Tagged: principle of proportionality

POMFR: Proportionality Analysis and Models of Judicial Review

Proportionality is a legal principle that allows (or requires) balancing between competing values. This enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. Originating most clearly in German 19th century administrative law, proportionality has become a standard feature of constitutional analysis: since the Second World War it has gradually spread worldwide.[1] With the work of in particular Robert Alexy a common theoretical framework has become available.[2] Yet at the same time the way in which proportionality is actually applied varies widely – not just between jurisdictions, but within them. For instance, instead of strict balancing between values a necessity test is often applied.[3]

In his book, based on his PhD thesis at the Graduate Institute of Geneva, Benedikt Pirker claims that such differences can be explained by the institutional context of the balancing. Determining the nature of the test required is done by means of pre-balancing, an exercise looking at the particular situation of the reviewing tribunal. In his opening theoretical chapter Pirker argues that this in turn leads to the adoption of either of two models: (i) equal representation review; or (ii) special interest review. The essential difference is whether the values that are balanced are a priori deemed to be of comparable significance, in which case strict balancing is feasible, or whether one of the interests is from the outset held to be of preponderant value, in which case an alternative test like necessity becomes the judicial norm.

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