Proportionality in constitutional law

Proportionality in constitutional law (Schlink)

Proportionality in constitutional law (Schlink)

Suppose you’re a Judge on a fictitious moral court. No precedents, no statutes, each case is decided on its moral merits only. Two neighbors come before you: Pete and Mike. Pete took Mike’s car without asking and didn’t return until the next evening. Mike wasn’t able to pick up his elderly mother at the lonely bus station. The mother had to be taken to the hospital with frostbite. Mike thinks Pete should at least apologize for his immoral behaviour. Pete is truly sorry, but he thinks he shouldn’t be morally blamed. What would you do as a Judge? Pete explains that he had to bring his pregnant wife, who’s water had broken, to the hospital. He couldn’t use his own car, because he needed a four-wheel drive car due to the heavy snow fall. He didn’t ask for Mike’s permission, because they often borrow eachother’s things without asking and he didn’t want te wake him up in the middle of the night. Mike tells you he had told Pete of his plans to pick up his mother the next morning. Pete is sorry, but he knew that someone would drive by and help the old lady. His wife’s situation was a matter of life and death. The hospital confirms this. Also, Pete’s mother has recoverded fast and well. This asks for a proportionality analysis. Pete’s action was legitimate, necessary and there was no alternative to would have harmed Mike and his mother less. Saving his wife’s life was important enough to justify the harm done to the old lady. This shows that proportionality analysis is about means and ends. We justify the action based on the legitimacy of the end pursued and on the helpfullness, necessiy and appropriateness of the action as a means to that end. Thus, when you pursue an end, you must use a means that is necessary, helpful and appropriate. A means that doesn’t help to reach to end isn’t a real means and therefor out of proportion.

Proportionality and balancing

The principle of proportionality arises in those cases where specific norms prohibiting or commanding certain means or actions that serve people as means, are lacking in law. An example is the right of self-defense. To find a proper balance, a means-end analysis with the characteristics of proportionality analysis is needed. In legal literature as well as in jurisprudence, we find balancing used both as the last step of proportionality analysis and as the framework for proportionality analysis.

Proportionality in Germany

In Germany, the principle of proportionality came into its own in administrative law. According to the norm, the police had to do what was necessary to fight dangers to order and public safety. The norm gave the police a wide discretion. Once the ideas of the Rechtsstaat and individual rights began to prevail, the courts started to institute controls over the police. That lead to the end to the uncontrolled discretion. The Prussian High Administrative Court developed the norm into a jurisprudence of proportionality. The police were entitled to use only means that were necessary, fit, and appropriate (also called proportional).

The means had to work, there had to be no other means that would be equally effective but less intrusive, and the end had to be important enough to justify the instrusion. The two normative premises:

The police were entitled to do what was necessary to fight dangers to order and public safety.
Citizen’s life, property and liberty were protected against police intrusion.

Those premises led to a dilemma: is it impossible to fight dangers without intruding into citizens’s life, property and liberty? The Court decided that the police was allowed to intrude, but not in an arbitrary way, and by defining the nonarbitrary way as the proportional way.

Proportionality across the world

The principle of proportionality is often traced back to German roots. After that, most other European Countries, Canada, South Africa and Israel made the principle of proportionality the cornerstone of their freedoms’ and rights’ jurisprudence.

Problems of proportionality

Proportionality is a structure within which all kinds of problems unfold. The first one is the problem of ambiguous or insufficiënt information. It’s sometimes not possible to determine whether a means works and whether it is necessary. The necessity and the fitness of a means is therefor an empirical problem. Scholarship, science and experience often help in solving it.

A second problem is that while it is objectively possible to determine whether a means works and is necessary, the balancing of interests, rights and values entailed in the analysis of appropriateness is unavoidably subjective. There is no objective standard for weighting and measuring free speech vs. privacy, safety vs. freedom, public health vs. privacy and so on.

To solve the first problem mentioned, one can establish a burden-of-proof-rule under which it is either the legislature or the affected citizin who has to prove that the means at issue works or doesn’t work, is necessary or not. Regarding to the second problem mentioned, it is said that there is no reason why justices should put their own subjectivity before the subjectivity of the legislature. Subjective decisions about how to pursue the common good are political. They require democratic legitimization, and the legislature is democratically legitimized to make them. Experts are only legitimized to make decisions when they can be made on objective grounds. On the other hand it is argued that legal experts on the constitutional or supreme courts enjoy at least an indirect democratic legitimacy and furthermore have the time and wisdom to balance more calmly and carefully the crucial conflicts of a society than the legislature. Many courts claim the right the control the balancing of the legislature and replace it by their own balancing. At the same time they emphasize their respect for the results of the democratic political process. They don’t always interfere, only on those occasions when they feel a specific urge to do so. In determining both how the burden of proof is distributed between the citizens and the legislature and how activist the courts are when balancing becomes the issue, one factor is the democratic and revolutionary tradition. In France, the people trust the political process and accept only a rather weak judicial control of the legislature. In Germany, the courts and the law enjoy more trust than the legislature and politics.

A second important factor for the distribution of the burdon of proof and also for the assignement of the task of balancing is the homogeneity or heterogeneity of the people. The more religious and ethinic conflicts there are, the more it makes sense to shift some of the burden of integration from politics to law and from legislature to the supreme or constitutional courts. According to the author, the principle of proportionality still has the distinctive features that allow us to call it a principle. It’s a complex principle, allowing for different modifications and interpretations. It however structures our reasoning and guides us on our difficult path to find answers.

Conclusie

The principle of proportionality shifted from a principal of moral philosophy to a legal principle. From a principle of administrative law to a principle of constitutional law. It’s a rulte at which all courts ultimately arrive. Application of the principle of proportionality has had and will have a standardizing effect on different constitutional cultures. An often-praised asset of proportionality analysis is its flexibilty: facts may be assessed differently and interests and rights are balanced and weighed differently from case to case. Another point of view is that the principle of proportionality doesn’t have a standardizing effect on different constitutional cultures, but rather that it is a standard that is shared by constitutional cultures. They become more and more aware of this over time.

Summary written by Wendy van Eck.

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Philosophy of Science: The origins of law: nature or science?

The origins of law: nature or science?

As a general proposition, laws are too diverse in order to classify them within a single universal definition. What can be certain is that searching for laws is one of the main goals of natural science. The laws of nature ascend from written law made by men. They are presumed precepts of society; dictates of public conscience and formulate a common consensus of morality. A salient question is whether the laws of nature originate naturally from the world or from some supernatural, divine force. Further, whether laws of nature create a package of rules to regulate society or whether they just describe facts and procedure. The answers to these questions depend on what force the laws of nature take, how necessary they are and whether other laws are contingent upon them, whether the laws of nature are distinct and express propositions or rather unintentional generalisations. This introduction shows that there is no overarching philosophical theory of the laws of nature. This is further evinced through an analysis of how difficult it is to relate the various law disciplines to each other (such as physics, chemistry, biology, psychology etc.).

What is the purpose of laws?

Explaining whether laws strictly define or merely suggest the operation of nature is a question usually posed in historical or scientific debates. It was not until the scientific revolution that the idea of scientific law came into being. A balance must be struck between the precedence of divine legislation on one hand, and laws generated from science on the other. Interestingly, though, the creators of scientific law were heavily involved with social, legal and moral order, and thus the laws of nature. God’s will is the origin of such laws, whether they are considered to be laws of nature, descriptions of moral behaviour or laws of how things work. For example, the law of intertia, authored by René Descartes (1596 – 1650) and the order of nature described by Montesquieu (1689 – 1755) were expressly stated to be associated to the purpose of God. However, in as early as the year of 1220, philosophers such as Roger Bacon (1220 – 1292) and Johannes Kepler (1571 – 1630) formulated a type of law that was expressly related to nature, but not to theology. Conceptions of law thus evolved that made descriptions of or gave explanations for nature without making a logical connection to the will of God. From this, the phenomena of prediction, explanation and induction developed.

Following the scientific revolution, laws became something more than mere sources of nature. Laws became regularities, formulated from being deduced or inductively inferred from phenomena and subsequently used in predictions or explanations as required by the new science of mechanics (or the science of ‘how things work’). Laws are generally regarded as imposing rules on the way of life, to regulate the way it is. However, the regularities formulated from the science of mechanics are less considered to prescribe how things work (or should work). Rather, they describe the way things already are. David Hume (1711 – 1776) approved this approach in his empiricist tradition and support for the theory of induction (despite its criticism in 20^th century philosophy at the waning of positivism and waxing of both scientific realism and metaphysics).

Scientific theories of laws

Scientific theories have accepted the possibility of predicting every single possible future moment in the world, as well as retrospectively and accurately assessing every single past moment that has taken place. Pierre Simon Laplace (1749 – 1827), who was inspired by Newtonian mechanics, enunciated this theory. Laplace worked with the relationship between matter particles and matter of the universe. Given the weight Laplace attributed to prediction, he theorised laws that have determinative value. These laws can contrast to probabilistic laws, which only attribute probability for phenomena and processes to occur. Such laws do not fall within the category of being the most fundamental laws of reality, however, they may nonetheless be the most realistic type of law. Non-determination can realistically be an aspect of the laws of nature. Without a standard philosophy on what laws of nature are, they can equally be non-determinative as they are determinative of human behaviour.

Causal laws are known as laws that relate to natural processes, whether or not they have determinative value, and whether or not they relate to earlier or later stages (or both). The interaction between causal laws and causation is controversial. This is especially so, in light of analysing the interplay between physical quantities with other kinds of transformation. The concept of symmetry plays an important role in this equation and is an essential force behind understanding the laws of nature. It is not as simple as one plus one equals two, but it is a formula that becomes more simple to discern once the contingency of laws are recognised. This allows one to depict a causal relation between laws that are dependent on other laws – as it requires the necessary law to come first, so that the dependent law can follow, logically and as a matter of causation.

Philosophical theories of laws

Philosophical theories of law are based on ontology, which is the philosophical study of the nature of being, becoming, existence or reality. Empiricists often work within fruitful boundaries of ontology and unfruitful boundaries of metaphysics. Empiricists take a different approach to proponents of necessitation theories. The latter argue that some facts about the world are responsible for the force inherent in the laws of nature. By contrast, the empiricist approach starts with explaining what was in the beginning without using what is in the now to explain what happened in the past. This is the prevailing approach today that takes its form under the regularity theory.

The regularity theory suggests that the laws of nature are universal truths. Further, that laws can be expressed by quantity and predicated by quality. Being a cosmic reality, such as ‘it is impossible to count the number of sand grains on the beach’ and ‘birds fly’, is sufficient for being a law. This theory is an expression of logical positivism: that laws can only be scientifically verified (and thus distinguished from metaphysics). The problem with this theory is that laws can be recognised that are not necessarily cosmic regularities. For example, probabilistic laws depend on the partial truth of probability rather than the full truth of universality. Further, laws that are not universal (such as Newton’s first law: that objects without external force will remain at rest and/or in a straight line) may still be recognised as a genuine law of nature. Thus, the fact that the regularity theory suggests that the laws of nature are universal truths; is a weakness in the theory, because it is equally arguable that the laws of nature are laws that are not constitutive of such truths. A further issue with the regularity theory is that it is hard to distinguish between distinct and express propositions and unintentional generalisations.

The regularity theory and genuine laws of nature found therein are based on the notion of counterfactuals rather than accidentals and counterlegals. For an example of a counterfactual: if a bird had no wings it would not fly. Accordingly, it is a universal truth that birds fly with wings. This shows that counterfactuals are dependent on having a certain account of truth conditions. The truth conditions in the example were that birds have wings and that wings are the only way in which birds can fly. The difficulty with this approach arises in distinguishing between counterfactuals, which are true, and counterlegals, which have already determined what the relevant laws of nature, are. The problems in the regularity theory have opened the gateway to necessitation alternatives.

Necessitation theories draw on the relationship between facts in the world and the laws of nature. The first type of necessitation theory considers laws to be grounded in universal truths. The presence of the relation between two facts (such as the fact that birds need wings in order to fly) presumes a type of necessity between relevant counterfactuals. Cosmic regularity is present in this relationship – but only as a matter of accident rather than necessary intention. The second type of necessitation theory addresses how laws can be created from the causal power of dispositional objects. On this approach, the laws of nature codify types of natural behaviour that have been influenced by intrinsic causal powers.

Laws: more than a mere explanation?

The law is general enough to be described as possessing an explanatory and descriptive power, as well as an imposing and prescriptive power. What must be emphasised, is that it will never be sufficient to merely describe the law as having an explanatory power. The law serves a bigger purpose than merely generalising facts and phenomena. A contingent generalization (in the sense of an explanation), according to David Lewis (1941 – 2001), is only a law of nature if it equates to an axiomatic statement in a deductive system. On this note, explanatory accounts are helpful to the extent that they explain how a certain phenomenon was brought about (as proposed by Carl Hempel (1905 – 1997)). Above all, issues of causation, determinism and symmetry give rise to questions that cannot be answered.

Summaries of articles on law and rights

Profiles, probabilities and stereotypes – Frederick Schauer
Taking rights seriously – Ronald Dworkin
Equality as Legal Argument – Janneke Gerards
European Court of Human Rights; Konstantin Markin v. Russia – Eva Brems & Alexandra Timmer (Human Rights Centre of Ghent University)
The rest room and equal opportunity – Harvey Molotch

Profiles, probabilities and stereotypes – Frederick Schauer

In stigmatizing an entire profession because of the behavior of a minority, or in engaging in similar attributions in other areas of decisionmaking, we undertake a process of generalization. “Painting with a broad brush,” the slightly pejorative expression puts it. To refer to the practice as stereotyping intensifies the condemnation, and these days to describe it as profiling condemns more strongly still. Yet regardless of the label the structure of the decision is the same. On the basis of a characteristic of some members of a class, we reach conclusions or make decisions about the entire class.

Decisionmaking by generalization is the stock in trade of the insurance industry. To be an actuary is to be a specialist in generalization, and actuaries engage in a form of decisionmaking that is sometimes called actuarial. Actuaries guide insurance companies in making decisions about large categories that have the effect of attributing to the entire category certain characteristics that are probabilistically indicated by membership in the category, but that still may not be possessed by a particular member of the category. Occasionally the actuarial generalizations of the insurance industry become controversial (for example that gay men pay more for health insure because as a class they have a statistically greater likelihood of contracting the HIV virus), but in the vast majority of instances the actuarial behavior of the insurance industry is accepted simply as a fact of life.

Insurance companies, of course, are not the only ones who operate actuarially. We all do, with far more frequency than most people typically acknowledge.

We cannot so easily dismiss the practice of stereotyping or profiling as necessarily morally wrong.

Nonspurious: generalizations that do have a sound statistical basis

Universal: all of the x’s are y (mostly used by philosophers)

Definitional source of the universality: in many cases universal generalizations are universal as a matter of definition (“all bachelors are unmarried”).
Empirical source of the universality: sometimes, however, universal generalizations are universal not for definition al reasons but for empirical ones; some fact about the world and not about the word makes the generalizations universal. For example: until black swans were discovered, “all swans are white” was a universal generalizations; but the possibility remained open, even then, that there could be black swans, unlike the possibility, nonexistent by definition, that there could be married bachelors.

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Proportionality in constitutional law

Proportionality in constitutional law (Schlink)