Proportionality and its critique

Since the end of the Second World War, proportionality has been widely received. It is now a part of many a legal system. It is a manifestation of the migration, or transplantation, of laws. This trend has also continued into the beginning of the twenty-first century. Indeed, we now live in the age of proportionality. As balancing is found at proportionality’s foundation we can also say that we live in the age of balancing. However, proportionality is often highly criticized. In particular, the criticism is aimed at the component of proportionality stricto sensu. The latter is based on balancing between conflicting principles. This balancing is contested. Although in our private lives we are constantly balancing between conflicting principles, there are many critics of this balance when it is conducted by the courts and aimed at the review of the law’s constitutionality. This part of the book will examine the various arguments in favor of proportionality and against it, while reviewing some of its possible alternatives. At the examination’s foundation are proportionality stricto sensu and the balancing at its core. The arguments presented here, therefore, apply equally to constitutional and interpretive balancing. I am not of the opinion that proportionality is the only necessary condition, or even a conditio sine qua non, to the existence of a constitutional review. I am not of the opinion that the only rational way to reach a judicial decision is through proportionality. Further, I do not believe that, if we forego the notion of proportionality, the result would be that all constitutional rights would be absolute. Instead, my approach is based on the argument that, of all the options available to ensure human rights in a pluralistic, democratic society, proportionality is the best available option. The approach herein to proportionality, in other words, is a proportional approach.

The emphasis on the need for rational justification

Proportionality – and the act of balancing at its foundation – emphasizes the need to rationally justify a limitation of a constitutionally protected right. It also requires a constant examination of this justification’s existence. It establishes, in effect – to use Mureinik’s term – a “culture of justifications.” Democracy is based on human rights. Any limitation on human rights requires a legal justification. As Justice Ackerman of the Constitutional Court of South Africa has well observed:

Indeed, the theory behind proportionality is not intended to merely categorize a case into a group which solves the problem. Rather, proportionality is aimed at a constant review of the existence of a rational justification for the limitation imposed on the right, while taking into consideration each case’s circumstances.