Three Aspects of Proportionality

7/25/2019 Three Aspects of Proportionality

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Au tho r' s perm iss io n

THREE ASPECTS OF PROPORTIONALITY

MARGIT COHN,HEBREW UNIVERSITY OF JERUSALEM*

PAPER PRESENTED AT THE VIIIWORLD CONGRESS

OF THE INTERNATIONAL ASSOCIATION OF CONSTITUTIONAL LAW,

MEXICO CITY

WORKSHOP 9:PROPORTIONALITY AS A PRINCIPLE

WEDNESDAY,8DECEMBER 2010

INTRODUCTION

The spread of proportionality (Verhltnismigkeit) across the Western world has, in the words

of Stone-Sweet and Mathews, two of the many participants in the discussion, attained a viral

quality.1Indeed, proportionality has become a central element of the new constitutionalism,

spreading across all parts of Europe and beyond.2Originating in Prussian case-law, the Post

World War II German jurisprudence granted it a central place in its constitutional law.3As one

commentator of German law submits, the principle is now applied as an independent andperhaps the most important and extensive umbrella ground for examining the validity of

administrative actions.4Proportionality may have a European pedigree, but it has since bred

across oceans and legal families, rendering it one of the few public law doctrines that have

* Senior Lecturer, Faculty of Law and Federmann School of Public Policy, Hebrew University of Jerusalem.1 Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J.

TRANSNATL L. 72, 74, 112 andpassim(2008).2 See, e.g., DAVID M. BEATTY, THE ULTIMATE RULE OF LAW ch. 5 (2004); Vicki Jackson, Being Proportional about

Proportionality , 21 CONST.COMMENT. 803 (2004); Stone-Sweet & Mathews, ibid.; Moshe Cohen-Eliya & Iddo Porat,American Balancing and German Proportionality: The Historical Origins, 8 I.CON 263, 263-64 (2010) (hereinafter,American Balancing); Moshe Cohen-Eliya & Iddo Porat, Proportionality and the Culture of Justification,forthcoming, AM. J. COMP. L. (2010) (hereinafter, proportionality and justification); AHARON BARAK,PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS (2010) (in Hebrew) (hereinafter, BARAK,PROPORTIONALITY). For a general analysis of the principle in the administrative law of European Member States, seeJRGEN SCHWARZE,EUROPEAN ADMINISTRATIVE LAW680-702 (revised 1st ed., 2006).

3 For recent overviews in English of the German genealogy, see Dieter Grimm, Proportionality in Canadian andGerman Constitutional Law, 57 U. Toronto L.J. 383, 384-87; Stone Sweet & Mathews, supranote 2, 97-111; Cohen-Eliya & Porat,American Balancing , supranote 2, at 271-75; BARAK,PROPORTIONALITY , supranote 2, 228-231.


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attained virtual universality.5Focusing on the legal systems to be compared in the last part of

this paper, the doctrine was adopted by Canadian, Israeli, Zimbabwean and British highest

courts through interpretation of limitation clauses which are part of their respective

constitutions or statutes carrying a constitutional content (the Canadian Charter, Israels two

1992 Basic Laws protecting human rights, the Zimbabwean constitution and the European

Convention of Human Rights, as introduced in British domestic law through the Human Rights

Act). Ironically, perhaps, the term proportionality does not appear, as such, in the

constitutional documents later found to enshrine the doctrine; the judges have usually provided

the required link. Yet to question the importance of proportionality in judicial decision-making

would be in direct contradiction with the now-established tradition of most Western

judiciaries. It would seem that only the United States remains reticent to adopt the doctrine as a

distinct form of reasoning.6

Just recently, Professor Aharon Barak has published his much expected tome on

proportionality, which is likely to become, once translated, the definitive work on the doctrine

in its constitutional context. Much of the debate over proportionality can be found and

analyzed there, available for now only to readers of Hebrew. My contribution will touch only

on three elements: the strategic elements of proportionality formulae, the tensions involved in

the migration of these formulae across borders and legal families, and the nature of

proportionality as a reasoning device.

In the first part, I consider the formulas developed for the application of the ground of

proportionality. Often, discussants do not grant much attention to the distinction between a

legal doctrine or concept and the formula developed by judges to flesh out open-ended

concepts. This is evident in the proportionality literature: any overview of the doctrine turns as

a matter of course to the proportionality tests adopted judicially. Extending the debate to

4 MAHENDRA P.SINGH,GERMAN ADMINISTRATIVE LAW IN COMMON LAW PERSPECTIVE160 (2d. ed. 2001).5 For a comparative analysis that reaches to South Korea, South America and Eastern Europe, in addition to most

Western states, seeBARAK,PROPORTIONALITY , supranote 2, 232-261; see alsosources cited supra note 1 & 2. Forproportionality in Internat ional law see, e.g., Yuval Shany & Amichai Cohen, A Development of Modest Proportions,5 J. INTL CRIM.JUSTICE310, 311-12 (2007); YUVAL SHANY,THE PRINCIPLE OF PROPORTIONALITY IN INTERNATIONALLAW(2009, in Hebrew); and sources cited therein. See also President Baraks analysis in HCJ 2056/04 Beit SourikVillage Council v. Government of Israel [2004] Isr.L.R. 264, at 293-95; BARAK,PROPORTIONALITY, ibid., 250-256.

6 However, some studies of United States focus on proportionality decision-making; see, e.g., E. THOMAS SULLIVAN &RICHARD S.FRASE,PROPORTIONALITY PRINCIPLES IN AMERICAN LAW:CONTROLLING EXCESSIVE GOVERNMENT ACTIONS(2009).


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European law, two dominant formulae emerge: the three-pronged formula, which emigrated

from Germany to many systems, and a less detailed test in which benefits are considered

against utilities.

Once the distinction between a doctrine and a formula is made, attention can be granted

to the strategic benefits of the creation and retention of detailed formulae. Being an open-

ended concept concerned with the content of an act, proportionality may be applied in sensitive

and contested areas, and will necessitate at least some form of value-judgment. As such, its use

poses dangers to judges just as it grants them legitimacy to act beyond the more limited

grounds of legality. The application of a formal test or formula carries strategic benefits for the

judge, as it enables judges to distance themselves from the question they are required to decide

and present their decision as an objective, mechanical decision. Thus, the attraction of the

three-pronged formula across systems may lie not only in its explanatory force, but also in its

complexity and seemingly neutral nature.

In the next part, I discuss the migration of the three-pronged formula, arguing that

transplantation may be discrete or may involve transformation; such transplant modes may

reflect the tension between global and local forces. The Canadian and British examples

analyzed in this part offer two examples of a way in which these tensions are resolved.

Finally, I offer comments on the nature of proportionality reasoning. Proportionality is

usually viewed as an example of a broader form of reasoning, that of balancing and weighing.Reaching dominance, if not taking over the entire discourse, proportionality-as-balancing is

viewed as a tool that empowers judges to weigh competing socially valuable rights and

interests and decide which should trump. Yet proportionality is also a consequence-oriented

reasoning. Reliance on the principle requires the decider to consider two scenarios, two

alternative future consequences of either the retention of the challenged measure or its

invalidation, and to decide which of these consequences is preferred.

I. THE FORMALIZATION OF THE PROPORTIONALITY DOCTRINE


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Analyses of legal doctrines often neglect a basic distinction between the doctrines themselves,

which tend to be open-ended and malleable, and formulae that flesh out these concepts. A

formula is distinct from the doctrine it serves; it operates as a template for its application. 7By

the term formula, I refer to a criterion or a set of criteria, designed as an objective test, which

is sufficiently established to be recognized as the basis for regular assessment of the

applicability of a legal concept or doctrine. Formulae achieve their status through subsequent

usage and consistent reliance. They need not be universally applied, but to retain the status of a

formula, they should be generally recognized as the accepted mechanism for the application of

the concept they embody. The Baker v. Carr six criteria used for a decision over the

justiciability of an application is one example,8 as are the levels of scrutiny tests formed in

Carolene Products.9 It would seem that the proportionality doctrine is most afflicted by the

insufficient attention to this distinction; most, if not all, analyses of proportionality assume

without question that proportionality is identical to its elements, or several well-known

stages or subtests.10

No student of constitutional law outside the United States can remain ignorant of these

subtests. In its current form, the formula created by German courts comprises three subtests or

limbs. First, the measure must be suitable for the achievement of the aim pursued. Secondly,

no other milder means could have been employed to achieve that aim (a necessity test).

Finally, under a proportionality stricto sensu test, a type of cost-benefit analysis is required;for the measure to be upheld, the benefit at large must outweigh the injury to the implicated

individual.11Other systems have followed (see Table 1).

Table 1

7 For the distinction and further analysis see Margit Cohn, Form, Formula and Constitutional Ethos: The PoliticalQuestion/Justiciability Doctrine in Three Common Law Systems, forthcoming, AM.J.COMP.L. (2011).

8 Baker v. Carr, 369 U.S. 691 (1962).9 United States v. Carolene Products Co., 304 U.S. 144 (1938).10 For example, Barak analyzes the proportionality doctrine as composed of several elements, known to all as the stages

of the three-pronged formula (BARAK,PROPORTIONALITY , supranote 2, Chapters 9-12 and elsewhere).


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Three-Pronged Proportionality Formulae Prototypes: A Comparison12

Germany Canada Israel Zimbabwe

Ascertaining thepurpose/objective

1. Sufficiently importantobjective: the law must

pursue an objective that is

sufficiently important tojustify limiting a charterrights

Decidingwhether a righthad been

breached

Proportionalitysub-test 1

1. Suitability 2. Rational connection: thelaw must be rationallyconnected to the objective

1. Rational connection:the law must berationally connected tothe objective

1. A legislativeobjective that issufficiently importantto justify the limitingof a fundamentalright

Proportionality

sub-test 2

2. Necessity 3. Least drastic means: the

law must impair the rightno more than is necessaryto accomplish theobjective

2. Least drastic means:

the law must impair theright no more than isnecessary toaccomplish theobjective

2. A rational

connection foundbetween the measuresand the legislativeobjective

Proportionalitysub-test 3

3. Proportionality/appropriateness (andsynonyms)

4. Proportionate effect: thelaw must not have adisproportionately severeeffect on the persons towhom it applies

3. Proportionalitystrictu sensu: the lawmust not have adisproportionatelysevere effect on the

persons to whom itapplies

3. The impairment ofthe right or freedomis no more thannecessary toaccomplish theobjective.

It is clear that all the above formulae are not materially different. The first Canadian sub-test is

implicit in the German jurisprudence, and the next sub-tests are more than reminiscent of the

German sub-tests. While the Zimbabwe formula has undergone a change, it remains faithful to

the earlier tests and to the magic number three. Israels first adoption of proportionality

emphatically cited Canadian jurisprudence, and further reached out to other sources, as

discussed below.

11 See, e.g.,HARTMUT MAURER,ALLGEMAINES VERWALTUNGSRECHT, 250-51 (16th ed. 2006); SCHWARZE, supranote 2,at 685-92; Singh, id., at 160-67.

12 These common formulations are presented, e.g., in PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA, Fifth ed.Supplements (2007), Vol. II, 38-18; MAURER, supranote 11, at 250-51, and, in English, Sabine Michalowski & LornaWoods, German Constitutional Law: The Protection of Civil Liberties, 83-84. For a comparative analysis seeGrimm,supranote 3. For the ground-breaking decisions in the common law systems see R. v. Oakes [1986] 1 S.C.R. 103; CA6821/93 United Mizrachi Bank v. Migdal, P.D. 49(4) 221(Hebrew); Nyambirai v. National Social Security Authority[1996] 1 L.R.C. 168, 1995 (9) BCLR 1221 (ZS)).


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However, this type of formula is not essential to the development of a robust

proportionality doctrine. Proportionality is also a tenet of European Union law, and a second

prototype of formula can be found here. Now that the Treaty of Lisbon has been ratified, the

principle of proportionality is proclaimed one of the central principles of European law,

established not only in a new article on these principles but also in a designated Protocol

treating the principles of conferral, subsidiarity, and proportionality.13 The review powers

granted by the treaties to the European Court of Justice14thus require judicial consideration of

whether the necessity condition was met. But the courts recognition of the principle of

proportionality has not been based solely on textual reasoning. The principle was recognized

early on as one of the general principles of law deriving from the rule of law, which directs

the Union and its Member States in the making and application of European lawlong before

the entry into force of the Treaty of Lisbon.15

13 Under Article 3b(1) of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing theEuropean Community (Official Journal of the European Union 2007/C 306/01, December 13, 2007), [t]he use ofUnion competences is governed by the principles of subsidiarity and proportionality; Article 3b(4) proclaims thatthe content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties;and the protocol on the application of the principles of subsidiarity and proportionality, requiring national andEuropean legislatures to consider both principles in the process of legislation. For a link to the text of the treaty, see http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML. Proportionality was central even prior tothe Lisbon treaty. The European Union Founding Treaties (the Treaty Establishing the European Community (theTreaty of Rome) and the Treaty on European Union (the Maastricht treaty)) were interpreted as subjecting Member

States and Community institutions to the rules of necessity and proportionality. Provisions in the Treaty of Romeinclude Article 42 (empowering the Council to adopt measures in the field of social security as are necessary toprovide freedom of movement for workers); Article 120 (empowering Member States to take, in case of a suddencrisis in the balance of payments, take precautionary necessary protective measures that must cause the least possibledisturbance in the functioning of the common market and must not be wider in scope than is strictly necessary toremedy the sudden difficulties). Under Article 5, Member States were required to take all general or particularmeasures which are appropriate for ensuring the carrying out of the obligations arising out of this Treaty or resultingfrom the acts of the institutions of the Community, but this version is not considered as embodying the principle. butthese were not considered as establishing a general principle of proportionality. Since 1993, upon entry into force ofthe Maastricht amendments, Article 5 of the Treaty of Rome requires that [a]ny action by the Community shall notgo beyond what is necessary to achieve the objectives of this Treaty. See, e.g., Francis G. Jacobs, Recent

Developments in the Principle of Proportionality in European Community Law, in THE PRINCIPLE OFPROPORTIONALITY IN THE LAWS OF EUROPE, (Evelyn Ellis ed., 1999), at 1, 2 (at the early stage of the Treaties, thiscould not have been more than a perfunctory acknowledgement of existing case law). Other provisions in theMaastricht Treaty includeArticle 13(3) (empowering the Council to take the decisions necessary for defining and

implementing the common foreign and security policy); and Article 14(6) (empowering Member States to take thenecessary measures when joint actions are not deemed suitable to changing conditions and in the absence of aCouncil decision on the matter, in cases of imperative needs).

14 These include the power to review the legality of acts made by Community institutions, to decide upon one MemberStates challenge against another Member State, to decide upon Member States challenge to inaction of Communityinstitutions, and to give preliminary rulings regarding the interpretation of all types of legal measures made by theCommunity (usually required when such a measure is challenged or relied upon in a domestic court).

15 See, e.g., Case 8/55 Federation Charbonniere de Belgique v. High Authority of the European Coal and SteelCommunity [1954-1956] E.C.R. 292, 298 (in accordance with a generally-accepted rule of law such [a measure]must be in proportion to the scale of that action); Case 4/73 Nold v. Commission of the European Communities


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Proportionality also plays a role in the application of the European Convention of Human

Rights, which entered into force in 1953. The Convention recognizes and protects a series of

human rights and creates an institutional structure for their protection. Several convention

Articles require, among other conditions allowing interference with a right, that the

interference be necessary in a democratic society and be applied for the promotion of

defined interests.16Other provisions in the Convention subject state action to general necessity

conditions, sometimes under a stricter requirement such as absolutely necessary.17 The

European Court of Human Rights has interpreted all such provisions as embodying a

proportionality requirement.18

The two main European fora have developed distinct proportionality formulae. The ECJ

tends to apply two formulae, both similar to the three-pronged German test. The first follows

the German contours,19although the ECJ has denied direct emulation of domestic laws and at

[1974] E.C.J. 491, 512-513); Case 107/63 Toepfer v. Commission of the European Economic Community [1965]E.C.R. 405, 427; Case 11/70 Internationale Handelsgesellschaft MBH v. Einfuhr- und Vorratsstelle fur Getreide undFuttermittel. For literature, see SCHWARZE, supra note 2, at 708-26; Grinne de Brca, The Principle ofProportionality and its Application in EC Law, 13 YBK. EUR. LAW105 (1993); Takis Tridimas, Proportionality inCommunity Law: Searching for the Appropriate Standard of Scrutiny, inEllis, supra note 13, at 65 (1999); TAKISTRIDIMAS,THE GENERAL PRINCIPLES OF EULAW(2d ed. 2006), at chs. 3-5; PAUL CRAIG AND GRINNE DE BRCA,EULAW178-229 (3d ed., 2006); Stone Sweet & Mathews, supranote 1, at 139-45.

16 The first is Article 8(2) (interference with the right to respect for private and family life must, inter alia, be necessaryin a democratic society in the interests of national security, public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms ofothers). Others follow a similar formula, matching the necessity requirement with different defined interests: Article9(2) (freedom of thought, conscience and religion); Article 10(2) (freedom of expression); Article 11(2) (freedom ofassembly and association); Protocol IV, Article 2(3) (freedom of movement).

17 Article 2 (right to life: use of force which is absolutely necessary in a list of defined cases); Article 5(1)(b) (right toliberty and security: arrest or detention of suspect when reasonably considered necessary to prevent his committing anoffence or fleeing); Article 6(1) (right to a fair trial: exclusion of the press or the public, inter alia, to the extent strictlynecessary in special circumstances where publicity would prejudice the interests of justice); Article 15(1) (derogation intimes of emergency may be made, inter alia, to the extent strictly required by the exigencies of the situation); Protocol I,Article 1 (protection of property: states not impaired from enforcing laws necessary to control the use of property inaccordance with the general interest or to secure the payment of taxes or other contributions or penalties).

18 For early decisions relying on textual reasoning, see Handyside v. United Kingdom (1979) 1 E.H.R.R. 737, 754(necessary implied the existence of a pressing social need; it meant that every restriction imposed wasproportionate to the legitimate aim pursued); Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245, 275-78(following Handyside). Later recognition of proportionality as a general principle can be found in Judge Velaersconcurring opinion in App. No. 51564/99 Conka v. Belgium (2002) 11 B.H.R.C. 555; it is applied in a wide range ofcases by the court in its case law (particularly in its case law on para. 2 of arts. 8 to 11, and art. 14) and may beregarded as part of the art. 5 requirement that persons are only to be deprived of their liberty 'in accordance with the

procedure prescribed by law'). See alsoErkalo v. The Netherlands 28 E.H.R.R. 509, dissenting opinion of JudgeLevits, para. 2.

19 See. e.g., Case C-331/88 R. v. Minister for Agriculture, Fisheries and Food Ex p. Fedesa [1990] E.C.R. I-4023, 13([b]y virtue of [the principle of proportionality], the lawfulness of the prohibition of an economic activity is subjectto the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectiveslegitimately pursued by the legislation in question; when there is a choice between several appropriate measures


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best has admitted their influence as the substratum shared by Member States.20 More

common is the reliance on a two-pronged test, sometimes described as one that emulates the

first German sub-test and combines the latter two. Under this formula, the Court considers

whether the challenged measure was appropriate and necessary (the latter requires the Court to

assess whether the measure did not affect the interest at stake beyond what was necessary to

achieve the objective).21

Rather than adopting the three or two-pronged approach, the European Court of Human

Rights has adopted a simple test. Often, the Court assesses the proportionality of a challenged

measure by balancing the means employed and the aims pursued, supplemented by a reference

to the margin of appreciation granted to Member States, which colors the final decision. 22As a

further development, the Court has introduced two additional conditions aimed at protecting

rights, the first requiring a pressing social need (or a compelling social interest) to justify

interference with a protected right,23 the second subjecting challenged action to close

scrutiny, under which very weighty reasons are needed to justify interference with a central

human right.24

recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aimspursued).

20 Advocate-General opinion, inInternationale Handelsgesellschaft, id., at 1145-46.But see SCHWARZE, supra note 2, at

714-15.21 See, e.g., Case 279-280/84 Rau v. European Economic Community [1988] 2 C.M.L.R. 704, 750-51; Case C-426/93Federal Republic of Germany v. Council of the European Union (1995) E.C.J. I-3723, para. 42; Case C-84/94 UnitedKingdom and Ireland v. Council of the European Union (1996) E.C.J. I-5755, 57; Case C-434/02 Arnold Andr vLandrat des Kreises Herford, Judgment of 14 December 2004, para. 45. The very first decision that recognized andapplied the principle of proportionality may be cited as applying this test, but could also be read as applying no morethan a simple balancing test, with the German sub-tests relegated to the background (InternationaleHandelsgesellschaft, supranote 15, at 1134-35, paras. 12, 14, 16). On the proportionality tests, see S CHWARZE, supranote 2, at 854-60; CRAIG &DE BRCA,supranote 15, at 372-73; TRIDIMAS,supranote 15, at 139 (different emphaseson the prominence of the two and three-pronged tests); Stone Sweet & Mathews, supra note 1, at 145-48; MichaelFordham & Thomas de la Mare, Identifying Principles of Proportionality , in UNDERSTANDING HUMAN RIGHTSPRINCIPLES(J. Jowell & J. Cooper eds.), 27, 37-49 (2001).

22 See, e.g., Handyside, supranote 18, at 754; Sunday Times, supra note 18, at 277-78; for examples of recent cases,see, e.g., Dogru v. France, 49 E.H.R.R. 8 (2009); A v. United Kingdom, 49 E.H.R.R. 29 (2009) (detention of

suspected terrorists). In both latter cases, the court did not overturn the decisions of the domestic courts. But seedeBrca, supranote 15, at 113.23 Handyside, supra note 18, at 754 (pressing social need was implied by the term necessary in the Convention;

Sunday Times, supra note 18, at 277-78 (close scrutiny of arguments regarding the necessity of the interference, tobe justified only under a pressing social need); Lingens v. Austria (convict ion for defamation in press article foundin breach of freedom of speech (Article 10); pressing social need not found); Abdulaziz v. United Kingdom (1985) 7E.H.R.R. 471, 501 (only very weighty reasons could justify different treatment of sexes under Immigration Rules).

24 Seethe cases cited supra, which were mainly concerned with freedom of speech and sexual discrimination. See alsogenerally,Fordham & Thomas de la Mare, supranote 21, at 49-60.


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In sum, European law applies a principle of proportionality in both human rights and

policy contexts; the ECJ usually applies a two-pronged test, sometimes viewed as an

abridgement of the German three-pronged test. In the human rights context, which is generally

decided without the application of the three-pronged test, requirements for pressing social

needs and strict scrutiny allow for a more thorough standard of review, but the ECtHR

tends to use a simpler test.

Why have these formulae emerged, and how can the amazing popularity of the German

formula be explained? Does the complexity of the test make a difference?

In a separate article, I have argued that the choice and development of a formula may be

driven by judicial appreciation of the values of systematization and clarification, or simple

human tendency to classify, but the use of formulae can also carry strategic benefits.25

Reliance on a formula carries a distancing effect. Judges who rely on established seemingly

objective tests find shelter from accusations of politicization, which are likely to arise

whenever the case before them is sensitive or politically laden, as cases involving human rights

may be. When they apply a formula to reject an application, they protect themselves from

accusations of weakness, subjection to political pressure, or partisan support of the

respondents substantive position. Likewise, when judges accept an application, seemingly

objective tests operate as a shield from anticipated criticism which may originate from the

challenged body or other actors in the social and political spheres that are unsatisfied by the

outcome. In both cases, strong levels of criticism may directly endanger the social legitimacy

of the judiciary. Thus, the more politically-laden the issue, the greater the utility of

formalization. And the more detailed and elaborate the formula, the greater its distancing

potential: a complex, highly structured formula requires judges to go through several hoops,

which serve as a signal of judicial commitment to the application of complex, professional,

even clinical processes that have nothing much to do with the political.

How, then, to explain the near-universalization of the three-pronged test (excluding theECtHR)? Its dominance may be credited to the formulas superior character as a usable tool for

application of an open-ended concept; however, under the strategic model suggested above, its

complexity may be one of its main attractions.


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II. THE MIGRATION OF THE PROPORTIONALITY THREE-PRONGED FORMULA: A TANGLED

TALE

In this part, I am concerned with the migration of the proportionality formula, as distinct fromthe adoption of proportionality as an operable doctrine.

When the Supreme Court of Israel adopted the three-pronged formula, first in Bank

HaMizrachi, the court openly acknowledged the sources of the formula and cited German and

Canadian sources.26Since then, the court has remained faithful to the Canadian tests, although

Oakes is no longer the central precedent; for example, it cannot be found at all in the Beit

Sourik decision, arguably the Israel Supreme Courts most famous and detailed decision on

proportionality, in the force of the proportionality doctrine in domestic and international law is

recognized.27

But the transplant of a formula may be more discrete. Migration is not always openly

celebrated; doctrines and formulae may be imported without open declaration. Alternatively,

even when foreign sources are cited to support a new doctrine or formula, it may be in fact

transformed without such transformation being acknowledged. Discrete transplants are

especially interesting; they seem to be the outcome of the tension between universalization and

exceptionalism, between the readiness, even need, to learn from other systems, the possible

risk to domestic integrity inherent in this type of learning, and special loyalty to systems

belonging to the legal family of the importing systems. The following analysis traces examples

of such types of transplants.

I begin with Canada. In Oakes, the 1986 decision in which the proportionality formula

was adopted,28the Canadian Supreme Court cited Big M Drug Mart, a Canadian precedent as

the source for this formula, but this precedent only provides dicta regarding the possible

development of unreasonableness in the context of the Canadian Charter to a form of

25 Cohn (2011), supranote 7.26 Bank Hamizarchi, supra note 12, 343, 345, 412, 436-473, also emphasizing that the Knesset was aware of the German

and Canadian models and was especially influenced by the latter (ibid., 299, 376). See also HCJ 3477/95 Ben Atyia v.Minister of Education, 49(5) P.D. 1 (citing Canadian sources).

27 Beit Sourik, supra note 5, at 297.28 R. v. Oakes in 1986, supra note 12, para. 70.


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proportionality test.29Some Strasbourg jurisprudence is cited in Oakes, but only as part of a

comparative survey of the protection of presumption of innocence, the right impaired in this

case, and the rational connection test relies on U.S. cases regarding the presumption of

innocence.30 Neither the German formula nor any reference to German jurisprudence can be

found. The decision also ignores the proportionality tests developed by the European fora,

discussed above.31How can this be explained?

In their biography of Justice Dickson, who delivered the decision, Sharpe and Roach

disclose that Dickson was aided by two law clerks, one of them, Joel Bakan, fresh from

graduate studies at Oxford, who immersed himself in the European human rights

jurisprudence under the principle of proportionality.32Whether this is the missing link to the

German formula remains a matter of speculation. What is clear, in any case, is that the

proportionality formula emerged in Canada as a fresh, if not original test, attesting an emphasis

on the force of domestic law. The link was of course recognized later on.

The Zimbabwe Supreme Court, in comparison, openly relied on Oakesin Nyambirai, but

not on German law. Being part of the Commonwealth world, reliance on Canadian

jurisprudence may have seemed more legitimate that foraging into the Continent. Further, The

slight transformation of the formula may be the result of domestic pride, an evidence of the

ability of domestic judges to improve upon foreign solutions.33

The British adoption of the proportionality formula is even more complex, and

exemplifies the tension between the force of the domestic, the influence of common law

systems and the British commitment to European law. The rest of this part is dedicated to a

review of this most tangled chapter in the tale of the adoption of a proportionality formula.

To begin with, arguments that in the British Isles, Verhltnismigkeit should be

translated as unreasonableness are unconvincing.34As courts later admitted, proportionality

29 Big M Drug Mart Ltd., [1985] 1 S.C.R. 295,para. 140.30 Oakes, supranote 12, at paras. 50-55.31 On this absence see Stone-Sweet & Mathews, supranote 1, at 117.32 ROBERT J. SHARPE & KENT ROACH, BRIAN DICKSON: A JUDGES JOURNEY334 (2003). I thank Martin Friedland for

directing me to this source.33 Niyambirai, supranote 12, at 30.34 Such an argument, seemingly offered by SINGH,supra note 4, may have been advanced only to explain the nature of

the ground of proportionality to the (British) uninitiated reader. This chapter is based on Margit Cohn, LegalTransplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the

United Kingdom, 58 AM.J.COMP.L. 583, at 616-22 (2010).


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was to be considered a more powerful ground for review than unreasonableness, despite

potential overlap and possible similarity in outcomes.35

The traditional British reticence to adopt proportionality drew directly from the Diceyan

heritage and its impact on the notion of judicial review. However, being central to European

law, proportionality could not be ignored in areas in which European law was formally

incorporated into domestic British law.36 On joining the European Community, the British

Parliament enacted the European Communities Act 1972, under which European law would be

recognized and available in law. This implied, in a rather convoluted way, that domestic law

that squarely contradicted binding European rules could no longer be applied.37 Thus,

applicants could rely on proportionality when the challenged measures were promulgated by

European Community institutions and directly binding, or when the application included a

challenge to the legality of a domestic measure due to its incompatibility with a binding

European measure. Domestic courts applied European Community law when correctly relied

upon; this was done, however, in conjunction with domestic grounds of review, including

unreasonableness.38Courts thus continued to emphasize the force of domestic law.

The European Convention of Human Rights presented a different challenge. The United

Kingdom was one of the first states that signed and ratified the Convention in the early 1950s,

but incorporating legislation was introduced only in 1998. Before the entry into force of the

Human Rights Act in October 2000, the Convention had no direct effect on British domestic

law. The United Kingdom subjected itself to the review of the European Court of Human

35 See, e.g., R. v. Chief Constable of Sussex, ex parte International Traders Ferry [1997] 2 C.M.L.R. 164, 182 (C.A.),per Lord Justice Kennedy ([p]roportionality requires the Court to judge the necessity of the action taken as well aswhether it was within the range of courses of action that could reasonably be followed. Proportionality can therefore

be a more exacting test in some circumstances); R. (Daly) v. Secretary of State for the Home Department [2001] 2A.C. 532, 547 (H.L.), per Lord Steyn (the [proportionality] criteria are more precise and more sophisticated than thetraditional grounds of review . . . there is an overlap between the traditional grounds of review and the approach of

proportionality . Most cases would be decided in the same way whichever approach is adopted. But the intensity ofreview is somewhat greater under the proportionality approach); R. (on the application of Begum) v. Head-teacherand governors of Denbigh High School [2006] H.R.L.R. 21, para. 30. But see Barak on this issue; Barak,Proportionality, supranote 2, 455-465.

36 The United Kingdom follows a dualist approach: international conventions become part of domestic law only byfurther legislative action. On the dualist and monist approaches, see IAN BRONWLIE, PRINCIPLES OF PUBLICINTERNATIONAL LAW31-33 (7th ed. 2008).

37 European Communities Act 1972, Section 2(1). This subjection was finally formally recognized only in 1992, in R vSecretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 A.C. 603.

38 See, e.g., R. v. Chief Constable of Sussex, ex p. International Traders Ferry [1999] 1 C.M.L.R. 1320 (H.L.)(proportionality test applied with regard to arguments pertaining to the European Treaty, in conjunction withunreasonableness). On the interface between unreasonableness and proportionality see infra.


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Rights in 1966; being answerable to the Court on the European level, applications to the

Strasbourg Court were sometimes successful. While even failed applications served to raise

political and public consciousness of the United Kingdoms subjection to the European law of

human rights, successful applications had, of course, a stronger impact.39 None of this,

however, required direct application.

In GCHQ, Lord Diplock opined that further development of administrative law might

lead to the adoption of new grounds of review, including proportionality, yet he found the

existing grounds to be sufficient at the time.40 A gradual recognition of the value of the

proportionality doctrine was subsequently evident only in judicial dicta and academic

literature.41 The field was transformed upon the entry into force of the Human Rights Act.

Novel review mechanisms were introduced, to be applied when breaches of the European

Convention (more precisely, the parts of the Convention that were formally adopted by the

Act) were found.42Under Section 2 of the Act, courts were required to take into account the

jurisprudence of the Strasbourg Court and other bodies operating in the context of the

Conventiona statutory duty to at least consider European case-law, which was more than an

invitation to incorporate it when suitable. Thus, proportionality could no longer be resisted.

The doctrine was indeed adopted by post-HRA courts, but the transplantation of the

proportionality formula was far from straightforward.

The multi-player nature of this transplantation process has been marginalized by many

commentators, who focus on the impact of European law on the law of the United Kingdom.

Yet, at least in rhetoric, courts were not ready to succumb easily to European law. In the case

of proportionality, rather than drawing on Strasbourg jurisprudence, the British courts were

initially inspired by the Supreme Courts of Canada, Zimbabwe, and South Africaall of them

members or past members of the Commonwealth. The tale begins with De Freitas v.

39 For a survey of Strasbourg decisions regarding the United Kingdom and the impact of the Convention in domestic lawin 1997, seeA.W.BRADLEY,K.D.EWING,CONSTITUTIONAL AND ADMINISTRATIVE LAW470-76 (12th ed. 1997).

40 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 410 (1985) (H.L.).41 For an analysis of the pre-Human Rights Act judicial treatment of the proportionality doctrine see Cohn (2010), supra

note 34, 617-619.42 Section 3 empowers courts to interpret domestic statutes in ways that contradict, to a certain extent, their textual

meaning, to achieve compatibility with the Convention. Section 4 introduces the remedy of declaration ofincompatibility, which replaces the continentaland Americanremedy of statute invalidation. Both are primeexamples of transformation, if not distortion, of the essence of constitutional judicial review recognized in the


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Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing(1996), the first

case in which British courts adopted the ground of proportionality.43 The case originated in

Antigua and Barbuda, an independent state that retains the British Crown as its Head of State;

therefore, the final judicial instance remains the Privy Council, which decided upon the

constitutionality of a statute legislated in this territory. The Constitution of Antigua and

Barbuda limits the freedom of speech of civil servants only as reasonably required for the

proper performance of their functions, a limitation similar to those found in other

Commonwealth constitutions. Defining the ground of proportionality implied in the reasonable

requirement clause, the Privy Council cited decisions from Canada and Zimbabwe and relied

on the three-pronged test adopted by the latter.44

The next step was Daly, the first case in which proportionality was discussed in the

context of the Human Rights Act. Despite the reliance of the applicant on the European

Convention and the requirement in the Human Rights Act to take into account European

jurisprudence, the House of Lords cited de Freitas as precedent for their adoption of

proportionality.45Noting that the contours of the principle of proportionality are familiara

blatant overstatement of the state of British law at the timeLord Steyn proceeded to adopt

and apply the three-pronged test adopted in de Freitas.46

This emphasis on the status of the principle of proportionality as an existing part of

domestic law came at the price of a full recognition of its European origin in the context at

hand. One could justify de Freitas reliance on Commonwealth formulae, since, after all, the

decision required the interpretation and application of a Commonwealth constitution.

However, the absence of reliance on European doctrine in Daly is not self-explanatory. In

applying the Human Rights Act, judicial reference to the Strasbourg ground of proportionality,

and, possibly, the formula it tends to use, would have been appropriate, at least since Section 2

European Convention. I do not elaborate on this point, since this Article is concerned with proportionality as one ofthe grounds of substantive review.

43 De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69 (P.C.)(adopting the test adopted in Nyambirai, supranote 12).

44 Id., at 80.45 Id., at 547. De Freitas, supra note 43. In Daly, supra note 35, the House of Lords cited three decisions of the

European Court of Justice, including Smith and Grady v. United Kingdom (2000) 29 E.H.R.R. 493, but only in thecontext of the need to apply a stricter test than classic unreasonableness (id., at 545-56, 547, 549).

46 Id.,at 547.


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of the Human Rights Act requires it. Furthermore, since the three-pronged test is not dissimilar

to the German and Canadian ones, this affinity could have been recognized.

This chronicle does not end here. As a final twist (to date), the application of the

proportionality formula in British courts has since departed from the Commonwealth formulae.

Some recent decisions have not cited de FreitasandDalys three pronged test; alongside such

cases, others mention proportionality as a unitary concept, in a form closer to Strasbourgs

simple test.47Even more telling is the fact that in none of the cases applying British domestic

lawDaly includeddid the court actually consider each of the subtests separately, as do

German, Canadian and Israeli courts, even the Privy Council in de Freitas. Rather,

proportionality is decided by a general assessment consisting of balancing the interests

involved. In this respect, the decisions resemble Strasbourg, rather than Continental and

Commonwealth decisionsbut the European source is often marginalized.

This is a clear example of a discrete transplant process: at the onset, British courts linked

their transplant with Commonwealth countries only, marginalizing European sources, and its

actual reliance on the ECtHR-type formula remains virtually undisclosed. In this case, the

courts have succeeded in presenting a process that is seemingly common-law based, in which

common-law formulae seem to have been injected into the European measure. This only poorly

reflects the reality of the transplant of the proportionality formula.

III. PROPORTIONALITY REASONING:BALANCING AND CONSEQUENCES

The idea of balancing has become almost synonymous with the concept of proportionality.

Here, I do not refer to balancing in its US meaning,48but to the law of balancing, defined by

Professor Alexy as follows:

47 For cases applying a simple test, or merely deciding without detailed proportionality analysis, see, e.g., R (Alconbury

Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 295; Kay v.Lambeth London Borough Council [2006] 2 A.C. 465; in re G (Adoption: Unmarried Couple) [2009] 1 A.C. 173; inre British Broadcasting Corporation, in re Attorney Generals Reference (No. 3 of 1999) [2009] 3 W.L.R. 142.Decisions in which the three-pronged test is cited include A v. Secretary of State for the Home Department [2005] 2A.C. 68; R. (ProLife Alliance) v. British Broadcasting Corporation [2004] 1 A.C. 185, 253 (H.L.).; Huang v.Secretary of State for the Home Department [2007] 2 A.C. 167; and AS (Somalia v. Entry Clearance Officer (AdisAbaba) [2009] H.R.L.R. 27.

48 Reliance on balancing in this context is different from the balancing tests used in constitutional adjudication inthe United States, which is often posited as the alternative to proportionality reasoning. For a presentation of the two


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The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be theimportance of satisfying the other.49

Balancing is used as the main metaphor to explain what judges do when they rule upon the

proportionality of a contested act. This is evident in much of the literature. Sufficient to

mention Stone-Sweet and Mathews recent article, which carries the title Proportionality

Balancing and Global Constitutionalism; A recent conference held in the Ramat Gan Law

College in Israel, under the title Rights, Balancing and Proportionality; and Aharon Baraks

extensive treatment of balancing in his recent book and elsewhere.50

Both Alexy and Barak are careful to note that balancing is in fact linked, even identical

in Alexys words, with the third proportionality sub-test, the so-called proportionality stricto

sensu discussed below as part of the well-travelled three-pronged proportionality formula.51

There is no denying that balancing, in the Alexian sense, is required at that stage, butidentifying proportionality with balancing carries two difficulties.

The usual formula used for the application of the proportionality doctrine includes

several earlier steps, to be taken before the assessment of the benefits vs. the impairment of a

right. First, the purpose of the measure should be identified and a decision should be made

regarding whether a protected right was infringed. Then, the first two sub-tests should be

applied: the requirement for a rational connection and the assessment of whether the least

restrictive measure was chosen. None of these have much to do with balancing. The decision

on the legislative purpose may require statutory interpretation or other modes of purposive

reasoning; the attachment of the challenged measure to a distinct protected right has likewise

no link to proportionality reasoning; similarly, the finding over the existence of a rational link

between the purpose and the measure and the assessment of whether the least harmful measure

had been chosen require other forms of reasoning.

Of course, one may argue that all the stages preceding the third sub-test are mere

preliminary steps required for the exercise of the ultimate balancing act. But another type of

as competing concepts see, e.g., Cohen-Eliya & Porat,American Balancing, supranote 2; BARAK,PROPORTIONALITY ,supranote 2, 600-617 (juxtaposing categorization as an alternative to proportionality reasoning).

49 ROBERT ALEXY,ATHEORY OF CONSTITUTIONAL RIGHTS(transl. Julian Rivers, 2002), 401. See also ibid., 102.50 Alexy, ibid., 401; Aharon Barak, Proportionality and Principled Balancing, 4 L. & ETHICS HUM. RGTS. 2 (2010)

(hereinafter,proportionality and balancing); BARAK,PROPORTIONALITY, supranote 2, 426-54.51 Barak, Proportionality and Principled Balancing, supranote 50, 7 et seq.


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reasoning may stand behind proportionality decision making (and, in fact, most other types of

review).

I begin with some obvious observations. Under any classic vision of judicial decision-

making, courts are to decide disputes between parties, each of which presenting a distinct set

of legal arguments that support a distinct reality. Thus, for example, an application against a

statute that permits indefinite detention in certain cases is based on the legally wrongful

impairment of personal freedom, endemic to the challenged statute; here, applicants push for a

reality in which no such incarceration may occur. The respondent, in arguing that the statute

passes all legal hurdles successfully (including, of course, proportionality), requires the court

to assert the legality of a reality in which such incarceration is a viable possibility.

Thus, one may depict the decision over the proportionality of a challenged act as one that

is the product of a choice between two alternative realities. In this way, a judge may be viewed

as making a consequence-oriented decision; in the example above, this means choosing

between the existence of indefinite detention and its absence.

This type of reasoning is not limited to application of the proportionality principle; it is

part of judicial decision-making in most cases involving judicial review. Its recognition in the

context of proportionality is an important element of an all-rounded vision of judicial decision-

making that embraces several types of reasoning that extend beyond balancing.52

CONCLUSION

This paper considered three aspects of the proportionality principle. First, I studied the

formulae that have emerged to flesh out the principle of proportionality. I noted the strategic

benefits of formula-making and the distancing effect of reliance on complex, seemingly

objective formula, which may explain the amazing popularity of the three-pronged formula.

52 Two comments are needed here. First, courts may deny redress for a variety of reasons that have nothing to do with adecision on the merits, or may decide without touching the substance of the arguments. For example, an application

filed after the period allowed for challenging a decision or one that does not pass the standing test, will be summarilyrejected, and applications may succeed due to the finding of improper procedure, as in the case of absence of hearingor consultation. In all of these cases, the court does not make any decision regarding the substantive arguments of the

parties. However, the immediate outcome will still be the establishment of one of the two realities proposed by theapplicants. My second comment refers to the fact that in some cases, a compromise is struck. This may happen whencourts act as brokers for settlement outside the court, or inside the court, by granting the settlement the force of a

judicial decision. In another type of cases, courts may grant only a partial remedy or one that is otherwise differentfrom the remedies requested by the applicants. In all such cases, the emerging reality will be different from therealities advanced by the parties. One may find that the court is involved in balancing, but this balancing can beviewed as outcome oriented as in the former cases.


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Tracing the differences between different versions of this formula, I then proceeded to identify

examples of discrete transplants, in which the true sources of the formula are undisclosed, and

assessed the benefits of such types of transplants in settling tensions between universalization

and exceptionalism. Finally, I suggested that excessive attention has been granted to balancing

in the context of proportionality reasoning. While an important element, balancing is in fact

supplemented by other modes of reasoning; ignorance of these other aspects, inter alia

consequential reasoning, may lead to a misunderstanding of the complex task judges take when

applying this ground of review. Since proportionality is likely to remain dominant in judicial

decision-making, national and transnational, its further study is essential. This workshop is a

welcome contribution in this direction.

Three Aspects of Proportionality

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