How proportional is proportionality?

Transcription

1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please How proportional is proportionality? Ariel L. Bendor* and Tal Sela** Aharon Barak. Proportionality. Constitutional Rights and their Limitations. Cambridge University Press, Pp $ ISBN: Proportionality is a set of rules determining the conditions for a limitation of constitutionally protected rights. It is the mainstay of the protection of constitutional human rights in many Western democracies and worldwide. Aharon Barak s Proportionality is probably the most important and comprehensive book written on the subject to date. The essay presents several key arguments concerning the weaknesses of proportionality in the model proposed and developed by Barak, and shows how Barak s rejection of various arguments against proportionality is not fully convincing. The essay suggests that the benefits of Barak s structuring of proportionality are more modest than Barak maintains; points out the weaknesses of Barak s approach in regard to the interpretation of constitutional rights, which entails a trivialization of the rights and has problematic consequences for the interpretation and application of proportionality as well as undesirable symbolic connotations; and asserts that Barak s approach increases the problem of incommensurability, which is inherent in the doctrine of proportionality. The essay claims that despite the importance of the book it does not provide a satisfactory answer to many difficult and complex problems regarding proportionality. 1. Introduction Proportionality is the mainstay of the protection of human rights in many Western democracies and worldwide. Proportionality refers to a set of rules determining the necessary and sufficient conditions for a limitation of a constitutionally protected right to be constitutionally permissible (at 3). Proportionality constitutes the dominant doctrine for judicial review in matters pertaining to human rights, among others, * Distinguished Visiting Professor (academic year ), Francis King Carey School of Law and Alma Gildenhorn Institute of Israel Studies, University of Maryland; Frank Church Professor of Legal Research, Faculty of Law, Bar-Ilan University. Ariel.Bendor@biu.ac.il. ** LL.B., Summa cum laude, Bar-Ilan University; LL.M., Yale Law School. shmilcus@gmail.com. We are grateful to Bar Fargon and Einat Leshem for excellent research assistance. I CON (2015), Vol. 13 No. 2, doi: /icon/mov028

2 How proportional is proportionality? 531 in the European Court of Human Rights and the European Court of Justice 1 as well as in Canada, 2 Britain, 3 Germany, 4 Australia, 5 and France. 6 It appears that the United States is now the only democratic country in which the doctrine of proportionality is not normally used to assess limitations of human rights. 7 The proportionality doctrine is based on a fundamental distinction between the scope of constitutional rights and their protection (at 1). The question examined in the first stage is whether a statute infringes upon one of the rights protected by the Constitution. The examination performed in the second stage determines the compliance of the statute with four sub-components that comprise proportionality: [a] limitation of a constitutional right will be constitutionally permissible if (i) it is designed for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation ( proportionality strictu sensu or balancing ) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. (at 3) This, in turn, means that constitutional rights are not absolute. The fact that there is a constitutional right to carry out a certain action does not mean that the action is permitted, but rather that the limitation of the right to perform it must be proportional. The proportionality doctrine is substantially different from the categorization model, which is a characteristic of American constitutional law. The categorization model seeks to resolve all legal questions related to a constitutional right using predetermined categories. Every question related to the right is considered, and finds its interpretive solution, within the realm of the right. 8 Proportionality is the title and focus of the most recent book written by Aharon Barak, former President of the Israeli Supreme Court. Barak s Proportionality is 1 See Tor-Inge Harbo, The Function of the Proportionality Principle in EU Law, 16 Eur. L.J. 158 (2010); Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, in Reasonableness and Law 173 (Giorgio Bongiovanni, Giovanny Sartor & Chiara Valentini eds., 2009). 2 Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. Toronto L.J. 383 (2007). 3 See David Feldman, Proportionality and the Human Rights Act 1998, in The Principle of Proportionality in the Laws of Europe 117 (E. Elis ed., 2009); Tom Hickman, The Substance and Structure of Proportionality, Pub. L. 694 (2008); Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act 233 (2009). 4 See Susanne Baer, Equality: The Jurisprudence of the German Constitutional Court, 5 Colum. J. Eur. L. 249, (1999); Sweet & Matthews, supra note 1, at See Paul Loftus, Proportionality, Australian Constitutionalism and Governmental Theory Changing the Grundnorm, 3 S. Cross U. L. Rev. 30 (1999); Gabrielle Appleby, Proportionality and Federalism: Can Australia Learn from the European Community, the US and Canada?, 26 U. Tas. L. Rev. 1 (2007). 6 See Goesel-Le Bihan, Le Controle de Proportionnalite Exerce par le Conseil Constitutionnel, 22 Les Cahiers du Conseil Const. 208 (2007). 7 See Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 San Diego L. Rev. 367 (2009). 8 For the categorization in context of free speech under the First Amendment, see, e.g., Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265 (1981).

3 532 I CON 13 (2015), probably the most important and comprehensive book written on the subject to date. 9 Barak s book is unique in that it does not merely offer a particular theory on proportionality and discuss specific contexts of proportionality, but rather deals with all aspects of proportionality in view of a wide range of comparative law, theoretical and normative literature. Barak, a highly esteemed scholar of constitutional law, has dealt with proportionality for over a quarter of a century as Supreme Court justice. In his book, he discusses a broad range of positive, comparative, theoretical, and normative aspects of proportionality. The book provides a comprehensive overview of proportionality in global constitutional law, for the benefit of scholars of constitutional law worldwide and of constitutional lawyers and judges involved in the practical aspects of constitutional law. To state that any serious judicial or academic discussion of proportionality is likely to begin with Barak s book and in many cases to end with it as well is no exaggeration. The book consists of four parts. Part I addresses the scope of constitutional human rights and their limitations. This discussion is necessary for any analysis of the doctrine of proportionality, given the affinities between the scope of the right and the nature of its limitation and the proportionality of that limitation. The interpretation of a right in a legal system that countenances no limitations on rights is likely to differ from its interpretation in a system that permits proportional limitations of rights. Similarly, the interpretation of proportionality is likely to be different in legal systems in which the scope of constitutional rights differs. The other three parts of the book focus on proportionality and on the purpose of the limitation of rights. Part II addresses the nature, role, and the historical and legal sources of proportionality in the many states in which it is applied. Part III describes the components of proportionality, presents Barak s argument that the central component of proportionality is proportionality sensu stricto and engages with the critics of proportionality. Part IV contains an evaluation of proportionality and Barak s suggestions for its future development. Although the book includes a large number of references to comparative law, Barak s project is not comparative in nature but normative and analytical. In his words, the book attempts to provide a universal understanding of the concept of proportionality in constitutional democracies.... The goal of this book is to present an analytical model of the legal institution dubbed proportionality (at 4). Barak states that his project aims to convince that this theoretical model is accepted in comparative law, which draws from it and influences its development (at 5). The universal aspiration of the book gives it a firm and determined tone, and perhaps Barak s authoritative personality, not only that of a Supreme Court Justice but also of a prominent legal scholar, contributes to it. Barak does not tend to leave problems unsolved and is not always willing to recognize the existence of difficulties and 9 For other recent literature on proportionality see, e.g., Robert Alexy, A Theory of Constitutional Rights (2002); David Beatty, The Ultimate Rule of Law (2004); Mattias Kumm, The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review, 4 L. & Ethics Hum. Rts. 141 (2010); Kai Möller, The Global Model of Constitutional Rights (2012); Moshe Cohen-Eliya & Iddo Porat, Proportionality and Constitutional Culture (2013); Peter Hulsroj, The Principle of Proportionality (2013); Michael Newton & Larry May, Proportionality in International Law (2014).

4 How proportional is proportionality? 533 complexities. Nor does he often point out gaps between positive law and normative aspirations. The model proposed in the book seeks to represent both a correct understanding of the law in countries where proportionality is applied and a normative notion of proportionality. Nevertheless, Barak points out that... proportionality may not be able to provide fully convincing replies to all of its criticisms.... Each method has its advantages and disadvantages (at 526). At the same time, Barak definitively rejects the various critiques of proportionality, as a doctrinal manifestation of balancing, that have been presented in the literature. 10 Even though proportionality is a contestable concept in the current constitutional discourse, and the mere notion of balancing that proportionality represents has been often described as irrational and subjective, 11 Barak firmly places himself alongside proponents of balancing. 12 Some of his responses simply deny the existence of a problem. Barak s rhetoric does not suggest that each method has its advantages and disadvantages and that proportionality is only the best available option of all the options available to ensure human rights in a pluralistic, democratic society (at ); rather, Barak seems to argue that the doctrine of proportionality is the ideal way to achieve a systematic, just, and effective protection of human rights (at 458). This essay does not purport to propose a definitive position regarding the desirability of the doctrine of proportionality or the question whether it is preferable to competing doctrines. Our purpose is to present several key arguments concerning the weaknesses of proportionality in the model proposed and developed by Barak in his book, and to show how Barak s rejection of them is not always convincing. In this endeavor, it seems appropriate to also refer to the corpus of case law written by Justice Barak, in which he developed and implemented the doctrine of proportionality in practice. At times, Barak s case law is of assistance in understanding the significance of the theory that he developed, and it also exposes the problems arising from its implementation. We believe that recognition of the difficulties that Barak rejects out of hand is useful for the future development of the doctrine of proportionality. Although we do not propose detailed reforms of the doctrine of proportionality, we provide initial guidelines for coping with several substantial difficulties with regard to several issues. Barak applies proportionality similarly to both statutory and administrative acts (at 210), but the book focuses mainly on the application of proportionality to legislative acts. Although the application of proportionality to executive measures may raise special questions, this essay, following the book, will focus on the proportionality of statutes. 10 See, e.g., Francisco J. Urbina, A Critique of Proportionality, 57 Am. J. Juris. 49 (2012); Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, (1996); Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, 7 Int l J. Const. L. 468, 474 (2009). 11 See, e.g., Jürgen Habermas, Between Facts and Norms 259 (William Rehg trans., 1996); Jürgen Habermas, Reply to Symposium Participants, in Habermas on Law and Democracy 430 (Michel Rosenfeld & Andrew Arato eds., 1998); Kai Möller, Balancing and the Structure of Constitutional Rights, 5 Int. J. Const. L. 453 (2007). 12 See, e.g., Robert Alexy, Balancing, Constitutional Review and Representation, 3 Int l J. Const. L. 572 (2005); Virgilio Alfonso da Silva, Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision, 31 Oxford J. Legal Stud. 273 (2011).

5 534 I CON 13 (2015), In Section 2 we discuss Barak s structuring of proportionality, to which he attributes considerable weight. We suggest that the benefits of that structuring are more modest than Barak maintains. In Section 3 we discuss the affinity between proportionality and the scope of constitutional rights. We point out the weaknesses of Barak s approach, which as a general rule favors a generous indeed, expansive interpretation of rights. Admittedly, such interpretation provides a degree of flexibility in judicial review, but entails a trivialization of rights and has problematic consequences for the interpretation and application of proportionality; moreover, it has symbolic connotations that are not always desirable. In Section 4 we discuss the problem of incommensurability, which is evident in particular in proportionality sensu strictu, a secondary test based on the balance between constitutional rights and the interests that conflict with them. The problem of incommensurability is magnified by the dominant weight that Barak assigns to the proportionality sensu strictu test. A short conclusion (Section 5) suggests that despite its importance and outstanding contribution to global constitutional law scholarship, the book does not provide a satisfactory answer to many difficult and complex problems. Indeed, proportionality is still not proportional. 2. Structured discretion The book emphasizes the importance of proportionality in structuring judicial review of the constitutionality of legislation (at 461). Barak points out several important advantages of structured discretion in judicial review: It allows the person conducting proportionality analyses to think analytically, not skip over things which should be considered, and to consider them in their time and place. Proportionality also encourages the use of comparative law analysis, since it can easily demonstrate whether a proper basis for comparison exists. (at 461) Barak lists additional advantages of structured discretion, including the transparency of the stages of the decision and of the legal and extra-legal considerations supporting it, with regard to decisions by the legislative and the judicial branches, and transparency in creating a dialogue between the legislative and judiciary branches (at 465). The decisions of the courts, whenever they strike down a statute because of these rules, guide the legislature how to act if it wishes to promote the purpose of the statute in question (at ). However, it seems that the structured discretion that the proportionality doctrine promotes is significantly less substantial than Barak suggests. According to Barak, the first stage of proportionality analysis, which is the examination of whether a statutory measure infringes a constitutional right, results in most cases, in a positive outcome. Barak s abstract discussion of the interpretation of constitutional rights ostensibly does not tend to expand or restrict the scope of the rights in question, but rather focuses on the rationales for protecting the right in the first place. In his words: A constitutional provision should be interpreted generously, from a substantive rather than legalistic approach, from a merit-based rather than technical or pedantic approach.... Generous interpretation may lead to either an expansive or narrow interpretive result....

6 How proportional is proportionality? 535 The text should be interpreted in a way that realizes the reasons underlying the right itself. (at 70 71) However, in practice Barak s approach to the interpretation of constitutional rights is expansive. At the general level, he states that the right s scope should not be limited through interpretation merely due to public interest considerations, or the rights of others (at 71). As a justice, Barak ruled that the right to property protects against harm to any interest with an economic value; 13 he interpreted the right to human dignity as including, inter alia, the right to private autonomy 14 and to a minimal subsistence with dignity; 15 and the freedom of occupation as the right to deal in any business without regulation. 16 Thus, Barak s approach implicitly assumes that a considerable portion of the mandatory rules in civil law infringe the right to human dignity, which is set forth in the constitutions of many countries (at 42). Human dignity has been interpreted by Barak to include a range of aspects of social rights, such as the right to minimal subsistence with dignity, the right to health, and the right to education. 17 In Barak s opinion, the concept of limitation of rights requiring constitutional examination by the court is broad: Every limitation of the constitutional right requires an examination as to its constitutionality. In that respect, there is no difference between a broad and a narrow limitation (at 103). In practice, the discussion of whether a constitutionally challenged statute infringes a constitutional right is often sparse, as borne out by the case law handed down by Justice Barak; in most cases the answer is affirmative. Following Barak s method, in a considerable number of cases the legality requirement in the Israeli Basic Laws that prescribes that every measure that infringes on a constitutional right must be prescribed by law, i.e., authorized by a legislative act, does not have much practical significance. For example, Barak does not insist that the law that provides the authorization for an infringement of rights must be prima facie clear. His approach, in this context, is that the clarity required is the clarity achieved after the interpretive process has been exhausted (at 118). Barak believes that, in order to limit a right in common law systems, there is no need for the authorization to be set forth in a statute, but that anchoring the limitation in common law is sufficient (at ). According to this view, in many cases it is possible to find the authorization for a limitation of constitutional rights in case law. Proportionality includes a requirement that infringement of a constitutional right aims at a proper purpose. Not every purpose is likely to justify the limitation of a constitutional right in a democratic society. In Barak s words: 13 CA (Civil Appeal) 6892/93 United Mizrahi Bank v. Migdal Cooperative Village 49(4) PD 22, opinion of President Aharon Barak, [1995] (Isr.), available in English at eng/93/210/068/z01/ z01.pdf. 14 See HCJ 7052/03 Adalah The Legal Center for the Rights of the Arab Minority v. Minister of Interior [2006], available in English at 5Ca47/ a47.htm. 15 See HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance, 60(3) PD 464, available in English at 16 See Ran Hirschl, Towards Juristocracy The Origins and Consequences of the New Constitutionalism 145 (2004). 17 HCJ 366/03 Commitment to Peace and Social Justice Society, Opinion of President Barak, 16.

7 536 I CON 13 (2015), The proper purpose of a law limiting a constitutional right is derived from the democratic values of the state; these values can be found... in the constitution.... A purpose conflicting with these constitutional provisions could not be considered proper for purposes of constitutional review. (at 251) At the same time, according to Barak the range of proper purposes is broad. Not only considerations of human rights, but also a variety of public interests and even individuals feelings can constitute proper purposes for limiting constitutional rights (at ). As a justice, Barak never ruled that the purpose of a statute limiting a constitutional right was improper. In principle, Barak supports the examination of the urgency of achieving the purpose as part of the determination whether the purpose is a proper one (at 277). Nevertheless, he finds it difficult to make a sharp distinction between urgency as part of the proper purpose requirement and urgency as a component of proportionality sensu stricto, which also assigns weight to the degree of urgency of the purpose (at 278). He supports establishing two levels of scrutiny, based on the degree of importance of the right that has been limited: It appears that the best approach is to establish a hierarchy of rights in relation to the legislative purpose in question. Moreover, that hierarchy should include only two levels of constitutional rights. The first level would consist of all the fundamental or high-level rights; the other level would consist of all the other rights. (at 531) The difficulty in distinguishing between the two examinations of urgency urgency as part of the proper purpose component and urgency within the framework of proportionality sensu stricto must be added to the interpretive difficulty of distinguishing between the two groups of rights for the level of scrutiny as part of the proper purpose component. These difficulties stand out against the justification that Barak suggests for including the levels of urgency and scrutiny precisely within the examination of the proper purpose component. According to Barak, the justification for including the levels of urgency and scrutiny within the proper purpose component is its contribution to simplifying the constitutional methodology. In Barak s words: It is worthwhile to examine the propriety of the purpose without the need to refer to the degree [to which] the constitutional right is limited (at ). However, the distinction between the different groups of rights and the examination of the urgency of the purpose has a positive dimension as well. These distinctions reduce, albeit only slightly, the considerable weight attributed in Barak s constitutional analysis to proportionality sensu stricto. These questions do not concern the balance between various values but focus on one pan of the constitutional balancing scale. These questions are, first, the urgency of the purpose, irrespective of the severity of the infringement of the right, and second, the importance of the right, irrespective of the importance of the purpose. Admittedly, this component of structured discretion may slightly blur the problem of incommensurability that characterizes the test of proportionality sensu stricto (discussed below). But as noted, as a Supreme Court justice, Barak did not impose any significant limitations on the recognition of proper purposes of laws that infringe on constitutional rights.

8 How proportional is proportionality? 537 Nor does Barak ascribe particularly heavy practical weight to the requirement for a rational connection between the means that infringe on constitutional rights and the purpose of the infringement: There is no requirement that the means chosen fully realize the purpose. A partial realization of the purpose provided that this realization is not marginal or negligible satisfies the rational connection requirement (at 305). Furthermore, in Barak s opinion, infringement of rights should not be made contingent upon proof that the limiting arrangement leads to the achievement of the purpose. Barak points out that [t]he legislator s discretion in determining its legislative prognosis is wide. The fact that at times there is a mistake is not sufficient to justify judicial reversal (at 312). Barak notes that as long as in the future it is still likely that the prediction be proved correct, we should refrain from the determination that no rational connection exists (at 313). Barak suggests that the proposed distinction between two categories of constitutional rights concerning the requirement for a proper purpose also be applied to the component of rational connection, so that the requirement will be more stringent for rights that are more important. With regard to these rights, Barak proposes to require that the probability of its fulfillment be substantial (at 540). By contrast, for less important rights it is sufficient that the required probability be reasonable (at 540). As a justice, Barak never invalidated a statute for absence of a rational connection between the means and the purpose. And indeed, his doctrine does not attribute a great deal of importance to this requirement. As he writes in the book: We will admit it [the test] is not that significant. Its entire purpose is to provide a quick solution in extreme cases where the incongruence between the means and the purpose is obvious, and by that to expedite the process of constitutional review. (at 316) An additional component of proportionality, to which Barak ascribes only limited weight, is the sub-test of necessity. According to this sub-test, the legislator has to choose of all those means that may advance the purpose of the limiting law that which would least limit the human right in question. (at 317). Still, in Barak s opinion, it is not necessary for the means set forth to promote a given purpose while infringing on a constitutional right to do so to the least possible extent needed to accomplish the purpose. According to Barak, to pass the necessity sub-test, it is sufficient that the alternative to the infringing statute has far-ranging budgetary implications or other effects on national priorities (at ). The book does not indicate that the legislature is required to examine alternatives as part of the legislation process. In practice, the process of legislation does not routinely include a structured discussion of the various alternatives; rather, the legislative branch focuses on the bill at hand. In the process of judicial review, the burden of proving that there is a less harmful alternative to the infringing statute that complies with all these conditions rests on the party that challenges the constitutionality of the statute in question (at ). This rule of evidence does not obviate the need for the legislature to consider the alternatives. But the combination of the absence of a requirement for the legislature to examine alternatives and the imposition of the burden to present alternatives on the petitioners who oppose the constitutionality of a statute leads to a certain dilution

9 538 I CON 13 (2015), of the requirement for necessity, even if the burden is only one of argumentation, without an onus to substantiate the argumentation with evidence (at ). The third proportionality sub-test is that of proportionality in the narrow sense: sensu stricto, which requires a balancing of the benefits gained by the public and the harm caused to the constitutional right through the use of the means selected by law to obtain the proper purpose (at 340). According to Barak s analysis, this test is the focus of the constitutional review. Thus, the detailed structuring of the review of the constitutionality of statutes contributes to the review process only to a limited degree. Constitutional analysis is divided into many stages, and there is a distinction between the various questions asked in the process; but most of the tests, stages, and questions provide obstacles to the constitutionality of a statute that can be depicted as modest at best. The majority of the constitutional discussion focuses on a single sub-test: proportionality sensu stricto. The benefits of structuring the regulation of discretion, the promotion of transparency, and the assistance to and dialogue between authorities are realized to a much more limited extent than suggested by Barak. Indeed, the sub-tests of proportionality are structured like a legal version of the Russian matryoshka doll, with each stage of the constitutional analysis containing all the preceding ones. The necessity test encompasses the rationality test. In any factual situation in which there is no rational connection between the purpose that the legislative authority is seeking to achieve and the infringement on the constitutional right, it is possible to accomplish the same purpose by means that infringe on the right to a lesser extent. Similarly, the proportionality sensu stricto sub-test includes both the necessity and rational connection requirements. When a statute infringes on a right without rational connection between the infringement and the purpose of the statute, or when there is an alternative to the statute in question, which is likely to accomplish its purpose at a lower cost to rights, the harm caused by that statute clearly exceeds its benefits compared with its various alternatives. 3. The affinity between proportionality and the scope of the constitutional rights Barak refers to his approach to the interpretation of constitutional rights as generous interpretation (at 69 70), which should reflect the full scope of the ideals that a particular right is seeking to achieve within a given society (at 71). As noted, Barak tended to interpret constitutional human rights broadly as a judge. 18 He even interpreted some constitutional rights as covering many actions that not only have no positive value, but are blatantly damaging and harmful. In practice, almost every action or omission by a person or a private corporation is perceived to fall within the confines of a constitutional right. 18 Ariel L. Bendor & Michael Sachs, The Constitutional Status of Human Dignity in Germany and Israel, 44 Isr. L. Rev. 25, (2011).

10 How proportional is proportionality? 539 Barak is aware of this difficulty. A sub-chapter of his book is entitled: A constitutional right to steal? (at 42). Although he does not provide a direct answer to that question, his response is essentially in the affirmative: If private autonomy constitutes a constitutional right, the act of stealing is part of that right (at the constitutional level), as it forms an action in accordance to one s private autonomy; such an act is forbidden, however, at the sub-constitutional level by a statute criminalizing the act that has been held to be proportional. (at 42) The prohibition against theft, then, results from the Criminal Code, which is an ordinary statute. Theft is prohibited despite the fact that the prohibition is harmful to the constitutional rights of autonomy or liberty, which are recognized by many states. The prohibition is justified only because it fulfills the requirements of proportionality. Additional examples cited by Barak include torts that are prohibited under the laws of torts, breaches of contract that are prohibited under contract law, and other behaviors that are prohibited by private law (at 43). In his words: All these limitations are not constitutional notions and do not operate at the constitutional level. Rather, they are notions created by the institutions of private and criminal law. The constitutional level deals with the notion of private autonomy (or other constitutional rights). Such constitutional rights cannot be realized when private law or criminal law so prescribe, so long as that prescription is proportional and therefore constitutional. (at 43) This statement, in turn, gives rise to the conclusion that private law may restrict constitutional rights. Given that constitutional rights are not absolute, their restriction is permitted if it is proportional. The possibility which Barak presents as an alternative to the expansion of constitutional rights is interpreting them as applying only to situations in which their exercise does not harm the rights of others or the public interest (at 80 81). He rejects this alternative, pointing out that the restriction with regard to the violation of others rights or harm to the common good should be applied not to the scope of the right but to the ways of exercising it (at 81). But it is doubtful whether the only alternative to a broad interpretation of constitutional rights is their limitation to situations in which there is no harm to the rights of others or to the common good. Barak replies to the argument that a broad interpretation of rights leads to contempt and to the trivialization of the rights in question by stating that this is only an initial impression, which... cannot hold up to the overwhelming evidence and social recognition of scores of legislative determinations created precisely to properly limit the realization of these well-recognized constitutional rights. Such limitations serve as the backbone of every organized democracy (at 43). But this insight, although correct in and of itself, does not require a broad interpretation of the rights. The fact that rights are not absolute and at times need to be limited does not lead to the conclusion that their interpretation must be broad. The opposite is true. The nature of proportionality-based constitutions, which distinguish between the protection of human rights and the possibility of limiting them, also reflects the notion that only specific important human interests, enumerated in the constitution, justify curbing the power of the democratically elected majority.

11 540 I CON 13 (2015), Thus, a proposition that actions that do not have any social positive value, such as the practice of theft, are also covered by the constitutional rights to human dignity and liberty, does express significant contempt and trivialization of these human rights. The fact that the prohibition of theft in the Criminal Code might be deemed proportional does not resolve this trivialization. The trivialization harms the symbolic dimension of the constitution. 19 When the majority of the activities of elected authorities are perceived as infringing constitutional rights, the symbolic quality of these rights is eroded. Moreover, it is not possible, nor justified, to stringently apply all the sub-tests of proportionality to all of the cases that are covered by human rights according to their broad interpretation. The sub-test of rational connection might impose significant limitations on the constitutionality of legislative measures since the legislature is not an interdisciplinary research institute. Furthermore, in many areas, there is still no reliable scientific data required to determine the probability a legislative measure will achieve its aims, nor is the generation of such data possible. Nevertheless, society requires legislation, including in the many areas in which research data is lacking; and in cases in which such data cannot be obtained, in-depth study is required and perhaps even a choice between conflicting scientific schools. Subjecting the entire body of legislation to stringent requirements of rational connection would unjustifiably harm the ability of the legislature to fulfill its functions. But a cautious, and at times even narrow, interpretation of constitutional rights, formulated in such a way that only a small proportion of statutes will be limiting them, could enable and even justify raising the bar of the required rational connection and prohibiting legislation that limits rights without proven benefit. Admittedly, Barak proposes some reinforcement of the requirement for rational consideration and the setting of a standard of proof of substantial probability when the statute in question harms fundamental rights perceived by the legal system to be the most important rights (at 540). 4. Proportionality and incommensurability The application of the requirement of proportionality sensu stricto to a considerable part of legislation raises the problem of incommensurability. The problem arises when there is a need to trade one interest or value for another interest, while there is no common denominator between the interests. 20 The requirement for proportionality sensu stricto leads to a problem of incommensurability because it calls for comparing the benefit of a certain restriction of a right 19 For the symbolic dimension of the constitution, see Dieter Grimm, Integration by Constitution, 3 Int l. J. Const. L. 193 (2005). 20 For the problem of incommensurability, see Richard A. Epstein, Are Values Incommensurable, or Is Utility the Ruler of the World?, 1995 Utah L. Rev. 683 (1995); Cass R. Sunstein, Incommensurability and Valuation in Law, 92 Mich. L. Rev. 779 (1994); Joseph Raz, Engaging Reason: On the Theory of Value and Action 46 (1999); Ariel L. Bendor, Prior Restraint, Incommensurability, and the Constitutionalism of Means, 68 Fordham L. Rev. 289 (1999).

12 How proportional is proportionality? 541 with the damage caused by this restriction. But how is it possible, for example, to compare the benefit to the security of the State with the harm to freedom of expression? This problem arises only partially when performing the other proportionality sub-tests, because these requirements do not address the balance between competing values. Instead, the other sub-tests focus on a proper purpose, a rational connection, and the necessity for harm to the constitutional right, but not on the relationship between that harm and the positive value that the statute promotes. For example, the only question examined within the framework of the requirement for a proper purpose is whether the purpose of a statute is a proper one, in and of itself. The legislative branch is not required to distinguish between proper and less proper purposes, or to balance the gravity of the harm to a constitutional right against the appropriateness of the purpose of the statute that harms it. Similarly, the requirement for a rational connection does not contain a significant component of balancing either. It is sufficient if a statute that limits human rights can accomplish its purpose with a certain level of probability (at 482). Likewise, according to the sub-test of necessity, a statute that harms the constitutional right for the sake of a certain purpose is examined only by way of comparison with the alternatives that accomplish the same purpose to the same extent. Barak s distinction between two levels of importance of constitutional rights (at ) introduces a dimension of balancing into these sub-tests as well. The required balance, however, is limited in scope and not based on substantive judicial discretion, therefore the problem of incommensurability that it raises is less severe. By contrast, the problem of incommensurability arises in full force in the requirement for proportionality sensu stricto. Barak emphasizes that the exchange does not refer to absolute values but only to the comparison between the marginal harm to the right and the marginal benefit of the purpose of the statute (at 10 11). A comparison is not made between the importance of the right and the importance of the law s purpose. It is made between the law and an alternative rule. However, this emphasis does not solve the problem of incommensurability. If we assume that two values have no common denominator, the trade between the marginal aspects of these values would not solve the incommensurability problem. Barak is aware of the well-substantiated argument of the problem of incommensurability, but rejects it as follows: When the public interest is on one side of the balance... and on the other side we find a constitutional right... the comparison is between the marginal social importance of the benefits gained by advancing the public interest and the marginal social importance of the benefits gained by preventing the harm to the constitutional right.... This contextual presentation of the issue provides the common denominator the relative social importance required to conduct the balance. (at ) This statement is hardly convincing. The formula proposed by Barak the degree of relative importance is of no benefit when there is no common denominator between the constitutional right and the interest for the purpose of which the right is being harmed. The formula and the attempt to justify it beg the question. The degree of relative importance based on which it is ostensibly possible to compare the added benefit to the purpose

13 542 I CON 13 (2015), with the added harm to the right is not a common denominator. Stating that the common denominator is itself the degree of relative importance does not solve the difficulty. The second aspect of the criticism concerning the incommensurability of values, of which Barak is also aware, is the irrational nature of proportionality sensu stricto: any decision balancing two values that do not share a common basis is subjective and based on intuition. Barak rejects this criticism as well. According to him, notwithstanding the fact that proportionality sensu stricto, the application of which involves judicial discretion, encompasses subjective elements: These [elements] operate within limited confines and only in order to achieve proper purposes. Moreover, judicial discretion must fulfill general principles of judicial coherence and judicial consistency (at 486). Although Barak s arguments contain a degree of truth, in the end they cannot obscure the dominant subjective nature of proportionality sensu stricto. For example, in the im portant minority opinion handed down by Barak in the Supreme Court ruling on the constitutionality of the Citizenship and Entry Into Israel Act (Temporary Provision), 2003, he found that the statute, which greatly restricted the possibility of citizens of Israel who were married to residents of the Palestinian Authority or of enemy states to unite in Israel with their spouses and children, passed the sub-tests of proper purpose, rational connection, and necessity. 21 But Barak believed that the statute did not comply with the sub-test of proportionality sensu stricto, because the damage it entailed to the rights of family life and equality exceeded the added security that the statute could be expected to achieve. 22 By contrast to the long and detailed discussions of the requirements of purpose, rational connection and necessity, Barak s decision that the statute does not comply with the test of proportionality sensu stricto was summed up in a few short sentences: The added security provided by the sweeping prohibition is not proportional when compared to the added damage which is caused to the family life and the equality of the Israeli spouses. True, the sweeping prohibition brings greater security; but that security is achieved at too heavy a price. True, the chances of increasing security by means of a sweeping prohibition are not remote and theoretical. At the same time, by comparison to the grave harm to human dignity, the ratio is not proportional. 23 Similar laconic justifications are characteristic of many cases in which the constitutionality of a statute was examined according to the sub-test of proportionality sensu stricto. 24 In the absence of commensurability, even when all agree about the nature of the benefit and the damage resulting from a certain arrangement, the decision concerning the proper ratio between the benefit and the harm is intuitive and not discursive. Both law and life often present the need to trade one interest for another, when the interests have no common denominator. But this fact does not negate the existence 21 See HCJ 7052/03 Adalah, opinion of President Aharon Barak Id Id. 24 HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) PD 807, opinion of President Aharon Barak, 61 [2004], available in English at A28/ a28.pdf. Although the aforementioned ruling has involved an administrative act and not a statute, the Supreme Court of Israel has applied proportionality in the same way it would have applied it to judicially review a legislative act.

14 How proportional is proportionality? 543 of the problem of incommensurability. Emphasizing the sub-test of proportionality sensu stricto while downplaying and diluting the remaining constitutional tests, which do not raise this problem or raise it to only a minor extent, intensifies the problem of incommensurability and places it at the focus of the constitutional process. Furthermore, focusing on the sub-test of proportionality sensu stricto, which raises the problem of incommensurability, limits the elected legislature, precisely with regard to an aspect that in the absence of quantitative or factual criteria is of special value to the procedure of a majority-based decision. The authority to decide is transferred to the judiciary branch. The impression is that Barak, both in his interpretation of rights and of proportionality, ascribes little importance to the need to limit the imposition of restrictions on the elected branches. Decision-making based on majority opinion encompasses a central aspect of the principle of equality: equality in the allocation of political power among citizens. 25 Even if decision-making based on majority opinion is not the only embodiment of democracy, it is a central aspect thereof. Interpretation of constitutional rights in a broad, generous manner, and focus on proportionality in the strict sense of the term, each in its own way, detract from this central aspect of democracy, and Barak offers no justification for this. Barak is aware of the democratic difficulty in the exercise of judicial review by a non-elected judicial branch with respect to statutes enacted by an elected legislative branch. He confronts this difficulty convincingly in the following paragraph: Once a legal system has opted to recognize judicial review, and such review is exercised in accordance with the rules of proportionality, the contours of that institution can no longer be shaped by arguments relating to the preliminary issue of whether judicial review should be recognized by that system in the first place. (at ) At the same time, as noted above, it appears that Barak does not fully contend with democratic considerations in the interpretation of constitutional rights. A proper protection of human rights in a democratic society does not necessarily require a broad interpretation of the scope of constitutional rights or the use of balancing mechanisms that aggravate the problem of incommensurability. A further democratic criticism of Barak s interpretations of constitutional rights focuses on the vagueness involved in any trade of incommensurable values. Admittedly, law in general, and especially constitutional law, is steeped in unavoidable vagueness. Nevertheless, the extent of vagueness depends on the specific legal rules and on the interpretation given to them. Focusing on the sub-test of proportionality sensu stricto intensifies the problem of vagueness and reduces the ability of the elected legislature to know whether the bills which it considers comply with constitutional requirements. In the end, the emphasis on the tests that are rendered vague by the incommensurability they entail detracts from the basic objective of the constitution: the promotion of legislation that corresponds to its principles. In Barak s opinion, in a situation in which achieving the purpose of a statute requires harm to human rights, there is no difference between reasonableness and proportionality (at 11 12). But what substantial guidance is there to determine whether the legislature acts reasonably? The emphasis on the proportionality sensu stricto sub-test, which leads to more vagueness than 25 See Bruce Ackerman, Social Justice in the Liberal State 279 (1980).

15 544 I CON 13 (2015), alternative sub-tests, is therefore likely to diminish the ability of the legislature to uphold constitutional rules. This, in turn, means that at the stage of judicial review, the Court is required to decide whether a statute is compatible with the constitution, although the constitution does not necessarily provide substantial guidelines. Constitutional case law does not provide any further guidance for the legislative branch as it only stresses that acts and measures are deemed constitutional if the social importance of their benefits exceeds the social importance of the infringed right. Such a vague and ambiguous standard does not provide guidance to lawmakers. In the end, the metaphor of balancing that Barak frequently uses in the book, as he did on the bench, and which underlies his perception of proportionality, does not deliver the substantive content needed to confront satisfactorily the problem of incommensurability. Our argument is not that incommensurability requires the subtest of proportionality sensu stricto to be set aside. Incommensurability is embedded in every difficult decision that requires trading off two values or interests that do not share a common denominator. But we cannot ignore its weaknesses and the ensuing problems and place it at the core of the constitutional process, while demonstratively downplaying other criteria that have no less of a basis in the constitution. 5. Conclusion According to the generous, broad interpretation of constitutional rights that Barak proposes in his book, and which he applied on the bench of the Israeli Supreme Court, a considerable proportion of statutes may be deemed as limiting constitutional rights, and are therefore subject to the various requirements of proportionality. Barak ascribes the greatest weight to proportionality sensu stricto, a highly subjective and vague criterion that causes considerable difficulties in the area of incommensurability. The outcome is that the constitutionality of a considerable proportion of statutes is decided based on criteria dominated by intuition. Barak makes considerable efforts to rescue proportionality sensu stricto from its vague and subjective character. But despite the importance of Barak s proposals, their effect of structuring the constitutional process, as illustrated in the book, is more limited than might be expected. In the end, proportionality as understood by Barak does not ensure that the protection of constitutional human rights is always to a degree that is neither greater nor less than necessary to achieve proper public purposes. Nor does it ensure that the aim of achieving an appropriate outcome in the circumstances of each individual case does not detract from the role of constitutional law in protecting human rights and directing the elected legislature. Barak s proportionality is still not proportional Compare Vicki C. Jackson, Being Proportional About Proportionality (Review of David M. Beatty, The Ultimate Rule of Law), 21 Const. Comm. 803, 859 (2004):... to the extent constitutional review needs to remain an expression of national self-government while at the same time offering protection to basic human rights, it may need to adopt a more complex interpretive approach that retains anchors in the particular decisions and institutions of its particular polity. So I end with a plea for a more proportional approach to the benefits of proportionality analysis, as a necessary, but not sufficient, tool for the interpretive work of constitutional adjudication of still-national constitutions.