Probability Thresholds as Deontological Constraints in Global Constitutionalism

Abstract

At the heart of the War on Terror lie governments' struggles to reduce the risk of future catastrophes. Effective risk management that is also respectful of human rights must take into account the probability that the catastrophe will strike again. However, in times of emergency governments tend to set aside questions of probability and resort instead to drastic measures that often adversely affect human rights. Evidently, courts themselves are not immune from the same probability neglect that might also result in a constitutional analysis that can adversely affect human rights.

For those who believe in the fundamental deontological insight that rights should have a priority over the good, this is a worrying state of affair. In this article we draw from the psychological research on the cognitive bias of "probability neglect" and call for the (re)-introduction of probability tests, such as the abandoned American "clear and present danger" test or the Israeli "near certainty" test, and for their integration into contemporary models of rights adjudications in global constitutionalism.

We find that both the American strict scrutiny test that focuses on a rigorous means-ends analysis, and the highly influential German proportionality test, that centers on the balancing of rights and interests, fail to properly ensure the priority of rights. It is our contention that the imposition of the judicial requirement that the government meet a certain pre-defined probability threshold after engaging in means-ends analysis and prior to engaging in balancing - serves as a useful and important deontological constraint that secures the priority of rights.

Keywords: constitutional law, global constitutionalism, balalncing, proportionality, probability, civil rights