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.

When writing the first edition of this book the procedural bent of judicial review in England and Wales could scarcely be exaggerated. The model of rationality, and more specifically what may be termed ‘process review’ on the basis that the decision has been reached in the wrong way, went in tandem with natural justice or procedural fairness. The Wednesbury umbrella of legal factors bearing on the exercise of administrative discretion and centred on purpose and relevancy thus lay at the heart of doctrinal analysis. Conceptually speaking at one with the traditional distinction between appeal and review, a distinctive and restricted focus on process rather than substance reflected and reinforced a more restrained judicial role than is currently fashionable.

Lawyers tend to focus on procedural conceptions of administrative justice as the provision of appropriate machinery to arbitrate disputes between individuals and the state. This limited interpretation – what Creyke calls its ‘minimum meaning’ – is natural, since lawyers tend to see administrative law through the lens of the practitioner, whose function it is to provide legal redress for clients. A common starting point for a study of administrative justice is very much this perspective: a ‘top down’ view, in which courts retain the important prescriptive and standard-setting functions that many see as its core function and tribunals offer a less costly alternative to courts.

This chapter provides a comparative study of the application of proportionality by English and Greek judges in the field of EC market freedoms. It shows that both English and Greek judges have assumed their mission of juges communautaires de droit commun. Despite this appearance of convergence, I argue, the reception of proportionality follows local patterns of cultural change and local knowledge practices, which affect local lawyers’ possibilities to resist to the process of European integration, as well as their capacity shape this process. Common law pragmatism has allowed English courts to frame normative conflicts between domestic and EC law. When proportionality and the effet utile of EC market freedoms entered into conflict with fundamental constitutional principles of the common law, English judges have occasionally objected to their application. By way of contrast, the perception of law as science has not allowed Greek lawyers to frame normative conflicts between domestic and EC law. Proportionality as a European science has engineered important constitutional change and has considerably compromised the normativity of the Greek Constitution.