Positive and Horizontal Rights: Proportionality's Next Frontier or a Bridge Too Far?

Abstract

This chapter seeks to demonstrate that the well-known geographical spread of proportionality has not been matched by a growth in its jurisprudential scope. Specifically, the actual practice of rights adjudication around the world reveals that even those constitutional courts most committed to proportionality are reluctant to employ it in positive and horizontal rights cases.

To help see this clearly, the chapter first presents a more sharply defined account of proportionality than is frequently employed, in which (in Weberian terms) it operates only in the realm of instrumental, and not in that of value, rationality. This account helps to explain why not all forms of reasonableness review or balancing are actually or necessarily instances of proportionality analysis. Rather, proportionality incorporates a specific conception of reasonableness (reasonableness as proportionality) and a particular type of balancing, and cannot be equated with generic versions of either.

Armed with this more bounded sense of proportionality, the chapter proceeds to show that the German and South African constitutional courts, as well as the European Court of Human Rights, largely eschew proportionality analysis in their adjudication of positive and horizontal rights cases. The interesting question is why the resistance. In exploring it, the chapter suggests there may be both conceptual and normative tensions in applying proportionality outside the more conventional rights context in which it has triumphed. In particular, judges may intuit the moral appropriateness of a form of "human rights exceptionalism," although of a different and less abstract nature than one previously canvassed and rejected in the literature. The conclusion considers the chapter's implications for both the theory of the "global model of rights" and the further growth of proportionality in such countries as the United States.

Keywords: proportionality, balancing, positive rights, socio-economic rights, horizontal effect, protective duties