. We shall argue that the author, embracing an outdated understanding of both proportionality and rights, agonizes to find ways of protecting social rights in the context of the current financial crisis in a manner quite detached from the emerging legislative and jurisprudential reality. Failure to take into account recent narratives of proportionality and ignoring the new facets of the doctrine explains his objections. [ABSTRACT FROM AUTHOR]

This paper seeks to address and develop the conceptual framework for dealing with socio-economic rights in times of economic crisis. Section 2 explores a peculiar but important conceptual feature of socio-economic rights, namely, the fact that they generally only give rise to positive obligations in circumstances in which individuals are unable to provide for their own needs. After distinguishing three different notions of crisis, I reach the conclusion that socio-economic rights do not lose their application in times of crisis: indeed, it is in these circumstances that they often become most important. In Section 3, I consider the legal doctrines that are most likely to render these rights meaningful in these difficult circumstances. First, a variety of negative obligations persist at times of crisis and, importantly, can result in a duty on the part of private parties to compensate for harms they cause. Second, the minimum core approach is best placed to provide the doctrinal basis necessary to give effect to the state’s positive obligations with its emphasis on prioritization, clear standards, and accountability. Finally, I counter the argument recently raised by two authors in this journal that the doctrine of proportionality can provide content to social rights in times of crisis. Proportionality cannot conceptually provide content to rights and, rather, requires, for its very coherence, supplementation by a doctrine of content. Correctly used, it provides a structured test to determine the justifiability of any limitations the government places on its socio-economic rights obligations in times of crisis. [ABSTRACT FROM AUTHOR]

According to the case law of the European Court of Human Rights, interferences with rights protected by the European Convention on Human Rights can only be accepted if there is a proportionate relationship between the interference and its legitimate objectives, that is, if they are “necessary in a democratic society.” The Court has given shape to this test by developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons. However, these standards appear to be rather vague, and the Court’s case law on the test of “necessity” lacks transparence. For that reason, this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law. The article focuses on the use the Court might make of two particular elements of this test, that is, the test of suitability and the least-restrictive-means test. If applied correctly, the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning. [ABSTRACT FROM PUBLISHER]

While the principle of proportionality has been the most important doctrinal tool in constitutional rights law around the world for decades, constitutional theorists have only recently begun to develop theoretical accounts of it. Even more recently, a few scholars have come forward with critiques of the doctrine’s usefulness, in particular with regard to its assumed failure to adequately address the moral issues and the assumed impossibility or impressionistic nature of balancing. This paper examines the arguments of the critics and concludes that they have failed to make a convincing case against proportionality. [ABSTRACT FROM PUBLISHER]

Referring to the recent debate between Stavros Tsakyrakis and Madhav Khosla, this article highlights several important aspects of the proportionality test. It analyzes the relation between proportionality and the rights as trumps model, defending a weak trump model which combines the ideas of trumping and balancing. Furthermore, it demonstrates the proper place of moral considerations in proportionality analysis, and rejects the objection of incommensurability. Other arguments discussed in detail are the view that balancing boils down to mere mathematical calculation, and the problem of definitional generosity. In the last section, the authors examine the European Court of Human Rights’ decision in Otto-Preminger-Institut v. Austria. Overall, the article defends the view that proportionality is a rational and indispensable part of rights reasoning. [ABSTRACT FROM PUBLISHER]

The article discusses the origin of balancing and proportionality in constitutional law in the U.S. and Germany.

A response to a letter to the editor concerning the proportionality in law which was addressed in the Israeli Supreme Court decision in "Public Committee Against Torture in Israel" is presented.

A letter to the editor in response to the article by Stavros Tsakyrakis concerning the role of proportionality in court decisions which is considered an assault to human rights.

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes. [ABSTRACT FROM AUTHOR]