Published online by Cambridge University Press: 06 June 2012
This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.
3 Ibid 582. (‘Having a right does not confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply a position that entitles him/her to prevail over countervailing considerations of policy.’)
5 See, e.g. Sweet, Alec Stone and Mathews, Jud, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72, 160Google Scholar; Barak, Aharon, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, Cambridge, 2012).CrossRefGoogle Scholar
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7 Stone Sweet and Mathews (n 5) 160. The authors base this conclusion on the observation that ‘By the end of the 1990s, virtually every effective system of constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets of proportionality analysis.’ Ibid 74.
8 See, e.g. Cohen-Eliya, Moshe and Porat, Iddo, ‘Proportionality and the Culture of Justification’ (2011) 59 American Journal of Comparative Law 463–90CrossRefGoogle Scholar; Kumm, Mattias, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law and Ethics of Human Rights 141–57.CrossRefGoogle Scholar
9 Cover, Robert, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 48Google Scholar. Since the state is often involved as a party in constitutional conflict seeking court permission to override individual rights, Cover’s mention of ‘state law’ is best understood as referring to the ‘law of the state’. My emphasis on interpretation here tracks Cover’s, insofar as it is an emphasis on constitutional (as a form of legal) interpretation. For an argument about law’s ‘homicidal potential’, by contrast—or, perhaps, in relation to—its jurispathic dimension, see Cover, Robert, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601.CrossRefGoogle Scholar
10 The formulation is Rousseau’s. See Rousseau, Jean-Jacques, The Social Contract  (Penguin, London, 1968)Google ScholarBook I, ch 7.
11 ‘Private’ should not be interpreted as ‘individual’ but as ‘non-official’. It includes the government’s constitutional interpretation seeking protection of its state interests.
12 I should note that Cover’s own substantive position about the possibility of justification is far more sceptical than the position presented in this article. For more on this difference, see (n 17).
13 See e.g. Pogge, Thomas, Politics as Usual (Polity Press, Cambridge, 2010)Google Scholar (defining as a feature of democracy ‘the moral imperative that political institutions should maximize and equalize citizens’ability to shape the social context in which they live’.) 200.
14 I discuss the duty of responsiveness in Perju, Vlad, ‘Cosmopolitanism and Constitutional Self-Government’ (2010) 8 International Journal of Constitutional Law 326–53CrossRefGoogle Scholar. For now I should only mention that I don’t understand ‘responsiveness’as a purely procedural value. For such an approach, see the analysis in Michelman, Frank, ‘Must Constitutional Democracy be ‘‘Responsive’’?’ (1997) 107 Ethics 706–23CrossRefGoogle Scholar (reviewing and analysing the procedural conception of democratic responsiveness in Robert Post’s Constitutional Domains).
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17 There are limits inherent in the process of justification. Robert Cover refers to them as tragic limits in the common meaning that can be achieved in justifying the social organization of legal violence. See Cover, Robert, ‘Violence and the Word’ 95 Yale Law Journal (1986) 1601, 1628–9.CrossRefGoogle Scholar
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19 Beatty (n 1) 169. Kumm argues that proportionality marks the shift from interpretation to justification: ‘The proportionality test merely provides a structure for the demonstrable justification of an act in terms of reasons that are appropriate in a liberal democracy. Or to put it another way: it provides a structure for the justification of an act in terms of public reason’, in Mattias Kumm (n 8) 150. However, it is important to incorporate in a theory of proportionality the perspective of the right-holder himself. From that perspective, proportionality remains a method of interpretation. As I argue in the third and fourth sections, a virtue of proportionality is that it can integrate both perspectives.
20 For a discussion of available explanations, see Cohen-Eliya and Porat (n 8) 467–74.
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34 Howe, , ‘Foreword: Political Theory and the Nature of Liberty’ (1953) 67 Harvard Law Review 91CrossRefGoogle Scholar (‘Government must recognize that it is not the sole possessor of sovereignty, and that private groups within the community are entitled to lead their own free lives and exercise within the area of their competence an authority so effective as to justify labeling it a sovereign immunity.’).
35 For this interpretation of the early abortion cases, see Tribe, Laurence, ‘Structural Due Process’ (1975) 10 Harvard Civil Rights-Civil Liberties Law Review 269.Google Scholar
36 District of Columbia v. Heller 554 U.S. 570 (2008).
37 See Abigail Alliance for Better Access to Experimental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007), cert. denied mem., 128 S.Ct. 1069 (2008).
38 The scheme can be ‘the very product of [substantive] interest-balancing’. 128 S. Ct. 2783 at 2821 (Scalia, J)
39 Fried (n 28) 769. The right to free speech is a second-order reason about how the constitution allocates decision-making power within the spheres of authority that it carves out.
40 Walzer, Michael, ‘Liberalism and the Art of Separation’ (1984) 12 Political Theory 315–30CrossRefGoogle Scholar, 315. Walzer continues: ‘The art of separation is not an illusory or fantastic enterprise; it is a morally and politically necessary adaptation to the complexities of modern life. Liberal theory reflects and reinforces a long-term process of social differentiation.’
41 Habermas (n 16) 257.
42 Dworkin, Ronald, Taking Rights Seriously, (Harvard University Press, Cambridge, MA, 1977) 269.Google Scholar
43 Ibid 277.
45 Martti Koskenniemi (n 27) 502. (‘To put it simply and, I fear, through a banality it may not deserve, the message is that there must be limits to the exercise of power, that those who are in positions of strength must be accountable and that those who are weak must be heard and protected, and that when professional men and women engage in an argument about what is lawful and what is not, they are engaged in a politics that imagines the possibility of a community overriding particular alliances and preferences and allowing a meaningful distinction between lawful constraint and the application of naked power.’)
46 For a discussion, see generally Stephen Gardbaum, ‘Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 785 (discussing ‘internal limits’ on rights).
47 At the same time, as the example of the American constitutional culture shows, the constant reaffirmation through public discourse of the deontological conception of rights in a Doric culture of liberty can be a successful self-fulfilling prophecy. For a critical discussion of the broader cultural implications of this deontological approach to rights in the US context, see Glendon, Mary-Ann, Rights Talk: The Impoverishment of Political Discourse (Free Press, New York, 1991).Google Scholar
48 Koskenniemi (n 27) 501. (‘Formalism seeks to persuade the protagonists (lawyers, decisionmakers) to take a momentary distance from their preferences and to enter a terrain where these preferences should be justified, instead of taken for granted, by reference to standards that are independent from their particular positions or interests.’)
49 Young, Iris Marion, Justice and the Politics of Difference (Princeton University Press, Princeton, 1990) 100.Google Scholar
50 Minow, Martha, ‘Interpreting Rights: An Essay for Robert Cover’ 96 Yale Law Journal 1860CrossRefGoogle Scholar, 1877 (‘legal positivism or objectivity that implies an authoritative basis or foundation beyond current human choices’). See also Minow, Martha and Spelman, Elizabeth, ‘In Context’ (1990) 63 Southern California Law Review 1597.Google Scholar
51 Harvey, David, Cosmopolitanism and the Geographies of Freedom (Columbia University Press, New York, 2009) 140.Google Scholar
52 Wells, Catharine, ‘Situated Decisionmaking’ 63 Southern California Law Review (1990) 1727, 1728Google Scholar
53 Resnik, Judith, ‘On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges’, (1988) 61 Southern California Law Review 1877Google Scholar, 1935. The Ionic architectural order itself was associated with the feminine gender. See Hearn (n 23) 110.
54 Catharine Wells (n 52) 1734 (‘Understanding a controversy … requires that it be experienced from several different perspectives as a developing drama that moves towards its own unique resolution.’).
56 The legal recognition of interests is of course not unidirectional. Some interests do not pre-exist legal norms; they are, rather, a consequence of their creation. The expectation that a benefit-granting statutory scheme will not be discontinued absent change in circumstances may give rise to interests that cannot logically precede the adoption of that scheme. See Goldberg v. Kelly, 397 U.S. 254 (1970).
57 Beatty (n 1) 171. (‘When rights are factored into an analysis organized around the principle of proportionality, they have no special force as trumps. They are just rhetorical flourish.’)
58 Mattias Kumm (n 2) 582. (‘Having a right does not confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply a position that entitles him/her to prevail over countervailing considerations of policy.’)
59 The outcome of balancing can be stated in the form of a legal rule. See Alexy, Robert, A Theory of Constitutional Rights (Oxford University Press, New York, 2002) 56Google Scholar (‘The result of every correct balancing of constitutional rights can be formulated in terms of a derivative constitutional rights norm in the form of a rule under which the case can be subsumed.’).
60 Currie, David P, The Constitution of the Federal Republic of Germany (University of Chicago Press, Chicago, 1994) 181.Google Scholar
61 Alexy (n 59) 57. It is of course possible to devise categorical protections within the model of rights as substantive reasons. As Kumm reminds us, certain types of reasons—say, religious reasons for introducing prayer in public schools—are categorically excluded from the comparative weighting of interests in proportionality analysis. See Kumm (n 2) 591.
62 Scalia, J in Heller 128 S. Ct. at 2821.
63 Rights can also alter the time-horizon in which that process unfolds. For instance, rights can be part of the ongoing interaction between the right-holder and social institutions over time. Martha Minow writes: ‘A claimant asserts a right and thereby secures the attention of the community through the procedures the community has designated for hearing such claims. The legal authority responds, and though this response is temporary and of limited scope, it provides the occasion for the next claim. Legal rights, then, should be understood as the language of a continuing process rather than the fixed rules. Rights discourse reaches temporary resting points from which new claims can be made. Rights, in this sense, are not ‘‘trumps’’ but the language we use to try to persuade others to let us win this round.’ See Martha Minow (n 50) 1875–6 (footnotes omitted).
64 Judith Resnik (n 53) 1935. (‘Rather than bemoan ... a switch in roles, feminism teaches us to celebrate such rearrangements, to require judges to let others judge them. Such moments might better enable judges to be empathetic, to adopt the perspective of the other, to enter into the experience of the courtroom unprotected by their special status. Judge as witness can thus be understood as a profound challenge to a stable hierarchy, as a subversive act to be applauded.’).
65 128 S. Ct. 2850 (Breyer, J, dissenting).
66 Contrasting balancing to rule-based categorical reasoning, Kathleen Sullivan has defended balancing on precisely this ground: ‘rules lose vitality unless their reason for existing is reiterated’, in Sullivan, Kathleen, ‘Post-Liberal Judging: The Roles of Categorization and Balancing’ (1992) 63 University of Colorado Law Review 293, 309 (footnotes omitted).Google Scholar
67 Sales and Hooper (n 24) 428.
68 I use here Alexy’s standard ‘balancing’ formula: ‘[t]he greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other’ (n 59) 102.
69 Disch, Lisa Jane, Hannah Arendt and the Limits of Philosophy (Cornell University Press, Ithaca, 1994) 162.Google Scholar
70 Arendt, Hannah, Lectures on Kant’s Political Philosophy (University of Chicago Press, Chicago, 1989) 42.Google Scholar
71 I borrow this classification (absolute, relative, relational spaces) from David Harvey (n 51), although I should point out that my use does not completely track Harvey’s. For more on relational space, see Lefebvre, Henri, The Production of Space (Blackwell, Oxford, 1991).Google Scholar
72 This phrase is Amartya Sen’s. Sen argues for conception of objectivity that is positional-dependent and person-independent. Observations and beliefs are objective if any subject could reproduce them when placed in a position similar to that of the initial observer. The challenge then becomes how to define the position-dependent. See Sen, Amartya, ‘Positional Objectivity’ 22 Philosophy and Public Affairs (1993) 126–45.Google Scholar
73 See Gardbaum (n 46).
74 Grimm (n 55) 397.
75 The idea is also to avoid the twin risk of what the South African Constitutional Court called the ‘mechanical adherence to a sequential check-list,’ S Manamela, 2000 (3) SA 1 (CC) 20 (cited in Gardbaum (n 46) 841).
76 For an example of such analysis in American constitutional law, see United States v. Virginia, 518 U.S. 515 (1996).
77 See Grimm (n 55) 388. Canadian courts initially tried to impose a higher threshold on the government by asking that the governmental objective be ‘pressing and substantial’ (Barak, Aharon, ‘Proportional Effect: The Israeli Experience’, 57 University of Toronto Law Journal 369, 371 (2007)CrossRefGoogle Scholar concern or ‘sufficiently important to justify overriding a Charter [constitutionally protected] right’. See Barak ibid 371 (quoting Hogg, Peter, Constitutional Law of Canada, (student edn, Carswell, Toronto, 2005) 823Google Scholar. Over time however, as the other steps in the analysis have become more substantial, even Canadian courts have begun to defer more and more to the legislature. See generally Choudhry, Sujit, ‘So What Is the Real Legacy of Oakes?’ (2006) 34 Supreme Court Law Review (2d) 501).Google Scholar
78 Some advocates of proportionality—including judges writing extra-judicially—have argued for a more incisive judicial involvement at this stage. President Barak has expressed doubts about the wisdom of deferring to the legislator. See Aharon Barak ibid 371 (‘Despite the centrality of the object component, no statute in Israel has been annulled merely because of the lack of a proper object [or purpose]. A similar approach exists in German constitutional law … This is regrettable. The object component should be given an independent and central role in examining constitutionality, without linking it solely with the means for realizing it. Indeed, not every object is proper from the constitutional perspective. This is not the expression of a lack of confidence in the legislature; rather it is the expression of the status of human rights.’) (footnotes omitted).
79 See Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel) at § 9.
80 The assumption, as Dieter Grimm put it, is that: ‘It is rarely the case that a legal measure affects a fundamental right altogether. Usually, only a certain aspect of a right is affected … The same is true for the good in whose interest the right is restricted. Rarely is one measure apt to give full protection to a certain good.’ Grimm (n 55) 396.
82 In the context of freedom of religion, if judges may break the institutional shell of a right, then they may look for the ‘core’ of the free exercise right in the beating heart of the belief and practice of a religious experience, but this is a notoriously sticky enterprise. ‘It is no more appropriate for judges to determine the ‘‘centrality’’ of religious beliefs before applying a ‘‘compelling interest’’ test in the free exercise field, than it would be for them to determine the ‘‘importance’’ of ideas before applying the ‘‘compelling interest’’ test in the free speech field.’ Employment Division, Dept of Human Resources v. Smith, 485 U.S. 660 (1988). See also Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel) (Judge Englard) (deciding whether Jewish burial societies, which customarily administered cemeteries throughout the country, had the right to prevent family members from inscribing on the deceased’s tombstone her birth and death dates according to the standard Gregorian calendar as well as the Hebrew calendar).
83 For these reasons, the distinction between core and periphery raises more questions than it answers. See also, Rivers, Julian, ‘Proportionality and Variable Intensity of Review’ 65 Cambridge Law Journal 174–207CrossRefGoogle Scholar, 187 (‘The problem with the ‘‘very essence’’ of a right is that it is almost impossible to define it usefully without reference to competing public interests.’).
84 554 U.S. 570 (2008).
85 To be specific, the constitutional provision in the South African Interim Constitution followed the essentialist paradigm of the German style. The Court’s discussion of its shortcomings can be found in S. v. Makwanyane (1995) (3) SALR 391 (CC), para 132 (‘The difficulty of interpretation arises from the uncertainty as to what the ‘‘essential content’’ of a right is, and how it is to be determined. Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way?’).
86 Robert Cover (n 9).
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88 The Supreme Court delivers final statements of legal validity. The common reference is to Justice Jackson’s statement: ‘We are not final because we are infallible, but we are infallible only because we are final’, Brown v Allen 344 US 443, 540 (1953) (Jackson J, concurring). See Alexander, Larry and Schauer, Frederick, ‘On Extrajudicial Constitutional Interpretation’ (1997) 110 Harvard Law Review 1359.CrossRefGoogle Scholar
89 I use the idea of ‘legal imaginary’ by analogy with Charles Taylor’s conception of the social imaginary, in Taylor, Charles, Modern Social Imaginaries (Duke University Press, Durham, NC, 2007)Google Scholar. Taylor defined the social imaginary as ‘a largely unstructured and inarticulate understanding of our whole situation ... an implicit map of the social space’. (25)
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96 Stone Sweet and Mathews (n 5) 88, 89. The authors see this feature as part of proportionality’s strategic dimension.
97 Beatty (n 1) 172.
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100 As Hannah Arendt wrote referring to judgment in general, ‘impartiality is obtained by taking the standpoints of others into account: impartiality is not the result of some higher standpoint that would then settle the dispute by being above the melée.’ Hannah Arendt (n 70) 42.
101 Arendt (n 98) 57–8.
102 Arendt (n 70) 105–6.
103 See generally Paulo Barrozo, ‘Law as Moral Imagination: The Great Alliance and the Future of Law’ (unpublished dissertation, Harvard University, 2009) (on file with Harvard Law Library).
104 Arendt (n 70) 43.
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107 Emphasis on representation of others in judicial reasoning, in the best understanding of the Doric or any of the other styles, is not meant to replace or supplement political representation. The disreputable history of such an approach is told in Koskenniemi, Martti, ‘Legal Cosmopolitanism: Tom Franck’s Messianic World’ (2003) 35 New York University Journal of International Law and Politics 471.Google Scholar
108 Elaine Scarry (n 105) 106 (my emphasis).
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118 Judicial decisions, like all acts of state authority, are coercive acts. And ‘any coercive act in a liberal democracy has to be conceivable as a collective judgment of reason about what justice and good policy require.’ See Mattias Kumm (n 8) 157.
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121 Disch (n 69) 158.
122 Arendt (n 70) 42.
123 Hannah Arendt, ‘Truth and Politics’, cited in Ronald Beiner, ‘Interpretative Essay’, in Arendt (n 70) 107.
124 Disch (n 69) 168.
125 Arendt, ‘On the nature of totalitarianism: An essay in understanding’ (quoted in Lisa Disch (n 69) 157) (‘Only imagination is capable of what we know as ‘‘putting things in their proper distance’’ and which actually means that we should be strong enough to remove those which are too close until we can see and understand them without bias and prejudice, strong enough to bridge the abysses of remoteness until we can see and understand those that are too far away as though they were our own affairs. This removing some things and bridging the abysses to others is part of the interminable dialogue for whose purpose direct experience establishes too immediate and too close a contact and mere knowledge erects an artificial barrier.’)
126 Disch (n 69) 162. Arendt goes on. As she describes it: ‘form an opinion by considering a given issue from different viewpoints, by making present in my mind the standpoints of those who are absent: I represent them. … The more people’s standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and valid my final conclusions, my opinions.’ Arendt (n 70) ‘Interpretative essay’ 107.
127 Waldron, Jeremy, ‘Kant’s Legal Positivism’ (1996) 109 Harvard Law Review 1535Google Scholar, 1540 (‘law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law’s function to supersede.’)
128 This argument has been made in the related context of the American rejection of the use of foreign law in constitutional interpretation. See Michelman, Frank, ‘Integrity-Anxiety?’ in Ignatieff, Michael (ed), American Exceptionalism and Human Rights (Princeton University Press, Princeton, 2005).Google Scholar
129 For such an argument, see Cohen-Eliya and Porat (n 8) 487–90.
130 Reflecting on the public space of politics, Arendt wrote that ‘Whenever people come together, the world thrusts itself between them, and it is in this in-between space that all human affairs are conducted’ in Arendt, Hannah, ‘Introduction into Politics’ in, Kohn, Jerome (ed) The Promise of Politics (Schocken, New York, 2005) 106.Google Scholar