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:

1. The police were entitled to do what was necessary to fight dangers to order and public safety.

2. 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.