Proportionality and Freedom -- An Essay on Method in Constitutional Law

Abstract

This article presents a functional explanation of recent developments regarding the method of constitutional interpretation in legal systems around the world. Described as “the most successful legal transplant of the twentieth century” and “a foundational element of global constitutionalism”, the proportionality method has spread from Germany to countries in Eastern Europe and South Africa and from Canada to Brazil to Europe’s supranational courts. This article seeks to explain the method’s success, which has thus far remained elusive. It traces that success to how 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 answers the need to mitigate the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases.

The article offers a comparative analysis of proportionality in relation to other constitutional methodologies. The first three sections show how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. Its aim is 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. The normative appeal of proportionality can be traced to the perception of its integrative aims. In reality, however, judicial technique does not entirely live up to those aims. As the article shows through a detailed study of its various practical applications - such as the distinction between core and periphery of rights, the struggle to preserve the distinctiveness of this method's different steps and the back-loading of the intensity of judicial review - proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section 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.