Proportionality and the Culture of Justification

Abstract

This article reviews several functional explanations that have been given to the dramatic spread of proportionality (early legal development, conflict management, lingua franca, and raw judicial power) and suggests an intrinsic one. Proportionality, we believe, is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality.

We identify several features of Western constitutional systems that have evolved after World War II, and that support the culture of justification. These include a broad conception of rights, a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, low barriers to substantive review, and no legal “black holes” (areas and actions with respect to which government needs to provide no justification). Most importantly in terms of our review, it involves a two-stage form of judicial review, identifying the infringement of the right, and justifying the infringement, with an emphasis on the second stage of justification. We also suggest two preliminary historical explanations for the rise of the culture of justification. One is its connection to the rise of the human rights ideology which developed after WWII, and which provided a response to the threats of nationalism and populism. The other is its roots in the optimistic belief in rationality and reason that can be traced to the nineteenth-century German legal science movement. We end our review by characterizing the gradual shift towards proportionality and the culture of justification as a shift towards an administrative model of constitutional law, which we term the “administrization” of constitutional law.

Keywords: Constitutional Law, Proportionality, Justification, Balancing, Global Constitutionalism, Comparative Law