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Proportionality Balancing and
Constitutional Governance: A
Comparative and Global Approach Alec
Stone Sweet
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Title Pages
Proportionality Balancing and Constitutional

Governance: A Comparative and Global Approach
Alec Stone Sweet and Jud Mathews
Print publication date: 2019

Print ISBN-13: 9780198841395
Published to Oxford Scholarship Online: July 2019
DOI: 10.1093/oso/9780198841395.001.0001
Title Pages
Alec Stone Sweet
Jud Mathews
(p.i) Proportionality Balancing and Constitutional Governance (p.ii)
(p.iii) Proportionality Balancing and Constitutional Governance
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Acknowledgments


Print ISBN-13: 9780198841395
DOI: 10.1093/oso/9780198841395.001.0001
(p.v) Acknowledgments
Alec Stone Sweet
Jud Mathews
The question of whether and how judges should balance conflicting values and
interests has dominated my research on law and politics over the past twenty
years. My approach to proportionality, in particular, has evolved through
intensive discussions with Robert Alexy, Aharon Barak, Carlos Bernal Pulido,
Damiano Canale, Moshe Cohen-Eliya, Dieter Grimm, Mattias Kumm, Jud
Mathews, Iddo Porat, Giovanni Sartor, Wojciech Sadurski, Po Jen Yap, and Neil
Walker. I am deeply grateful to each of them. I have also benefitted from
teaching seminars on the topic at the Yale Law School, Bocconi University, and
the National University of Singapore; I have, undoubtedly, learned more from my
students than they have from me. Carlos Bernal, Laurence Helfer, Emilio Peluso
Neder Meyer, and Po Jen Yap identified important rulings that would have
otherwise escaped our attention. I am indebted to Dominic Byatt at Oxford
University Press, who first suggested the book, and whose support of my
research now spans over three decades. Julie Chenot and Cécile Descloux, at the
Camargo Foundation in Cassis, France, again provided a place to write, under
the best of all possible conditions. And once more, Martha Lewis, an artist who
tracks the continuous, but virtuous, failures of human beings to bring a
semblance of order to complex systems, made the painting that adorns the
cover.
Alec Stone Sweet
I am fortunate to have been a part of the international community of scholars

writing about proportionality for more than a decade now. Several of the figures
named in Alec’s list have powerfully influenced my thinking as well; I would like
to also thank Iris Canor, Paul Craig, Jamal Greene, Vicki Jackson, David Law,
Page 1 of 2
Acknowledgments
Russell Miller, Niels Petersen, Steve Ross, Eberhard Schmidt-Aßmann, and Alec
Stone Sweet. A small army of terrific research assistants contributed to this
project: thank you to Ylli Dautaj, Koah Doud, Salma Hassan, Neeraj Kumar,
Nasim Mokhtari, Celia Karlin O’Sullivan, Martin Souto-Diaz, and Yan Zeng. I am
grateful to the Max Planck Institute for Comparative Public Law and
International Law, where I spent the summer of 2016, and to my home
institution, Penn State Law, for providing congenial and collegial environments
for research. Lastly, I want to thank Kim Mowery, for everything.
Jud Mathews (p.vi)
Page 2 of 2
Constitutions, Rights, and Judicial Power


Print ISBN-13: 9780198841395
DOI: 10.1093/oso/9780198841395.001.0001

Alec Stone Sweet
Jud Mathews
DOI:10.1093/oso/9780198841395.003.0001
Abstract and Keywords

This chapter provides an overview of contemporary, rights-based
constitutionalism, and develops an approach to comparative research on systems
of constitutional justice. The vast majority of modern constitutions establish such
systems, which comprise an entrenched charter of rights, and a constitutional or
supreme court whose mission is to defend the supremacy of the constitution
more generally. Rights provisions comprise criteria of legal validity: any act of
public authority that does not conform to the charter is unconstitutional. The
central role of the court is to ensure that public officials do not violate the
charter of rights, most importantly, through the enforcement of the
proportionality principle. The judges are, in effect, “trustees” of the values
placed in trust by those who have enacted the constitution: the sovereign
People. Part I defines basic concepts—including that of “the constitution,”
“constitutionalism,” and “governance”—and examines the process through
which the rights-based constitution became the global standard. Part II
addresses two crucial questions: why would the founders of new constitutions
choose (i) to enshrine constitutional rights as “higher law,” and (ii) to delegate
broad enforcement powers to a trustee court, whose important rulings on rights
are difficult or virtually impossible to overturn? It then defines the concept of
systemic effectiveness, and considers the conditions that are necessary for a
charter of rights to become effective as an instrument of governance. Part III
explores three pathways to transformative constitutional change—adjudication,
Page 1 of 32
constitutional amendment, and legislation—and discusses the importance of

trusteeship to each.
Keywords: system of justice, charter of rights, trustee court, constitution, constitutionalism,

completeness, effectiveness, constitutional transformation
Prior to 1950, only a handful of high courts in the world had any meaningful
experience with constitutional judicial review: the authority of a court to
invalidate acts of public authority, including statutes, found to be in conflict with
the constitution. The cataclysmic destruction of World War II led to a
reconstruction of governance, particularly in Europe, which gradually emerged
as the epicenter of a “new constitutionalism”1 featuring rights protection at its
core. By the turn of the twenty-first century, the defining features of what Jacob
Weinrib simply calls “modern constitutional law”2 had become a global standard:
(i) an entrenched, written constitution; (ii) the establishment of democratically
elected organs of government bound by a justiciable charter of rights; and (iii)
an apex court whose primary duty is to defend the primacy of the charter, and of
the constitution more generally. Meanwhile, the world’s most powerful high
courts had converged on a common procedure—a doctrinal framework known as
proportionality analysis (PA)—to adjudicate rights.3 Today, PA is basic to the rule
of law in the modern constitutional state.4 Since the 1970s, the most powerful
international courts, too, have embraced PA when they enforce human rights. As
a result, scholars now identify the scaffolding of a global, multi-level
“constitution,”5 which comprises overlapping international and domestic rights
instruments, and a shared commitment to enforcing the principle of
proportionality (Chapters 3, 6).
These developments have transformed the deep structure of law and politics,
raising foundational questions. Why would political rulers, when negotiating a
new constitution, empower judges to enforce rights—substantive constraints—on
their own lawmaking powers? What would lead them to renounce the
majoritarian principle that once held pride of place in liberal democratic theory?
If the new constitutionalism requires the demise of (p.2) legislative supremacy,
do constitutional judges necessarily become the supreme rulers? Why would
states build international regimes that empower an international court to
supervise how they govern domestically? Another set of issues concerns the
variation one observes across legal systems. How are charters of rights
enforced? Why do some systems protect rights more effectively than others? To
what extent do the rulings of constitutional courts impact the making of public
policy? The global scope and dynamics of these changes also pose intriguing
questions. Can one observe the development of “global constitutionalism,” and,
if so, what are its core elements? Has the transformation process just begun, or
has it reached its limits?
Page 2 of 32
We engage such questions from standpoints that deserve emphasis up front.

First, the book develops an account of effective, rights-based constitutional
governance. By governance, we mean the mechanisms through which legal
norms are produced, adapted, and applied. The central task of modern
constitutional law is to regulate legal and political change: how new legal norms
are introduced, and existing norms altered or abrogated. The book focuses
attention on the structural dynamics of legal change. To achieve their purposes,
new constitutions—blueprints for governance—must be implemented. A charter
of rights is at most an aspirational text; no charter is born with any degree of
effectiveness. Instead, we argue, effectiveness is a construction of constitutional
politics. Second, our basic unit of analysis is the “system of constitutional
justice” (SCJ): that complex of constitutionally rooted rules, principles,
procedures, and practices that govern the protection of rights. We will define the
concept of effectiveness shortly. For now, it is enough to note that the
“effectiveness” of systems of justice varies across time and place. Third, we
direct empirical attention to the policy impact of charters of rights. Rights
adjudication, in particular PA-based rights adjudication, helps to organize how
legislatures, executives, and judiciaries make, enforce, and change law at a sub-
constitutional level. In embracing proportionality, we will argue, constitutional
judges obtain a powerful managerial tool for supervising how all other officials
govern, and for building systemic effectiveness over time.
Proportionality evolved in Germany, passing first from eighteenth-century legal

philosophy into nineteenth-century administrative law, before becoming an
unwritten, judge-made principle of constitutional law in the twentieth century.
Today, proportionality is increasingly enshrined in constitutional texts,6 and has
been fully constitutionalized across Europe, in parts of Latin America and Asia,
and in common law systems as diverse as Canada, South Africa, Israel, and the
United Kingdom (Chapter 3). The adoption of PA by the courts of regional,
treaty-based rights regimes (including the European and Inter-American
Conventions on Human Rights) has also been a key (p.3) factor in its global
diffusion (Chapter 6). Presently, PA has no rival as the central procedural
component of rights adjudication. Its basic function is to organize a systematic
assessment of the justifications that state officials must provide if they wish to
limit the scope of a right in a constitutionally permissible way (Chapter 2).
Why are rights adjudication and the proportionality principle at the heart of
governance in the modern constitutional state? The simple answer is that the
two are complementary: (i) the charter of rights is binding on all acts of public
authority, including statutes; and (ii) PA furnishes a stable, comprehensive
analytical framework for resolving legal challenges concerning the conformity of
such acts with rights.
Page 3 of 32
The charter establishes positive requirements of legality.7 But to be effective,

rights provisions must be enforceable: they must establish juridical entitlements,
possessed by individuals, to challenge acts of public authority as inconsistent
with rights. Yet most rights in modern charters—the right to human dignity and
to be free from torture being the most important exceptions—are not expressed
(or interpreted) in absolute terms. Instead, they are “qualified” by a limitation
clause that authorizes officials to restrict the enjoyment of a right for some
sufficiently important public purpose. A central mission of any system of
constitutional justice, then, is to determine whether public officials have
properly exercised their authority under a limitation clause. As Weinrib neatly
puts it: “The doctrine of proportionality consists in a set of conditions that [state
officials] must satisfy to justify a limitation of a constitutional right.”8. PA, with
its distinctive series of tests, is tailor-made for this task, which partly accounts
for why constitutional judges have been drawn to it (Chapter 2). Moreover, it is
trans-substantive: judges can apply the same basic standard—of proportionality
—to all qualified rights.
When judges embrace PA, they incorporate into the constitution a presumptive
right to justification. PA is triggered once a rights claimant has shown, prima
facie, that her liberty under a right has been abridged by an official act. The
proportionality principle is enforced through a series of subtests, which we
analyze in detail in Chapter 2. At this point, a stylized summary of how a statute
is reviewed under PA will suffice. Under the first subtest, the government must
show that the legislation under review was enacted in pursuance of a legitimate
aim, that is, the law is covered by a proper purpose recognized by the
constitution. In a second stage, the court verifies that the means chosen by
officials are, in fact, rationally connected to the statute’s purpose: a subtest for
“suitability.” If the law is judged to be suitable, the court moves to the
“necessity” stage, which is operationalized by a “least restrictive means” test.
The key question under this subtest is whether (p.4) the statute abridges a
right more than is necessary to achieve the legislature’s declared purpose. If
there exist (reasonably available) alternative means that would permit
parliament to achieve its aim, while infringing less upon rights holders’
protected interests, then the challenged measure will fail. The fourth subtest—
known as “proportionality in the strict sense,” “proportionality stricto sensu,” or
simply “balancing”—assesses whether the marginal harm the statute under
review imposes on rights holders is “outweighed” by the law’s contributions to
the public good, which may include protecting the rights of others. Among other
things, the balancing stage permits the court to ensure that a right will not be
severely abridged in the service of achieving a relatively slight social benefit.
Apex courts that embrace PA do not simply add a doctrinal technique to their
methodological toolkit. Once constitutionalized, proportionality is enshrined as a
master principle of governance whose authority is no less than that of the
constitution, or of the apex court charged with defending the higher law. When
Page 4 of 32
rights are in play, all public officials and all organs of governance must respect
the proportionality principle in their policy deliberations. PA is a highly intrusive
standard of review: once activated, no policy consideration or interest is
screened from judicial scrutiny. Whatever deference the court may show state
officials will occur within the framework, not imposed on it through an external,
formalized abstention or deference doctrine (for instance, “political questions,”
“Wednesbury unreasonableness,” “state security”). As empirical research has
shown, apex courts that deploy PA consistently and in good faith generate highly
structured constitutional “dialogues” that shape how policy is made and the
system evolves (Chapter 5).9 In relatively effective systems, the more an apex
court uses PA, the more proportionality considerations will govern how officials
govern.
What the book is not about is also worth noting. We do not argue that global
constitutionalism and PA are progressing, through some teleological or
functional process, toward a one-size-fits-all monotype. Evidence of institutional
and doctrinal convergence is, in fact, of enormous significance. The fact that
virtually all new national constitutions establish a system of constitutional
justice raises important theoretical and empirical issues, while making broad-
gauged comparative analysis possible. We fully recognize that every
constitutional order evolves against the backdrop of distinct historical, cultural,
and politico-legal legacies that are likely to constrain the availability of viable
paths of development moving forward. The book, therefore, pays a great deal of
attention to the diversity of practice, including how constitutional judges deploy
PA. We also dwell on countervailing tendencies, resistance, and “negative
cases,” which global convergence makes all the more salient.
(p.5) PA is a doctrinal construct, and our focus on legal doctrine may also raise
alarm bells. It is fashionable to be suspicious of scholarship that seeks to explain
legal outcomes solely through the exegesis of constitutional texts and the formal
pronouncements of high courts. Rightly so. Academic lawyers and social
scientists have conclusively demonstrated that “extra-legal factors”—economic
development, the organization of party and electoral systems, demographic
shifts and cultural change, the rise and fall of social movements, and so on—
heavily condition the evolution of constitutional law and politics.10 The close
attention we pay to the structural features of rights protection is not a covert
assertion that only things “legal” or “judicial” matter. Indeed, we will argue that
the effectiveness of any system of constitutional justice is largely determined by
two meta-variables, which depend heavily on the kinds of factors named above.
These are the extent to which: (i) the important questions of the day (economic,
social, political, scientific, and so on) are adjudicated by constitutional judges;
and (ii) the latter’s rulings influence the decision making of all other public
officials. In embracing PA, we will argue, constitutional courts enhance their
capacity to build systemic effectiveness in specific ways.
Page 5 of 32
The fact that the constitutional world is diverse, complex, and not well
understood poses daunting challenges. Our approach is to concentrate on
structural elements that are common to all constitutions, while organizing
inquiry into variance across systems. All modern constitutions, for example,
share certain formal properties that the analyst must take into account in
comparative research. All purport to comprise bodies of higher-order rules that
determine how every other sub-constitutional legal norm is to be made and
applied; yet the precise content of constitutional meta-rules displays wide cross-
national variance. Diverse fields of scholarship can make important
contributions, different but complementary, to the study of systems of
constitutional justice. Our general strategy is to integrate materials from several
fields and perspectives into our inquiry, as sources for key concepts, testable
propositions, and real-world data. In particular, we draw on: (i) the legal
philosophy related to constitutions; (ii) delegation theory, as adapted to systems
of constitutional justice; and (iii) the findings of prior comparative research of an
explanatory nature. In addition, the concept of the system of constitutional
justice itself, as a distinctive way of understanding the functions a legal regime
can perform, generates new insights and hypotheses of its own when employed
in comparative analysis. Let us briefly consider each in turn.
First, legal philosophers have produced an important literature addressing

fundamental questions that cover all constitutional orders. What is a
constitution, and what are its major functions? To what extent does a
constitution’s (p.6) claim to authority and legitimacy depend upon extra-
constitutional factors and forces? In their responses to such questions, scholars
routinely generate propositions (proto-explanations or hypotheses) that are
directly relevant to comparative research. More broadly, legal scholars have
generated the core conceptual vocabulary that we use to describe the
institutions and practices of constitutional law, and the relevant differences we
see across systems.
Second, social scientists use delegation theory to guide research on any

governance situation in which a power-holder—the Principal—confers authority
on an individual or an organization—the Agent—to help the Principal attain her
goals.11 Here, we extend the insights of delegation theory to help account for
key features of modern constitutional law and politics. We use it to help explain
the turn to constitutional judicial review, to organize discussion of the structural
determinants of judicial power, and to derive propositions about effectiveness
and systemic change.
Third, the existing literature in the field of comparative constitutional law and
politics also pushes us to think more generally, in light of empirical findings.
Scholars have recently begun to collect and analyze relatively comprehensive
data on constitutions,12 modes of judicial review,13 and the content of charters of
rights.14 Of particular significance to this book is empirical research on the
Page 6 of 32
emergence of new constitutional regimes;15 on the “judicialization” of policy-

making in constitutional settings;16 and on the diffusion of constitutional norms
and forms across borders,17 including proportionality. In this book, we present
and engage with results from this body of work insofar as they are relevant to
the questions that our project addresses (Chapters 3 and 5).
What is more, the very concept of the system of constitutional justice offers a
fresh perspective on the material of comparative constitutional law. Much of the
book is devoted to how such systems operate. The book focuses in particular on
two important, closely related properties of every SCJ: completeness and
effectiveness. A system of justice is complete to the extent that: (i) the charter of
rights covers all important aspects of individual dignity, liberty, and autonomy;
(ii) stable procedures secure access to justice, permitting individuals to plead
rights in the courts against any act of public authority, and enabling judges to
provide an adequate remedy when rights are violated; (p.7) (iii) state officials
are required to justify any rights-restricting measure under review, with reasons.
In a fully complete system, all individuals possess a juridical entitlement,
grounded in the constitution, to challenge any act of public authority that would
infringe upon their freedoms as expressed in the charter. A system of
constitutional justice is effective to the degree that: (i) important disputes
concerning rights are actually adjudicated; (ii) an apex court authoritatively
resolves these disputes by engaging in independent legal reasoning, and
provides constitutional reasons for its rulings; and (iii) all other public officials
recognize the interpretive, precedential authority of the court’s jurisprudence
(case law), and adapt their decision making to it. No system, of course, is fully
complete or effective. We can nonetheless identify key factors that together
determine the extent of effectiveness and completeness, and do so below.
These streams of materials provide different ways of seeing the most significant
features of the constitutional world as they have emerged since the 1950s. Our
goal is to build on this scholarship, not to displace or debunk it. Taken together,
they allow us to map the terrain, however imperfectly. In this chapter, our
emphasis is less on proportionality, and more on the background conditions that
have made it the world’s most successful constitutional transplant. Part I defines
the components of rights-based constitutionalism. Part II focuses on the
functional logics of contracting constitutional rights and delegating review
powers to an apex court. Part III explores three pathways to transformative
constitutional change within a system of justice: adjudication, constitutional
amendment, and legislation.
I Concepts and Models

The development of proportionality as a global, best-practice standard of rights
protection took place within a much wider process: the gradual consolidation,
since 1950, of the basic model of modern constitutional law. In Chapters 2 and 3,
we explain why judges are attracted to, and adopted, PA. This part considers the
Page 7 of 32
larger context in which these choices were made. We define concepts, examine
the components of the modern system of constitutional justice, and discuss the
template’s global diffusion.
Constitutions and Constitutionalism

Modern constitutions, of course, do more than establish rights-based systems of
justice. Among other things, they also establish governmental organs and
distribute powers among them, specify procedures for making and enforcing (p.
8) law, stipulate rules for their own amendment, and “constitute” a legal
system, in perpetuity.18
H.L.A. Hart famously defined a legal system as “a complex union of primary and
secondary rules.”19 Primary rules—which are announced in statutes, ordinances,
decrees—impose duties on people, as subjects of the law, and regulate their
behavior. Secondary rules both enable and constrain the production of primary
rules and, hence, legal change. They “specify the ways in which the primary
rules may be conclusively ascertained, introduced, eliminated, varied, and the
fact of their violation conclusively determined.”20 In this book, our interest is in
constitutionalized secondary rules—those meta norms that govern how all sub-
constitutional legal norms are to be produced, enforced, and adjudicated.21
Constitutional rights are conspicuously absent from Hart’s idealized legal
system, but we can still describe the elements of a system of constitutional
justice in terms of categories he devised. In their constitutional form, secondary
rules are bundled into an overlapping set of meta-norms that include:
• the constitutional provisions that establish the organs of

government and their competences, including restrictions on
how they may exercise their authority, notably, in the form of
rights. These are mostly Power-Conferring Rules.
• Rules of Change, which specify procedures for producing
statutes and other primary rules, and for amending the
constitution.
• Rules of Adjudication, which govern the jurisdiction of the
courts, including the authority of a supreme or constitutional
court to resolve disputes concerning the meaning of the
constitution.
These meta-norms lay down a blueprint for constitutional governance.
Every viable constitution provides a means of authoritatively resolving disputes

concerning (i) the legal validity of any sub-constitutional norms in the system,
and (ii) conflicts between legal norms (including constitutional norms), or among
organs of government. Another set of secondary rules—Criteria of Validity—
determine how courts are expected to resolve such disputes, insofar as they give
judges guidance as to which legal norms are valid and, therefore, enforceable.
Page 8 of 32
These criteria are usually derivable from the other secondary rules: judges must
enforce statutes that are made according to the proper procedures, while
respecting the charter of rights, for example.22
(p.9) Insofar as these rules delineate the structural properties of any

constitutional order, all such orders will be directly comparable. Every system of
constitutional justice consists of three formal elements: (i) a written, higher-law
constitution; (ii) a justiciable charter of rights; and (iii) a mode of constitutional
judicial review. But the content of the charter, and the extent of its integration
into the various secondary rules, vary widely. Secondary rules may overlap, and
interlock with one another, in complex ways. In particular, when an apex court
formally grants proportionality status as a constitutional principle, it alters the
secondary rules. Henceforth, a primary purpose of adjudication will be to ensure
that state officials do not violate the proportionality principle when they produce
new, or apply existing, primary rules. Today, virtually all of the world’s most
powerful constitutional courts have, in effect, constitutionalized proportionality,
making it a corollary of the charter of rights, and thus a criterion of validity.
When it comes to constitutional governance, the rule “all state officials must
respect the proportionality principle” will overlap all other important secondary
rules.
While the concept of a constitution is reasonably straightforward,

“constitutionalism” is more contested. We use the term primarily to denote the
commitment, on the part of any given political community, to work within the
rules established by the constitution. The commitment to respect and to live
under a constitution, and the degree to which public officials, political parties,
interest groups, and other elites mobilize to undermine or destroy it, varies
cross-nationally, and within any polity over time.
A second way to conceptualize constitutionalism is as a cultural or ideological

construct, directing attention to macro-cultural understandings and social
practices rooted in specific constitutional arrangements, such that one can
speak of “Canadian” or “Taiwanese” constitutionalism, for example.
“Constitutionalism is the set of beliefs associated with constitutional practice,”
Neil Walker suggests, embodying the fundamental notions of how “we,” in “our”
political system organize the state (federal or unitary), constitute our
government (centralization or checks and balances), provide for representation
and participation (elections and referenda), protect minorities and fundamental
freedoms (rights and judicial review), promote equality (taxation and social
welfare regimes), and so on.23 This type of “constitutionalism” will vary in
different places, not only in its content, but in its strength and coherence. A
robust constitutionalism expresses the self-understanding of a political
community—its values, aspirations, and idealized essence24—and provides a
wellspring of legitimizing resources for the body politic, helping it to evolve as
circumstances change. In contrast, a weak constitutionalism fails (p.10) to
Page 9 of 32
represent collective identity, and times of crisis will challenge the legitimacy of
the constitutional order.
There is a third family of definitions worth noting. Carl Friedrich refers to

constitutionalism as “limited government,” a state of affairs wherein the higher
law “effectively restrains” those who control the coercive instruments of the
state.25 Koen Lenaerts defines constitutionalism as “limited government
operating under the rule of law.”26 Michel Rosenfeld notes that “there appears
to be no accepted definition of constitutionalism,” but then states that, at a
minimum, “modern constitutionalism requires imposing limits on the powers of
government, adherence to the rule of law, and the protection of fundamental
rights.”27 We critically engage this “limited government” formulation throughout
the book. Here it is enough to note that constitutions—including charters of
rights—do not just constrain the exercise of public authority; they constitute and
authorize it.
Systems of Constitutional Justice

Modern constitutions establish systems of justice in order to optimize rights
protection, replacing constitutional forms that had spread widely in the
nineteenth century, including the absolutist28 and parliamentary sovereignty
models. Modern constitutions are promulgated in the name of the sovereign
People. They establish the lawmaking authority of representative governmental
organs, which are tied to the People through elections. They provide for a
system of justice. And they are codified and entrenched: explicit rules of change
regulate the amendment of the constitutional text, typically through procedures
that are more onerous than those in place for changing statutes.
The rights-based model has no serious rival today. Data collected on

constitutions that have entered into force since 1789 are conclusive in this
regard.29 The first codified constitutions appeared only at the end of the
eighteenth century, in the United States and France. Today, of the 194 states (p.
11) in the international system, only three do not possess a codified
constitution: Israel,30 New Zealand, and the United Kingdom (UK).31 Of existing
states, 183 (94 percent) have constitutions containing a charter of rights. In the
1985–2010 period, 114 new constitutions entered into force (not all of which
have lasted), and we have reliable information on 106 of these. All 106 new
constitutions contained a catalog of rights, and only five failed to establish a
judicial mode of rights protection (North Korea, Vietnam, Saudi Arabia, Laos,
and Iraq32).
For present purposes, the trend that matters most is the demise of the
legislative (or parliamentary) sovereignty model. With a polite bow to Britain
and France for historical contributions and a nod to an important holdout—
Australia33—we can declare the model all but extinct. The legislative sovereignty
model is defined by a series of interlocking features. The constitution (whether
Page 10 of 32
codified, as in France, or a mix of texts and unwritten conventions, as in Great

Britain) provides for regular elections to the parliament. At the heart of the
model is a simple chain of legitimation: electorates legitimize legislative
authority, and parliamentary majorities legitimize statutes. Once adopted by the
legislature, statutes take primacy over any conflicting norm, until changed by a
subsequent parliamentary majority.
The legislative sovereignty model is defined by secondary rules with three

features. First, in contrast to the modern model, the constitution is not
entrenched: that is, there are no special, non-legislative procedures for revising
it. No parliamentary act can bind a future parliament, and parliament can revise
the constitution through a majority vote (a rule of change). To take a dramatic
example, by way of an ordinary statute, the British House of Commons abolished
the power of the House of Lords to veto legislative proposals in 1911, removing
the last important constraint on the Commons’ primacy. The second
consequence is that any legal norm that conflicts with parliamentary legislation
is itself invalid (a criterion of validity). Judicial rulings are subject to this rule,
hence the prohibition of judicial review of statute (a rule of adjudication). In the
case of a conflict between two statutory provisions, the one adopted later in time
trumps, under the doctrine of implied repeal (a rule of change that determines
validity). The third is that the constitution contains no body of substantive
constraints on legislative powers. Public liberties, whether granted by the
legislature (p.12) through statutes, or the courts through case law, can be
rescinded by a legislative act. The French Third (1875–1940) and Fourth (1946–
1958) Republics, and the UK, until recently, are relatively pure examples of
legislative sovereignty regimes.
Virtually all existing systems of parliamentary sovereignty have been deeply

infected by the rise of rights-based constitutionalism. In the so-called
“Commonwealth model of judicial review,”34 the legislature can ignore or
legislatively set aside supreme court decisions on rights.35 While rejecting
proposals to establish a charter of rights with constitutional rank, New Zealand
(1990) and the UK (1998) nonetheless adopted human rights statutes, which are
recognized as “quasi-constitutional” law in that they are not subject to the
doctrine of implied repeal, and they permit judicial review of statutes. Under the
1998 Human Rights Act, UK courts are empowered (i) to interpret statutes (and
all other public acts), as far as possible, in conformity with rights found in the
European Convention on Human Rights, and (ii) to declare statutory provisions
incompatible with rights, when such an interpretation is impossible. Parliament,
however, is not required to rescind a statute declared to be rights-incompatible.
New Zealand courts, too, are under a duty to interpret statutes in rights-
conforming ways, though its Parliament also possesses the authoritative “final
word” in the face of a declaration of incompatibility issued by the Supreme
Court. In 1982, Canada adopted a Charter of Rights and Freedoms, and gave it
full constitutional rank. But the Canadian Charter also permits Parliament to
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reenact a law found by the Supreme Court to be unconstitutional, for a period of

five years, by majority vote. Politicians virtually never use this procedure, due to
the perceived political costs of reenacting a law judged to have violated the
Charter.36 Australia is now actively debating whether to adopt a statutory bill of
rights, as the federated Australian state of Victoria did in 2006.
In contrast with the Commonwealth model, modern systems of justice typically

establish “structural judicial supremacy,” wherein the apex court holds the
authority to invalidate any state act that violates the charter, through rulings
that are virtually impossible (whether in law or in fact) to be overturned through
constitutional revision.37 (p.13)
Rights and Review

In adjudicating charters of rights, constitutional judges routinely develop
jurisprudential theories that explain the structure of rights—their content,
nature, and scope. Different structural theories produce different approaches to
rights adjudication. The structural properties of rights provisions vary along a
number of dimensions. The first concerns the distinction between (i) “absolute”
and (ii) qualified rights. When rights are expressed (or interpreted) in absolute
terms, any act of public authority that infringes upon the right is
unconstitutional. A court that would enforce the right to free expression in
absolute terms, for example, must determine what types of speech are covered
by the right, and which are not. If the case involves speech that is covered, the
rights-claimant will prevail, and if the speech is not covered, the claimant will
lose. This “categorical” approach to rights38 has at times been used by the U.S.
Supreme Court to enforce the First Amendment (which declares in categorical
terms that “Congress shall make no law … abridging the freedom of speech”).
But a right may also be conceived in relative terms, as a principle (or value) to
be balanced against other values of the same constitutional rank, including
against the state’s duties to protect the rights of others, and to make and
enforce law in the public interest. In modern constitutional law, only a tiny
handful of rights—such as a right to one’s human dignity and the prohibition of
official torture—are typically expressed in absolute terms. The others are
“qualified” by limitation clauses that expressly authorize lawmakers to curtail
enjoyment of the right for some sufficiently important public reason. As we
stress in Chapter 2, PA is tailor-made for adjudicating qualified rights.
A second dimension of variation concerns the nature of the obligation imposed

on public authority. A right may establish what the state may not do, either
under any circumstances (an absolute, or categorical, version of rights), or
unless the state meets a special burden of justification (a qualified conception of
rights). Most modern charters also address what the state must do, in order to
facilitate the enjoyment of rights; and many also entitle citizens to certain
benefits, such as adequate public health care and education, employment, and
housing.39 One classic typology thus categorizes rights as negative or positive:
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the former stop government from doing certain things, and the latter requires
government to act to accomplish certain goals, especially when failure to act will
lead to a denial of rights protection. Older constitutions rarely contain positive
rights; newer constitutions almost always do.
Constitutional judicial review also varies, with two models dominating.40 The
archetype of the “decentralized” model is American-style “judicial review,” (p.
14) which is performed by the judiciary in the context of litigation. The second
—the “centralized” or “European” model—grants review powers to a special
organ—a constitutional court—while the ordinary (that is, non-constitutional)
courts are denied the authority to invalidate statutes.
The underlying rationales for each model reflect opposed separation of powers
doctrines. Separation of powers doctrines express idealized notions of how the
organs of government should function and interact with one another, given a
particular constitutional text, history, and culture. Simplifying, under the
precepts of the first model, the judiciary is understood to be a separate but co-
equal branch of government, within a system of “checks and balances.” The duty
of American courts, their circumscribed function, is to resolve legal “cases or
controversies” in a small set of defined categories, one of which is those that
arise under “the laws of the United States.”41 The Constitution is one of “the
laws.” If litigants can plead the constitutional law before the courts, then judges
will need the power of judicial review in order to resolve the constitutional
controversies that come before them. Such is the logic of Marbury v. Madison
(1803), the U.S. Supreme Court decision that asserted the Court’s own
constitutional review authority.42 Review powers are held by the judiciary as a
whole.
Giving review powers to all courts is no longer as popular as concentrating

review authority in a specialized constitutional court.43 The centralized model
first developed in Europe, where the judicial review of statutes was traditionally
prohibited, and where separation of powers doctrines strongly distinguished the
“political function” (to legislate) from the “judicial function” (to resolve legal
disputes by applying statutes). From the perspective of the centralized model,
American-style judicial review appears to create a “confusion of powers,” since it
permits the judiciary to participate in the work of the legislature. The
centralized model avoids the problem by vesting the constitutional review power
in a unique institution, one that would never be confused with an ordinary court.
Considered as an ideal type,44 we can break down the centralized model into
four constituent components, which we contrast with its decentralized
alternative. First, constitutional courts enjoy exclusive constitutional
jurisdiction. Constitutional judges alone may invalidate a statute as
unconstitutional, while all other courts remain formally prohibited from doing
so. In the United States, review authority inheres in judicial power, and thus all
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judges possess it. Second, constitutional courts settle constitutional disputes. In

contrast, the (p.15) jurisdiction of the U.S. Supreme Court reaches both
constitutional and non-constitutional disputes. Constitutional courts do not
preside over ordinary litigation, which remains the function of the ordinary
courts. Instead, their central task is to give authoritative answers to the
constitutional questions that are referred to them. Third, constitutional courts
are connected to, but detached from, the judiciary and legislature. They typically
occupy their own “constitutional” space, which is neither clearly “judicial” nor
“political” in traditional separation of powers terms. Fourth, some constitutional
courts are empowered to review legislation before it has been enforced, that is,
before it has actually affected any person negatively, as a means of eliminating
unconstitutional norms before they can do harm. Thus, in the centralized model
of review, the judges that staff the ordinary courts directly enforce statutes (and
other sub-constitutional legal norms), while constitutional judges directly
enforce the constitution.45
The two models of review also differ with respect to the pathways through which
cases come to the judges. In the United States, litigants activate rights review
when they plead a right before a judge—any judge. In countries with
constitutional courts, there are three main procedures for initiating review. The
first is abstract review: the review of statutes prior to their enforcement.
Abstract review is also called “preventive review,” since its serves to filter out
unconstitutional laws before they can harm anyone. It is typically politically
initiated: executives, parliamentary minorities, and regions or federated entities
in federal states may refer laws to the court. The second mode is concrete
review, which arises in the course of litigation in the courts. Ordinary judges
initiate it by sending a constitutional question to the constitutional court: is a
given legal norm (statute, judicial decision, administrative act, and so on)
constitutional? The general rule is that a presiding judge will refer such
questions if two conditions are met: (i) that the answer to the question will
determine who wins or loses in the dispute at hand; and (ii) there is reasonable
doubt in the judge’s mind about the constitutionality of the applicable act or
rule. Referrals suspend proceedings pending a review by the constitutional
court. Once rendered, the constitutional court’s judgment is sent back to the
referring judge, who then decides the case on the basis of the ruling. Ordinary
judges are not permitted to determine the constitutionality of statutes on their
own; rather, they help to identify potentially unconstitutional laws, and then
send them to the constitutional court for review. The third procedure—the
constitutional complaint—goes by a variety of designations, including the
amparo in Spain and throughout Latin America.46 It brings individuals into the
mix. Individuals are authorized to appeal directly to the constitutional (p.16)
court when they believe that their rights have been violated.47 Some systems
also create a rights ombudsman with independent powers to bring cases to the
court. A system that provides for abstract review, concrete review, the individual
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complaint, and an ombudsman is more “complete” than a system that provides

only for case-or-controversy review.
Diffusion
Since the 1980s, virtually every act of constitution-making following the demise
of authoritarian regimes, or the end of civil war, has resulted in the construction
of a system of constitutional justice. Authoritarian regimes exist and persist, but
when they fall, the founders of new constitutions almost always embrace the
dominant model. Why virtually all new constitutions written since 1985 establish
rights and review is something of a mystery, though three factors are of
particular importance.
First, new constitutions hail new beginnings. In the context of democratization,

the turn toward rights-based constitutionalism signals a decisive break with the
past. The collapse of what Kim Lane Scheppele has called “regimes of horror,”48
in which state officials had routinely committed the most heinous crimes against
citizens, is the paradigmatic situation. Such regimes generate a massive social
demand for rights and review, while their demise provides the founders of new
constitutions with a discredited legacy to demonize. In such contexts, few see a
contradiction between democracy and rights protection, at least at the
beginning. On the contrary, founders and citizens typically view robust rights
protection as essential to any successful transition to constitutional democracy.
Second, the framers of new constitutions copy forms perceived to be successful.

Institutional sociologists and others have documented the process through
which best-practice standards emerge, congeal as templates, and diffuse
globally.49 Constitutional forms diffuse in similar ways, through “band-wagon
effects” that are easily tracked.50 The German experience, for example, not only
directly influenced those who designed new constitutions across Europe, but
also in Colombia, South Korea, South Africa, and Taiwan. The last constitution to
leave out a charter of rights was the racist 1983 South African constitution,
hardly a model to emulate. Similar dynamics supported the spread of
proportionality (Chapters 3 and 6).
A third factor concerns the coercive effects of the international environment.

Over the past thirty years, the international organizations that (p.17) govern
the global economy have heavily promoted constitutional reform, emphasizing
rule of law as key to peace and development, and rights protection as key to rule
of law. The International Monetary Fund, the World Bank, and other
development organizations partly conditioned development aid and other
resources on congruence with international standards. In the 1990s, following
the collapse of communism in Europe, the EU and the Council of Europe (the
centerpiece of which is the European Convention on Human Rights) required
that framers of new constitutions provide for constitutional justice as a
prerequisite for membership and support programs. Authoritarian states, too,
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sometimes embraced rights and review on their own, as a means of signaling to

the international community their commitment to reform (whether sincere or
not).51
The factors favoring structural convergence are embedded in a larger

ideological project. Modern constitutional law is a construction of liberal
ideology, the domain of which has steadily expanded since 1789. Today, one finds
relatively effective systems of constitutional justice on every continent.
II Contracting and Delegation

Understanding the rise of modern constitutionalism also requires attention to
the strategic logics that underlie decisions by political elites to build new
systems of justice. Here, we focus on functional needs of those who negotiate
new charters of rights, and delegate to constitutional judges. In a nutshell, a
commitment to judicial review follows from a commitment to rights, since rights
generate fierce commitment problems that constitutional courts can resolve, at
least on paper. Moreover, the more any polity seeks to achieve an effective
system of justice, the more authority it will need to delegate to an apex court.
The key institutional design question is, what types of arrangements will
maximize the chances of building systemic effectiveness over time? In response,
we develop a simple theory of trusteeship, focusing on the authority of
constitutional judges to manage the system as it evolves.
Contracting and Delegation

A first order puzzle concerns why elites would find it in their interest to establish
rights and review. Scholars largely agree on the basics of a solution to this
puzzle; at the same time, they recognize that explaining any (p.18) particular
case will require close attention to facts (historical, socio-economic, politico-
legal, and so on) that are specific to that national system. The general account
stresses the importance of a competitive party system, and the common interest
of each party to constrain its opponents when out of power. Put simply: when
two or more major parties (i) know that they will compete with one another in
elections for power, and (ii) believe that they could lose to one of their
opponents, then (iii) each will have an interest in investing in constitutional
arrangements that will constrain the victors after their opponents lose an
election.
Although virtually all modern constitutions proclaim that sovereignty rests with
the People, constitutions are typically drafted by different groups of elites in the
course of complex negotiations. In such contexts, two overlapping logics broadly
explain why these groups choose to delegate control powers to constitutional
judges. The first, the so-called “insurance model of judicial review,” directs
analytical attention to the degree to which political authority is centralized or
fragmented.52 In systems dominated by one person or one political party, rulers
will have little incentive to share their power with courts. In contrast, where a
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competitive party system exists or can be foreseen by the founders, each party
will see the benefits of protecting its interests when out of power, and
constraining officials through judicial review is a means of doing so.
A second, related logic—one of “incomplete contracting”—focuses on rights as a

specific form of insurance.53 Constitutions are conceived as contracts between
political elites who jointly negotiate the legal framework under which they will
govern. In the most common situation, these elites—members of political parties
and groups claiming to represent the broader citizenry—negotiate the terms of
the new constitution as a “constituent assembly,” whose task is to produce a
draft text to be submitted to the People for ratification in a referendum. In
establishing a democracy, each contracting party knows that it will compete with
the others for office, through elections. At the same time, each wants to
constrain opponents when they are in power, in part, through rights and review.
The resulting constitution thus creates two public goods: (i) a set of enabling
governmental institutions, tied to elections, and (ii) a set of constraints, tied to
rights.
We conceptualize modern constitutions as incomplete contracts.54 All contracts

are “incomplete” to the extent that meaningful uncertainty exists as to the
precise nature of their terms. Given the impossibility of negotiating specific
rules for all possible contingencies, and given that, as time passes, conditions
will change and interests will evolve, most agreements of any complexity are
produced through what organizational economists call (p.19) “relational
contracting.” In this mode, the parties to an agreement seek to broadly “frame”
their relationship, by agreeing on a set of common goals, stipulating outer limits
on acceptable behavior, and establishing procedures for “completing” the
contract as future circumstances warrant.55 Modern charters of rights are
paradigmatic examples of relational contracting.56
Relational contracting, of course, generates a commitment problem, which is

typically resolved through third-party dispute resolution and enforcement.
Contracting rights57 goes hand-in-hand with establishing judicial authority. Take
the following scenario, which is a simplified version of what has occurred in
many places since 1945. Once the constituent assembly decides to include a
charter of rights,58 it faces two tough problems. First, rights disagreements
threaten to paralyze the drafting process. Left-wing parties push for positive
rights and limits on the rights to property, while rejecting a narrow conception
of the classic negative rights. The right-wing parties want stronger protection
for property rights, and see rights primarily as a means of limiting, not enabling,
government. The two sides compromise, drafting a charter that (i) lists most of
the rights that each side wants, (ii) qualifies most rights with a limitation clause,
and (iii) is vague about how any future conflict between two rights, or a right
and an important governmental purpose, will be resolved. The second problem is
making the commitment to protecting rights credible. The solution is delegating
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enforcement powers to a constitutional court. Delegating allows the assembly to

avoid bargaining stalemates, while creating a mechanism for enforcing and
“completing” rights incrementally, on a case-by-case basis, when the constitution
enters into force.
Agents and Trustees

The more acute are problems of imperfect commitment, delegation theorists
assume, the more discretionary authority the framers must delegate to the (p.
20) reviewing court, if governance arrangements are to achieve their purposes.
Relational contracting may help a divided constituent assembly reach agreement
on rights ex ante, qualified rights being incomplete norms by design. But if
rights are to be enforced as positive requirements of legality—that is, as criteria
of validity for all other official acts—then the court must have the discretion to
determine the content and scope of rights, ex post. The commitment problem
will persist, however, if state officials can easily nullify the effects of the court’s
rulings through constitutional amendment. In modern systems, entrenchment is
therefore crucial, serving to insulate the court’s rulings from override by
officials whose acts the court controls.
Contrast a constitutional court’s role in the modern system of justice with that of
the judiciary in the classic legislative sovereignty regime. One can conceptualize
the latter as a simple “Principal-Agent” model, where the courts act as agents of
the sovereign parliament, which is itself an agent of the electorate. Notably,
even on this framing, judicial rulings will enjoy a measure of insulation from
political override. A major task of the judiciary is to enforce parliament’s
statutes, while review of their lawfulness is prohibited. To the extent that
statutes are incomplete, judges will need interpretive powers. But since
interpretation and application are themselves forms of lawmaking, the question
of “agency costs” inevitably arises. As an empirical matter, we know that the
more any statute is litigated, the more likely the courts will determine what the
law means, in practice. Yet even in the face of extensive judicial lawmaking, the
principal remains in charge. Members of parliament are always free to overturn
judicial rulings through legislating a new statute. Thus, insofar as the legislator
can identify judicial “errors,” it can correct them, since the decision rule
governing override—a majority vote of parliament—enables its control. The rules
governing judicial override are a crucial factor in this type of analysis, but they
are not the whole story. A parliament that is unable to muster a majority vote to
overturn any particular judicial decision remains sovereign, as a formal matter,
but its actual capacity to control the courts is, on that point of law at that point
in time, nil.59
In modern systems of justice, the apex court is not a simple agent of any
permanently sitting organ, such as a parliament.60 Instead, it exercises authority
in the name of a fictitious, but symbolically important, entity: the sovereign
People. The more appropriate concept for this context is trusteeship.61 Through
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legislating a rights-based constitution, the People have: (i) placed their freedom
—in the form of a charter of rights—in trust; and (ii) conferred (p.21) review
powers—the relevant “political property rights”—on the court to manage this
trust. The court can only perform this mission effectively if it possesses the
authority to invalidate public acts that violate rights, and if its decisions are
insulated from easy override on the part of officials whose decisions it
controls.62 In such a situation—one of structural judicial supremacy—members
of parliament, executives, and all other state officials are agents of the People,
subject to the decisions of the trustee court.63 The trustee court, a kind of
“super-agent” of the People, acts as the regime’s caretaker, and is itself subject
to duties of appropriate stewardship.
Trust law’s emphasis on the fiduciary obligations of trustees also informs our
approach. Because both citizens and officials are vulnerable to the trustee
court’s judgments, its supremacy is tempered by a set of robust fiduciary duties.
As applied to courts, the most important of these duties are (i) loyalty, (ii)
accountability, and (iii) deliberative engagement. As Ethan Leib, David Ponet,
and Michael Serota argue,64 loyalty refers to the judge’s duty to act in ways that
will maximize the purposes of the trust: to protect rights in the present instance.
The duty of accountability requires the trustee court to justify its rulings with
reasons. And the obligation of deliberative engagement requires the court “to
engage in dialogue” with those who are vulnerable: rights claimants and
officials. This obligation requires “an authentic effort to uncover preferences
rather than a mere hypothetical projection of what beneficiaries might want.”65
As we will argue throughout the book, a court that deploys proportionality
analysis in good faith will perform its fiduciary duties while maximizing its
capacity to enhance the system’s overall effectiveness.
It is worth highlighting something implicit in the discussion above, namely, that

the move to trustee courts is sustained by both strategic and normative logics,
both for the elites who construct constitutions and the judges who interpret
them. From the strategic perspective of the elites negotiating the terms of a
democratic transition, rights can serve an insurance function only if the court
interpreting them owes its allegiance to the system as a whole. This conception
of the apex court as “guardian of the constitution” (to borrow the term used in
Germany) is equally consonant with the normative constitutional theory that
underwrites the modern system of constitutional justice. Similarly, from the
perspective of constitutional judges, the applicable strategic and normative
logics also point in the same direction. If the court does not act as a guardian in
good faith, it will neither be able to “complete” the founders’ incomplete
contract nor to render the system of justice more effective. (p.22) Looking
forward, insofar as trusteeship in fact imposes fiduciary duties on constitutional
courts, those courts will have strategic incentives to take those duties seriously,
and proportionality can help them to do so (Chapter 2).
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Trusteeship and Effectiveness

Three factors condition the development of the effectiveness (as defined above)
of any system of constitutional justice. First, the apex court must have a
caseload,66 without which it could acquire no influence over the system’s
evolution. Second, once activated, the judges must resolve rights disputes while
giving defensible reasons for their decisions. If they do, they will produce a
jurisprudence: a case law that records how they have interpreted and applied
the charter of rights. Third, a stable conception of precedent must develop
within the system. All other state officials, and all potential litigants (the
citizenry), must generally accept the court’s jurisprudence as authoritative, and
refer to it in future episodes of adjudication and application. The second and
third conditions will not be met if the court produces arbitrary, unprincipled, and
inconsistent rulings. Downstream, what will matter is the degree to which all
other government officials adapt their decision making to the court’s
jurisprudence, as it evolves. If a system of justice is to gain in effectiveness,
officials must consider such intrusions to be, often enough, a reasonable tax to
pay for rights protection, and they must be willing to reinvest in the system as it
evolves. These are the necessary and sufficient conditions for the development
of effectiveness.
Trustee courts that manage relatively complete systems of justice, as

completeness is defined above, possess the formal powers necessary to manage
the system. Other things equal, trustee courts that faithfully execute their
fiduciary obligations will maximize capacity to build systemic effectiveness. But
calling a court a trustee, and listing its powers and duties, will not tell us how
any given apex court will actually govern, what kind of case law it will construct,
or how political elites will react to important rulings. Answering these questions
for specific systems would require a detailed empirical analysis of each.
It is a brute fact that most systems of rights protection throughout world history
have been largely ineffective, as irrelevant to politics as the constitutions that
created them. Ruling elites may seek to settle their disputes by force, rather
than through the courts, with fatal consequences for the regime. They may
privilege remaining in power, enriching themselves, rewarding their friends and
punishing their foes, achieving ethnic dominance, and so on, rather than
working to strengthen constitutional justice. High court judges, (p.23) too, may
show no little or no interest in building effectiveness if doing so means
confrontation with illiberal rulers. Negative cases, therefore, command our
attention.67
Why only some countries are able to achieve a meaningful degree of

effectiveness is a controversial question. We know that constitutional democracy
is difficult to create and sustain. A competitive party system, regular elections, a
commitment to rule of law and judicial independence, and a system of advanced
legal education and advocacy training are all factors that can help to determine
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the fate of a new constitutional regime. At the same time, each of these variables
is typically associated with others, including economic development, ethnic
diversity, attributes of political culture (which may be illiberal and fragmented),
and colonial legacies. In new rights-based orders, it is the primary mission of the
trustee court to help construct rights-based constitutionalism. But there are
limits to what even doggedly determined judges can accomplish if continuously
opposed by political elites.
In situations where elected officials seek to weaken or destroy a system of

justice, degrees of constitutional entrenchment matter a great deal. A case in
point is the recent experience of Hungary. Beginning in the mid-1990s, the
Hungarian court made itself one of the most powerful and effective
constitutional courts in Central and Eastern Europe, indeed, in the world. In
2011, however, a coalition government led by Prime Minister Viktor Orban
obtained more than the two-thirds of the seats necessary to amend the
constitution. In direct response to a series of Constitutional Court rulings, the
coalition moved to override the Court through amending the constitution, as well
as to strip it—and the judiciary more generally—of some of its most important
powers.68 In 2015, a new political majority in Poland initiated a similar process
of curbing the Court, albeit without formally revising the constitution.69 Thus, in
constitutional regimes that locate the amending authority in the parliament, a
court’s capacity to build systemic effectiveness—or the extent of constitutional
“backsliding”70—may critically depend upon election results.
Despite these real and potential obstacles, rights and review have been crucial
to virtually all successful transitions from authoritarian regimes to constitutional
democracy since World War II.71 Indeed, it appears that the more successful any
transition has been, the more likely one is to find a trustee court working to
build systemic effectiveness. In such situations, (p.24) constitutional
adjudication can smooth transitions to constitutional democracy,72 providing: (i)
for peaceful dispute resolution between parties and groups who may mistrust
one another, especially after episodes of intense civil conflict; (ii) a mechanism
for purging the laws of authoritarian elements, while a new legislature may be
overloaded; and (iii) an arena in which citizens directly participate in
constitutional governance, through bringing rights claims. As important, the
court’s rulings can furnish focal points for the consolidation of a new model of
state legitimacy, one based on respect for democratic values and rights, and on
the rejection of fascism, military or one-party rule, the cult of personality, and so
on. Where trustee courts succeed in building the effectiveness of systems of
justice, they enhance the legitimacy of the constitutional order more generally.
III Constitutional Change

A constitution is a formal instrument of delegated governance, a major function
of which is to organize legal change. If and how the secondary rules themselves
should be adapted, however, is a deep and controversial question. This section
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focuses on change in its most radical, indeed quasi-revolutionary, form: that of

constitutional transformation. We define the concept narrowly, as the process
through which the “deep structure” of existing secondary rules are
authoritatively altered. Our focus is on the inherent capacity of trustee courts to
induce transformation in the service of building systemic effectiveness. Least
surprising, probably, is trustee courts’ capacity to transform constitutions
through adjudication. But a number of trustee courts have also effected
constitutional transformations by authoritatively setting the terms for the other
two modes of constitutional change: formal amendment, and legislation.
Adjudication
How rights adjudication generates constitutional change, with what effects on
law and politics, is a central topic of this book. A basic task of a trustee court is
to render rights protections more complete. The more effective the system, the
more the court’s lawmaking will be recorded in an evolutionary case law that
will be difficult to dislodge. There are multiple ways of conceptualizing
adjudication’s role in “normal” incremental change. From a game-theoretic (p.
25) standpoint, a trustee court occupies a crucial strategic position in a two-
level, or “nested,” game. In any important case involving the charter, both
parties seek (i) to prevail in the discrete policy conflict at bar (the first level),
and (ii) to persuade the court to construct the charter in ways that will favor
them in future disputes (the second level). A “dispute resolution” game is thus
nested within a “constitutional lawmaking” game, insofar as the outcome of the
policy dispute depends on how the judges interpret and apply the charter.73 In
resolving disputes, powerful trustee courts routinely make policy and extend the
constitution’s reach simultaneously (Chapter 5). Obvious examples are the
constitutional politics of abortion, hate speech, and non-discrimination, but the
strategic context just described is generic to rights adjudication.
Courts may also self-consciously use their powers of constitutional lawmaking to

enhance systemic effectiveness. They can: progressively develop the scope of
rights provisions; relax standing requirements; close gaps in protection as they
emerge; adopt intrusive standards of review to replace deferential rationality or
“unreasonableness” tests; and evolve new remedies. When it comes to deep
transformation of the secondary rules, trustee courts possess the capacity to
expand their own authority in a formal way, by conferring on themselves new
powers. The capacity is inherent insofar as trustees possess the competence to
determine the terms of their own jurisdiction. When they embrace the
proportionality framework, for example, they require all other state officials to
respect the proportionality principle as a criterion of constitutional validity. One
finds such rulings in virtually every system that has gained effectiveness over
time.
Page 22 of 32
A clear illustration of a deep transformation through adjudication is provided by

France. In the 1970s, the Constitutional Council incorporated into the Fifth
Republic’s Constitution (1958) an enforceable charter of rights, where no
charter previously existed—by design.74 These rulings unleashed a process that
would destroy legislative sovereignty and the prohibition of judicial review,
dogmas firmly in place since the revolution of 1789. The Council conferred on
itself the authority to enforce a charter against parliamentary acts, thereby
placing Parliament under a duty to respect the charter when it made law. The
resulting transformation of the secondary rules is routinely called a “revolution”
in France.75 There is a common sequence to such cases.76 A court asserts
authority that is not derivable from existing constitutional law and practice, but
rather radically reconstructs the foundations of both. The success of the
revolution will then depend on whether legal and political elites accede to the
new secondary rules, and their doing so both legitimizes and consolidates the
move. In France, we have a detailed (p.26) empirical record of how the
consolidation process unfolded, with what transformative effects.77
Amendment
Modern constitutional law is entrenched: explicit rules of change govern the
revision of the constitutional text. The more onerous the procedures for
amendment, of course, the more one can expect adjudication, rather than
amendment, to be the usual mechanism of “normal” constitutional change.
Some constitutions lay down a single set of amendment rules, applying to

virtually all provisions (e.g., the United States). Others confer special status on
the “most fundamental” of constitutional norms by entrenching them more than
other provisions. Thus, many modern constitutions make it more difficult to
revise rights provisions than the rest of the constitution (Spain), and some make
it impossible to revise core elements (Germany). In contrast, the Hungarian
constitution, as noted above, is only weakly entrenched, in that a two-thirds vote
of Parliament suffices to change the constitution and, therefore, to override the
court. As a formal matter, an amendment that implements or overrides the
trustee’s constitutional lawmaking is an instance of “normal” change, in so far as
it takes place according to existing secondary rules. A trustee court can expand
its own competences, by making amendment procedures more onerous. Here
again, we encounter the interdependence of secondary rules. Consider a
situation in which the constitution’s text lays down no substantive restrictions on
constitutional amendment. As representatives of the sovereign People, those
authorized to revise the constitution—the so-called “constituent power”—may do
so as they see fit. A transformation occurs when a court writes into the
constitution substantive constraints on the exercise of constituent power, and
confers upon itself the authority to enforce these constraints. The court
declares, in effect, that constitutional amendments may not violate the
Page 23 of 32
fundamental constitutional values that the People have placed in trust, to be

protected by the court.
India provides a well-known example. Article 368 of the Constitution (1950)

grants Parliament unconstrained authority to amend the text upon a two-thirds
vote and, for certain provisions including those concerning federal
arrangements, at least one-half of the federated states. The Indian Supreme
Court’s initial position was that Parliament exercises legislative power when it
adopts statutes, but constituent power when it amends the Constitution. In
Golak Nath (1967), the Court reversed itself, holding that Article 13—which
states that parliamentary laws must conform to fundamental rights—covered not
just statutes but constitutional amendments. The Court also announced (p.27)
that rights occupied a “transcendental” position within the Constitution itself. In
1971, Parliament moved to override the Court, adding this clause to Article 368:
“nothing in Article 13 shall apply to any amendment made under this Article.” In
response, in Kesavananda Bharati (1973), the Court announced the “basic
structure” doctrine, which prohibits altering other features including separation
of powers, parliamentary democracy, secularism, and federalism. Again,
legislators reacted (1976), this time rescinding the Court’s authority to review
amendments.78 But the Court held its ground, invalidating amendments in
subsequent rulings on the basis of the basic structure doctrine. After a proposal
to grant Parliament the authority to challenge elements of the doctrine lapsed,
judges, elected officials, and legal scholars gradually consolidated the
transformation. Over the past two decades, the Indian debate has focused not on
the existence of the basic structure, but its content.79
Around the globe, an increasing number of apex courts have adopted a version
of the “basic structure doctrine,” thereby enhancing their own status as trustees
of the constitutional order.80
Legislation
Modern constitutions establish separate procedures for legislating and
amending the constitution, respectively. Yet given the interdependence of
processes of constitutional construction and policymaking, the trustee court may
well “constitutionalize” legislative acts as a means of enhancing effectiveness.
Let’s return again to the French transformation of the 1970s. In the leading
decision, Freedom of Association (1971),81 the Constitutional Council asserted
that the Constitution included a justiciable charter, comprising two historic
texts,82 and a body of un-enumerated rights, which it christened the
“Fundamental Principles Recognized by the Laws of the Republic.” In its ruling,
the Council annulled a parliamentary statute that would have given officials the
power to withhold recognition of civic associations formed for “immoral or illicit
purposes.” The Council based its decision on the same law that Parliament had
failed to revise, a 1901 statute adopted under the Third Republic. In doing so, it
Page 24 of 32
forcefully repudiated legislative sovereignty, elevating a principle (p.28) found

in a prior legislative act to constitutional rank: freedom of association. Since
1971, the Council has expanded the corpus of the Fundamental Principles
numerous times, but only after referencing the statute in which a given principle
is grounded. These moves constitutionalize the statute in question; and
Parliament loses the power to reduce the scope of protection, while retaining the
authority to enhance it.
The construction of a system of justice in Israel furnishes another dramatic

example (Chapter 3). In the beginning, the new state of Israel (1948) adopted a
relatively pure legislative sovereignty regime, pending the ratification of a fully
codified constitution that, in fact, was never drafted. Nonetheless, beginning in
the 1960s, the Supreme Court began to protect rights, relying heavily on general
principles that it found in international law and the jurisprudence of foreign
courts. In 1992, the Knesset (the legislature) adopted two rights-oriented
statutes, the more important of which was the Basic Law: Human Dignity and
Liberty. These statutes neither established their own hierarchical superiority
relative to other parliamentary legislation, nor provided for their judicial
enforcement. In 1995, the Supreme Court announced that it possessed the
power to set aside statutes that violated the rights found in the Basic Laws; and,
over the next decade, it began to treat these laws as a justiciable charter of
rights binding on the Knesset. As in France, the result of these moves is
commonly referred to as a “constitutional revolution.”83 At the same time, the
process of consolidation was not pre-ordained, not least, since the Knesset
possesses the authority to rescind or replace these laws.
In the United States, the notion that a legislative act may, on its own, express the
content of constitutional law has intrigued scholars. William Eskridge and John
Ferejohn have argued that certain laws—“super-statutes”—deserve to be
analyzed as part of the constitutional law, in that they perform “constitutional”
functions.84 Bruce Ackerman agrees,85 arguing that the “civil rights revolution”
ultimately produced two super-statutes—the Civil Rights Act (1964) and the
Voting Rights Act (1965)—that comprise part of U.S. constitutional law, properly
understood. American scholars will no doubt debate the complexities of these
claims for years to come. For present purposes, it is important to note a formal
weakness in Ackerman’s argument: namely, that these acts remain legislative. In
France, a statute expresses a right only once the Council states as much, that is,
once it formally integrates the main terms of the statute into the charter of
rights. In Israel, the Supreme Court made it clear that it, too, was constructing a
system of justice by constitutionalizing rights-oriented statutes. In 1963,
Ackerman reports, the U.S. Supreme Court was on the verge of overruling the
state action doctrine, rooted in the notorious Civil Rights Cases (1883), which
limited the reach of (p.29) constitutional rights under the Fourteenth
Amendment.86 But the Court balked once it appeared that Congress was
prepared to move on the legislative front to broaden equality protections.87 The
Page 25 of 32
key question, for those who agree with Ackerman, is the following: do the
Fourteenth and Fifteenth Amendments bar Congress from reducing the
protections provided by these super-statutes, through a legislative act? Could
these protections, in other words, only be reduced through a constitutional
revision, or upon approval (in constitutional terms) by the Court?88
We explore the relationship between rights adjudication and legislation further

in Chapter 5.
Overview of the Book

In this chapter, we have argued that justiciable charters of rights and trustee
courts are the central components of modern systems of constitutional law and
governance. The rest of the book focuses on the questions of why, how, and to
what effect, high courts use proportionality to protect rights and to organize
legal change. We proceed as follows. Chapter 2 provides a detailed presentation
of PA, with its distinctive series of subtests. We describe the major functions of
the framework, explain why constitutional judges find it attractive, and survey
alternative approaches, including those critical of our own. Chapter 3 traces
proportionality’s global diffusion, and maps variation in how apex courts have
enforced it. In Chapter 4, we analyze the evolution of rights doctrine in the
United States, and assess critically an alleged “American exceptionalism” with
respect to balancing. Chapter 5 explores the various ways in which
proportionality, once consolidated as a general principle of governance, can
serve as a discursive interface between organs and branches of government.
This interface, we argue, grounds the constitutional and policy dialogues
through which systems of constitutional justice are rendered more effective. In
Chapter 6, we explore the use of PA by the most important international human
rights courts, and consider its place in an emergent, multi-level, and pluralist
constitutional order.
Notes:
(1) Shapiro and Stone, eds. (1994); Roesler (2007).
(2) Weinrib (2016).
(3) Barak (2012a: ch. 7); Stone Sweet and Mathews (2008); Mathews and Stone
Sweet (2011).
(4) Barak (2012a); Klatt and Meister (2012); Kumm (2010); Weinrib (2014).
(5) Gardbaum (2007); Kumm (2009); Petersmann (2008); Stone Sweet (2009;
2013). For broader arguments, see De Wet (2012) and Klabbers, Peters, Ulfstein
(2009).
(6) Stone Sweet and Mathews (2008).
Page 26 of 32
(7) For an extended discussion, see Stone Sweet and Palmer (2017);Weinrib
(2016: ch. 5).
(8) Weinrib (2016: 215).
(9) Stone Sweet (2000, 2002); Hogg, Thornton, and Wright (2007); Stone Sweet
and Ryan (2018: chs. 3, 5).
(10) Shapiro and Stone Sweet (2002).
(11) For an introduction to delegation theory as applied to a range of political

institutions, including courts, see Thatcher and Stone Sweet (2002).
(12) Elkins, Ginsburg, and Melton (2009); Stone Sweet (2017).
(13) Mavčič (2013).
(14) Law and Versteeg (2011, 2013).
(15) Elkins, Ginsburg, and Melton (2009); Ginsburg, ed. (2012).
(16) The literature now reaches to every continent. Among others: Klug (2000);
Landfried, ed. (1989); Lin (2017); Moustafa (2007); Sadurski, ed. (2002);
Sadurski (2008); Shapiro and Stone Sweet (2002); Shapiro and Stone Sweet,
eds. (1994); Sieder, Schjolden, and Angell, eds. (2005); Stone (1989; 1992;
1994); Stone Sweet (2002); Trochev (2008); Volcansek, ed. 1992.
(17) Choudhry, ed. (2009); Perju (2012); Reif (2011).
(18) For a compatible definition and discussion, see Raz (1998).
(19) Hart (1994: ch. 5).
(20) Hart (1994: 92).
(21) To this point, Hart’s model overlaps that of another “legal positivist,” Hans
Kelsen, who defined “the constitutional document” as “the supreme law of the
land [consisting] in ‘that positive legal norm (or set of norms) that regulates the
creation of the other norms of the legal order’”; discussed and cited in Kalyvas
(2006: fn 23).
(22) In Hart’s model, the so-called Rule of Recognition, a sociological

construction that the analyst infers from the stable practices of state officials,
underwrites the rule of law itself. The Rule places judges under a duty to enforce
all legal norms that meet criteria of validity, and places all other officials under a
duty to abide by judicial decisions, properly taken. Hart (1994: 97–120).
(23) Walker (1996: 267).
Page 27 of 32
(24) Rosenfeld (2010).
(25) Friedrich (1950: 25, 28, 123).
(26) Lenaerts (1990: 205).
(27) Rosenfeld (1994: 3).
(28) The archetype of the absolutist constitution was the French Charter of 1814,
which other monarchies, especially in the Germanic regions, widely imitated. In
the twentieth century, many constitutions read as if they established democracy
and a system of justice, but in fact functioned as single-party, military, or one-
man dictatorships. Examples include the USSR and many Central European
states under Communist Party control, and regimes established after military
coups in Asia, Africa, the Caribbean, and Central and South America. Although
less prevalent in recent decades, there have been a handful of constitutions
since 1980 that expressly enshrined one-person or one-party rule, including
those of Sri Lanka, Togo, and Niger. See Stone Sweet (2017).
(29) Andersen and Stone Sweet (2010). The data set includes 196 states.
(30) As discussed below and in Chapter 3, Israel nonetheless features a powerful

Supreme Court that protects rights as part of the higher law.
(31) For present purpose, we will use the United Kingdom to refer to its
constituent parts.
(32) Iraq’s 1990 constitution, drafted under Saddam Hussein’s rule, failed to
establish judicial rights protection; it has since been replaced.
(33) Australia, apart from the fact that its constitution is entrenched, is virtually
the last example of a classic legislative sovereignty system. Yet rights discourse
and politics has emerged; on rights-based judicialization in Australia, see
Sheehan, Gill, and Randazzo (2012).
(34) Gardbaum (2013).
(35) The legislatures can ignore rights decisions in the UK and New Zealand, and
set them aside in Canada, a modern system that renounced legislative
sovereignty in 1982.
(36) Gardbaum (2013); Hiebert (2011).
(37) Arguably, the present Canadian system should not be counted as part of the
“Commonwealth model,” for the reason that the Supreme Court of Canada has
the final word when it comes to the constitutionality of statutes, not the
Page 28 of 32
Parliament. In reenacting legislation already judged to be unconstitutional, the

Parliament does not thereby render it constitutional.
(38) Discussed in Chapters 2 and 4.
(39) Langford, ed. (2009).
(40) There are also a significant number of “mixed” systems that blend elements
of both; see Mavčič (2013).
(41) Art. III of the U.S. Constitution.
(42) United States Supreme Court (1803).
(43) American-style judicial review is dominant in North America (Canada and

the U.S.) and the commonwealth countries, including the Caribbean. The
European model prevails in Europe, the Middle East, Latin America, and parts of
Asia. Data reported in Stone Sweet (2017: 167). We do not discuss mixed
systems here, but see Mavčič (2013).
(44) Stone Sweet (2012a); see also Comella (2009).
(45) In Europe, the effect of incorporating the European Convention on Human

Rights has been to strengthen the review powers of the ordinary judiciary; see
Stone Sweet (2012b).
(46) Brewer-Carias (2014).
(47) Reif (2011).
(48) Scheppele (2009).
(49) Following from Dimaggio and Powell (1983); Jepperson (1991).
(50) Shaffer, Ginsburg, and Halliday, eds. (2019).
(51) Moustafa (2007); Ginsburg and Moustafa, eds. (2008).
(52) Ginsburg (2003: chs 1–2).
(53) Stone Sweet (2000: ch. 3; 2002).
(54) Stone Sweet (2000: ch. 3).
(55) Milgrom and Roberts (1992: 127–33).
(56) Stone Sweet (2000: ch. 2).
Page 29 of 32
(57) If the polity is federal, review will provide a means of resolving disputes
between the federal government and the federated states, and among the
federated states themselves. It is an old truism that federalism needs an umpire,
which helps to explain why all federal constitutions provide for review.
(58) This type of theorizing does not explain why autocratic rulers, too, write
constitutions with rights and review, despite having no commitment to building
an open, democratic competition for power with opponents. Nonetheless,
authoritarian rulers find uses for constitutions and courts; Ginsburg and
Moustafa, eds. (2008); Ginsburg and Simpser, eds., (2014). Litigation may
comprise a relatively cheap means of monitoring what police and the lower
echelons of the bureaucracy are doing on the ground; and courts can help rulers
enforce new policy in the face of resistance, or remove challengers to their
power altogether. Rulers also institute review in order to achieve a measure of
international respectability, never doubting their capacity to control their courts.
(59) The extent of judicial lawmaking, and the parliament’s willingness and
capacity to override the courts, will vary across systems.
(60) Once the constituent assembly’s work is completed, for example, it is

dissolved.
(61) On the concept of the trustee court, see Stone Sweet (2002, 2012), and
Stone Sweet and Brunell (2013).
(62) As a matter of institutional design, a court that meets these criteria is a

trustee.
(63) In this sense, the trustee court is a kind of “super-agent” of the People.
(64) Leib, Ponet, and Serota (2013); Stone Sweet and Brunell (2013).
(65) Stone Sweet and Brunell (2013), 699.
(66) See Chapter 3 for a discussion of the relationship between jurisdiction and
standing.
(67) Despite high odds, some apex courts have operated with measurable
effectiveness in authoritarian settings, including in Mubarak’s Egypt, Moustafa
(2007), and Pinochet’s Chile, Barros (2002).
(68) Varju and Chronowski (2015).
(69) Sadurski (2018).
(70) IDEA (2017); Sadurski (2018).
(71) Issacharoff (2015). Japan is an important exception; see Law (2011).
Page 30 of 32
(72) Stone Sweet (2012a).
(73) Stone Sweet (1998).
(74) Stone (1992: ch. 3).
(75) Stone (1992).
(76) This type of evolution may also be considered a kind of Kelsenian coup d’état
initiated by judges; Stone Sweet (2010).
(77) Stone (1992).
(78) Article 368(4): “No amendment of this Constitution … shall be called in

question in any court on any ground.” Article 368(5): “For the removal of doubts,
it is hereby declared that there shall be no limitation whatever on the
constituent power of Parliament to amend by way of addition, variation or repeal
the provisions of this Constitution under this article.”
(79) Albert (2009) distinguishes between the “textual model” of revision and the
“substantive model.” The textual model is a complete set of procedures that
establishes the “necessary and sufficient conditions” for amending the
constitution. In contrast, the substantive model supplements procedural
conditions with substantive constraints.
(80) See, generally, Albert (2009; 2017) and, in Asia, Yap (2017: ch. 11).
(81) Stone (1992: ch. 4).
(82) Neither had previously been recognized as enforceable against Parliament.
(83) Sapir, Barak-Erez, and Barak, eds. (2014) assesses this revolution.
(84) Eskridge and Ferejohn (2010).
(85) Ackerman (2014).
(86) United States Supreme Court (1883), in which the Supreme Court struck
down a Congressional statute (intended to enforce the Fourteenth Amendment
to the U.S. Constitution) that would have prohibited racial discrimination in the
provision of services otherwise made available to the general public.
(87) Ackerman (2014: ch. 7).
(88) Arguably, the Supreme Court (2013, Shelby County v. Holder) conclusively
refuted the claim that so-called super-statutes have any special constitutional
stature. That decision invalidated key provisions of the Voting Rights Act on the
Page 31 of 32
grounds that they exceeded Congress’s power to enforce the Fifteenth

Amendment.
Page 32 of 32
Proportionality and Constitutional Governance


Print ISBN-13: 9780198841395
DOI: 10.1093/oso/9780198841395.001.0001

Alec Stone Sweet
Jud Mathews
DOI:10.1093/oso/9780198841395.003.0002
Abstract and Keywords

The chapter explains why enforcement of the proportionality principle has
become the central procedural component of constitutional governance in the
world today. Part I argues that proportionality analysis [PA]—with its distinctive
sequence of subtests culminating in balancing—neatly fits the structure of
qualified rights, providing a comprehensive analytical framework for
adjudicating them. A right’s provision is “qualified” when it contains a limitation
clause, which authorizes government officials to restrict the enjoyment of a right
for some sufficiently important public purpose. Today, virtually all of the most
powerful courts in the world deploy PA to determine whether officials have
properly exercised their authority under limitation clauses. PA proceeds through
a sequence of subtests: (i) “legitimacy,” or “proper purpose”; (ii) “suitability” or
“rational connection”; (iii) “necessity”; and (iv) “proportionality in the strict
sense.” A government measure that fails any subtest in this sequence is
unlawful. Part II directs attention to the various ways in which proportionality
enables judges to manage legitimacy issues associated with the judicial
supremacy that comes with trusteeship. PA enables judges: to avoid creating
rigid hierarchies among rights and interests; to exploit the legitimizing logics of
Pareto optimality (reducing harm to the loser as much as possible); and to
identify and respect the lawmaking prerogatives of the officials whose
policymaking they supervise. Part III develops a simple model of constitutional
governance—with rights, a duty of officials to justify their rights-regarding
actions, and PA at its core—and respond to objections and alternatives.
Page 1 of 31
Keywords: qualified right, limitation clause, suitability, necessity, proportionality, judicial supremacy
Modern constitutions prioritize charters of rights, establishing positive

requirements of legality binding on all branches of government; and they create
trustee courts, institutionalizing modes of judicial supremacy to enforce them.
Going forward, we argued, the primary measure of the effectiveness of any
system of constitutional justice will be the impact of the court’s jurisprudence on
the policy-making decisions of all other state officials. Constitutional judges will
govern insofar as their rulings serve to coordinate, as interdependent causal
processes, the evolution of constitutional law and public policy (Chapter 1).
In this chapter, we consider why judicial enforcement of the proportionality

principle has become the central procedural component of constitutional
governance in the world today. Our approach to this question blends doctrinal
(legal) and strategic (political) logics. First, we argue that proportionality
analysis (PA) provides judges with a coherent, trans-substantive, and well-tested
methodology for adjudicating qualified rights. Second, in adopting PA,
constitutional judges also acquire a stable means of managing the legitimacy
dilemmas that afflict lawmaking courts, dilemmas that are accentuated under
conditions of judicial supremacy. The duty of a constitutional court is to
maximize the effectiveness of the charter of rights, not to comfort legislative
majorities, and PA helps them perform this task in a principled manner.
We should clear away a potential misunderstanding at the outset. PA provides

the most defensible approach to adjudicating qualified rights that is currently
available. But it does not dictate “correct” legal solutions to conflicts between (i)
a rights claim and (ii) a statute that would limit the scope of a right under a
limitation clause. PA does not camouflage judicial lawmaking. Rather, when
properly employed, it requires courts to acknowledge and defend—honestly and
openly—the policy choices they make. Proportionality is not a magic wand that
judges can wave to make the legal and political dilemmas of rights review
vanish. Indeed, waving it will expose rights adjudication for what it is:
constitutional lawmaking issuing from the commitment to (p.31) protecting
rights. Nonetheless, adopting PA can help judges rationalize rights adjudication
and—as important—to ground dialogic interactions with the public officials
whose decisions they supervise.
Chapter 3 traces the process through which virtually all of the world’s most
powerful courts embraced PA, making it a constituent component of modern
constitutional law. Here we focus on the logics that have sustained that process.
In Part I we argue that PA, with its sequence of subtests culminating in
balancing, neatly fits the structure of qualified rights, providing a
comprehensive analytical framework for adjudicating them. Part II directs
attention to the various ways in which proportionality enables judges to manage
legitimacy issues associated with judicial lawmaking and supremacy. In Part III,
Page 2 of 31
we sketch a simple model of constitutional governance, with rights and PA at its

core, and respond to objections and alternatives.
I Rights, Justification, Constitutional Legality

At the heart of every system of constitutional justice is a justiciable charter of
rights. In modern charters, only a very small number of rights are expressed in
absolute terms.1 In some influential systems, including the German, human
dignity possesses a special, inviolable status providing a normative foundation
for all other rights.2 But most rights provisions are qualified by a limitation
clause, which permits government officials to infringe upon freedoms for some
sufficiently important public purpose. As a matter of constitutional theory, the
constitutional legislator—the People—not only established qualified rights, but
conferred broad enforcement powers on constitutional judges. Yet, the drafters
of new constitutions, relying on relational contracting or copying the product of
those who had done the same, gave little or no practical guidance on how to
adjudicate limitation clauses (Chapter 2). Several different options were
available. Judges could have adopted a posture of deference to the legislature,
invalidating a statute only when found to be manifestly irrational, for example,
or to have been taken for an unlawful purpose. Instead, even newly minted
courts gravitated to a highly intrusive standard of review: PA. (p.32) Doing so
exposed virtually every aspect of the decision-making of government officials to
judicial scrutiny (Chapter 3).
If rights comprise positive requirements of constitutional legality, and if

constitutional courts use PA to adjudicate limitation clauses, then the domain of
proportionality will be as extensive as the powers of state organs to make and
enforce law, and of judges to review these acts. To understand why this is so, we
need to examine in greater detail the structure of qualified rights, and why PA
neatly fits this structure.
Qualified Rights
Limitation clauses are a structural property of modern rights provisions. Some
theorists understand qualified rights to comprise a single norm that pre-
authorizes the right’s curtailment for legitimate constitutional reasons.3 Others
consider rights and limitation clauses to be separate but interdependent norms:
they operate as reciprocal constraints on the processes of delimiting
governmental powers and rights, respectively.4 Proponents of both perspectives
are in agreement with respect to the three features of qualified rights with the
greatest significance.
First, the scope of qualified rights—and, hence, the charter as a whole—is

extensive, covering, in many systems, virtually any condition or activities
individuals might choose for themselves. Some charters express as much
through a general liberty clause, the most influential of which is Article 2.1 of
the German Basic Law (1949):5
Page 3 of 31
Every person shall have the right to the free development of [her]
personality in so far as [she] does not violate the rights of others, or offend
the constitutional order or moral code.
Under this formulation, German officials possess implied powers to curtail

liberties, for the reasons stated.6 Provisions establishing specific rights (to
speech and assembly, conscience and religion, to work and property, and so on)
are also understood in expansive terms, not least, since their scope may be (p.
33) curtailed under the limitation clause. Moreover, as we will see, reliance on
PA makes a generous approach to qualified rights both plausible and viable.7
Second, limitation clauses possess the same rank and status as the rights they
qualify. As Aharon Barak puts it, both “draw their authority and content from the
same source”: the constitution. Nonetheless, rights are core constitutional
norms, and they take primacy over statutes, being sub-constitutional norms.8 A
legislature may reduce a right’s scope, but only through a limitation clause.
Some clauses specify the headings under which government may lawfully act.9
Other charters, including the Canadian, contain a general limitation clause
covering all qualified rights.10
Third, modern charters do not merely constrain the making and enforcement of
law. They also place public officials under a duty to protect rights, and to
enhance their effectiveness on an ongoing basis.11 The legislature enhances
rights’ effectiveness when it acts to reduce conflicts between contending rights
claims, for example. The right to free speech will regularly come into tension
with the right of personal honor (subsuming a right not to be defamed); and the
scope of a woman’s right to control her reproductive life (under a right to
privacy or free development of personality) and the right to life of an embryo
stand in an inverse relation to each other. Lawmakers are expected to create the
legal arrangements within which conflicting claims can be resolved. Moreover,
most modern constitutions lay down a set of more specific “positive rights,”
which require government to create and maintain the conditions necessary for
their availability and use. Thus, it would be a serious error to understand a
limitation clause as a mere “loophole,” “escape hatch,” or a legal license for
public officials to derogate from charters. On the contrary, qualified (p.34)
rights enlist all branches of government in a common mission to protect rights in
light of the public good. It is through limitation clauses that a democratic polity
draws lines between individual liberties and the public interest, and seeks to
strike a stable balance among contending values of constitutional importance.12
Most powerful trustee courts use PA to guide this process, which proceeds
through the resolution of individual legal disputes, one at a time.
Constitutions are bundles of secondary rules: meta-rules that govern the

creation and enforcement of all other (sub-constitutional) legal norms (Chapter
1). Qualified rights tie together, as tightly interdependent, multiple types of
Page 4 of 31
secondary rules. Insofar as they authorize the legislature to pass legislation that
restricts the scope of rights, limitation clauses are power-conferring rules. Rules
of adjudication vest trustee courts with the jurisdiction to determine whether
qualified rights have been violated—in other words, whether rights limitations
are justifiable. Most centrally, rights impose criteria of validity: a sub-
constitutional act that does not comport with rights is invalid. Taken together,
these meta-norms are constitutive elements of an overarching principle of
constitutional legality,13 which is at the very core of any minimally effective
system of constitutional justice more generally (Chapter 1).
In sum, modern charters of rights are predicated on the presumption that any
important act of government will limit freedom in some sense. It is the
responsibility of constitutional judges to determine whether officials have acted
lawfully under the powers conferred on them by a limitation clause. The
centrality of qualified rights to constitutional governance thus directs attention
to the crucial question: how should the constitutional judges adjudicate
limitation clauses?
Step-by-Step
Proportionality operationalizes the principle of constitutional legality. Put
somewhat differently, when judges adopt PA, they constitute a mode of
governance comprised of the following elements:
· All public officials are under a duty to justify any act that would
abridge the scope of a qualified right.
· The constitutional court possesses the authority to assess these
reasons. The court adjudicates qualified rights through the
enforcement of the proportionality principle.
· The lawfulness of government acts taken under a limitation clause
depends on its proportionality. An act that fails any subtest of
proportionality is in conflict with the constitution, and is therefore
unlawful.
(p.35) When a trustee court embraces the proportionality principle,

proportionality becomes a criterion of validity, a part of the system’s secondary
rules. Elevated in this way to a meta-principle of governance, proportionality
emerges as a fundamental element of constitutional legitimacy.
PA is an analytical procedure for determining whether an official act, taken

under a limitation clause, is constitutionally justified. It proceeds through a
sequence of subtests. In a preliminary stage, the court verifies that the
government act under review has curtailed (or will curtail) the scope of a right.
Most courts use this occasion to discuss and further develop the jurisprudential
theories that underpin the pleaded right, as well as any prior rulings that bear
upon the case at hand. Virtually no important claim is rejected at this stage,
Page 5 of 31
precisely because it is through the subtests of PA that the court will determine
the outcome. As described by former Chief Justice of the Supreme Court of
Israel Aharon Barak:
A limitation … occurs whenever a state action … prevents [a rights holder]

from exercising [the right] to its fullest scope. This is all that is required;
accordingly, a limitation occurs whether [its] effect … is significant or
marginal; whether the limitation is related to the right’s core or to its
penumbra; whether it is intentional or not; or whether it is carried out by
an act or an omission … Indeed, every limitation is unconstitutional unless
it is proportional. Only when the statutory provision limiting the
constitutional right is proportional – when it fulfills all the requirements of
the limitation clause – can we say that the limitation is valid. Only then can
the constitutional right peacefully co-exist with its limitation.14
Proportionality review is triggered once it has been established that the scope of
a qualified right has been limited, which places the government under a
justificatory burden.
PA provides judges with a comprehensive “checklist” of those “individually

necessary and collectively sufficient criteria that [must] be met for [state acts] to
be justified” in a constitutional democracy.15 In its most developed form,16 PA
proceeds through a sequence of four subtests: (i) “legitimacy” or “proper
purpose”; (ii) “suitability” or “rational connection”; (iii) “necessity”; and (iv)
“proportionality in the strict sense.” A government measure that fails any
subtest in this sequence is unlawful.
Consider the review of a statute challenged on the grounds that it unlawfully

restricts a rights holder’s liberty. The first phase of PA mandates inquiry into the
“legitimacy” of the statute’s purpose: the judge confirms that the constitution
authorizes the parliament to legislate in service of the chosen policy objective. If
the constitution does not permit the state to pursue such a (p.36) purpose,
then the rights claimant must prevail. The analysis focuses on legislative ends,
not on the means chosen to effectuate those ends. By definition, a legislative
purpose that can justify a limitation of a right is proper, as when the legislature
acts under powers granted by a limitation clause.
In the second step—“suitability”—lawmakers must show that a rational

relationship exists between the means chosen and the ends pursued, such that
the former is rationally related—suitable—to advancing the end. In most
systems, few laws are invalidated on grounds that the stated official purpose is
illicit (that is, per se illegitimate), or that the act is facially irrational or arbitrary
(the means being unsuitable).17
Page 6 of 31
The third phase—“necessity”—has far more bite. At its core is a least restrictive
means test, also called a requirement of “minimal impairment” (Canada). The
court’s task is to ensure that the measure under review does not impair the
pleaded right more than is necessary for parliament to achieve its declared
purpose. In practice, judges skilled in PA rarely censure a measure simply
because they can imagine one less restrictive alternative. Instead, necessity
requires that policymakers consider a range of reasonably available alternatives,
and choose the option that burdens the right the least. As a pleading matter,
judges also expect rights claimants to identify one or more less restrictive
alternatives. The subtest also constrains judges: it is inappropriate for a court to
strike down a statute without explicit reference to a hypothetical alternative that
would meet the standard of necessity.
It is important to stress that, within necessity analysis, the class of bona fide
alternatives is restricted to those means that would fulfill the legislature’s
declared objectives. As Barak puts it:
The necessity test is triggered … when the fulfillment of the purpose is

possible through the use of several alternative rational means, each of
which limits the constitutional right to a different extent. In this situation,
the necessity test demands that the legislator choose the means which
limit the constitutional right to the least extent.18
How the legislature characterizes the purpose of a statute—its goals—will

heavily structure necessity review. If, for example, the legislature chooses to ban
the sales of a dangerous drug in order to achieve the goal of protecting health, a
labelling requirement (stating that abuse of the drug will endanger health) is not
an equally effective alternative, since its capacity to reduce harm is substantially
lower compared to a ban. In this example, the ban passes the suitability subtest,
in that it is rationally connected to health protection, and it passes the necessity
test insofar as no less restrictive means (on the liberty to (p.37) obtain the
drug) would enable the government to achieve its chosen (high) level of
protection.
In the proportionality world, the analysis cannot end with necessity. If it did, a
legislature could usually find ways to reduce less restrictive alternatives to nil—
thereby insulating a law from censure—by seeking the highest ideal level of
protection. Further, measures that impose a heavy and perhaps unjustifiable
burden on the rights holder would automatically prevail, once the less restrictive
means test was satisfied. If rights are to be effective, a fourth and final stage is
required: balancing, or “proportionality stricto sensu” (“in the strict sense”).
Balancing entails assessing, in light of the facts of the dispute and the policy
context, the act’s marginal addition to the realization of an important public
purpose against the marginal injury incurred by infringement of the right.19 One
Page 7 of 31
core function of balancing is to ensure that a comparatively small or even trivial

addition to the public good does not curtail a right more than can be justified
given the polity’s deeper constitutional commitments. Judges who rely heavily on
this stage also emphasize that balancing allows them to “complete” the analysis,
in order to check that no factor of significance has been overlooked in previous
stages.20 After all, it is only after the government’s own policy choices have
survived scrutiny under the legitimacy, suitability, and necessity tests that the
importance of the right, in the context of its limitation, becomes the focus of
direct attention.
Balancing
In arriving at the balancing stage, trustee courts are necessarily implicated in a
larger policy process. As guardians of the constitution, they will authoritatively
determine the legality of the act under review. In Chapter 5, we examine the
various ways in which the lawmaking of constitutional courts can be
distinguished from that of other policymakers. As proportionality is
institutionalized as an overarching principle of constitutional governance, the
boundaries distinguishing what trustee courts and legislatures do, when they
make law, will necessarily blur. If the parliament is placed under a duty to
legislate proportionally, then it must balance appropriately. When judges
supervise legislative balancing, their determinations are registered as an
outcome of an overall policymaking process. In such situations, the attempt to
strictly demarcate the respective domains of the legislature and the court makes
little (p.38) sense, either conceptually or as a description of what is actually
going on.21 PA subverts any separation of powers scheme that holds that the
courts are prohibited from reviewing how a legislature has balanced among
contending social interests.
Balancing is controversial in that it undermines traditional distinctions between

lawmaking and adjudicating, at least when it comes to rights protection.
Balancing exposes the court to the charge that it is arrogating to itself an
inherently legislative function while adding little more than a second (and
redundant) decision-making procedure to the policy process. But there is less to
the charge than might appear at first blush. After all, the constitutional
legislator, acting on behalf of the People, has entrusted the function of rights
protection to the constitutional court, and relegated legislative authority to a
lower echelon on the hierarchy of norms that constitutes the polity. Second, and
just as importantly, it is up to a trustee court to determine how to resolve
conflicts involving qualified rights, unless the constitution provides specific
instructions, which almost none do. Proportionality review is an available option,
and as we argue below, a reasonable one for courts to choose if they are to fulfill
their fiduciary duties as trustees.
Page 8 of 31
Contending normative assessments of balancing are dominated by the problem

of incommensurability. By incommensurability, we mean the absence of a
common metric to assess the relative importance of the values or interests that
come into conflict in rights adjudication. In market relations, a common
currency provides commensurability of goods and services, through a pricing
mechanism. But there is no standardized way to measure the “weight” of the
marginal “cost” to a rights holder against the additional “benefit” to the common
welfare of a statute or administrative rule. Instead, in a PA-governed system,
both legislatures and judges help to determine the limits of the state’s powers to
regulate under a limitation clause. Trusteeship means structural judicial
supremacy, and the constitutional court’s position on important questions will
typically prevail (over that of, say, the legislative majority), insofar as the court
delivers clear, well-justified decisions that induce compliance. Proponents of
proportionality—in particular, judges and scholars—have labored to demonstrate
that the constitutional lawmaking through balancing is neither unfettered nor
“irrational,” but disciplined by rules capable of constraining the balancer.
In this regard, the formulations of Robert Alexy22 and Aharon Barak23 are, today,
integral components of the doctrinal construction of, and global discourse on,
proportionality. Alexy, synthesizing the jurisprudence of the GFCC, has declared
the Law of Balancing:
(p.39)
The greater the degree of non-satisfaction of, or detriment to, one

principle, the greater must be the importance of satisfying the other.24
Defensible rulings in balancing are those that meet the demands laid down by
this “law.” For his part, Barak has elaborated the Rule of Balancing, emphasizing
(as we have) analysis of the relative harms and benefits to be expected from the
act under review:
As the importance of avoiding the marginal limitation on the constitutional

right and the likelihood of the limitation [to harm the rights holders]
increase, so do the required importance of the marginal benefit of the
public interest or the competing private right and the required likelihood
of that benefit being realized.25
Both formulations stress the duty of the judge to engage in relational analysis of
the values in tension. They require the judge to give a reasoned answer to the
dispositive question: does the law under review burden liberties too much, given
our constitutional commitment to rights? In doing so, the judge will construct a
jurisprudential understanding of the right and the limitation clause.
Both rest on a strong presumption: that it is possible to assess the relative

harms and benefits of the state act under review. Barak:
Page 9 of 31
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Amanus, Berg 324.
Amerikanische Expedition 72, 162, 266, 286;

Universität in Beirut 201, 222.
'Ammān 13, 34, 54, 157;

Torweg A. 27;
Theat. A. 25.
'Anazeh, Stamm 23, 24, 61, 112, 122, 147, 166, 190.
'Antara, Gedichte des 57, 63.
Antilibanon 104, 116, 153, 158, 162.
Antiochien 169, 309, 310, 312, 323, 324, A. 306, A. 307;

Beschreibung der Überreste 312 f.;
Sarkophag in der Serāya A. 327;
Getreidemarkt A. 311;
Haupt einer Sphinx A. 314.
Apamea 232, 234, 315.
Apostelbrunnen 7.
Araber 14, 16, 22, 35, 54, 57, 90, 99, 103, 119;
Dichtung 57-59;
Feindschaft zwischen den Stämmen 61, 62;
Gastfreundschaft 31 f., 36, 52-54;
Sitten 35, 36, 39, 46, 64;
Marduf reitend A. 61.
Arabische Bauern A. 203;

Inschriften 117.
'Areh, Dorf 77, 81.
Armenier 135, 316, 322.
Armenische Frage, die 316, 317, 322.
Asad Beg 165.
Asbā'i, Mustafa el 143.
'Asī-Sumpf 234.
Assassinen, Sekte 189.
Athen, Akropolis 158.
At Tabari, Geschichte des 75.
'Awād, Araber 116, 117, 118, 122.
'Awais, Jūsef el 154.
'Azam Zadēh, Familie zu Hamāh 215, 216.
Azrak, Kal'at el 80.
Ba'albek 153, 154, 158, 165, 209;

Tempel der Sonne 158; A. 159;
der große Hof A. 161;
Säulen des Sonnentempels A. 163;
Brunnen im großen Hof A. 173;
Fragment eines Gebälkes A. 174;
Basilika des Konstantin A. 175;
Steinlager A. 177;
Rās ul 'Ain A. 179;
Tempel des Jupiter A. 167;
Kapitäle A. 171.
Bāb el Hawah 286; A. 289.
Bābiska, Dorf 289.
Babylon 233.
Bagdad 61, 103;

Eisenbahn 252.
Baghrās, Kastell 324.
Bailānpaß 324.
Baitokaikē 209.
Bākirha, Ruinen 268, 289;

Tempelruine A. 291.
Balad, Scheich el 55.
Baldachingrab in Barād 280; A. 279.
Barād 276;
Turm im Westen der Stadt A. 277;
Baldachingrab A. 279.
Barada, Suk Wādi A. 155.
Barada, Wādi 144, 153.
Barāzi, Familie zu Hamāh 215.
Barāzi, Mustafa Pascha el 142, 227.
Bārischa, Djebel 286, 289, 290, 294.

Baschan 84.
Bāsufān, Dorf 281, 282, 284, 286;

kurdisches Mädchen A. 285.
Bathaniyyeh 126.
Bauern, syrische 54.
Bawābet Ullah, Damaskus 128.
Bedr, Schlacht von 59.
Beduinen 10, 22, 53, 54, 198, 249.
Beha'i, Sekte der 144, 184.
Beida, Chirbet el 118.
Beida, Kal'at el 32, 119, A. 119, A. 120;

Gefängnistür A. 121;
Simse A. 123.
Beida, weißes Land 103, 116.
Beirut 95, 201, 222, 255.
Belkaaraber 23, 25, 54; A. 32, A. 47.
Belkaebene 18, 22.
Beni Atijjeh 231.
Beni Awadjeh, Araberst. 61.
Beni Hassan, Stamm 61, 64, 92.

Beni Sachr, Stamm 23, 32, 35, 37, 39, 84.
Beni Scha'alān 24.
Bergaraber 71.
Bienenkorbdorf 250, A. 251.
Biridjik, Eisenbahn in 252.
Birket Umm el 'Amūd 24.
Bizzos, Grabmal 244, 245, 267, 268, A. 244.
Bkei'a, Ebene 191.
Blunts, Reisende 80.
Bologna 245.
Bosra 20, 69, 77.
Bosra el Harīr 221.
Bosra eski Scham A. 93.
Brāk, Dorf 126.
Brünnow 32 Anm.
Buchalih 119.
Burdj el Kās 272.
Burdjkeh, Dorf 270, 271.

Burdj Heida 282.
Burenkrieg 220.
Busān, Wādi 102.
Butler, Mr. 71, 235, 266, 266 Anm., 267 Anm., 272 Anm., 275 Anm.
Calycadnus, Fluß 232.
Cassius, Berg 317, 323.
Chabbaz, Hanna 187.
Chālid Beg 'Azam, Haus das, in Hamāh 219.
Chamberlain, Mr. 100.
Charāneh, Ruinen von 52.
Chaulik 317.
Chirāb esch Schems 272, 275, A. 273;

Skulpturen im Innern eines Grabes A. 275.
Chirbeh 119.
Chirbet Hāß, Dorf 236;

Oberschwelle A. 239.
Chittāb 108, 112, 126.
Christusdorn 11.
Chudr, Gefangener 188.

Chureibet es Suk, Tempel und Mausoleum 26 bis 29;
Tempel A. 29;
Mausoleum A. 31.
Cromer, Lord 55, 100, 221.
Cufische Inschriften 76, 117.
Da'dja, Stamm 22, 25, 38, 50, 61, 65, 92.
Damaskus 73, 77, 83, 92, 95, 100, 126, 127, 128, 129, 130, 133;
Freitag in 147;
Große Moschee 136, 144, 145;
Große Moschee, Hof der A. 147;
und Dächer vom Fort aus A. 131;
Kornmarkt A. 135;
vor den Toren von A. 151;
Wasserverkäufer A. 152;
Verkäufer von Zuckerwaren A. 145.
Dāna, Dorf 286;

Grab zu A. 287;
Pyramidengrab in 245;
Grabmal A. 249.
Danādischeh, Familie 200.
Daphne, der Weg nach 314, A. 313.
Dār Kita 275.
Decimus, Centurio der Legion des Flavian 209.
Dehes 286, 293.
Deir es Sleb 212.

Deiret Azzeh 286.
Deir Sambil 241.
Dera'a, Höhlendorf 104.
Derwisch, Soldat 162, 165.
Deutschland, Bagdadbahn 252.
Dīn, Scheich ed 55.
Djad'allah 65, 80.
Djebeliyyeh 71, 92.
Djerūd, Oase von 147, 148.
Djerūdi, der Brigant, s. Mohammed Pascha, Scheich von Djerūd.
Djisr el Wād, Brücke 202.
Djof 80.
Domaszewski 32 Anm.
Drekisch, Dorf 204.
Dreschplatz in Karyatein A. 148.
Drusāra 91.
Drusen 37, 41, 49, 55, 63, 66, 72, 74, 82, 87, 98, 99, 118, 298, 300;
Sitten 124;
Streitigkeiten mit den Suchūr 83-101;
eine Gruppe A. 83.
Drusische Pflüger A. 91.
Druz, Djebel 60, 65, 66, 74, 75, 81, 90, 104, 111, 118, 157, 158.
Drusisches Gebirge 20, 41, 60, 65, 74, 90, 96.
Dussaud, Mr. 71, 80, 98, 117, 120, 169.
Edsch Dscheida 104.
Effendi, Derwisch, Afghane 219.
Effendi, Jusef 81, 82.
Effendim 212.
Eisenbahn nach Mekka 13, 165;

Rayak-Hamah 252;
Bagdad 252;
französische 214, 252.
Eisernes Tor, Antiochien 313.
El, Gott 118, 119.
El 'Ablā 116, 117.
El Adjlād 104.
El Bārah, Dorf 236, 237, 238, 264, 300;

ein Haus in A. 237;
Fries A. 239.
El Chudr, Grab von 89, 91.

El Churbeh, Türbalken A. 101.
El Hayyāt, Moschee in Hamāh 222.
El Mugharāh, Dorf 246.
El Muwaggar 50, 121;

Kapitäl A. 51, 52, 53.
Emesa, Römerstadt 181.
Englisch-japanisches Bündnis 221.
Epiphania, Festung 213.
Ethreh 80.
Euphrat 259.
Euting, Reisender 80.
Fāfertīn, Dorf 263, 271.
Fāiz, Neffe des Mohammed en Nassār 102, 104, 125, 126.
Faīz el Atrasch, Scheich von Kreyeh 73, 77.
Faiz', Talāl ul 23, 24.
Fāris, Maultiertreiber 260, 261, 262, 293, 300.
Fāris, Habīb 18, 21, 324.
Fayyād Agha von Karyatein 147.
Fedhāmeh 104.
Feiertag, ein, im Orient A. 185.
Fellahīn-Bank 55.
Fendi, Führer 73.
Fīda Abu'l 21.
Frankreich, Bagdadbahn 252.
Gablān, Araber 38, 42, 47, 48, 49, 50, 52, 53, 56, 57, 60, 61, 63, 64,
66, 69, 70, 324, A. 57.
Garīz, der, Seleucia 321, 322, A. 319;

unterer Teil des A. 325.
Gethsemane 4.
Gharz, Ghādir el 116, 118.
Gharz, Wādi el 119.
Ghassaniden Forts 32, 50, 121.
Ghawārny 40.
Ghazu 63, 76.
Ghiāth 92, 104, 107, 112, 115, 125.
Ghor, das 10, 16, 40;

Zug durch das, A. 12.
Giour Dāgh 280, 290.

Gischgāsch, Scheich von Umm Ruweik, 102, 104, 106, 107, 112,
115.
Gottesherz 111.
Grabeskirche, heilige, in Jerusalem A. 2.
Griechen 134, 135.
Griechische Inschriften 117, 233, 244, 245, 271, 276.
Habīb, Maultiertreiber 3, 14, 69, 107, 119, 162, 166, 260.
Habrān, Torweg A. 97;

kurdisches Mak'ad A. 99.
Haddjbahn 21, 33, 42.
Haddjstraße 231, A. 58.
Hadūdmadūd 283.
Haida, Dr. 165.
Haifa 18.
Haīl, Stadt 42, 46, 80.
Halakah, Djebel 286.
Hamad 103, 107, 112, 119.
Hamāh 162, 166;

Beschreibung 213-215;
Bewohner 215-223;
Römerstraße 211, 212;
Moschee 215;
Kubbeh A. 215;
Kapitäl A. 221, A. 223, A. 233;
Na'oura A. 213;
Tekyah Killānijjeh 219, A. 217.
Hamath, Festung 213.
Hamdān, Sohn der Weisheit 115.
Hamūd, Gablāns Vater 49.
Hamūd von Sueda 77, 89, 90.
Hanelos 119.
Hārim 298, 300;

Burg 300, A. 299.
Hārith, Ibn el 59.
Harra, schwarzes Land 103.
Harūn er Raschid 205.
Haseneh 66, 166, 190;

Kamele der A. 67.
Hāß, Djebel el 250.
Hassan Beg Rā'i 178.
Hassaniyyeh, Stamm 22, 61, 66, 84.
Haurān, Gebirge 17, 55, 66, 71, 72, 78, 80, 82, 103, 120, 121, 126,
298.
Hayat, Kalybeh 126;
Haus des Scheich A. 127.
Heddjasbahn 133.
Helbān, Dorf 250.
Hermon 116, 153.
Heschbān 16.
Hind, das Land 189.
Hiran 121.
Hīt, Dorf 126.
Hittiter 166, 169, 170, 214.
Hober, Dorf 250.
Höhlen Namrūds 28-33.
Höhlendörfer 104.
Homs 104, 162, 169, 170, 173, 174;

die Einwohner 173, 174, 182-187;
Häuser 178, 181;
der Orontesanger
Mardj ul 'Asi 181;
Kastell 177;
ein Feiertag im Orient A. 185;
Straße in A. 187.
Homs, See 169.
Homsi, Nicola 257.

Howeitāt, Araberstamm 61, 231.
Hurmul, Turm von 165, 166.
Husn es Suleimān 206;

Tempel A. 207;
Tempel, Nordtor A. 209.
Husn, Kal'at el 188, 192, 195, 197, 200;

griechisches Kloster 202; A. 193;
Inneres der Festung A. 195;
innerer Festungsgürtel A. 199;
Bankettsaal 198, A. 198;
der Schwarze Turm 192.
Ibrahim, Armenier, 317, 318, 321.
Ibrahim, Maultiertreiber 3.
Ibrahim Pascha 34, 173.
Iliān, Milhēm 81, 82, 91, 92.
Imtain 65, 77.
'Isa, Fellāh ul 49, 50, 53, 54, 55, 60, 65, 72, 80, 158, A. 49.
Islam 220, 221.
Ismailiten 188, 211, 212, 225.
'Isset Pascha 144, 205.
Jadūdeh, Felsengräber 24.

Jaffa 7.
Jahya Beg el Atrasch 77, 298.
Jakit Ades 262.
Japanische Krieg 98 bis 101, 150, 178.
Jemen, Aufstand 13, 14, 78, 121, 221, 231, 255, 256.
Jericho 10.
Jerusalem 4, 95, 154, 256;

Klagemauer in A. 17;
Moschee Omar A. 1;
heilige Grabeskirche A. 2;
Straße in A. 3;
Stephanstor in A. 4.
Jezīdi, Sekte 272;

Glaube der 268, 269, 282, 283, 284.
Jordan, Tal, das 10, 22.
Jordanbrücke 12, 13, 14, A. 13.
Judäa, Wüste von 9.
Juden aus Buchara A. 18.
Jūnis, Scheich von El Bārah 238, 241, 242, 243, 246, A. 242, 327.
Jusef, Führer 22, 24, 96, 98, 101.
Kabul 219.
Kabuseh 322.
Kadesch 169, 170.
Kāf 80.
Kaffee, Gebräuche 19, 20;

am Wegrande A. 191.
Kais, Imr ul 47, 56, 58, 63.
Kalam, Muschkin 143, A. 143.
Kalb Lōzeh, Kirche von 293, 297, 299, A. 295.
Kalkutta 219.
Kalōteh, Dorf 272, 275;

Kirche 276;
Kapitäl A. 276.
Kamele, Tränken der A. 71.
Kāmu'a Hurmul 165, A. 183.
Kanawāt 104, 158;

Basilika A. 105;
Tempel A. 107;
Tor der Basilika A. 109;
Mauern von A. 103.
Kantarah 112.
Karyatein, Oase von 147;

Dreschplatz in A. 148.
Kasr el 'Alya 50.
Kasr el Banāt 246, A. 247.
Kastal 32, 121.
Kāturā, Grabmal A. 272.
Kbēs, Monsieur 214, 215, 216, 222, 223.
Kbeschīn, Dorf 263.
Kefr 'Abīd, Dorf 250, 251.
Kefr Anbīl 235, 236.
Kefr Lāb 282.
Kefr Nebu 280.
Keifār 280.
Kerak 198, 199.
Khayyām, Omar 22.
Kiāzim Pascha, Vāli von Aleppo 255-259.
Kieperts Karte 162, 250, 263.
Killani, Familie zu Hamāh 215, 219, 227.
Killiz 252.
Klagemauer in Jerusalem A. 17.
Konia 162, 260, 261.

Konstantin, Münzen 26.
Konstantinopel 46, 99, 144, 166, 205.
Koran, Erzählungen vom 225, 226.
Kreta, Muselmänner von 146.
Kreuzfahrer 199, 202.
Kreyeh 74, 77, A. 89.
Ksedjba, Dorf 286.
Kseir 166, 169.
Kubbeh in der Moschee zu Hamāh A. 215.
Kubbet el Chazneh 136, 143, A. 137.
Kuda'a, Stamm 134.
Kuleib 79.
Kulthum, Ibn, Gedicht des 134.
Kurden 99, 263, 264, 281, 285.
Kurutul, Kloster oberhalb Jerichos A. 11.
Kurunfuleh 154, 157.
Kuseir es Sahl 26.
Kutaila, Klagegesang von 59.

Kuwēk, Fluß 250.
Kweit 46, 256.
Kymet, eine kurdische Frau 322, 323.
Lager in der Nähe des Toten Meeres A. 23;

Abbrechen des A. 73.
Lahiteh 126.
Lampe in Rifa't Aghas Sammlung A. 313.
Laodicea ad Orontem 169, 170.
Larissa, Stadt 227.
Lava 116, 119, 122.
Lebīd, Gedichte des 57, 58.
Lebweh 162, 165.
Ledschastraße 126.
Libanon 157, 158, 162, 169;

Zedern des A. 182.
Littmann, Dr. 71, 73, 117 Anm.
Lütticke, deutscher Konsul in Damaskus 129.
Lysicrates, Denkmal des 286.
Ma'alūla, Kloster von 202.

Proportionality Balancing and Constitutional Governance A Comparative and Global Approach Alec Stone Sweet All Chapter

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Proportionality Balancing and

Proportionality Balancing and Constitutional

Print publication date: 2019

(p.i) Proportionality Balancing and Constitutional Governance (p.ii)

(p.iii) Proportionality Balancing and Constitutional Governance

(p.iv) Copyright Page

Great Clarendon Street, Oxford, OX2 6DP,

Oxford University Press is a department of the University of Oxford.

Oxford University Press in the UK and in certain other countries

© Alec Stone Sweet and Jud Mathews 2019

The moral rights of the authors have been asserted

First Edition published in 2019

All rights reserved. No part of this publication may be reproduced,

You must not circulate this work in any other form

Published in the United States of America by Oxford University Press

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Library of Congress Control Number: 2019932850

ISBN 978–0–19–884139–5 (hbk.)

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Proportionality Balancing and Constitutional

Print publication date: 2019

Alec Stone Sweet

I am fortunate to have been a part of the international community of scholars

Jud Mathews (p.vi)

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Proportionality Balancing and Constitutional

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Constitutions, Rights, and Judicial Power

Abstract and Keywords

constitutional amendment, and legislation—and discusses the importance of

Keywords: system of justice, charter of rights, trustee court, constitution, constitutionalism,

We engage such questions from standpoints that deserve emphasis up front.

Proportionality evolved in Germany, passing first from eighteenth-century legal

The charter establishes positive requirements of legality.7 But to be effective,

First, legal philosophers have produced an important literature addressing

Second, social scientists use delegation theory to guide research on any

emergence of new constitutional regimes;15 on the “judicialization” of policy-

I Concepts and Models

Constitutions and Constitutionalism

• the constitutional provisions that establish the organs of

These meta-norms lay down a blueprint for constitutional governance.

Every viable constitution provides a means of authoritatively resolving disputes

(p.9) Insofar as these rules delineate the structural properties of any

While the concept of a constitution is reasonably straightforward,

A second way to conceptualize constitutionalism is as a cultural or ideological

There is a third family of definitions worth noting. Carl Friedrich refers to

Systems of Constitutional Justice

The rights-based model has no serious rival today. Data collected on

codified, as in France, or a mix of texts and unwritten conventions, as in Great

The legislative sovereignty model is defined by secondary rules with three

Virtually all existing systems of parliamentary sovereignty have been deeply

reenact a law found by the Supreme Court to be unconstitutional, for a period of

In contrast with the Commonwealth model, modern systems of justice typically

Rights and Review

A second dimension of variation concerns the nature of the obligation imposed

Giving review powers to all courts is no longer as popular as concentrating

judges possess it. Second, constitutional courts settle constitutional disputes. In

complaint, and an ombudsman is more “complete” than a system that provides

First, new constitutions hail new beginnings. In the context of democratization,

Second, the framers of new constitutions copy forms perceived to be successful.

A third factor concerns the coercive effects of the international environment.