Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice (Cambridge University Press 2020)

Proportionality is one of the most important global constitutional principles of our time, yet there has been nearly no systematic research on the actual application of the doctrine in judicial practice. The research angle of most publications on proportionality is normative in nature, evaluating the virtues and vices of the doctrine as the framework for constitutional judicial review. Although the normative literature is often speckled with assumptions about how proportionality functions, these are not empirically grounded and little is actually known about “proportionality in action”. Moreover, despite the fact that proportionality is applied by courts across the globe, surprisingly little comparative analysis has been done regarding the differences and similarities in when and how the doctrine is applied in various countries, and the ramifications of these differences.

In Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice, we set out to create one of the first empirical and comparative explorations of the proportionality principle in constitutional adjudication across jurisdictions. It provides a detailed account of proportionality in action in six jurisdictions, written and contextualized by constitutional scholars from each of the relevant jurisdictions (Andrej Lang on Germany, Lorian Hardcastle on Canada, Richard Stacey on South Africa, Talya Steiner on Israel, Anna Śledzińska-Simon Poland, and Aparna Chandra on India).

The book provides an empirically grounded, doctrinally thorough, descriptive account of the diverse practices of proportionality in action by the apex court in each of those six countries. The detailed, complex picture that emerges provides an opportunity to challenge some of the prevalent assumptions about proportionality, carries the potential to enrich the normative debate over proportionality and offers a fresh basis for arguments regarding the optimal model of applying the doctrine.

There are various challenges involved in undertaking the analysis of the judicial practice of proportionality across jurisdictions. For example, the language of proportionality tends to be abstract and, as a result, highly diverse judicial practices can be subsumed under the doctrine, requiring verification of “whether we are even comparing the same thing”. This creates a tension between localized sensitivity in the analysis on the one hand and comparability of the analysis to allow for meaningful comparison on the other hand. In addition, a common phenomenon in the legal discourse on proportionality is that few canonical judicial decisions of a particular apex court are taken for granted as representatives of the entire proportionality practice of that court.

One of the major innovations in the book is in the methodology we designed to meet these challenges and enable an empirical and comparative exploration of the proportionality doctrine. We chose to base the analysis on a combination of quantitative and qualitative elements. While quantitative measures enhance comparability and enable systematic comparative analysis, qualitative analysis remains essential for providing background needed to understand and interpret quantitative  indicators and to allow for  meaningful engagement with the substance of the decisions so as to capture the rich context of the application of proportionality.

Our quantitative analysis was based on a systematic coding of a large sample of proportionality-based decisions. In each country, a case law database was created by the authors of the country chapters of approximately 100 cases applying the proportionality framework. The cases were selected based on a case-by-case evaluation of all cases handed down in the relevant time frame to locate those that fulfil the criteria of applying the proportionality framework.

The specific time frame sampled was tailored to the individual country, contingent upon the overall volume of court decisions. Courts with a low annual volume (the apex courts in Canada and South Africa) required the coding of a longer time frame to reach a large sample and could encompass all cases in which the principle of proportionality was applied since the adoption of the proportionality framework in 1986 and 1995, respectively. Apex courts with a high annual volume, namely, those in Israel, India, Germany, and Poland, needed a shorter time span (between 4 and 18 years), leading to a focus on the more recent period.

The cases in each country database were coded according to several variables, including the rights limited in the proportionality cases; the contested measures to which proportionality is applied; the final outcomes of the analysis at each stage and of the proportionality analysis overall; the frequency of termination of the analysis after failure as opposed to continuation of the analysis; and the frequency of skipping stages. The main focus of the quantitative comparative analysis was on the function of the internal multi-stage mechanism of the doctrine, i.e., the relationship and division of labour between the subtests.

Based on the quantitative findings, the qualitative research dimension involved a detailed doctrinal and hermeneutical analysis of the selected proportionality case law. The qualitative analysis followed a detailed questionnaire, resulting in a common structure for all the country chapters, constructed for maximum comparability on main issues across the six countries included in this book. Because little systematic comparative work has been conducted on proportionality and considering the uncharted nature of the field, we adopted an exploratory research design involving a broad investigation of the characteristics of proportionality as applied rather than focusing on one particular research question or hypothesis.

Each of the country-based chapters includes an overview of the structure of proportionality analysis in that jurisdiction, the sequential or non-sequential character of the tests, the roles of the different subtests, and the interplay among them. The chapters then go through each of the stages of limitation analysis, beginning with establishing an infringement of a constitutional right, proceeding through requirements prior to proportionality analysis, and finally addressing the four stages of proportionality – worthy purpose, suitability, necessity, and strict proportionality.

The analysis includes the ways in which courts establish the purpose of the policy, how they deal with multiple purposes and what purposes they consider to be worthy, the extent to which the courts evaluate alternatives and their methods of conducting such evaluations, the level of incorporation of fact-finding and evidence into the framework, the allocation of the burden of proof at each stage, and how the courts act when the factual circumstances are unclear. In sum, each individual country chapter presents one of the most thorough and empirically grounded analyses of the constitutional practice of proportionality in that jurisdiction, at times exposing gaps between the accepted scholarly view and the actual practice of proportionality in that country.

The book concludes with a comparative chapter that brings together some of the most interesting findings that emerge from the chapters overall, addressing both recurring themes and patterns and points of difference. In particular, the final chapter confronts two central attributes of the proportionality doctrine in the theoretical literature – the sequential structure of the analysis and the conception of a single dominant element – with the empirical and comparative findings.

Proportionality is conventionally portrayed as a structured, sequential doctrine. It comprises a number of different stages, worthy purpose, suitability, necessity, and strict proportionality, each posing a specific, defined question, that together amount to all the required conditions for justifying a limitation of rights. A court conducting proportionality analysis proceeds, in order, from one question to the next, and ends the analysis of each stage with a binary outcome: the measure either passes or fails the test. The analysis continues to the next test only if the previous step has been successfully passed. As a consequence, the final stage of strict proportionality – the apex of the analysis – is reached only once a measure has successfully passed all previous stages; a measure that has failed any of the previous tests is by definition unconstitutional and therefore no further discussion is needed.

In addition, a significant portion of the theoretical literature on proportionality either explicitly or implicitly portrays it as relying primarily on a single dominant element  – either the necessity test or the strict proportionality test. In the traditional portrayal, the two opening tests – worthy purpose and suitability – are easily passed threshold stages that do not contribute significantly to determining the outcome of the analysis.

However, we find in our research from a descriptive standpoint that a majority of the courts analysed demonstrate a tendency towards what we term an integrative approach to proportionality, in contrast to the traditional, strictly sequential approach. The integrative approach diverges from the sequential model in several ways, including flexibility in whether to end each stage of analysis with a clear positive or negative outcome, a tendency not to terminate the analysis after failure, and a greater sharing of responsibility among the stages of the analysis in which the first two stages have a more significant role in the case-law, rather than having a single dominant stage. From a normative standpoint, we argue that the integrative approach has several advantages over the strictly sequential approach and should therefore be embraced and applied more deliberately and consistently. This is because the rationality and analytical virtue of proportionality analysis lie precisely in the fact that it consists of interconnected tests that require asking different questions, all of which are relevant in determining whether a rights infringement is justified or not.

Naturally, the book was written before the Covid-19 outbreak, however we believe that the advantages of the integrative model of proportionality we point out are relevant also to the arduous task of judicial review of the emergency measures adopted in the fights against the spread of the virus.  Given the potentially devastating effects of Covid-19, the need for governments to act promptly and the high-degree of uncertainty surrounding it, courts should of course be wary of overturning restrictions designed to contain the spread of the virus. At the same time, many of the extremely rights-restricting measures were passed under immense time pressure and without due consideration of their effects on rights. An application of the proportionality doctrine that emphasizes the single dominant element of the final balancing test – in this case between human life against other fundamental rights restrictions – will typically result in the clear favor of the former, leaving judicial review as a quite meaningless endeavor, lacking significant contribution in these times.

In contrast, an integrative application of the proportionality doctrine that increases judicial engagement with all stages of the doctrine can sharpen the reasoning and strengthen the soundness of the final outcome of the analysis. A meaningful proportionality analysis requires – especially during the Covid-19 pandemic – carefully probing the government’s justification and asking significant questions about the policy’s rationale and design such as what are the specific purposes pursued by the scrutinized measure, how probable is it that the measure will actually achieve its purpose, on what evidentiary basis and prognosis does the government rely, and has the government seriously considered less intrusive alternatives, including policies from other jurisdictions. Only this type of inquiry demonstrates to the executive what kind of answers are to be expected from them over time in order to justify prolonged extreme limitations and what directions are worth pursuing in order to test the ability to minimize the limitations imposed on rights.

Posted by Andrej Lang (Senior Researcher, Chair for Public Law, European Law and International Economic Law, Martin Luther University Halle-Wittenberg, Germany; Research Fellow, The Israel Democracy Institute);  Talya Steiner (Ph.D. candidate, Hebrew University Law School, Israel; Manager, ‘Proportionality in Public Policy’ project, The Israel Democracy Institute, Israel) and Mordechai Kremnitzer (Senior Fellow, The Israel Democracy Institute, Israel).

This book is the result of six years of research. The research, conducted as one strand of the ‘Proportionality in Public Policy’ project from 2013 to 2019 (the other two strands consist in i) a descriptive policy research deepening the understanding of the processes through which policy that limits rights is initiated, shaped and approved and ii) a behavioural perspective examining decisions made in the context of conflicts between rights and competing interests), was funded by the European Research Council under the European Union’s Seventh Framework Programme (FP7/2007–2013), grant no. 324182. The project was based at the Israel Democracy Institute and was headed by Professor Mordechai Kremnitzer.

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