Abstract
In the present paper I argue that the content of the principle of proportionality is influenced, on the one hand, by the cultural context (cultural, social and historical background) and, on the other hand, by the legal context (i.e., one cannot try to construct this principle without taking into account its respective sources of law). This may influence the structure of the principle and influences the respective margin of judicial review. In addition, this also means that the situations of judicial activism (such as, for example, a violation of the separation of powers) can vary from one legal system to another.
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Notes
- 1.
For a global overview about the use of the principle, among many others see Sweet and Mathews ( 2008 : 73 ff).
- 2.
See Ossenbühl ( 1996: 40).
- 3.
- 4.
See Barak ( 2012: 131).
- 5.
- 6.
The principle of equality has been often used in conjunction with the principle of proportionality, in which it is intended to gauge the disproportionality of a measure’s inequality. Regarding this topic, among others, see Michael (2011: 153 ff).
- 7.
About the links between these two principles, among others, see Novais (2011: 182 ff).
- 8.
See Barak ( 2012: 146).
- 9.
About this concept, on the present book, see for example the chapters of Massimo La Torre, Lawrence Alexander, Steven D. Smith, Gonçalo de Almeida Ribeiro, Miguel Nogueira de Brito, Luís Pereira Coutinho or Maria Benedita Urbano. Besides these studies, see also, for example, Kmiec (2004: 1463 ff), Dickson (2007).
- 10.
In this paper I will generally refer to the concept of judicial activism in situations in which courts illegitimately enter the political ‘powers’ functions (i.e., I will use a merely formal concept). The main issue here is precisely to know in which situations this activism actually happens. If one considers that some activism is admissible, then the question is to define the limit between admissible and non-admissible judicial activism. However this question will not be addressed in this paper.
- 11.
Specifically, in the first place, although there is huge consensus on the principle of proportionality, the truth is that even the terminology to use is still debated—“principle of proportionality”, “principle of prohibition of the excess”, etc.—and, moreover, its scope does not stop growing. See Lerche (2001: 351).
- 12.
- 13.
In any case, even the biggest critics of proportionality do not intend to discontinue the principle’s use, but only to decrease its impact by reducing its practical use. See Ossenbühl (1986: 34).
- 14.
See Barak ( 2012: 131–132).
- 15.
- 16.
See Tsakyrakys ( 2012: 468 ff).
- 17.
The biggest problem of these theses is that they seem to forget the discussion about the narrow and wide thesis of fundamental rights’ scope. About this theories, see Alexy (2010: 196 ff), Müller (1990: 40 ff). Answering some of the criticisms made of the principle, see Möller (2012: 709 ff), Klatt and Meister (2012a, b: 687 ff).
- 18.
See Beatty ( 2004: 159 ff).
- 19.
See, for example, Möller (2014: 31 ff).
- 20.
In general, see for example Schlink (2012: 722 ff), Clérico (2009: 39 ff), Bernal Pulido (2007: 692 ff). Sometimes authors also include in proportionality’s content a previous test called “proper purpose” or “legitimate ends”. See Barak (2012: 245 ff), Schlink (2012: 722), Klatt and Moritz ( 2012a, b: 8 ff). However this test seems to fit better when integrating a more general framework for the control of limitations on fundamental rights, in order to be also used in combination with other principles such as equality or human dignity.
- 21.
Regarding the American case, balancing is a three-tiered scrutiny framework with variable intensity of review: (i) strict scrutiny test (which requires “compelling state interests”); (ii) intermediate scrutiny test (which requires “important state interests”); and (iii) rational basis scrutiny test (which merely requires “legitimate state interests”). About American balancing see for example Cohen-Eliya and Porat ( 2013), Bomhoff (2013). It is important to note that European courts sometimes use a similar three-tiered scrutiny framework for each proportionality test according to the different cases. See for example Clérico (2009: 31). That said, one can argue that the American balancing is very similar to the European rational connection test, just varying the scrutiny’s intensity depending on the concrete case. Finally, recently arguing that the American balancing, as used by the jurisprudence, can be constructed to involve a kind of proportionality test, although using another terminology, see Yowell (2014: 87 ff).
- 22.
See Canotilho (2003: 84).
- 23.
See Schlink ( 1998: 378).
- 24.
See Bayón (2006: 214).
- 25.
- 26.
See Rosenfeld (2005: 199).
- 27.
See Barak (2012: 382–383).
- 28.
However, this does not necessarily mean that the “initial question” cannot be asked again, just as has been happening recently [for example, see the several studies discussing possible changes to the Portuguese and Brazilian Constitutional Justice in Morais and Ramos (2012)]. The reopening of supposedly resolved issues has to do with the proper functioning of democracy.
- 29.
See Möller (2014: 33).
- 30.
See Articles 18(2), 19(4) and (8), 28(2), 30(5), 65(4), 168(2) and (3), 189(5), 266(2), 267(3), 270, 272, 272(2), and 282(4), all from the Portuguese Constitution.
- 31.
See, among others, Canas (1994: 591 ff), Canotilho (2007: 266 ff). However, one may ask if the constitutional legislator wanted to establish some differences in the content and structure of the principle depending on the situations in which it is applied—i.e., wanted to create different principles of proportionality for different cases. More recently, Novais (2003: 765 ff) talks about a fourth test of proportionality called reasonability which is different from proportionality in its strict sense, and according to which one must evaluate the reasonability of a measure’s consequences for the affected people (and, contrary to what happens with proportionality in its strict sense, in this case one does not consider the proportionality of the measure itself).
- 32.
More generally, the importance of context can be found immediately in terms of language: without a proper contextual framework sometimes one cannot even understand what others mean.
- 33.
Especially in countries of continental Europe such as Germany, Portugal, Spain, Italy or even France.
- 34.
In this section I will follow some of the main ideas of Cohen-Eliya and Porat ( 2013 )
- 35.
See Canotilho (2007: 266).
- 36.
See Cohen-Eliya and Porat ( 2013: 4–6).
- 37.
But also in other European countries affected by dictatorships in the last century, such as Portugal, Spain or Italy.
- 38.
See Cohen-Eliya and Porat ( 2013: 45).
- 39.
See, for example, Sampaio (2015: 246 ff).
- 40.
See Grimm (2005: 153).
- 41.
The state is not only prohibited to violate fundamental rights with its actions (Übermassverbot—principle of excess prohibition), but it is also prohibited to protect and promote insufficiently fundamental rights (Untermassverbot—principle of deficit prohibition). About the Untermassverbot, see for example Störring (2009), Alexy (2010: 278 ff), Novais (2010: 307 ff). And this aspect is extremely important: as Grimm (2005: 138) argues, it reveals the existence of a different institutional relationship between the legislature and the judiciary.
- 42.
See Grimm (2005: 153).
- 43.
See Michelman (2005: 127).
- 44.
See Bognetti (2005: 92).
- 45.
For example, the German Constitution expressly establishes the existence of a social state—see Article 20(1), and Article 28(1)—and the Portuguese Constitution, although not expressly referring to a social state, in addition to establishing an extensive catalogue of social rights, states in Article 2 that the Portuguese Republic is a democratic state based on the rule of law with a view “to achieving economic, social and cultural democracy and deepening participatory democracy”, and establishes several economic, social and cultural state tasks [see Article 9(d) and Article 81(a) and (b)]. About the Social State in Germany, see, amongst others, Heinig (2011: 1887 ff), and in Portugal, see Novais (2011: 291 ff), Sampaio (2015: 145 ff).
- 46.
See Whitman (2005: 108).
- 47.
See Cohen-Eliya and Porat ( 2013: 46 and 53).
- 48.
See Grimm apud Kommers (1997: 44).
- 49.
Of course this idea can be rather exaggerated. However, the truth is that Constitutional Courts are clearly established in constitutions as different institutions with different functions (even if these functions intersect and their boundaries are blurred) but at the same level of importance of the legislatures. One can disagree, but this is what is enshrined in the constitutions.
- 50.
Even if it was essential, it does not seem to be possible to separate completely these two concepts, given that “law is politics and politics is (Constitutional) law”. As Zamboni (2008: 5–6) puts it, this happens “because the political organisational form of the nations state is characterised, in part, by the fact that the law (…) is a tool available to Parliaments and Governments (…) in order to effectuate programs within a certain community”.
- 51.
It is important to note that there is an aspect that escapes the initial setup of this principle by Montesquieu: the constitutional legislator included in the constitution the existence of a Constitutional Court, which is responsible, in particular, for the review of normative acts’ constitutionality. I.e., the constitutional justice was tasked with policing compliance with the constitution by other branches of the state, and is thus “a proper and specific power of the state, yet it has not been endowed with coercive means to give effect to their sentences, but one must trust in respect of it by the legislator and by other courts”. See Hohmann-Dennhardt (2011: 3–4).
- 52.
See Cohen-Eliya and Porat (2013: 47–55).
- 53.
The same happened in other European countries such as Portugal, Spain and Italy after the end of their dictatorial regimes. In Portugal, see for example Miranda and Cortês (2010: 83).
- 54.
See Cohen-Eliya and Porat ( 2013: 55).
- 55.
See Grimm (2005: 154).
- 56.
- 57.
- 58.
- 59.
Nevertheless, the problem is not as different in each system as it might seem, because American courts will have to previously define interpretively what the protected scope of fundamental rights is, and this interpretative task can also entail judicial activism (or at least a dubious increase in judicial activity), due to its subjectivity.
- 60.
- 61.
Referring only to separation of powers, see Saunders (2001: 132).
- 62.
More recently, influenced by scholars as Waldron, authors have again discussed the role of constitutional courts, although in less extreme ways. See for example Linares (2008).
- 63.
- 64.
See Guastini ( 2001: 138).
- 65.
In conclusion, the Constitution, like any other text, is not only explicit language but also “the spaces which structures fill and whose patterns structures define” (Tribe)—the “visible Constitution” is always accompanied by the “invisible Constitution”. See Barak (2012: 55).
- 66.
For example, in the German constitutional system, the principle of proportionality is not explicitly enshrined in the Constitution, but jurisprudence and doctrine usually find the principle in the wider Rule of Law principle (Rechtstaat). See, among others, Hesse (1999: 148 ff). In Portugal, there is no explicit constitutional reference to the principle of protection of legitimate expectations, but the Portuguese jurisprudence and doctrine also find this principle in the wider Rule of Law principle. See, for example, Novais (2011: 261 ff).
- 67.
See Guastini (2001: 138).
- 68.
See Pino (2010: 71).
- 69.
- 70.
See Guastini (2001: 138).
- 71.
About this concept, see Favoreu (1998: 184 ff).
- 72.
Constitucionalization is a “process”, not an “all or nothing” quality. Therefore, it is possible to talk about different degrees or intensities according to each constitution. There are examples of merely nominal and semantic constitutions, of constitutions without judicial guarantees (or merely with political guarantees), and the post-war (and dictatorships) constitutions that seem to be the cases with the most complete processes of constitutionalisation. See Prieto-Sanchís (2009: 115).
- 73.
See Heun (2011: 39).
- 74.
It is clear that the American and British concept of Rule of Law is materially different of the German concept of Rechtstaat.
- 75.
See Guastini (2006: 49 ff).
- 76.
With several possibilities existing at this level. On this, see Sweet (2013: 823 ff).
- 77.
- 78.
The constitution radiates throughout the legal system, and includes all its branches. See Jarass (2006: 649).
- 79.
See for example Guastini (2006: 50). Due to its particular structure, constitutional principles allow an enormous expansion of the constitution’s scope of influence—Alexy even speaks of the “constitution’s omnipresence” (Allgegenwart der Verfassung). And the greater the scope of the constitution, the smaller the margin for discretion for the legislator [see Prieto Sanchís (2013: 33)]. Additionally, there is also an “extension of protection” of fundamental rights, since the expansion of its scope of protection, due to its principled nature, involves “the extension of the courts' decision powers”. See Sieckmann (2011: 58).
- 80.
Today, there is little doubt about this direct application. What is being discussed is the extent of this application, especially with regard to the regulation of relations between private individuals. See Prieto Sanchís (2013: 27).
- 81.
It becomes possible to access the Constitution, regardless the mediation of the legislator, directly and permanently, as it is difficult to find a legal problem that lacks at least some constitutional relevance, see Prieto Sanchís (2009: 114).
- 82.
See Heun (2011: 39).
- 83.
See Costa (2007: 98). The existence of a constitutionalised legal system, as mentioned, involves major consequences for the “balance of forces between the state powers”, namely the shift of the role of the legislature to the judiciary, especially the Constitutional Court. See García Figueroa (2003: 167). And due to this Alexy also talks of an “omnipotence of Courts” (Omnipotenz der Gerichte).
- 84.
In addition, the jurisdiction of Constitutional Courts also extends to electoral disputes, banning of undemocratic political parties, impeachment cases of elected officials, and so on. Therefore, as Sweet notes, Constitutional Courts “are given functions that would be viewed as too ‘political’, or constitutionally important to confer to ordinary courts”. And “[p]artly for this reason, CCs are loath to develop formal deference doctrines, such as the ‘political question’ doctrine of the US Supreme Court, which would signal abdication of their duties”. See Sweet (2013: 822–823).
- 85.
See Koopmans (2003: 69).
- 86.
See Costa (2007: 103).
- 87.
For the concepts of “weak” and “strong courts” and “weak” and “strong rights”, see Tushnet (2008).
- 88.
In the British case the differences are even bigger due to its parliamentary model. In fact, “[t]he British doctrine of the sovereignty of Parliament embodied” the rule according to which “by issuing a statute, an Act of Parliament, the legislative bodies had the final say. No court was entitled to question the legality of a statute; and every law-making body in the country was subject to it”. See Koopmans (2003: 15). And due to this, the legal context is much more decisive when comparing the British case with the typical European one. In addition to the United Kingdom, the legal context is also more important to sustain differences in the use of proportionality in other cases such as Canada and New Zealand, in which the respective legal system establishes weak judicial review systems. See Tushnet (2011: 321 ff).
- 89.
For example, the death penalty was abolished in Portugal in 1867.
- 90.
See Rosenfeld (2005: 237).
- 91.
- 92.
About the concept of positive duties, among others, see Fredman (2008: 65 ff).
- 93.
And even if the social rights involve amazingly “policentric questions” [about this concept, see King (2012: 189 ff)], one can find several decisions of the Portuguese and German Constitutional Courts related to social rights. Among others, see Portuguese Constitutional Court’s rulings nos. 353/2012, 5th July; 187/2013, 5th April; 413/2014, 30th May. And for the German Constitutional Court see, for example, the rulings BVerfG, 1 BvL 1/09 (2010); BVerfGE 103, 242 (Pflegeversicherung III) (2001).
- 94.
See Rosenfeld (2005: 212).
- 95.
- 96.
See Pirker (2013: 138).
- 97.
See Rosenfeld (2005: 202).
- 98.
- 99.
For example in Germany and Portugal, appointments require a two-thirds majority vote in parliament, which obviously “cannot be achieved without a consensus among the major political parties”. In contrast, in the American case the “appointment of a president’s nominee requires a simple majority vote in the Senate”. See Rosenfeld (2005: 235).
- 100.
Alex Stone Sweet (2013: 822) refers precisely that “[c]ompared with the major alternative, however, the specialised CC has a powerful advantage, in that the framers can more easily tailor the details of jurisdiction to specific purposes”.
- 101.
See Pirker (2013: 138).
- 102.
As Sweet mentions, “[t]he legitimacy resources that flow from explicit constitutional arrangements are enormously important”. See Sweet (2013: 828).
- 103.
See Rosenfeld (2005: 203).
- 104.
Abstract review can be defined as a “constitutional process for review and decision with generally binding force (with force of law) of the formal and material validity of a legal rule” [see Canotilho (2007: 1005)]. This means that Constitutional Courts may declare the unconstitutionality of a legal rule in abstract, regardless of a concrete case. In addition to all these types of review, the Constitution, either explicitly or implicitly, permits also several types of “manipulative sentences” which evidence its power.
In a merely descriptive way, even if these decisions may pose some problems, European Constitutional Courts have been using the following decisions: (i) decisions with limiting effects in the strict sense, in which there is a limitation (reduction or mere manipulation) of the normal effects of unconstitutionality that the decision should contain; (ii) decisions with appealing effect, in which the court appeals the government to amend or abolish the rules that will be unconstitutional in the future; (iii) decisions with limiting temporal effects, in which the sanctioning effects of the declaration of unconstitutionality are limited; (iv) interpretive decisions, in which the court will interpret a legal rule according to the constitution, to save it from unconstitutionality; and (v) decisions with additive effects, which consist of positive decisions of unconstitutionality that can result in either a judgment of invalidity or the statement of a rule or a principle, in order to ensure the creation of conditions to guarantee that the violated right achieves compatibility with the constitution. With a comparative analysis of use of these decisions in several countries, see Brewer Carias (2013).
- 105.
Referring only to the German constitutional judge, see Rosenfeld (2005: 219).
- 106.
See Rosenfeld (2005: 206).
- 107.
Nevertheless one must stress that the margin of judicial review also depends a lot on the concrete intensity of review used in each proportionality test. This means for example that if a court uses a strict scrutiny on the necessity test and a mere evidence scrutiny on the proportionality in its strict sense test, this court will probably be more intrusive in the first case.
- 108.
This does not mean that in theory it is not possible to construct a principle of proportionality in both cases with the traditional three tests, but the specific scrutiny allowed in each case will obviously have to be different. For example Clérico (2009: 38) argues that the principle of proportionality structure is always the same; it is the intensity of scrutiny that changes.
- 109.
Also connecting the principle of proportionality and the level of intensity of review, see Rivers (2006: 174 ff).
- 110.
Even if, just as Pirker, I understand that the institutional and cultural context have some influence over the margin of judicial review, I am arguing a different idea. Pirker maintains “that there is a pre-balancing exercise (previous to the proportionality balancing itself) undertaken by an adjudicator to assess whether he or she will engage in a full-scale proportionality analysis or rather refrain from it”. See Pirker ( 2013: 71). I am stating that the cultural and legal context influence the creation of the principle of proportionality with a certain content.
- 111.
Therefore, it is not the proportionality itself that sets the margin of judicial review as Rivers seems to argue, but both the legal and cultural contexts, firstly, and the particularities of each case, secondly, that set the concrete margin of review that courts have in each case (and also set the intensity of the proportionality’s scrutiny). Nevertheless, Rivers’ conclusion is not so different from mine: he argues that depending on the specific case there is also a principle of judicial restraint that clashes with the principle of proportionality. And the result of the practical concordance (praktische Konkordanz) between these two principles (preserving as much as possible of each of them) will show the specific margin of judicial review. See Rivers (2006: 202 ff). It is not possible to address this question here but, in addition to other issues, even the existence of this principle of deference is really problematic if one considers the normative force of fundamental rights.
- 112.
- 113.
And as Katharine Young argues this will involve the existence of different types of judicial review with different intensities, namely: (i) “deferential review”; (ii) “conversational review”; (iii) “experimentalist review”; (iv) “managerial review”; and (v) “peremptory review” (in this context, the court may, for example, use different types of manipulative decisions admissible in each legal system). See Young ( 2012: 385 ff).
- 114.
One must also remember that proportionality is only one of the judicial review tools that can be used by courts. In fact, there are other tools—other “limits to the limits” on fundamental rights—such as the principles of human dignity, equality or protection of legitimate expectations.
- 115.
Regarding the British case, this may explain and even support the reason why British courts normally remove the final stage of proportionality review. However, Rivers (2006: 203) criticises the British courts for being “excessively restrained”.
- 116.
Constitutional judges cannot decide arbitrarily, especially when they intend to oppose to decisions taken by political powers. Therefore, they have to use “rational, constitutionally supported legal reasoning capable of justifying the result of a certain decision based on a balancing”. See Novais (2003: 894). Concerning the necessary elements to a judicial decision be justified, among others, see Martínez Zorrilla (2007: 38 ff).
- 117.
See Bomhoff ( 2013: 235).
- 118.
Talking only about the constitutional and institutional context in the case of Common Law Supreme Courts, see Dickson ( 2007: 11–12). With a similar conclusion, Goldsworthy states that the reasons why “judges adopt different approaches to the adjudicative role on constitutional issues include the nature of the legal culture within which judges receive their education, the method for appointing judges, the pool from which they are drawn, the prevailing political culture in the country (and in particular the extent to which that has been affected by the ‘rights revolution’), the nature and age of the Constitution and, lastly, the fact that judges somehow manage to find ways of adjusting their constitutions to ‘the felt necessities of the time’”. See Goldsworthy ( 2006: 343).
- 119.
In the American case the situation is reversed, which seems to justify the existence of strong judicial deference and weak judicial review.
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I would like to thank Luís Pereira Coutinho and Miguel Nogueira de Brito for their comments on earlier versions of this paper.
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Sampaio, J.S. (2015). The Contextual Nature of Proportionality and Its Relation with the Intensity of Judicial Review. In: Coutinho, L., La Torre, M., Smith, S. (eds) Judicial Activism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 44. Springer, Cham. https://doi.org/10.1007/978-3-319-18549-1_10
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