–Talya Steiner, PHD Candidate at Hebrew University; Manager of the “Proportionality in Public Policy” project at the Israel Democracy Institute
On May 19-20, 2019, the Israel Democracy Institute (IDI) in Jerusalem hosted a conference on the topic of: “Proportionality in Public Policy: Balancing of Rights and Interests in Decision-Making”, which was the culmination of a six year research project conducted at IDI and funded by an ERC advance grant. The project focused on the theme of right limitations from the perspective of policy makers, and utilized a variety of empirical methodologies. The conference brought together constitutional researchers, experts on public policy and behavioral scientists studying decision making, to present and reflect upon the main research products of the project.
The full conference is available for viewing here.
The conference opened with a panel devoted to a book edited by Mordechai Kremnitzer, Talya Steiner and Andrej Lang, titled “Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice” (Cambridge University Press, forthcoming). The book is a comparative empirical analysis of the application of proportionality in six jurisdictions (Germany, Canada, South Africa, Israel, Poland and India).
The discussion by respondents Liora Lazarus (Oxford), Niels Petersen (University of Munster) and Aharon Barak (IDC) elaborated on the contribution of the book to the current literature and the directions its analysis opens for further empirical and comparative research of proportionality in practice. They also debated the authors’ argument in support of an integrated approach to proportionality’s subtests.
The next panel was devoted to the presentation of experimental work testing the application of the proportionality doctrine by experts:
Raanan Sulitzeanu Kenan (IDI, HUJI) examined the application of the proportionality doctrine by lawyers. The findings show that lawyers’ proportionality determinations are sensitive to doctrinally relevant factual variations, but also to irrelevant political preferences.
Daniel Statman (University of Haifa) analyzed proportionality judgements regarding civilian casualties in war made by academic experts, military experts and lay people. The findings demonstrate a lack of convergence between experts to the same extent as lay people, calling into doubt the existence of expertise on this question.
Liat Netzer (IDI) examined the effect that different formulations of the proportionality doctrine – particularly necessity or balancing – have on the perception of the doctrine and its implementation vis a vis rights protection. The findings point to the necessity test eliciting more rights-protective perceptions and decisions relative to balancing.
Commentators Eyal Zamir (HUJI) and Amichai Cohen (IDI) focused on the ramifications for the understanding of the concept of proportionality and the function it fills in theory and practice, and suggested possible alternatives in light of the limitations raised by the papers.
The third panel brought together Israeli experts “from the field” to critically reflect on the application of proportionality in day-to-day practice, including Former Israeli Chief Justice Dorit Beinisch, Former Deputy to the Israeli Attorney General Mike Blass, Legal Advisor to the Knesset Constitution, Law & Justice Committee Gur Bligh, and Former Legal Advisor to the Israeli Security Agency Eli Bahar. They discussed how the adoption of the proportionality framework by the court subsequently structured analysis and deliberations in government and parliament, and the ways in which specific subtests serve legal advisors in policy debates.
The first day concluded with a keynote speech by Mattias Kumm (NYU, WZB, Humboldt University), titled: “Rights, proportionality and courts under unfavorable circumstances: Some observations on history and judicial strategy”. He opened with the political background that enabled the emergence of proportionality-based rights review by courts, and the changes that have occurred in some countries that have made conditions unfavorable for such an approach. He then offered two paradigmatic reactions by courts to such circumstances: “business as usual” – in which the court continues to carefully apply proportionality and render the decisions required, and “strategic retrenchment” – in which the court is attune to the political climate and uses avoidance doctrines or enlargement of deference to avoid decisions which may lead to extreme backlash. He argued for the first approach, claiming that historically courts have not proven successful in strategic evaluation of political contexts.
The second day of the conference opened with a key note speech by Professor Paul Slovic (University of Oregon), titled: “Psychic Numbing, the Prominence Effect and Disproportionate Policy Making”, presenting two psychological biases that contribute to the failure of people and governments to intervene in cases of genocide and mass atrocities, despite high value they attribute to individual lives. The prevalence of these judgmental biases and the difficulty in avoiding them raise serious concerns regarding the usefulness of the proportionality principle.
The first panel of the day presented experimental work examining biases in decision making involving rights restrictions:
Raanan Sulitzeanu Kenan (IDI and HUJI) investigated how priming the concept of rights effects political bias in decisions to approve a politically charged demonstration, and how this may be effected by political polarization. His findings show that while in Canada priming rights mitigated political bias by increasing support for a political opponent’s demonstration, in Israel the effect was opposite: priming rights exacerbated political bias by increasing support only for demonstrations by organizations with which participants identified.
Ori Plonski (The Technion) presented a combination of experimental and field data demonstrating that cases requiring balance between rights and public interests appearing later in a sequence of decisions are likely to lead to more favorable results for the individual than cases appearing early in the sequence.
Liat Netzer (IDI) demonstrated the occurrence of “coherence effects” – shifts in the weights afforded to relevant criteria in the process of making a decision – in decisions that involve balancing rights against public interests. Importantly, coherence effects were found to be stronger with regard to rights considerations relative to the competing public interests.
Commentator Andreas Gloeckner (University of Koeln) pointed out the ways in which the different projects successfully overcame some of the typical methodological challenges in behaviorally investigating factors affecting judgements, and offered thoughts on the psychological mechanisms underlying the different findings and directions for future development.
The second panel was devoted to case studies investigating the role played by rights in the legislative process of anti-terrorism measures:
Lila Margalit (IDI) followed the legislation of the Israeli Combating Terrorism Act. She demonstrated the role played by the legal advisor to the parliamentary committee in facilitating the debates by defining rights-based dilemmas to be grappled with, challenging governmental assumptions and at times proposing specific alternatives. She demonstrated the ways in which these debates at times altered the final result, as well as the limitations of the parliamentary debate in providing effective rights protection.
Andrej Lang (University of Halle-Wittenberg) followed the legislation of the German Anti-terrorism database and the Data Retention Act. He showed the advantages and disadvantages of the model of ministerial rights review in the ministries of justice and interior, and demonstrated the the limited function of parliamentary debates for rights considerations.
Commentators Paul Yowell (Oxford) and Richard Stacey (University of Toronto) pointed to the possible advantages of parliamentary rights review relative to judicial rights review, and commented on the dynamic of constructing justification for rights restriction in the policy process.
The conference wrapped up with a concluding discussion between Professor Yuval Shany (IDI and HUJI) and the heads of the “Proportionality in Public Policy” Project, Mordechai Kremnitzer, Raanan Sulitzeau Kenan, Yuval Feldman and Talya Steiner, reflecting on the motivations for the project, some of the challenges and unexpected developments along the way, the main insights and directions for future research in the field.