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Is Proportionality Culturally Based?

Moshe Cohen-Eliya and Iddo Porat, College of Law and Business, Ramat Gan, Israel

In a recently published book Proportionality and Constitutional Culture (Cambridge University Press, 2013) we look closely at constitutional culture centering on two crucial concepts of constitutional law: balancing and proportionality. American constitutional lawyers have been asking themselves in recent years more and more whether US constitutional law is as relevant and influential in the global scene as before. They are worried at what some term as the weighing influence of American constitutional law, and the apparent rise in influence of other legal systems – in particular Germany, Canada and the European Union – as the focal point for inspiration and emulation by emerging constitutional systems. This question is related to two other questions that have preoccupied American constitutional law in the past decade or so – whether American constitutional law is exceptional in being fundamentally different than other constitutional systems, and whether American constitutional lawyers and judges should look at foreign law when interpreting and applying the American constitution.

While these questions seem to preoccupy recent American constitutional literature, an entirely different set of questions dominates European constitutional literature. European constitutional lawyers are concerned predominantly with one thing – proportionality! Whether you are a German constitutional lawyer, an Italian, a French or an English one, you will invariably have been debating and talking about the proportionality doctrine as part of your work. Almost every discussion of constitutional law in these countries seems to touch at some point on proportionality, and the academic literature on proportionality has spawn by now a plethora of articles and books.

Due in part to its coherent and simple structure, proportionality has spread dramatically into national legal systems far and wide and is considered to be one of the most prominent instances of the successful migration of constitutional ideas. In most of the adopting legal systems, moreover, proportionality has been incorporated as a central method of constitutional analysis. It is viewed as infusing coherence into the entire constitutional system, applicable to all types of rights and interests and spreading sometimes even to other branches of the law.

The two constitutional discourses – the American and the European\global one – seem therefore almost disconnected. The literature on proportionality usually does not draw on U.S. experience and literature, as U.S. law does not use the proportionality test, and the American discussion on foreign law and on its exceptionalism, usually does not discuss proportionality, and instead concentrates on differences between the U.S. and Europe in terms of specific rights and their interpretation. Indeed proportionality, despite its immense importance outside the US, hardly appears as a central issue in American legal academic literature.

This book is an attempt to bridge this gap and talk both to the European and American audience. It does so by comparing proportionality to its counterpart in American constitutional law – balancing. While not as structured as its European counterpart, and consisting of only one stage – the American balancing test, which as its name suggests, consists of balancing rights with other rights and interests – captures the same basic function as proportionality, and is identical with the most important stage of proportionality (proportionality in the strict sense).

The book attempts to do something that is missing in both American and European current literature. It seeks to provide a comprehensive and culturally-sensitive comparison between these two pivotal doctrines, including a discussion of their analytical similarities, historical origins, and embeddedness within their respective political and philosophical culture – the U.S. culture (for balancing) and German culture (for proportionality).
This comparison reveals fascinating lessons on the influence of context, history and culture on the understanding of these two central legal concepts, and conversely, also illuminates the differences between the two constitutional cultures as they are reflected through the differences between the two doctrines. Our conclusion is that despite important analytical similarities, legal, political and philosophical culture in America and Germany respectively brings about quite a different understanding and role of balancing and proportionality within their respective culture.

Starting out from the historic origins, the book shows in Chapter II how nineteenth-century Prussian administrative law molded the conception of the application of proportionality as a doctrine in the completely opposite direction taken by early twentieth century US constitutional law in shaping the use of balancing. In Prussia, proportionality stepped into the vacuum created by the absence of constitutional protection for rights, and introduced into administrative law an element of rights-protection through the notion of the rule of law . In the USA, balancing had quite the opposite effect. Given the lack of a limitations clause in the Bill of Rights, balancing enabled a necessary pragmatic aspect of rights restriction in view of circumstances of conflicting interests. The particular historical context shaped the conception of these doctrines: proportionality as pro-rights and balancing as pragmatic and limiting rights.

Political culture, as we show in Chapter III further explains the centrality and the intrinsic value accorded proportionality in German constitutional law, as a mechanism that inherently facilitates the joint goal of shaping and optimizing German society’s values, and the relative marginalization of balancing in American constitutional law, as a pragmatic exception to the construction of rights as categorical limitations on state power. Chapter IV reviews the disparate deontological and teleological philosophical underpinnings to the constitutional law in the two systems and Chapter V the different conceptions of human rationality and epistemic capabilities manifested in the German and American traditions of legal thought. The doctrine of proportionality should be understood on this background as characteristic of the traditional German emphasis on logical clarity and coherence; it is conceived of as internally well-structured and logical, while serving as an external template that injects coherency into both the constitutional system and into the legal system in its entirety. In contrast, American conceptions of balancing construct it as a pragmatic, relatively unstructured, tool, yet reflecting the need to accommodate different social interests.

Unlike the doctrine of balancing, which has largely remained confined to US constitutional law, German proportionality has attained a global status, migrating to almost all constitutional systems around the world. The last two chapters of the book attempt to explain this global spread and discuss some of its effects. In Chapter VI we maintain that proportionality has spread so effectively since it is intrinsic to what we identify as the emerging global culture of justification which is based on the notion that the state must justify all of its actions, without exception.

The universal and generic nature of proportionality holds both promise and risk. There is the promise of coherence and simplicity and of the benefits of participating in a global dialogue and global project. But, in Einstein’s words, “everything should be made as simple as possible, but not simpler.” In the finishing chapter of the book, Chapter VII, we allude to such a risk posed by proportionality when it is incorporated into new legal systems that, as a result, local doctrines will lose their nuance and richness and become less adapted to their own environment. To use a zoological analogy, proportionality can be compared to the universally adaptable bird that migrates and pushes out local species wherever it lands. In this case, too, functionality and adaptability come at a cost in terms of the richness of the local environment.

Suggested Citation: Moshe Cohen-Eliya and Iddo Porat, Is Proportionality Culturally-Based?, Int’l J. Const. L. Blog, September 28, 2013, available at: http://www.iconnectblog.com/2013/09/is-proportionality-culturally-based

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Published on September 28, 2013
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