Kenneth Culp Davis, a leading American academic visiting England in the 1960s, described English judicial review as restricted by an ‘old-fashioned, positivist corset astonishing to one with a background in the American legal system’.

The enthusiastic embracement of proportionality by Greek lawyers has defied the actual practice of judicial review. While proportionality is venerated as a fundamental rights principle, it failed in establishing a new paradigm of rights and judicial review. In order to make sense of proportionality in this context, I propose to take its meaning as a transplant seriously. Nelken observes that, in many cases, legal transfers do not fit an existing social situation, but rather correspond to an imagined local future. This is the case when their goal is social change, namely, when they are commonly perceived by legal actors as legal transplants. In this chapter, I argue that, like other legal transfers in Greek law, proportionality has enjoyed a value in itself, as part of an imported constitutional civilisation. As such, it has been expected to bring about legal and even social change. In other words, proportionality has expressed domestic lawyers’ belief in the possibility of law to act on society, ‘in what is almost a species of sympathetic magic’.

This chapter situates the study within the literature on proportionality and comparative law. Contrary to the dominant universalising rhetoric, I propose to take the differences in the application of proportionality seriously. To do so, I develop a comparative law approach that places these differences within a broader legal cultural context in which they make sense. At the same time, the approach proposed here does not deny the possibility for cross-system influence and convergence, especially in the context of European integration. The comparison of the local meanings of proportionality, I argue, gives valuable information about the legal culture in which proportionality operates and about the mindset of the lawyers who use it.

This chapter traces the spread and evolution of proportionality in Greek public law. Contrary to English and French public law, proportionality met no major resistance in Greece. It emerged in this context during the 1970s and has been applied as a constitutional principle by courts for more than forty years. Greece is one of the rare legal systems where, since 2001, proportionality explicitly enjoys constitutional status. However, a survey of judicial practice nuances this image of success. Soon after the recognition of the constitutional status of proportionality, its application was limited to a manifest error test. Until the late 1990s, proportionality’s application in judicial review was particularly formal. Its function was more important in substantive case law, where it had a content close to equity. Since its constitutional entrenchment, proportionality is a hegemonic method of reasoning in Greek law. However, consensus as to its content has not led to its consistent application in case law.

In this chapter, I argue that the local paths of reception of proportionality by French and English lawyers in the field of the convention are shaped by local patterns of cultural change. In the monist and rationalist French system, proportionality and European human rights standards have been received as already inherent in domestic concepts and methods. In contrast, English dualism and analytical formalism long impeded the application of proportionality as a human rights principle in common law cases. Differences in domestic lawyers’ reactions to proportionality affect the ways in which proportionality deploys its acculturation dynamic in the field of convention rights. In France, the institutional/procedural aspect of proportionality has generally been neglected by domestic lawyers. The employment of proportionality as a European standard in judicial reasoning is residual and accomplishes a rather symbolic function. Since its reception under the HRA, on the contrary, proportionality has systematically served the fulfilment of the UK’s international obligations. Proportionality as a European principle generates an important cultural shift in English public law.

European integration is in crisis. Paradoxically, disintegration seems to be a transnational tendency. While one cannot say that proportionality bears the dynamics of disintegration itself, relevant tendencies affect its form and function in different settings. This chapter offers a particular reading of proportionality cases that have provoked much discussion among French, English and Greek legal actors. I argue that what is new about these cases is not so much the application of proportionality itself, which follows already existing local patterns characterising the reception and the evolution of proportionality. Rather, it is the particular context of disintegration in which proportionality operates. Indeed, what is observed in these much debated uses of proportionality is a rupture in the traditional local patterns of Europeanisation.

No book on administrative law could sensibly omit an account of executive law-making, least of all one that purports to deal with the functions of law in the administration. Executive law-making falls within the purview of administrative law merely by virtue of being made by the executive; it is something that government does. The subject is rarely studied in much detail, however.

In this chapter, I argue that proportionality has represented a fusion of substance and form that is strange to the game-like nature of the common law. It has embodied a method of review, and a way of legal thinking more generally, situated in diametrical opposition to Diceyan analytical positivism. Precisely due to its anti-Diceyan meaning, proportionality has been promoted as a principle that could establish coherence in English public law through the recognition of minimum substantive values. By using proportionality language, English lawyers have sought a little bit of myth and ritual in judicial review. Hence, the spread of proportionality in English public law should be read against the background of the rise of common law constitutionalism. In this respect, the HRA officialised and enhanced more subtle and progressive cultural transformations. The spill-over dynamic of proportionality expresses the continuing search for rationalism and myth in the ongoing construction of English public law.

As every student of government should know, the administrative process is shaped not only by executive and legislature but also by courts. This chapter focuses on the judicial contribution in the form of procedural review, classically associated with the two Latin tags: audi alteram partem (hear the other side) and nemo iudex in causa sua (no one a judge in his own cause). Suitably hallowed, even hackneyed, the precept that ‘justice must not only be done but be seen to be done’ is of the essence of the rule of law. Ridge v. Baldwin famously ushered in a more vigorous concept of procedural fairness in the context of the extended administrative state (see p. XXX above). Running alongside the rise of managerialism and marketisation and latterly austerity, the development has picked up pace in the last few decades with successive and overlapping forms of groundbreaking intervention.