Proportionality: An assault on human rights?

International Journal of Constitutional Law

Volumn 7, Issue 3, 2009, Pages 468-493

  Tsakyrakis, Stavros ^a  

^a UNIVERSITY OF ATHENS   (Greece)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67650547942     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mop011     Document Type: Article

References (91)

1. The phrase "age of balancing" is that of T. Alexander Aleinkoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987).
2. See DAVID M. BEATTY, THE ULTIMATE RULE OF LAW (Oxford Univ. Press 2004)
3. ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Oxford Univ. Press 2002).
4. The metaphor goes at least as far back as the ancient Greeks, who used to depict the goddess of divine law and order, Themis, as a blindfolded woman holding a pair of scales and a cornucopia. The correlation of the scale with justice has an obvious ideological message.
5. Dennis v. United States, 341 U.S. 494, 524-525 (1951).
6. Barenblatt v. United States, 360 U.S. 109, 126 (1959).
7. Laurent B. Frantz, Is the First Amendment Law? - A Reply to Professor Mendelson, 51 CAL. L. REV. 729 (1963)
8. see also Laurent B. Frantz, The First Amendment in the Balance 71 YALE L.J. 1424 (1962)
9. Wallace Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CAL. L. REV. 821 (1962)
10. Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1024 (1978).
11. Laurent B. Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424, 1448 (1962).
12. "I think it is more than mere coincidence that in the overwhelming majority of the major free speech cases in which the ad hoc balancing approach has been applied, the weighing of interests has come out on the side which opposes freedom of speech." Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV.. 935, 939-940 (1968).
13. Of course, this does not mean that balance always tends to favor the restriction of rights. See Kathleen Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293 (1992)
14. and Robert Nagel, Liberals and Balancing, 63 U. COLO. L. REV. 319 (1992).
15. "The concept of 'balancing' is itself both a metaphor and an abstraction. The metaphor is ambiguous. It describes both a process of measuring competing interests to determine which is 'weightier' and a particular substantive outcome characterized as a 'balance' of competing interests. The abstract concept of balancing, furthermore, tells us nothing about which interests, rights, or principles are weighted or how the weights are assigned." Paul W. Kahn, The Court, The Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 YALE L.J. 1 (1987).
16. Dennis v. United States, 341 U.S. 494, 539-40 (1951).
17. Id. at 525.
18. Frank N. Coffin urges us to remember the warning of Professor Shapiro: "Lawyers in general, and judges in particular, coin or adopt metaphors and then forget that they are only metaphors." Frank N. Coffin, Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U. L. REV. 4, 16 (1988).
19. Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia, J. concurring). See Frederick Schauer, Commensurability and Its Constitutional Consequences, 45 HASTINGS L.J. 785, 787 (1994): "no one contends that length and weight can be reduced to a single measure, any more than people contend that color and smell can be measured along a unitary metric."
20. "In a case of weak incommensurability - and this is why I call it 'weak' - the values can be brought into relation with one another. "Jeremy Waldron, Fake Incommensurability: A Response to Professor Schauer, 45 HASTINGS L.J. 813, 817 (1994).
21. Id. at 818.
22. Id. at 818-821.
23. Waldron refers to RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard Univ. Press 1977)
24. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (Basic Books 1974)
25. and JOHN RAWLS, A THEORY OF JUSTICE (Harvard Univ. Press 1971).
26. Waldron, supra note 14, at 819.
27. Id. at 821.
28. "[...] the conception of proportionality that predominates in continental European contexts is rooted in an assumption that rights and other interests are formally indistinguishable." Julian Rivers, Proportionality and Variable Intensity of Review, 65 CAMBRIDGE L.J. 174, 180 (2006).
29. "The principle of proportionality consists of three sub-principles: The principle of suitability, of necessity, and of proportionality in the narrow sense." Robert Alexis, Constitutional Rights, Balancing, and Rationality, 16 RATIO JURIS 135 (2003).
30. The same Waldron says "... 'balance' also has connotations of quantity and precision, as when we use it to describe the reconciliation of [a] set of accounts or the relative weight of two quantities of metal." See Jeremy Waldron, Security and Liberty: The Image of Balance, 11 J. POL. PHIL. 191, 192 (2003).
31. Rolv Ryssdal, Opinion: The Coming Age of the European Convention on Human Rights, 1 EUR. HUM. RTS. L. REV. 18, 26 (1996).
32. Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A) at 8¶9 (1989).
33. THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 81 (Pieter van Dijk et al., eds., Martinus Nijhoff 1998).
34. The list of restriction is not identical for all four articles. The most extensive restrictions are included in art. 10(2), while the more lenient are to be found in art. 9(2). Note that art. 8(2) includes the "interest of the economic well being of the country" as legitimate restriction.
35. THEORY AND PRACTICE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS, supra note 24, at 537.
36. Otto-Preminger-Institut v. Austria, 295-A EUR. CT. H.R. (ser. A) (1994).
37. ̇I.A. v. Turkey, App. No. 42571/98 (Sept. 13, 2005).
38. Otto-Preminger-Institut v. Austria, 295-A EUR. CT. H.R. (ser. A) at ¶48.
39. Id. at ¶49.
40. The bulletin concluded by saying that "trivial imagery and absurdities of the Christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated." Id. at ¶10.
41. Id. at ¶9 (Joint Dissenting Opinion of Judges Palm, Pekkanen & Makarczyk).
42. Id. at ¶11.
43. Id. at ¶6.
44. Id.
45. Id.
46. This generosity fits with Robert Alexy's theory that "rights based on principles are prima facie rights," in Robert Alexy, Rights, Legal Reasoning and Rational Discourse, 5 RATIO JURIS 143, 145 (1992).
47. For a full account of his theory, see ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans., Oxford Univ. Press 2002).
48. See Aileen McHard, Reconciling Human Rights and Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights, 62 MODERN L. REV. 671 (1999).
49. Otto-Preminger-Institut v. Austria, 295-A EUR. CT. H.R. (ser. A) at ¶56.
50. See Ronald Dworkin's external-preferences argument in RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 277 (Harvard Univ. Press 1977).
51. The test of proportionality, as construed by both the minority and the majority in Otto-Preminger-Institut, focuses on an assessment of the necessity of the measure and on whether that measure causes minimum impairment of the competing right.
52. 403 U.S. 15 (1971).
53. Id. at 21.
54. Gerald Gunther, In Search of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 STAN. L. REV. 1001, 1006 (1972).
55. ̇I.A. v. Turkey, App. No. 42571/98 (Sept. 13, 2005).
56. Id. at ¶29.
57. Id. at ¶27.
58. Id. at ¶30.
59. Id. at ¶32.
60. Questions of legitimacy pertaining to the severity of the penalty have been taken by Mattias Kumm to imply that there is still room for the principle of proportionality, even if we subscribe to a theory of rights along the lines suggested in this article. See Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT ALEXY 147 (Stanley Paulson & George Pavlakos eds., Hart 2007).
61. From this he concludes that proportionality is still "central to the understanding of constitutional and human rights." Id. at 148.
62. F. v. Switzerland, 128 Eur. Ct. H.R. (ser. A) at 16 (1987).
63. Id. at ¶37.
64. Id. at ¶40.
65. Hirst v. United Kingdom, (No. 2) App. No. 74025/01, Eur. Ct. H.R. (Oct. 6, 2005, Grand Chamber).
66. Id. at ¶74.
67. Id. at ¶82.
68. Id.
69. Hatton and others v. United Kingdom, App. No. 36022/97 Eur. Ct. H.R. (July 8, 2003 Grand Chamber).
70. The debate between JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS, 256-259 (William Rehg trans., Harvard Univ. Press 1996)
71. and Robert Alexy, Constitutional Rights, 'Balancing and Rationality' 16 RATIO JURIS 131 (2003) is characteristic of this matter.
72. Alexy summarizes Habermas's point as follows: "Habermas maintains that the balancing approach takes legal ruling out of the realm defined by concepts like right and wrong, correctness and incorrectness, and justification, and into a realm defined by concepts like adequate and inadequate, and discretion." Id. at 134.
73. BEATTY, supra note 2, at 186.
74. Vicki Jackson in her rather friendly book review of Beatty's book raises this point and observes that "proportionality alone cannot provide us with the principled values on which its operational analysis must rest" and concludes that "for those whose foundational commitments are to other values, or to other more formal conceptions of equality, proportionality analysis might yield very different results." Vicki Jackson, Being Proportional about Proportionality, 21 CONST. COMMENT. 803, 829 (2004).
75. "The recognition of rights, even if they make more difficult the achievement of a good or the prevention of an evil, expresses that aspect of morality which sees persons not only as objects of benefit and protection but also as inviolable and independent subjects, whose status as members of the moral community is not exhausted by the inclusion of their interests as part of the general good." Thomas Nagel, Personal Rights and Public Space, 24 PHIL. & PUB. AFF. 83, 86 (1995).
76. See Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153 (Jeremy Waldron ed., Oxford Univ. Press 1984).
77. Robert Alexy, Rights, Legal Reasoning and Rational Discourse, 5 RATIO JURIS 143, 145 (1992).
78. See the critique of HABERMAS, BETWEEN FACTS AND NORMS, supra note 59.
79. For an account of Alexy's theory, see Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L J. CONST. L. (I•CON) 574 (2004)
80. STEVEN GREER, THE EUROPEAN CONVENTION OF HUMAN RIGHTS 203 (Cambridge Univ. Press 2006).
81. For a critique of Alexy's optimization approach, see Kai Moller, Balancing and the Structure of Constitutional Rights, 5 INT'L J. CONST. L. (I•CON) 453 (2007).
82. DWORKIN, supra note 40, at 271.
83. McHard, supra note 38, at 681.
84. Coffin, supra note 12, at 22.
85. Lustig-Prean and Beckett v. United Kingdom, 29 Eur. Ct. H.R. 548, ¶89 (1999).
86. Id. at ¶90.
87. See Kumm, supra note 50 (discussing the Lustig case and examining the reasoning of the court both in terms of proportionality and excluded reasons).
88. Kumm's own thesis is that "the idea of excluded reasons complements, but does not replace, proportionality as central to the understanding of constitutional and human rights." Id. at 148.
89. See the discussion in Rivers, supra note 19, at 177-182.
90. Id. at 180.
91. Id.