The Case for Proportionality Review – and against Balancing
A strong case can be made for proportionality review, especially because this entails more than just ‘balancing’ the competing interests at stake. However, perhaps in supranational adjudication in particular, balancing is often what it boils down to.
At the four-yearly World Congress of the International Association of Constitutional Law (IACL) that took place from 16-20 June 2014 in Oslo, a ‘Judges’ Panel’ was included in the programme. The topic was ‘Proportionality in Constitutional Adjudication’ and the panel included (former) judges from the Inter-American and the European Court of Human Rights, a US Court of Appeals, etc. Judge Susanne Baer from the German Federal Constitutional Court (Bundesverfassungsgericht) also participated in the panel. She presented what to me was the strongest case for proportionality review I have heard in a while. Not only was her story more clear and convincing than those of the other panelists, also compared to highly fascinating yet complex theories like Robert Alexy’s her account stood out because of its down-to-earthness and pragmatic appeal. Proportionality review, Judge Baer explained thoroughly, is a means of structuring argumentation, selecting and prioritizing arguments, and rationalizing debate on the outcome of a particular case. As I understood it, it triggers deliberation, allowing or even requiring judges to move away from previously held standpoints to reach conclusions that would actually be in line with the idea and structure of proportionality.
Importantly, Judge Baer emphasized, proportionality review does not mean that judges resort to a mere balancing exercise. In fact, in the majority of cases, they do not even reach that point. A proportionality test—though this somewhat depends on the jurisdiction—comprises the questions whether there was a legitimate aim, whether the means of interfering was suitable for meeting this legitimate aim and was necessary, and, only finally, whether the interference had been proportional stricto sensu (balancing). In a great number of cases, this final, and most problematic stage would not even be reached because the court (the Bundesverfassungsgericht) would thoroughly investigate the ‘preliminary’ questions on the basis of which it could reach a transparent conclusion.
Opponents of balancing by judges hold that in the end it requires a value judgment. Often multiple outcomes are possible and hence decision making is required that can only be done by elected politicians. For what weight should be attached to the various interests at stake and which factors need to be taken into account anyway? Indeed, where a court need not go further than either the legitimate aim, the suitability or the necessity test, one arguably has the best of both worlds: a structured framework called proportionality review, posing specific questions that adequately steer the manner in which a case is dealt with—but without having to say something on that final, difficult balance between the interference with the individual’s right and all the other, mainly general interests at stake.
However, considering the issue more closely, the fact that there are often so many complex, political and cultural interests at stake, de facto means that it is often an illusion to reach a conclusion already on the basis of the various preliminary tests. Perhaps especially in supranational rights adjudication this is simply not what is generally happening. If you consider the European Court of Human Rights, it appears quite unlikely that this court engages in a thorough analysis of the first prongs of the proportionality test. Indeed, especially where the legitimate aim is concerned the ECtHR often leaves a wide margin of appreciation to the legislator in particular. If it asks the question of suitability at all, it appears to be hard for the Court to judge upon this issue (also because the aim is often broadly formulated). Considering, for example, cases concerning austerity measures, it seems unlikely that the Court would conclude that a certain pension cut or benefit change directed at a certain group of persons is not suitable for meeting the aim stated or truly investigates whether less interfering alternatives would have been available.
Proportionality review has become widespread and is not always regarded as logically necessary, but at least as the best way available for reviewing individual rights cases. It ensures rationalization in the context of a number of subsequent questions, that do not just demand value-based answers. Yet the fact that proportionality review need not imply complex, and sometimes untransparent and unconvincing balancing acts must not be overestimated. For especially in a supranational setting with a court playing a subsidiary role and being far removed from the actual facts of a case, the preceding questions are often just as problematic for a court to judge upon—and hence lead the court to use the balancing test after all. This does not mean that there is no room for the ECtHR to pay closer attention to these questions, and not treat them as mere formalities. It does mean, however, that there is still reason to worry about courts like the ECtHR balancing the interests at stake, and especially how they do this.