PROPORTIONALITY AND FREEDOM AN ESSAY ON METHOD IN CONSTITUTIONAL LAW
Permission to reprint the article was granted by the author and the Cambridge University Press. The work originally appeared in Global Constitutionalism, Volume 1 (2), 2012 (Cambridge UP).
Abstract
The advent of proportionality in constitutional adjudication is one of the most significant developments in contemporary law. Proportionality has become the “universal criterion of constitutionality.” Its spread around the world has led scholars to describe it as the “most successful legal transplant of the twentieth century.” However, this success remains confounding. Proportionality’s empowerment of judges seems to bring it into tension with ideals of democratic rule. Furthermore, the protection this method affords to constitutional rights is not automatic, but conditional upon contextual assessment by courts that rights are sufficiently strong to override conflicting public or private interests. In the proportionality machinery, rights become mere considerations in the process of judicial reasoning – which is, admittedly, “not much.”
Nevertheless, ours is the “era of proportionality.” From countries in Eastern Europe to South Africa and from Canada to Brazil to Europe’s supranational courts, judges have adopted proportionalityas their method of choice in constitutional cases and beyond. This global spread of proportionality has been extensively documented. From its origins in nineteenth century Prussian administrative law and transition to the constitutional domain after World War II, at first in Germany and gradually far beyond, this method has colonized the imagination of constitutional jurists around the world. With the exception of American law, the centrality of proportionality in constitutional adjudication has made this method “a foundational element of global constitutionalism.”
However, the explanation of proportionality’s success remains elusive. The range of available accounts spans the entire spectrum from cold realism to an idealism of sorts. From a realist perspective, judges favor proportionality because it hides the exercise of judicial discretion more credibly or effectively than alternative methods, such as categorical reasoning or balancing. By giving a formal structure to the weighing of conflicting interests, proportionality offers the illusion that values can be aligned along one scale despite their incommensurability. However, such accounts leave much unanswered. Tracing the success of proportionality solely to this cover-up function is a jurisprudential shortcut to a likely dead-end. The painstaking process of proportionality-structured judicial reasoning cannot be a priori dismissed as merely a sham. By contrast, idealist accounts zero in on that reasoning process and emphasize its inherent rationality.
As we will see, these accounts of proportionality tend to overlook significant shortcomings in its judicial technique. But even if they did not, many idealist accounts only justify the advent of proportionality, without explaining its appeal. Quite apart from a healthy dose of skepticism about the promise of pure (legal) reason in the aftermath of the mass murders and catastrophes of the twentieth century, rationality alone cannot fully reveal this method’s appeal to complex institutional actors such as courts.
My aim in this paper is to provide an additional perspective on the rise of proportionality as a constitutional method. I argue that, more than alternative methods, 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.”
In addition to routine deployment of its force-dispensing machinery, forcing citizens “to be free”,the institutions of the constitutional democratic state must also justify the direction of that deployment. Law’s violence is thus twofold. One coercive dimension takes the form of the actions or inactions that the state imposes on its subjects. But a second, and related, dimension of violence stems from the process of justifying those coercive effects. As we will see, that justification represents the state’s rejection of the outcome of the losing party’s jurisgenerative interpretative processes. I suggest that proportionality appeals to judges because of their need for adequate methods to mitigate the violence that their justification of state coercion inflicts on private (non-official12) jurisgenerative interpretative processes in constitutional cases.
Left unmitigated, this second dimension of law’s violence can undermine the duty of responsiveness that courts owe to litigants qua citizens. In contrast to totalitarian regimes, whose institutions do not react to – or, even worse, retaliate against – the demands of their subjects, the public institutions of a constitutional democracy have a duty to respond to the claims of the citizenry in ways that recognize and reinforce the social standing of each citizen claimant as free and equal. In the case of legal disputes, responsiveness cannot always require the substantive satisfaction of all the claimants. But it does require that the process of justifying outcomes meet certain conditions. For instance, it requires that the justification treat with respect and dignity all the claimants, including those whose claims are inevitably unsuccessful. Proportionality, I submit, answers these demands better than alternative methods.
At first glance it might seem counterintuitive that judicial responsiveness should depend on how successfully courts mitigate the violence they inflict on the parties’ jurisgenerative processes. For one, litigants routinely set themselves up for disappointment by exaggerating the strength of their claims. One’s distorted view of the strength of his or her claim heightens the perception of violence inflicted by a court’s failure to endorse it, with the result of placing an unreasonably high bar for judicial responsiveness. Moreover, even when the expectations are not overblown, the mere imperative of not leaving cases undecided opens a wide gap between the perceptions of the parties – whether private individuals or the state – ex ante and ex post the judicial decision. At least in hard cases, claims of ostensibly comparable strength are presented as the outcomes of the parties’ jurisgenerative interpretative processes that aspire to official endorsement by courts as the institutions mandated to settle disputes over constitutional meaning. Yet there is a striking discontinuity between the perceived strength of the parties’ claims, understood as their reasonable constitutional interpretations and assessed ex ante the judicial decision, and the effects on the parties of binary statements of constitutional validity, as experienced by them ex post the decision. Binary statements of legal validity (valid/invalid, legal/illegal) erase all traces of the chance for success that the losing claim had before the judicial decision was delivered. The binary effects of statements of validity heighten the violence on the parties’ free interpretative processes by which legal controversies come to an end. As a constitutive feature of a constitutional system, it seems that perceived judicial unresponsiveness cannot be a source of law’s violence.
Or can it? It helps to recall that violence is a matter of degree. While some level of violence in law seems unavoidable, judicial methodology structures the process of justification and thus calibrates the degree of violence. The two sources of law’s violence - outcome and justification of outcome - are related. As Charles Tilly concluded in his sociological study of reason-giving, “whatever else happens in the giving of reasons, givers and receivers are negotiating definitions of their equality or inequality.”
Proportionality stands out by how it positions judges vis-à-vis the parties and the parties in relation to one another. This is the proper context for understanding the common defense of proportionality as a method that “shows equal respect and concern for everyone concerned.” Proportionality mitigates the gap between the positions of the parties ex ante and ex post the judicial decision, because it treats with due consideration and respect the public interest pursued by the state as well as the individual interests of the right-holder.
My explanation of the success of proportionality is functional, not causal. The worldwide spread of proportionality is a complex phenomenon whose causes span from the historical to the sociological. By contrast, my account makes no claim about how proportionality comes into existence, but it does aim to explain its staying power and success.22 I identify a function that proportionality plays in contemporary constitutional law and practice - namely, helping judges mitigate the violent effect of their decisions on the claimants’ jurisgenerative processes –, together with an account of what in contemporary law might explain why such a function is perceived as necessary (the fact of social pluralism, judges’ angst over law’s under-determined nature, the complexity of the relations between state and individual). This argument supplements, without replacing historical, sociological or other compatible normative explanations.
This broad approach to proportionality teaches as much about contemporary constitutional thought as it does about the method itself. Rather than analyzing this method as a stand-alone legal tool, I take a broader view, one that integrates proportionality within a larger configuration of patterns of constitutional doctrine and discourse. I refer to such configurations as “constitutional styles.” A style encapsulates in its methodology a comprehensive approach to constitutional rights, the role of courts and their duties of responsiveness, and generally to the substance of law’s shaping impact on the “culture of liberty” in a constitutional democracy. Different styles are often intertwined in practice, but my description here treats them as ideal-types. Proportionality epitomizes a particular style. Since each style can be differentiated by its peculiar approach to the positioning of different constitutional actors – that is, to the construction of constitutional space – I use an architectural metaphor to label it the Corinthian style.
This constitutional style, like the Greek architectural order itself, has an integrative aim that combines elements of two other constitutional styles. The first is the Doric constitutional style, which is characterized by a top-down form of legal reasoning and a categorical method of constitutional interpretation of deontological rights. The second is the Ionic constitutional style that relies on a contextualized bottom-up form of reasoning and a balancing judicial methodology.
The first two sections describe the Doric and Ionic styles, respectively. A description is necessary because the Corinthian style, to which I turn in Section Three, integrates their respective approaches through the proportionality method. Proportionality places a non-deontological conception of rights within a categorical structure of formal analysis. It represents a synthesis of Doric fidelity to form and institutional structure(thesis) with Ionic “fact-sensitivity” to contexts in which specific controversies arise (antithesis) that gives the perception of enhanced judicial responsiveness. However, one should not conflate the issue of perception and that of substantive worth. I argue in this section that while proportionality is comparatively more responsive than alternative methods, its judicial technique has not entirely lived up to its integrative aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. These pressures give rise to a paradox in that the back-loading of proportionality analysis (the fact that, in practice, most government al measures survive the first stages of the analysis), is both its flaw and the source of its appeal. It is its flaw because such back-loading raises the stakes at the later (balancing) stages of proportionality analysis by increasing the need for principled decision-making techniques. Such formalizing techniques are no more available here than they are under the Ionic style. But the escalating stakes are also a source of proportionality’s appeal because they have the effect of validating both competing interests. As far as the state interest is concerned, the more stages of proportionality analysis the challenged regulation survives, the stronger the recognition of the underlying public interest becomes. On the right-holder’s side, the demanding scrutiny of the state interest seeking to override the right reinforces the weight that the constitution places on the interest protected by the right. However counterintuitively, the judicial vindication of the strength of both conflicting interests narrows the ex ante/ex post gap to a considerable extent, thus enhancing the perception of judicial responsiveness.
In Section Four I take up the objection that judicial violence on private jurisgenerative interpretative processes is jurisprudentially irrelevant. The discussion progresses from constitutional methodology to the broader impact of the fact of social pluralism on constitutional adjudication in late modern democracies. Pluralism opens “abysses of remoteness”, as Hannah Arendt calls them, that challenge the fundamentals of the interaction between citizens and their institutions. Pluralism widens the pool of perspectives on social and political life from which claims are drawn while, at the same time, deepening the need for justification of specific institutional responses in ways acceptable to a pluralist citizenry. I argue that the fact of pluralism, together with the critique of legal determinacy and the changing role of the state, lengthens the distance between claimants, widens the ex ante/ex post gap, and heightens the need for mechanisms of institutional responsiveness to mitigate the violence that the law of the state inflicts on private jurisgenerative interpretative processes.
Michael Walzer described the challenge of judging not as “that of detachment, but of ambiguous connection.” The last section analyzes the role of the imagination in how modern law constructs the ambiguous connection between judges and their audiences. Using the works of Kant and Arendt, I analyze the role imagination plays in how different constitutional styles construct the positional objectivity of decision-makers. Proportionality synthesizes the forces of universalism and particularism and relies on the role of imagination in ways that other constitutional styles have traditionally sought to avoid. In conclusion, I will argue that the relation between proportionality and freedom is complex, and identify some dangers and opportunities in the age of proportionality.
