Proportionality Review in Administrative Law

Abstract

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in how proportionality is used in the administrative law of different jurisdictions in terms of three principal axes of variation. Systems differ with respect to how extensively proportionality is employed, how intensively review is conducted, and how discursively courts present their analysis. Notwithstanding the substantial cross-national variation in how proportionality is used, there are underlying regularities that lend support to the claim that proportionality amounts to a master concept of public law.

Keywords: administrative law, judicial review, proportionality, intensity of review, discretion, courts, comparative law