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PROPORTIONALITY AND JUSTIFICATION

Article Review: Aharon Barak, Proportionality: Constitutional Rights and their Limitations (2012, Cambridge University Press).

Moshe Cohen-Eliya and Iddo Porat

INTRODUCTION

Few jurists around the world attract as much interest and attention as the former Chief Justice of the Israeli Supreme Court, Aharon Barak. When Barak came to Harvard Law School in 2002 for the Harvard Law Review Annual Supreme Court Forum,1 the then Dean of Harvard Law School, Elena Kagan, called him “my hero”, compared him to John Marshal, and mentioned that her colleague, Professor Alan Dershowitz, referred to him as “the greatest living jurist”.2 Barak entices criticism as well. Judge Posner described him in an article as a “Legal Pirate” and as an “enlightened despot”3 and Professor Bork wrote that results of his free-wheeling approach to adjudication are “dangerous.”4 Barak is well known not only in the United States. A recent study found that his judicial opinions as well as his many academic writings are cited by the Supreme Courts of eleven countries, making his impact truly global.5 Barak’s recent book, titled, Proportionality: Constitutional Rights and their Limitations encapsulates much of what brought all this attention to Barak. It is a much anticipated contribution to constitutional law around the world, and would no doubt be admired by those who hold Barak in esteem and non the less criticized by his critics.

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Aharon Barak, 'Foreword: Judge on Judging: The Role of a Supreme Court in a Democracy', (2002-2003) 116 Harv L Rev 19. 2 For the online video of the event see http://www.c-spanarchives.org/program/174324-1. 3 Richard A. Posner, 'Enlightened Despot', New Republic, 23 April 2007, at 53, available at http://www.tnr.com/article/enlightened-despot. 4 Robert H. Bork, 'Barak's Rule', (2007) 27 Azure 125. http://www.azure.org.il/download/magazine/1119AZ_27_bork_review.pdf. Also see Robert Bork, Coercing Virtue: The Worldwide Rule of Judges, 111 (American Enterprise Institute Press, 2003). 5 Daphne Barak-Erez, 'Judicial Conversations and Comparative Law: The Case of Non-Hegemonic Countries', Tulsa L.Rev. (forthcoming, 2013).

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Electronic copy available at: http://ssrn.com/abstract=2205702

Proportionality is the most influential doctrine of constitutional law outside the borders of the United States. Indeed it has become prevalent in so many countries, that it has been termed by scholars as the essence of “generic constitutional law.”6 It provides a simple and well structured template for the resolution of conflicts between rights and public interests. As described in the book, proportionality is the second and most central stage of a two-stage constitutional analysis. In the first stage, the claimant has to show that a constitutional right has been infringed, and in the second, the government needs to show that it pursues a proper purpose, and that the means chosen are proportionate to that purpose. The heart of this analysis is the requirement of proportionality, which is divided into three subtests: is there a rational connection between the means and the end (rational connection)? Are less restrictive means available (necessity)? And are the benefits greater than the costs (proportionality stricto sensu)?

The following seminal cases of the Israeli Supreme Court, which Barak summarizes in his book, are illustrative of the application of proportionality:

(a) A provision in legislation relating to the Security Fence in the West Bank ordered the seizure of land - while compensating the owners - for the erection of the fence. The purpose of the fence’s erection was national security. It was held that a rational connection exists between the erection of the fence and these national security considerations. Finally, it was held that no other means would have achieved this national-security-related goal with less restrictive effect. However, the Court held that the part of the fence at issue did not meet the proportionality stricto sensu test. As noted in my opinion, “There is no proportional relation between the degree of harm to the local residents and the security-related benefits yield by the erection of the Security Fence in the precise location ordered by the military commander... Our approach is based on the notion that the location chosen by the military commander for the Security Fence - which would separate the local residents from the

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David S. Law, 'Generic Constitutional Law', 89 Minn L Rev (2005) 652, 693-95; David M. Beatty, The Ultimate Rule of Law (Oxford University Press, 2004).

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Electronic copy available at: http://ssrn.com/abstract=2205702

. Available in English at http://elyon1. The reason behind this is national security. It is divided into four Parts: Part I: “Constitutional Rights: Scope and Limitations”. . and necessity components. 3 Electronic copy available at: http://ssrn. which is based on individual examination . Proportionality: Constitutional Rights and their Limitations (Cambridge University Press. according to which very few claims would be viewed as outside the protection of the right. whether we see them as absolute or relative.pdf. id. Does the law satisfy the proportionality stricto sensu test? Five Justices (out of eleven) were of the opinion that the test was not met.” Five of the remaining six Justices were of the opinion that the relation was proportional.gov.gov.causes extensive harm to those local residents which violates their rights in accordance with International Humanitarian Law. unpublished). citing HCJ 2056/04 Beit Sourik Village Council v. citing HCJ 7052/03 Adalah – The Legal Center for the Rights of the Arab Minority v. The structure of the book reflects the structure of proportionality itself. 850.a47. The Israeli Supreme Court ruled that the restriction satisfies the proper purpose. The Government of Israel [2004] IsrSC 58(5) 807. In the book Barak opts for a broad definition of rights.com/abstract=2205702 .court. Minister of Interior (May 14.il/Files_ENG/04/560/020/A28/04020560. 2003 sets a blanket restriction on the entry of spouses of Israeli citizens residing in the Occupied Territories (Gaza and the West Bank) into Israel. Available in English at http://elyon1. have already established it as a classic.8 Barak’s book is the most comprehensive account to date of this extremely influential doctrine. 7 Aharon Barak. and would surely become a major focal point for academics as well as practitioners interested in proportionality. since the law “sets a disproportional relation between the measure of the additional security in comparison to the former arrangement. rational connection. 2006.pdf. and the scope we assign them. 8 Barak. 2012) 341. types of rights. The eleventh Justice held that the necessity test was not met.A28.farmlands ..”7 (b) A provision in the Law of Citizenship and Entry into Israel (Temporary Order).. discusses the crucial question of the way we define rights.court. Its clarity of style as well as the unmatched expertise of Barak in the subject matter and the meticulous handling of all aspects of the doctrine. and the additional harm to the constitutionally protected right to human dignity that the new measure creates.il/Files_ENG/03/520/070/a47/03070520.

and to the European Court of Justice. but convincingly shows that so do other alternatives. move on to discuss the proportionality doctrine itself. Heller. [the Court] has balanced interests. Gov’t PAC.Part II and III. speech cases. 528 U. dialogue between the legislator and the courts. In particular. argued in his dissent that "[c]ontrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented. Barak argues that even categorical approaches must include balancing at the stage of setting the category. Nature. 2852 (2008) Justice Stephen Breyer. including election-law cases. and democracy. and due process cases. and even. South Korea. more recently. insufficient protection of rights. Singapore.”). Barak manages to demonstrate the complexity of the discussion on proportionality. and under its influence it gained access to the jurisprudence of the European Court of Human Rights. and documents the incredible spread of proportionality especially since the 1990s. He then addresses the different criticisms leveled against proportionality including claims of irrationality. such as categorization. proportionality approaches could be effectively disciplined if they follow principled balancing 9 In District of Columbia v. Proportionality entered German constitutional law after WWII. on the other hand. Israel. After the democratization processes of the 1990s it spread like wildfire all over the world including Eastern and Central Europe. the Court has applied it in various constitutional contexts." See also Nixon v.S. 402 (2000) (“Rather. India. 128 S. transparency. Function” outlines the origins of proportionality in 19th century Prussian administrative law. Ct. and moves away from simplistic views that reject or adopt proportionality wholesale for one reason or another. Indeed. 4 . and. The only major legal system still to fence-off the incredible pull of proportionality is the United States. 377. and lack of judicial legitimacy. Latin America. New Zealand. South Africa. Great Britain which was for a long time resistant to the doctrine. Barak argues that proportionality is derived from democracy and from the rule of law. Shrink Mo. Part II: “Proportionality: Sources. Part IV: “Proportionality Evaluated” reviews the advantages of proportionality that include the advancement of structure. He admits that proportionality has its limits. “The Components of Proportionality” discusses in detail the doctrinal aspects of proportionality and the analytical relationship between its different subtests. Proportionality became central to Canadian constitutional law since its adoption by the Canadian Supreme Court in 1986. excessive judicial discretion. And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others. 2783.9 Part III.

indeed the best that currently exists. Barak argues that if managed in the right way. our aim is to assess whether the idea of justification can provide a good defense and rationale for proportionality. The first to have coined the term is Etienne Murenik. Moshe Cohen-Eliya & Iddo Porat.10 I. 59(2) Am J Com L 463 (2011). In particular the three subtests of proportionality present a structured procedure through which government must formulate to itself. first we would like to briefly show that viewing proportionally as a requirement for justification is indeed the best way to read Barak’s book. Our aim is twofold. 5 . and present publicly: a. rational. In this review article we would like to concentrate on one approach which has gained prominence in recent years and on which we have written also in the past: viewing proportionality as a requirement for justification. Proportionality must be understood in the context of an entire culture that facilitates a robust requirement of justification -.a constitutional culture which we termed in an earlier article. how its chosen means are rationally connected to its aims. b. at 479-480. so that many approaches can be chosen to evaluate Barak’s book. All in all. following the late South African scholar Etienne Mureinik. 'Proportionality and the Culture of Justification'.”11 Mureinik presented this culture as an ideal for the new South African constitution and contrasted it with the "culture of authority" that had characterized the Apartheid regime: 10 11 Barak. 10 S Afr J Hum Rts 31 (1994).rather than ad hoc balancing. Secondly and more importantly. it is important to conceive proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. and conducted carefully. how it is necessary to achieve them. supra note 7. proportionality provides a coherent. the “culture of justification. In order to evaluate Barak’s book and the doctrine of proportionality. and c. how the gain from those aims exceeds their costs in terms of protected rights. BARAK AND THE CULTURE OF JUSTIFICATION Proportionality has received many accounts over the years and a large literature has sprung around it. 'A Bridge to Where? Introducing the Interim Bill of Rights'. and legitimate method for constitutional adjudication .

Barak has been crucially important in all the processes identified above as part of the culture of justification in Israeli jurisprudence. HCJ 910/86 Ressler v. It must lead to a culture of justification—a culture in which every exercise of power is expected to be justified.g. 42(2) P. and his book on proportionality is arguably the best and most comprehensive and coherent manifestation of this constitutional culture. A Judge in a Democracy 194. among others: a broad conception of rights. based on the value of autonomy). it is clear what it must be a bridge to. exemplified in the idea that there are no “black holes” in which government is not required to justify itself. 441 (justiciability). Barak himself is a major proponent of the ideas behind the culture of justification both in his judicial decisions and in his academic writings. such as equality. Minister of Justice. such that would make many governmental actions raise constitutional concern. id at 31. These include.D. Minister of Defense. in which the leadership given by government rests on the cogency of the case offered in defense of its decisions. too. 298 (Princeton University Press. the obliteration of procedural barrier to judicial review. Also see article 33(2) of the South African Constitution.12 In such a culture there exist in addition to proportionality several other features that add up to the totality of the requirements of justification. not the fear inspired by the force at its command. can be conceived as a barrier to a requirement for justification. 14 See.C. 15 See Barak's opinions in H.D. not coercion. The new order must be a community built on persuasion. 852/85 Aloni v. since text. Knesset (2005) (extending the right to human dignity to enumerated rights. which provides: "Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.13 and finally a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text. 41(2) P. and therefore for justification.." 13 Aharon Barak. e.If the new constitution is a bridge away from a culture of authority.14 practically obliterated the procedural barriers of justiciability and standing. (standing). 6 .15 and downplayed the importance of text and put instead a doctrine of “purposive 12 Mureinik. such as standing and justifiability. 2006) (arguing that there are no black holes where there is judicial review). In his judicial decisions he has dramatically broadened existing conceptions of rights. as it might limit the set of possible rights and interests that can initiate a process of justification. 1996. HCJ 6427/02 Movement for Quality Government in Israel v. 1.

and argue instead that by its open-ended and policy-oriented structure. and the overly formal and restrictive nature of the alternative. One of the main advantages of normative arguments in favor of proportionality that are based on the culture of justification is that they present a new perspective on the question that avoids the well rehearsed and somewhat deadlocked arguments based on rules versus standards. it also provides a very appealing defense and rationale for it. but argue that our explanation adds an important angle to the discussion of these set of phenomena that are usually viewed only through the perspective of judicial activism. Village [1995] IsrSC 49(4) 221. it is inseparable from his entire judicial and jurisprudential worldview.”). Bork. This would most likely be the approach that critics of Barak. and judicial subjectivism. CA 6821/93 United Mizrahi Bank Ltd. making it the most central doctrine in Israeli constitutional law to date. supra note 4 (arguing that that the results of Barak free-wheeling approach to adjudication are “dangerous. 404. proponents of balancing. JUSTIFYING JUSTIFICATION The idea of justification not only clarifies the meaning and centrality of proportionality in Barak’s book. The debate seems quite deadlocked 16 17 Aharon Barak. no doubt. take issue with Barak’s assurances that proportionality can be controlled and made principled.16 And. judicial activism. 2008). This all sounds very much like standard-based activism. Purposive Interpretation in Law (Princeton University Press. II. Barak has also been the driving force behind the adoption and centrality of the doctrine of proportionality in Israeli conditional law. would usually rely on a broader conception of the role of the judiciary. v. such as Posner and Bork. They would. supra note 3 (describing Barak as a “Legal Pirate” and as an “enlightened despot”). optimism with regard to the ability of judges to tackle complex situations without deteriorating to subjectivism. which we characterize as the culture of justification.17 For Barak. 18 See Posner. would take if they were asked to review the book. 7 . therefore. proportionality is not just a doctrine. We admit this point. such as Barak. which we argued earlier is not a sufficient explanation for proportionality.18 On the other hand. of course. proportionality provides an opportunity for judicial activism and power grabbing. Migdal Coop.interpretation” which is based on the underlying values and principles behind the text.

21 According to the theory of public reason. Jon Elster ed. e. Call this the turn from legal interpretation to public reason oriented justification.a process that Kumm terms “Socratic Contestation. Deliberative Politics: Essays on Democracy and Disagreement (Oxford University Press. 'The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review'. 1997). push the government to constantly provide a logical basis. 1971). 2004). 8 . and not such that are simply irrelevant to some (such as reasons deriving from divine authority.. at 142. As he puts it: “[p]roportionality based judicial review institutionalizes a right to justification that is connected to a particular conception of legitimate legal authority: that law’s claim to legitimate authority is plausible only if the law is demonstratively justifiable to those burdened by it in terms that free and equals can accept..Approaches based on the culture of justification seem to avoid these arguments and present other arguments that may appeal to both sides of the debate.” According to this conception.20 Kumm’s idea of justifying proportionality ties to the even more general conceptions of Rawls' idea of public reason and the vast literature that has sprung out of it. Jürgen Habermas. the courts. and coherent reasons for its actions. James Bohman & William Rehg eds. by every member of the society. 1996). Deliberative Democracy (Cambridge University Press. potentially at least. which are crucial for the legitimacy of those actions.g. 4(2) L & Ethics of Hum Rts 141.”19As Kumm argues.. the coercive power of the state is legitimate only insofar as the reasons of the state can be agreed upon. which are irrelevant to 19 Mattias Kumm... 21 John Rawls. proportionality is justified by a conception of legal legitimacy that is based on the ability of the state to demonstrate to its subjects the reasons and justifications for its actions . A Theory of Justice (Harvard University Press. 1999). using proportionality. Stephen Macedo ed. Democracy and Disagreement (Harvard University Press. MIT Press. Amy Gutmann & Dennis Thompson. Amy Gutmann & Dennis Thompson. 20 Id. 143 (2010). See. 1996). The normative arguments in favor of proportionality as a requirement of justification were first promoted by Mattias Kumm. 1998). Deliberative Democracy: Essays on Reason and Politics (MIT Press. Public reason is a central theme in the literature on a deliberative conception of democracy. Instead of attempting to make sense of authoritative legal materials the focus of courts engaged in proportionality analysis is the assessment whether a public action can be demonstratively justified by reasons that are appropriate in a liberal democracy. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans. Why Deliberative Democracy? (Princeton University Press.

Another prominent scholar who gives a normative account of proportionality based on the idea of justification is David Dyzenhaus. and the reasons and justifications for it. revised edition). rationality. Rights Inflation and the Right to Murder' (manuscript with the author) p. where all four conditions are cumulatively met. 'Proportionality and Deference in a Culture of Justification' in Grant Huscroft..24 22 David Dyzenhaus.. there is “congruence” between “actual administration” and the “rules as announced”. becomes integral to a culture of justification and the congruency principle. The Morality of Law (1969.. so that..e. 46-91. Proportionality (Cambridge University Press. forthcoming) (manuscript with the author). the point of “proportionality-based judicial review” is: to show a particular form of respect for persons by insisting that each and every state measure which affects a person’s ability to live her life according to her self-conception must take her autonomy interests adequately into account… Where one of th[e] conditions of proportionality. 24 Kai Möller. Proportionality. to use Fuller’s terms. they are. and indeed the two are inseparable. incurs finding out the reasons of government and making sure that they are the proper ones.non-religious people). Fuller. and the policy is therefore constitutionally legitimate. 23 Dyzenhaus id at p.23 Recently Kai Möller has provided another important account of proportionality as justification. Brad Miller. necessity and proportionality stricto senso is not met. 9 . According to Möller. 2. Public reason. 'Proportionality. 12. He argues that proportionality is inherent to the idea that government must account for the process by which it reached its decision. following Kumm's idea. i. Dyzenhaus relies on Lon L. and Gregoire Webber. tying it to the duty to respect a person’s autonomy and to a general right to liberty. eds. 39. Dyzenhaus ties justification with Fuller’s influential account of the Rule of Law. in this way. the reasons for the limitation are not sufficiently strong..22 For Dyzenhaus and Fuller the process by which the government reaches its decisions is as essential to the legitimacy and authority of state action as the outcome. Dyzenhaus argues that: Fuller’s view of the process/substance distinction is central to an understanding of legal order as a “culture of justification”. legitimate purpose.

2010) (translated by Julian Rivers) at xlii. and Justice (Oxford: Clanderon. A Theory of Constitutional Rights (Oxford University Press.R.g. 28 BVerfGE 80. the idea of justification is central to Barak's judicial conception in general.Möller furthermore ties proportionality to the idea of a broad conception of rights: Under proportionality-based judicial review. Also see T. Liberty... the scope of freedom protected by rights must extend to everything which is in the interest of a person’s autonomy. such as restricting pigeon feeding. 10 .. 341. Allan. 143 (Pigeon-Feeding).29 As mentioned earlier. at 11 (emphasis not in the original).. L. Therefore.. James Griffin that argues that rights can be distinguished from interests according to their importance and that the threshold for becoming a right can be derived from the idea of personhood. and is one of his arguments: Proportionality . and rejects the traditional approach of the common law which does not recognize the general right to liberty. 1993) 135-43.. the argumentation in favor of proportionality based on the idea of justification appears also in Barak's book. the point of rights is not to single out certain especially important interests for heightened protection.S. James Griffin On Human Rights. (2006) 7 Ger. Law.and the act of balancing at its foundation . J.emphasizes the need to rationally justify a limitation of a constitutionally protected right. all instances of burdening one's autonomy. 2008) 32-33. 27 BVerfGE 54. [P]roportionality is aimed at a constant review of the existence of a rational justification for the 25 26 Id..27 or riding horses in the park28 (famous examples taken from the jurisprudence of the German Federal Constitutional Court) should bring about a need for justification and pass the test of proportionality. Rather. See also Mattias Kumm. In this matter Möller joins Robert Alexy's influential writing which argues similarly that any restriction on the general right to liberty requires justification. See e. even those that seem trivial. ‘Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’. (Oxford University Press.26 Rather. It also requires a constant examination of this justification's existence.25 Möller therefore objects to approaches that protect only some particularly important libertyinterests by making only them into rights. 137 (Riding in the Woods) 29 Robert Alexy.

supra note 7. 'The Right to Judicial Review'.”30 III. and Möller are very appealing. Kumm.31 30 31 Barak. 11 . while taking into consideration each case’s circumstances. but an adult and a citizen in a democracy are owed an explanation. One can distinguish at least four strong rationales for the duty of the government to give justifications and provide reasons for its actions: it shows an attitude of respect towards the citizens affected by governmental actions. (2006) 92 Virginia L Rev 991. We expect those who make decisions that affect us to at least explain them and justify them to us. Proportionality. and we feel disrespect when they do not. not only because a right has been infringed. at 458-9. and a dictator may feel no need to provide justifications to his subjects. Yuval Eylon. but also because the right-bearer is not treated as someone who has a say in the matter.limitation imposed on the right. it facilitates democratic deliberation and participation. Alon Harel. A parent may answer his child “because I say so” whenever she decides. First. REASONS AND VALUES Justification-based accounts such as those of Barak. This part summarizes four main arguments that lie behind these accounts either explicitly or implicitly. Eylon and Harel have a similar argument concentrating on the concepts of rights. it is essential to the legitimacy of governmental authority. and it furthers governmental accountability and trust between the citizens and the government. Dyzenhaus. RIGHTS. They claim that the dignity of the person as reflected in the special authority she has over her rights is offended if those rights are infringed without justification or explanation: [R]ights demarcate the realm that should be respected – the region in which one is master” therefore “[u]nilaterally infringing a right is wrong. 1000. giving reasons for your actions reflects an attitude of respect to those who are affected by them.

Stemming from the idea that the state is merely a trustee of the people. opens up the possibility for contestation. reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement. an important rationale for giving reasons is that it invites a process of deliberation. must be rendered in terms that all those subject to the decision could agree to them. In such a relationship there must be accountability of the agent to the principal. Authoritative. and in order for the reasons themselves to be legitimate they must be consented by the people. Secondly. such as orders handed down by a commander to his soldiers. in the abstract. Thirdly. that every individual has a right to a hearing before a court when her rights are being infringed. and acts as the people’s agent. in appropriate cases.It follows that: The state must justify and.32 This entails. Furthermore. justification promotes trust between the citizen and government as it provides accountability and transparency in the working of 32 Id. at least potentially. Requiring justification is the method that ensures that the agent acts according to the interests of the principal. the argument is that it must justify its actions to the people. according to Eylon and Harel. shut down a discussion and are meant to be followed regardless of their merits or justification. discourse and active participation of the citizen in the democratic process. in order to be legitimate. Kumm relies in his account. and provide them with reasons and explanations. The citizen-state relationship is often analogized to a principal-agent relationship. For liberal theorists even this is not enough. as mentioned above. Without reasons and justification there is no basis for discourse and exchange. unexplained decisions. the legitimacy of state action is arguably dependant on the fact that it is properly justified. Two final interrelated rationales for justification and reason-giving are accountability and trust. and not according to his own personal interests. debate and re-consideration. This is reflected in Rawlsian theories of public reason on which. while the mere act of providing a reason. Justification itself. 12 .

and require good enough reasons for every liberty-infringing act. account has also an important advantage over the alternative account of constitutional law.. Gabbay et al. the justification-based accounts. would have to show that its reasons for limiting this liberty are. The government.L. Hardwick.government. Tribe. Value-based accounts typically ask whether a certain right is close enough to the core values of individual dignity. Hart. Dov M. 478 U.35 and whether such right is fundamental or touches on some core notions of human dignity and autonomy. a reason-giving. according to Möller. eds. and grants more protection the more it promotes these values. and self-fulfillment in order to warrant protection. Thus for example. and.. H. Such review would not require showing that homosexual sexual relations are a value of special social importance to warrant constitutional protection.H. which we term the valuebased account. rather than ask whether there is a right for homosexuals to engage in sodomy. in Approaches to Legal Rationality. On Justice Brennan's heritage of a substantive and transformative democracy see Frank I. justification-based.34 On the other hand. Logic. The article is available in http://papers. justification-based accounts would reverse the question and ask: are the reasons for limiting sexual liberty sufficiently strong and compatible with the principles of liberalism and personal autonomy. 'Between Utility and Rights' 79 Colum L Rev (1979) 828. and instead may set aside limitations on homosexual relations simply by showing that government did not have strong 33 Mathilde Cohen.S. American Constitutional Law (Foundation Press. 'Reasons for Reasons'. Trust and accountability also secure more compliance by the citizens. 2010. 20. Brennan and Democracy 130 (Princeton: Princeton University Press. 2005).33 Other than these strong rationales. through proportionality review.ssrn.A. 35 Bowers v. Epistemology. focus on the reasons for governmental action. 2nd. and thus do not concern themselves with evaluating the centrality and fundamental nature of any particular right. 1988) 779. enhancing legitimacy and reducing monitoring and compliance costs. according to Kumm. autonomy. and The Unity of Science Series. 558 (2003) (sodomy laws violate the US constitution). Texas. 186 (1986) (the US constitution does not protect the right to engage in sodomy). compatible with public reason. ed. 539 U. Vol. Michelman. necessary and proportionate so as to show proper respect for autonomy.cfm?abstract_id=1401707. than someone whose reasons are unknown to us. 34 See Laurence .com/sol3/papers. This ruling was overturned in Lawrence v. Springer.S. We are more prone to trust someone who acts transparently and is willing to give us the reasons for her actions. 848. 13 .

36 Or take another example that presents some serious problems to value-based accounts pornography. and touch instead on the basic liberal intuition that personal liberty cannot be infringed other than for the proper reasons. Under the value-based account we need to ask whether watching pornography promotes certain important values for society and in particular those values that justify the protection of free speech: promoting democracy. Indeed it seems to us that all writers that we have cited as supporting the justification-based approach – Kumm. there is a crucial logical leap between arguing for a justification-based approach and arguing for proportionality. 67 GEO. truth and self fulfillment. 39 Iddo Porat.38 On the other hand.Obscenity and "Obscenity".J. 'The Formal and The Substantive Meanings of Proportionality in The Supreme Court's Decision Regarding The Security Fence'. Each of us has shown sympathy elsewhere to a reason-based account of judicial review and to its advantages over the value-based account. Justification-based accounts therefore avoid the need to fit constitutional claims into the straight jacket of particular rights. Dyzenhaus. Scholars strain in order to show that pornography indeed promotes such values. Butler. is rushing through too quickly. (August 15.enough reasons to apply them and was motivated by an attempt to impose its moralistic views. 'A feminist Critique of ‘the’ Feminist Critique of Pornography' (1993) 179 Virginia L Rev 1099. which under most versions of liberalism would be illegitimate. Moshe Cohen-Eliya. so it seems to us. (2006) 27 Cardozo L Rev 1393. For an argument for constitutional protection to pornographic speech. the justification-based account focuses on governmental reasons for limiting liberty. Möller 36 37 See Ronald Den Otter. 'Liberty and pornography'. see Ronald Dworkin. 'The Dual Model Of Balancing'. v.37 but as Frederick Schauer has shown. R. and should be warranted protection under the right to free speech. again. 'Speech and "Speech" . WHY PROPORTIONALITY? The idea that constitutional review should look into the reasons and justifications for governmental action is compelling and is supported by the above mentioned important rationales.39 However. (2005) 38 Isr L Rev 262. 14 . and would. [1992] 1 S. such attempts seem unusually weak and unconvincing. Judicial Review in an Age of Moral Pluralism (Cambridge University Press.R. IV. L. 452. The argument. 899 (1979) (arguing that pornography does not merit first amendment protection. and analogizing pornographic speech to sex aids).An Exercise in the Interpretation of Constitutional Language'. 38 Frederick Schauer. Nadine Strossen. easily show that it is hard to justify such limitations other than by illegitimate attempts of the government to impose its moralistic views.C. 1991) The New York Review of Books. 2009).

However. in particular. Indeed there is a long line of literature. 1999) pp. An order. but ends up rejecting balancing-based methods such as proportionality. The right to equality is concerned with excluding discriminatory reasons. and so on. or incompatible with dignity. 35-44. while not using the conceptual apparatus of exclusionary reasons. A promise similarly functions in a way that excludes otherwise relevant reasons for our action. including orders. from the need to make government provide reasons for its action. and forbids the government from basing its actions on other types of reasons which are impermissible or excluded. 2nd ed. 15 .40 They determine which reasons should be excluded from certain decision-making processes as irrelevant or incompatible with the particular type of decision. exemplifies the idea of exclusionary reasons. and personhood. view the function of rights in constitutional law in very similar ways. other than the fact that a commander has given it to him. They assume that proportionality follows logically. The right to free speech for example makes reasons that have to do with the objection to the content of speech and its message excluded from governmental decision making. Indeed. Other writers. for example. or necessarily. function as exclusionary reasons. Raz has famously argued that certain practical concepts. and identifying those categories which are impermissible. Several constitutional lawyers have taken up this idea to show how American constitutional law.. John Hart Ely writes on malign 40 Joseph Raz. or categories of reasons. promises and rights. A right. An alternative method would be looking into the kinds of reasons. justification does not necessarily mean proportionality. would exclude from a soldier any reasons for or against a course of action. the right to the free exercise of religion excludes reasons having to do with singling out a certain religion for detrimental treatment. by way of examining the strength of the reasons in the individual case. which adopts the idea of reasons as the core of rights and of judicial review. by tying us to the course of action we had promised to take. autonomy. starting with Raz’s important essay on exclusionary reasons. Practical Reasons and Norms (Oxford University Press. similarly ties the government to particular reasons.and Barak in his book on proportionality – make this unnoticeable leap. proportionality is only one way of looking into reasons. as government should not aim at curbing any speech because of its message.

and T. racism and so on. Proportionality has some obvious advantages as a method of justification over exclusionary reasons.better serves the rationales behind the idea of justification and compare the advantages and disadvantages of each method. We need to determine which of these methods – proportionality or exclusionary reasons . (1994) 45 Hasting L. 711. Princeton University Press. Also see Richard .such as an attempt to inhibit the political process.. 'Professor Dworkin’s external/personal preference distinction'. Sweatt' in Equality and Preferential Treatment (M. John H. We need to determine which of these methods – proportionality or exclusionary reasons – better serves the rationales behind the idea of justification. T. The most important advantage of proportionality is that it seems to provide 41 Ronald Dworkin. Scanlon eds. 1977) 63 (external preferences). but the type of review would not be based on proportionality but rather on categorizing the kinds of reasons provided by government into permissible and impermissible reasons. Ronald Dworkin writes about external preferences (a preference regarding what another person should or should not do) as types of preferences (or reasons) that should be excluded as illegitimate. silencing. Cohen.preferences that are impermissible . 959 (malign preferences). Ely. 'Defunis v. 16 . and those reasons should be reviewed by the courts.41 All these important writers present in effect a justification-based account of constitutional law.J. Nagel. V.H. 1983 DUKE L. We do not presume to resolve this question conclusively but wish instead to note some of the advantages and disadvantages of each method as an instrument for justification. Pildes. 'Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law'. The idea of justification cannot support in and of itself the use of proportionality.J. one in which the government should submit its reasons for action. EXCLUSIONARY REASONS OR PROPORTIONALITY? The idea of justification cannot support in and of itself the use of proportionality. Since these are relatively well rehearsed by advocates of proportionality we only mention them briefly.

Since one of the rationales for the justification model is to make sure that government manifests the proper respect for the autonomy and personhood of the citizens. and in being categorical in nature. and especially the third balancing test. In this respect too it fits better with the exclusionary reasons approach. is about degree and balancing which are less characteristic of deontological conceptions and more akin to a consequentialist approach. Despite these obvious advantages of proportionality. proportionality review. Proportionality. proportionality.a larger scope for justification than exclusionary reasons. which starts from the assumption that the reason is legitimate and proper and moves on to assess its strength and weight versus the conflicting right. as a standard rather than a categorical rule. such as discriminatory reasons. on the other hand. an exclusionary reasons review would be concerned directly with ruling out those types of governmental reasons. Each person’s claim for justification is reviewed according to the specific circumstances of the case rather than according to set categories of legitimate or illegitimate governmental reasons. an exclusionary reasons review looks directly at the kinds of reasons given by the government for its actions. as it extends over and beyond cases that involve illicit governmental motive. Secondly. while exclusionary reasoning concentrates only on the outlines of the decision in terms of the legitimacy of the reasons behind it. 17 . To put it differently. We focus on four such aspects. A related point is that the notion of respect which is again one of the rationales for the justification-based approach has a deontological character in looking at what is right or wrong. and thus shows more respect to the person affected by the governmental action. In this sense it seems to follow more naturally from the idea of justification than proportionality. seems to be more case specific and individualized. that do not reflect the proper respect to autonomy and personhood. into cases where government acts out of legitimate reasons but pays too little attention to the protected right. First. there are also important aspects in which exclusionary reasons better fit the idea of justification. which is similarly categorical in nature and is concerned with permissible or impermissible reasons. requires justification regarding the merits of the decision and the cost-benefit calculation that applies to it. It does not penetrate the merits of the decision itself once those reasons are legitimate.

one of the advantages of the justification basedapproach to constitutional law was that it shifted our focus from assessing rights to assessing the reasons for their infringement. City of St. while the corollary discussion in the American case of American Booksellers.C. Paul. it does not require the assessment of the importance and value of the right. Butler [1992] 1 S.V. v. an exclusionary reasons review would not have the same effect.A. 377 (1992). A comparison between American and Canadian free speech jurisprudence illustrates this point.A. as mentioned earlier. the Canadian Supreme Court applied the proportionality test and balanced between the right to free speech and the right to equality.C. v. but rather concentrated on the reasons for the restriction of pornographic speech and whether they can be squared with constitutional principles. Indeed proportionality review. and thus absolved us from the need to rank interests and rights. Hudnut. unlike proportionality. Exclusionary reasons review therefore better fits the ideas behind justification since. In the American R.45 did not delve into that question.V.2d 323 (7th Cir.V. Similarly. 505 U. 44 R. The Court went into great detail explaining the rationales behind the right to free speech. 697.R.R. no such evaluation and assessment of the right to engage in hate speech was involved. and identifies them as illegitimate because they reflect viewpoint discrimination. and does not promote many of the rationales behind it. [1990] 3 S. In the Canadian Keegstra case42 pertaining to hate speech. 771 F. necessitates the assessment of the right in question in order to compare and balance it with the importance of achieving the governmental goal. in particular the third balancing test. which was one of the arguments for the justification-based approach in the first place. 45 American Booksellers v. then proportionality would not be our ideal tool. proportionality review in the Canadian Butler case44 brought with it an assessment of the importance and value of the right to engage in pornographic speech.’s reasoning can be characterized as based on exclusionary reasons: the Court investigates the reasons for the governmental restriction of speech. 18 . case. On the other hand. Keegstra. v. 1985). and concluded that the right to engage in hate speech is not at the core of the right to free speech.And to our third point: if. and exclusionary reasons review would fare better.A.43 R. R. 42 43 R. also relating to hate speech.S. 452.

What proportionality actually does in Kumm’s example is help uncover the existence of an illicit or excluded governmental motive. (the British case concerning a refusal to accommodate wearing the veil in public schools) is similarly involving a suspicion for illicit motives. uses as a central example in his justification-based account of proportionality – the Lustig-Prean and Beckett v. 31417/96 and 32377/96. App. Two of the most central examples in Barak’s book. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15. Kumm. H. mentioned earlier. reads as follows: “Everyone has the right to respect for his private … life”. to our mind. based on discrimination and prejudice against a religious and ethnic minority group. 548 (1999).R. UK.46 In this case. 19 . Rahman)) (Respondent) v. rather than with the strength of reasons or with proportionality. which are in this case based on discriminatory motives and irrational biases. Nos.47 Barak’s book is an excellent example of cases which involve proportionality and can be described as actually revolving on illicit and excluded motives. which drives its decision. Kumm argues that the kind of Socratic contestation that a proportionality review would initiate would flesh out the real reasons behind governmental action. Rep. and proportionality could be interpreted as serving to uncover 46 47 Lustig-Prean and Beckett v. is circumstantial evidence for the existence of another. is that those writers and jurists that rely on justification to argue for proportionality use examples that are more rightly characterized as cases of exclusionary reasons in which we can discern the existence of actual bad motives that proportionality can help uncover. the applicants complained that the investigations into their sexual orientation and their discharge from the Royal Navy on the sole ground that they are gay violated Article 8 ECHR. illicit goal. If for example there existed a less harmful alternative to achieve the governmental goal. United Kingdom case of the European Court of Human rights. for example. and in the fact that it was not compatible with public reason. Dyzenhaus’s leading example. and in that respect Kumm’s example can be used to support the exclusionary reasons model of justification rather than the proportionality model. In both cases there was considerable suspicion that the motives of government were questionable. 29 Eur.The fourth and most telling point. Article 8. R (on the application of Begum (by her litigation friend. the fact that the government did not choose it. as far as it is relevant. the security fence and the family reunification cases are good points in mind. Kumm was therefore interested in the type of reason provided.

Two of the leading examples brought by Möller are actually examples of judicial deference and of a regulation that passes the proportionality test in cases which. Kumm. Supra note 28. but wish to add proportionality as a second indispensable test. at Adalah. Möller’s examples show that when there is no suspicion of illegitimate motives. Cohen-Eliya. However.them. a proportionality review usually does not bring about judicial intervention. so that it becomes the first step of proportionality. Miller and Dyzenhaus may argue that they endorse exclusionary reasoning as a first step of the review. according to our analysis. it might be argued that a choice between proportionality and exclusionary reasoning is not necessary as they can both live side by side.50 Two final notes are in order. which some include in the proportionality test itself. While the court recognized that there was an infringement of the general right to liberty when the government restricted pigeon-feeding in public squares. a product of an emphasis on justification. provide no reason to suspect that there was a bad motive behind the regulation. at 276-9. Thus Barak. Our point was to show that exclusionary reasons are just as much. there were strong reasons to suspect that the motive was not security but governmental desire to maintain demographic balance between Jews and Arabs in Israel. In the family reunification case. and more importantly. supra note 8. it takes first place and 48 49 50 See the dissenting opinions of Justice Jubran and Justice Procaccia. or can be viewed as consecutive steps in a holistic review. Secondly. it is often the case that when proportionality is added to a preliminary test of illegitimate purpose or exclusionary reasons. supra note. or even more. 20 . there were reasons to suspect that the real motive behind the specific route of the fence was not national security but the desire to annex Palestinian territories to Israel. these writers emphasize only proportionality as an outcome of their adoption of justification.48 and in the security fence too. The same applies to the case of a constitutional challenge to the restrictions on riding horses in the park. This is indeed a coherent view. It may also be helpful in explaining those decisions where the court does not intervene. They may even view exclusionary reason within the purpose test.49 Exclusionary reasons can therefore be used to explain some of the decisions where the court intervenes using proportionality. it showed deference to the governmental policy in its decision. First.

51 Dieter Grimm. Barak evaluates in his book several justifications for the use of proportionality and several defenses of proportionality against its critics. Our second remark is that the discussion above does not review all possible arguments for adopting either proportionality review or exclusionary reasons review. It is harder to devise and apply categories of excluded reasons than to balance costs and benefits or discuss necessity of means to ends. since justification can support just as much the opposite exclusionary reasons type of review. Our discussion therefore does not provide enough in terms of a general choice between the two approaches. CONCLUSION Proportionality: Constitutional Rights and their Limitations is a seminal contribution to constitutional law and theory coming from one of the leading justices on the global scene – the former President of the Israeli Supreme Court. the purpose review prong of proportionality is practically unused by the courts.overshadows the first step. This is so.. and would be indispensable to anyone interested in the field. However. We only concentrated on those aspect of the two modes of review that make them better candidates for a justificationbased approach. based on the idea of justification that seems to us both central to Barak’s general jurisprudence and a new and promising approach that avoids some of the old and rehearsed arguments on judicial activism versus judicial restraint. such as separation of power. we hope. according to Dietter Grimm. 388 ("Cases in which the legislature pursues a constitutionally prohibited purpose (e. There are indeed many other aspects that are usually discussed in the debate over rules and standards. 51 The reason is that proportionality presents a much easier test for courts and one that leaves them much more discretion than purpose review. Justice Aharon Barak. This is indeed the case in Germany where. it does. democracy. (2007) 57 Univ Toronto L J 383.g. 'Proportionality in Canadian and German Constitutional Law Jurisprudence'. racial discrimination) are extremely rare. In this review article we concentrated on one such defense. efficiency. 21 . transparency and more. Barak’s book is the most comprehensive and authoritative account of the vast literature on proportionality. clarify that one cannot evade such considerations by shifting the debate over proportionality to the idea of justification.").

and attempts to “save” proportionality by relying on the idea of justification are problematic. those writers who support the justification-based approach disregard the fact that proportionality is not the only method to promote justification nor even the best one. Indeed. Therefore. However. in order to be justified. We argue that a more categorical approach. we claim.We have identified several prominent recent writers and Barak among them that represent a shift in the literature on proportionality towards a justification-based approach. proportionality needs another anchor than the justification-based approach. We have assessed the rationales behind the justification-based approach and pointed to its strength versus the alternative value-based approach. 22 . such as “exclusionary reasons”. follows just as much from the ideas underlying justification and may even fit better its rationales. those rationales that support the justification approach do not necessarily support proportionality.