Proportionality as a Standard of Rights Review

In a recent issue of the International Journal of Constitutional Law (I-CON), Tsakyrakis presented a powerful critique of the proportionality test. In the current issue of I-CON, I respond to Tsakyrakis, defending proportionality as a standard of rights review. I am grateful that Tsakyrakis has taken the trouble to further respond to me, and his rejoinder is available here. I hope, in due course, to continue this debate.

The following is an abstract of the piece:

In a recent article in the International Journal of Constitutional Law, Stavros Tsakyrakis presents a passionate critique of the proportionality test. Tsakyrakis regards proportionality as an illusory attempt at infusing objectivity in rights adjudication. Moreover, he posits that it necessitates weighing public interests against individual rights. Proportionality has emerged globally as the leading framework for evaluating rights violations. It serves as the uniform standard of rights review in jurisdictions as diverse as Israel, Germany, Canada, and South Africa. Remarkably, recent opinions by Justice Breyer of the United States Supreme Court indicate that the approach is gaining currency within American’s constitutional jurisprudence. Considering proportionality’s significance, Tsakyrakis’ critique is of considerable moment and merits careful study.

In this Essay I argue that while Tsakyrakis is right to consider certain types of balancing objectionable, he is wrong to conclude that proportionality necessitates them. Rather than focusing on important philosophical questions regarding the commensurability of values, this response is limited to providing clarity on proportionality’s methodology and observing the false premises that underline Tsakyrakis’ arguments. Examining the cases and hypothetical that Tsakyrakis relies upon, I demonstrate how they fail to articulate any defect in the proportionality test. Notwithstanding this, Tsakyrakis’ analysis provides a useful insight into the dangers with treating proportionality subtests as farcical.

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