The idea of socratic contestation and the right to justification: The point of rights-based proportionality review

Law and Ethics of Human Rights

Volumn 4, Issue 2, 2010, Pages 141-175

  Kumm, Mattias ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

judicial review; justification; principle of proportionality; public reason; Socratic contestation

Indexed keywords

EID: 79959383707     PISSN: None     EISSN: 19382545     Source Type: Journal    
DOI: 10.2202/1938-2545.1047     Document Type: Review

References (98)

1. See Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 73 (2008), DAVID BEATTY, THE ULTIMATE RULE OF LAW (2004);
2. EVELYN ELLIS, THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE (1999);
3. WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE (2005). In the U.S. there is a greater reluctance to embrace proportionality,
4. see Lorraine E. Weinrib, The Postwar Paradigm and American Exceptionality, in THE MIGRATION OF CONSTITUTIONAL IDEAS 84 (Sujit Choudhry ed., 2006)
5. Explanations are provided by Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in EUROPEAN AND US CONSTITUTIONALISM 49 (Georg Nolte ed., 2005);
6. Vicki C. Jackson, Ambivalence, Resistance and Comparative Constitutionalism: Opening up the Conversation on Proportionality Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999);
7. see also in this volume, Steven Gardbaum, A Democratic Defense of Constitutional Balancing, 4 L. & ETHICS HUM. RTS. 79 (2010).
8. Another is whether proportionality analysis does justice to the idea of the priority of rights, central to the liberal tradition. For a discussion of these issues, see Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in LAW, RIGHTS, DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY 131 (George Pavlakos ed., 2007).
9. Perhaps also for reasons relating to the structure of constitutional text in the U.S. there is a view, that courts charged with their enforcement of such provisions should read them as short-hand references to a set of more specific rules that were intended either by the constitutional legislator or that reflect a deep historical consensus of the political community. Whenever courts can't find such a concrete and specific rule, the legislator should be free to enact any legislation it deems appropriate.
10. See Schauer, supra note 1. See also CHARLES FRIED, RIGHT AND WRONG (1978).
11. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR].
12. See Grundgesetz für die Bundesrepublik Deutschland (Basic Law) GG art. 2(1).
13. The Canadian Charter of Rights and Freedoms, 1982, sect. 1, prescribes that rights may be subject to "such reasonable limits prescribed by law as can demonstrably be justified in a free and democratic society." The South African Constitution, 1996, sect. 36 states that rights may be limited by: a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; (e) less restrictive means to achieve the purpose.
14. Charter of Fundamental Rights of the European Union, 2007, O.J. C 303/01.
15. ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (2002). The following pages draw heavily on Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L J. CONST. L. 574 (2004).
16. ALEXY, supra note 9, at 60.
17. This prong of the test is sometimes divided into two subparts. First, there has to be a legitimate aim. Second, the infringing measure must actually further that aim. The first is a normative, the second an empirical question.
18. See ROBERT ALEXY, A THEORY OF LEGAL ARGUMENTATION: THE THEORY OF RATIONAL DISCOURSE AS THEORY OF LEGAL JUSTIFICATION (1989) (examining whether legal reasoning is a special case of general practical reasoning). Reasoning about rights as principles is a special case of legal reasoning that approximates general practical reasoning without the special features that otherwise characterize legal reasoning.
19. Lustig-Prean and Beckett v. UK, App. Nos. 31417/96 and 32377/96, 29 Eur. H.R. Rep. 548 (1999).
20. See supra note 9, at 102. Alexy illustrates the Law of Balancing using indifference curves, a device used by economists as a means of representing a relation of substitution between interests. Such a device is useful to illustrate the analogy between the Law of Balancing and the law of diminishing marginal utility.
21. That does not mean that the two are identical. There are at least four differences between substantive rights analysis and general policy assessments. First, courts are not faced with generating and evaluating competing policy proposals, but merely to assess whether the choices made by other institutional actors is justified. Second, they only assess the merit of these policy decisions in so far as they affect the scope of a right. Third, specific constitutional rules concerning limits to constitutional rights or judicial precedence establishing rules that fix conditional relations of preference frequently exist. Fourth, proportionality analysis leaves space for deference to be accorded to other institutional actors. The ECHR refers to this as the "margin of appreciation," see Handyside v. the United Kingdom, 24 Eur. Ct. H.R. (ser. A), at 23 (1976).
22. For the idea of public reason, see JOHN RAWLS, POLITICAL LIBERALISM (1992).
23. A commitment to the idea of public reason does not commit to the particular elaboration of that idea provided by Rawls of that idea in his late work JOHN RAWLS, LAW OF PEOPLES (1999). The role of public reason within proportionality analysis is further examined below.
24. Case C-280/93, Germany v. Council, 1994, E.C.R. I-4973.
25. BVerfGE 6, 32 (Elfes).
26. BVerfGE 80, 137.
27. BVerfGE 54, 143.
28. BVerfG, 1 BvR 1778/01 (Mar. 16, 2004).
29. BVerfG, 1 BvR 3198/07 (Aug. 6, 2008).
30. See Case C-117/76, Ruckdeschel & Co v Hauptzollamt Hamburg-St Annen, 1977, ECR 1753.
31. TH ANNIVERSARY OF THE TREATY OF ROME 106 (Miguel Poiares Maduro & Loic Azoulai eds., 2009).
32. PLATO, APOLOGY 21a.
33. As Vlastos, points out only the Socrates of the middle and later dialogues has sophisticated theories about metaphysics, epistemology, science, etc.
34. Arguably nothing made Ronald Dworkin's account of judging more suspect to judges then his claim that adjudication required demi-god like "Herculean" intellectual labor. See the special issue on Dworkin, 1 INT'L J. CONST. L. 2003.
35. PLATO, supra note 25, at 21c.
36. For an insightful analysis, see Gregory Vlastos, The Socratic Elenchus, in OXFORD STUDIES IN ANCIENT PHILOSOPHY 27 (1983).
37. RICHARD ROBINSON, PLATO'S EARLIER DIALECTICS (2d ed. 1953).
38. PLATO, supra note 25, at 31c-32a.
39. The claim is not that Socratic eclectic reasoning is generally like proportionality analysis, or that cross-examination plays an important role in constitutional litigation. Instead the claim is that courts and the early Platonic Socrates engage in a practice, in which they challenge others to provide reasons for their claims and then assess these reasons for their internal consistency and coherence. In this way the two practices share salient features. Note how in the Georgias Plato has Socrates describe the difference between his procedure and that of the law courts (see PLATO, GEORGIAS 471e-472c, 474a, & 475e).
40. This does not mean that there is never an occasion theoretical sophistication is required.
41. Interestingly highest courts are sometimes not geographically located not in political power centers, but rather in the provinces. The ECJ is in the sleepy Duchy of Luxembourg, not in the European political power-center - Brussels. The European Court of Human Rights is in Strasbourg, not a European capital. The German Federal Constitutional Court is in Karlsruhe, not in Berlin. Yet, I am unaware of a single country in Europe that does not have its highest political branches located together in its capital. The widely challenged double seat arrangement of the European Parliament in Strasbourg and Brussels is the only exception to this rule.
42. PLATO, supra note 25, at 30e.
43. PLATO, MENON 84.
44. PLATO, REPUBLIC book 1.
45. HANNA ARENDT, THE ORIGINS OF TOTALITARIANISM 474 (1966).
46. See RAWLS, supra note 16.
47. The idea that a great deal of wrong is done simply by failing to take seriously the basic question "what should we be doing here and now? Is this right?' is central to the New Testament. Jesus pleaded before god to forgive those who persecuted him, because they did not know what they are doing (Luke 23:34). Pontius Pilate's sceptical shrug "what is truth?," as he leaves it to the vote of the people whether he should free Barabbas the robber or Jesus of Nazareth the Messiah (both sentenced to be crucified) on the occasion of a public holiday, is another situation where the critical examination of what justice requires is absent at the moment a great injustice is committed (John 18:38). Similarly, God's question to Adam after Adam has committed the original sin and hides: "Where are you? (Genesis 3:9) is best interpreted not as God seeking to know where Adam is (he is, after all, all-knowing) but as an admonition to Adam to become aware and attentive to what he is doing (wilfully hiding before God instead of seeking his presence). Furthermore, the admonition "Seek and you shall find" also focuses on the adoption of a particular attitude: You actually have to seek truth to be sure to find it.
48. For the claim that ancient practical philosophy was primarily a way of life, focused on care of the self, or, more traditionally, soulcraft, see PIERRE HADOT, WHAT IS ANCIENT PHILOSOPHY? (2002).
49. See also PIERRE HADOT, PHILOSOPHY AS A WAY OF LIFE: SPIRITUAL EXERCISES FROM SOCRATES TO FOUCAULT (1995).
50. For a contemporary defense of this idea, see DANA VILLA, SOCRATIC CITIZENSHIP (2001).
51. See Jeremy Waldron, The Case Against Judicial Review, 115 YALE L. J. 1348 (2006).
52. See more generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999).
53. and Jeremy Waldron, A Right-Based Critique of Constitutional Rights, 13 OXFORD J. LEGAL STUD. 18 (1993);
54. see also RICHARD BELLAMY, POLITICAL CONSTITUTIONALISM: A REPUBLICAN DEFENSE OF THE CONSTITUTIONALITY OF DEMOCRACY (2007).
55. "Legalism" is characteristic not only of judicial review that is conceived in textualist or originalist terms, but also of "living tree" constitutionalism, in which judicial practice responds to adapt abstract principles to changing circumstances in a common law fashion. For a defense of such an approach, see W. J. WALUCHOW, A COMMON LAW THEORY OF JUDICIAL REVIEW (2007)
56. (providing a defense of such a practice) and ADRIAN VERMEULE, LAW AND THE LIMITS OF REASON (2009) (arguing against the virtues of "common law constitutionalism" and for the virtues of legislative codification).
57. There is a strong textual basis for these claims: see Romans 1, Leviticus 18:22, Leviticus 20:13, 1 Corintheans 6:9-10. Note, however, that the Catholic tradition does not rely exclusively on textual authority, but on natural law, to come to the same result (see Catechism of the Catholic Church, Part III Sect. II, Ch. 2, Art. 6, Recital 2357.). This is supported by some "New Natural Law" thinkers, see, e.g., ROBERT GEORGE, IN DEFENSE OF NATURAL LAW (2001).
58. Even though the basic structural features of the Rawlsian idea of public reason are compatible with the idea of proportionality based reasoning about rights, the argument presented here does not depend on the specific claims John Rawls makes in POLITICAL LIBERALISM 212-54 (1993)
59. or in Public Reason Revisited, in THE LAW OF PEOPLES 129-80 (1999) about the scope and operation of the idea of public reason.
60. The U.S. Supreme Court has rebuked the U.S. Government's far-reaching measures relating to the "War on Terror" on four occasions: First, in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S Ct 2633 (2004) the Court held that a U.S. citizen detained on U.S. soil as an "enemy combatant" must receive a "meaningful opportunity" to challenge the factual basis for her detention, countering the assertion that such scrutiny was not compatible with safeguarding national security. Second, in Rasul v. Bush, 542 U.S. 466, 124 S Ct 2686 (2004) the Court held that Guantanamo Bay was within the U.S. jurisdiction and subject to its laws; thus, detainees therein were entitled to basic due process protection in American courts. Third, in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S Ct 2749 (2006) the Court held that the military commissions that President Bush had established at Guantanamo Bay to try some detainees violated the Constitution's separation of powers. Finally, in Boumediene v. Bush, 553 U.S. -, 128 S Ct 2229 (2008) the Court determined that even though the administration had succeeded in having Congress authorize the military commissions and therefore strip the Guantanamo detainees of their habeas corpus right, this act was in violation of constitutional guarantees and therefore ultra vires.
61. For a remarkable but not implausible claim concerning the dynamics justification of authoritarian measures even in democracies, see Hermann Goering: after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship. ⋯voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country. GUSTAV GILBERT, NUREMBERG DIARY 278-79 (1995).
62. For a review of these decisions, see Eyal Benvenisti, United We Stand: National Courts Reviewing Counterterrorism Measures, in COUNTERTERRORISM: DEMOCRACY'S CHALLENGE (Andrea Bianchi & Alexis Keller eds., 2008).
63. Of course there are also examples of courts striking down legislative intervention in favor of economically disadvantaged groups, thus using conservatively inclined courts to undermine progressive agendas set by the socially more responsive legislatures. But I am not familiar with cases that fall in this category, that make use of the proportionality framework. See, most strikingly Lochner v. New York, 198 U.S. 45 (1905).
64. See Waldron, The Case Against Judicial Review; supra note 43;
65. see more generally WALDRON, LAW AND DISAGREEMENT;
66. A Right-Based Critique of Constitutional Rights
67. and see also Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy, supra note 43.
68. Canonical contributions include ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1969);
69. JH ELY, DEMOCRACY AND DISTRUST: THEORY OF JUDICIAL REVIEW (1981);
70. ROBERT BORK & RONALD DWORKIN, FREEDOM'S LAWS (1996);
71. CHRISTOPHER EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT (2001);
72. LAWRENCE SAGER, JUSTICE IN PLAINCLOTHES (2004);
73. LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
74. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999). For recent contributions,
75. see Richard Fallon, The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693 (2008),
76. ADRIAN VERMEULE, LAW AND THE LIMITS OF REASON (2008)
77. as well as Alec Walen, Judicial Review in Review: A Four-Part Defense of Legal Constitutionalism - A Review Essay on Political Constitutionalism, by Richard Bellamy, 7 INT'L J. CONST. L. 329 (2009).
78. Only Members of the House of Representatives were directly elected. Senators were appointed by state legislatures until the Seventeenth Amendment established direct elections in 1913. And as a matter of formal constitutional legal provisions, the President continuous to be elected not by citizens directly, but by the Electoral College appointed by each state "in such a Manner as the Legislature thereof may direct."
79. The fact that it is generally instrumentally irrational for individuals that are part of a large electorate to vote is a major paradox for rational choice theory. For a recent discussion of these issues, see RICHARD TUCK, FREE RIDING (2008).
80. The fact that a court engages in proportionality analysis does not imply anything about the degree of deference it should accord political actors. The proportionality test itself does not provide a standard merely for reasonableness, but for rightness. But a court can inquire more or less searchingly whether the relevant prongs of the test are satisfied. The very existence of the multi-prong structure allows the court to ask relatively specific questions, requiring specific answers. In that sense proportionality review is inherently incompatible with what in the U.S. context generally passes as "rational basis" review. I provide no answer to the question how much deference in which types of contexts courts should provide. Here the core point is merely to describe a particular institutional function of courts engaged in proportionality based rights adjudication. The correct level of deference depends what, in light of this function, is appropriate in different contexts and is likely to vary depending on factors that include, but are not limited to a) the political, social, and cultural context; b) the complexity of the policy questions involved; c) the structure of the processes and institutions that have generated the decision that is under review; and d) the structure of the judicial institution and its position within the overall constitutional structure.
81. Of course the very fact of rights' litigation suggests that there is also reasonable disagreement about the limits of reasonable disagreement. Here the original argument about reasonable disagreement about rights as the proper domain of the democratic process can be reintroduced on the meta-level. But whereas it is a plausible to claim that disputes about justice are at the heart of what the democratic process is about, it is not as obvious that the democratic process is also good at policing the domain of the reasonable. At any rate, there is no reason not to entrust the task of delimitating the domain of the reasonable to courts, both as a matter of principle - giving expression to the link between legitimacy and reasonableness - and because it improves outcomes (see below).
82. For an account of the "countermajoritarian difficulty" as an academic obsession in U.S. constitutional scholarship, see generally Barry Friedman, The Countermajoritarian Problem and the Pathology of Constitutional Scholarship, 95 NW. U. L. REV. 933 (2001).
83. For an powerful defense of a "right to justification" as central to liberal democracy, see RAINER FORST, DAS RECHT AUF RECHTFERTIGUNG (2007).
84. For the idea of legal archetype as a legal rule emblematic for a wider commitment, see Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681 (2005).
85. Even when the right to vote is withdrawn, as it is in many states for convicted prisoners, the reasons for doing so are not outcome-oriented, but seek to punish the prisoner by expressly denying him the status of an equal member of the political community. But see JOHN STUART MILL, ON REPRESENTATIVE GOVERNMENT (1861), who entertained the possibility of weighing votes according to the level of education attained.
86. ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY 146-52 (2007) rightly points out that whether and to what extent judges ought to defer to judgments of public authorities depends in part on the majorities necessary for a court to strike down legislation. Norms relating to standards of review and procedural norms relating to majorities required to strike down a decision can both serve to institutionalize the idea that review should be deferential.
87. See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. (2001).
88. On the relationship between national constitutional law and international human rights law, see generally Gerald Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 STAN. L. REV. 1863 (2003).
89. At least one of the reasons why debate about judicial review remains alive in the U.S., more than anywhere else, might be connected to the particularly rigid features of constitutional review: Without explicit constitutional authorization a bare 5:4 majority of judges with life tenure - in practice translating into an average term of 26.1 years for judges retiring after 1970 (see Steven Calabresi, James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. L. & PUB. POLICY) - decide questions, that for all practical purposes are nearly impossible to overturn by constitutional amendment. Compare this with other jurisdictions where there is an explicit constitutional commitment to judicial review and qualified majorities of judges appointed for 9-12 years make decisions that can be overturned in a significantly less burdensome override process. For the institutional arrangements that predominate in Europe, see
90. ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 31-60 (2000) provides a helpful overview.
91. For a sophisticated version of a legal process-based argument that emphasizes the connection between institutional rules governing courts and their function to serve as a kind of "quality control mechanism" of legislative decisions, see LAWRENCE SAGER, JUSTICE IN PLAINCLOTHES 199-201 (2004).
92. See LEO STRAUSS, PERSECUTION AND THE ART OF WRITING (1952).
93. Perhaps it is only possible to institutionalize Socratic contestation in mature liberal democracies.
94. See supra note 66.
95. One might think of non liquet decisions, see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 (July 8) or the refusal to pronounce on the substance of certain issues, see for example the position of J. Jackson dissenting in Korematsu v. U.S., 323 U.S. 214 (1944).
96. The idea of the "noble lie" stems from the Nomoi, widely recognized today as the latest of Plato's dialogues. For the claim that modern politics is not possible without such noble lies, see LEO STRAUSS, THE CITY AND MAN (1964).
97. For an incisive analysis and critique of esotericism as paradoxical and internally instable, see MOSHE HALBERTAL, CONCEALMENT AND REVELATION ch. 17 (2007).
98. See ALLAN BLOOM, THE CLOSING OF THE AMERICAN MIND (1987).