An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay

The Author 2015. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay Matthias Klatt* In his article, An egalitarian defense of proportionality-based balancing, Professor Tremblay offers an interesting and carefully argued normative justification of balancing as a legal method. In my response, I concur with much of what he says, but raise certain doubts about a number of points. My doubts concern the distinction between normative status and abstract weights of colliding interests, the assignment of the notion of rights as trumps or firewalls purely to the priority of rights model, and Tremblay s claim that proportionality was allowing for formal egalitarian decisions excluding the intricacies of moral reasoning. I discuss these concerns in some detail and conclude that the core of Tremblay s normative defense of proportionality-based balancing is true but in quite a different way than he suggests. 1. Introduction In his article, An egalitarian defense of proportionality-based balancing, Professor Tremblay offers an interesting and carefully argued normative justification of balancing as a legal method, and I am grateful for the opportunity to comment on it. While I agree with much of what is said in the article, I have certain doubts about a number of points. I agree, in particular, with Tremblay s main thesis that balancing, as reconstructed by Alexy and his followers (the optimization model), is the best instrument available for dealing with conflicts of legal interests, principles, or values in a heterogeneous world of diversity, pluralism, and rational disagreement. My own position is firmly grounded in this optimization model and not, as Tremblay suggests, 1 in the priority of rights model. I also strongly concur with his conclusion * Professor of Public Law, EU Law, Public International Law and Legal Theory, University of Hamburg. Email: jpklatt@jura.uni-hamburg.de. 1 Luc B. Tremblay, An Egalitarian Defense of Proportionality-Based Balancing, 12(4) Int l J. Const. L., at 887, text to n. 66(2014). I CON (2014), Vol. 12 No. 4, 891 899 doi:10.1093/icon/mou061

892 I CON 12 (2014), 891 899 that the proportionality test is a very promising element of global and pluralist constitutionalism. 2 One reason why I accede to these points is that I also share the author s criticism of the priority of rights model. Any such model would depend on justifying a universal and objective ranking of rights that enjoy normative priority over any other colliding interests under any circumstances, i.e., irrespective of the empirical and normative conditions of concrete cases. 3 Since rights often collide not only with non-rights, but also with other rights, this catalogue moreover would have to establish an abstract hierarchy within the category of rights. This is a very high burden of argument, and I know of no normative theory that has ever succeeded in justifying any such abstract and universal rankings. Further arguments against the priority of rights model follow from the distinction between an internal and an external theory of rights. 4 I cannot, however, subscribe to some of the arguments Tremblay puts forward to justify his conclusions. My criticism refers to the discussion of the two distinct models of constitutionalism underlying the author s argument. That rights must enjoy priority over any other consideration and, hence, must not be balanced against non-rights under any circumstances has been defended by Habermas ( rights as firewalls ) and Dworkin ( rights as trumps ). 5 The priority of rights model is a coherent, though unconvincing alternative to the optimization model. Tremblay holds those two models to be mutually exclusive and incompatible. 6 In the course of his argument, however, numerous connections between the two models are mentioned. This indicates that his presentation of the two models is not exactly accurate. Tremblay characterizes both models by means of five constitutive propositions, and I will discuss three of them here. 2. Normative status and abstract weight According to Tremblay, the role of abstract weights of the colliding principles is necessarily different in both models. The priority of rights model assigns higher abstract weights to rights, as opposed to non-rights, and also higher abstract weights to some more important rights, as opposed to less important rights. I agree with that description of the priority of rights model. I do not concur with Tremblay s further thesis, however, that, according to the optimization model, all values necessarily have the 2 See Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality 1 6, 167 171 (2012); Matthias Klatt & Moritz Meister, Proportionality A Benefit to Human Rights? Remarks on the ICON Controversy, 10 Int l J. Const. L. 687, 708 (2012). 3 Cf. Tremblay, supra note 1, at 875. 4 Klatt & Meister, supra note 2, at 17 22. 5 Cf. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 254 259 (William Rehg trans., 1996); Ronald Dworkin, The Rights of Myron Farber, N.Y. Rev. Books, Oct. 26, 1987, at 34. Cf. Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 423 (1993); Robert Alexy, Postscript, in A Theory of Constitutional Rights 388, 388 389 (Robert Alexy ed., 2002). 6 Tremblay, supra note 1, at 870.

An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay 893 same abstract weight. Tremblay argues that under this model all political values have the same normative status in the abstract. 7 This assumption is true only if interpreted as referring to the normative hierarchy of principles. In the optimization model, rights as constitutional values can only be outweighed by other constitutional values. 8 This is true because balancing presupposes that rights and conflicting public interests to be balanced are at the same level in the hierarchy of the legal system. In this sense, the assumption that all values must have the same normative status in the abstract in order to be balanced is true. This assumption is, however, mistaken if interpreted as referring to the assignments of abstract weights in the balancing test. The abstract weight of a principle is the weight the principle has relative to other principles, but independently of the circumstances of any concrete case. 9 In the optimization model, it is well possible to assign different abstract weights to the colliding principles. For example, it is possible to assign higher abstract weights to the class of rights, as opposed to the class of public interests, or to assign higher abstract weights to some vitally important rights like the right to dignity or the right to life, as opposed to other rights. 10 This possibility can easily be overlooked since in many cases the abstract weights of the colliding principles will be identical, and hence they cannot determine the preference relation between them. That is the reason why balancing under the optimization model rarely considers abstract weights. If the abstract weights are identical, they are irrelevant for balancing. This may also explain why the general scholarly discourse has mainly overlooked the possibility of differentiating abstract weights in the optimization model so far, and it seems to me that Tremblay s article represents an example of this negligence. 11 Tremblay actually underlines that the optimization model would not take side in advance on abstract issues. 12 But this is not necessarily so. The difference between the two models lies not in assigning colliding principles the same (optimization model) or different (priority of rights model) abstract weights. Rather, it lies in the status of the assignment of abstract weights. In the priority of rights model, abstract weights have a definitive status; they determine a definite priority of those principles with a higher abstract weight. By definition, this definite priority is not dependent upon circumstances of concrete cases. In contrast, in the optimization model a higher abstract weight is of prima facie status only. It establishes a winning margin prior to the balancing exercise. 13 7 Id. at 868. 8 Klatt & Meister, supra note 2, at 23 25; A Theory of Constitutional Rights, supra note 5, at 185; Martin Borowski, Limiting Clauses: On the Continental European Tradition of Special Limiting Clauses and the General Limiting Clause of Art 52(2) Charter of Fundamental Rights of the European Union, 1 Legisprudence 197, 213 n. 271 (2007). 9 Klatt & Meister, supra note 2, at 11. 10 Id. at 26 and 29 42. 11 Cf. Tremblay, supra note 1, at 886, assigning a comparison of abstract weights to the priority of rights model, rather than to the optimization model. But see id. at 886 n. 65, referring to Alexy. 12 Id. at 884. 13 Klatt & Meister, supra note 2, at 28 29.

894 I CON 12 (2014), 891 899 Irrespective of this difference, a differentiation of abstract weights represents some element of the priority of rights model within the optimization model. The first constitutive propositions assigned by Tremblay to the two models deny this mechanism. They address an oversimplified version of the elaborated optimization model. 14 The elaborated version of the optimization model has already included some elements of the priority of rights model in order to reflect the view that some or all rights may have special force in a particular legal system, vis-à-vis public interests. It is no longer possible to distinguish the two models using a purported difference in their respective approach to abstract weights, as Tremblay seems to assume when he argues that the model of optimization conferred no normative priority to rights over competing considerations. 15 This also challenges Tremblay s view that the two models were mutually exclusive and incompatible. 16 3. Trumps and firewalls I have doubts that Tremblay s second constitutive propositions grasp the two models correctly. He assigns the following view to the priority of rights model: No law can legitimately limit or override a right, unless the values or concerns supporting it are sufficiently strong to prevail over the right. 17 While I agree with the substance of that sentence, I object it being assigned to the priority of rights model. This sentence covers a core characteristic of the optimization model. The notion of sufficiently strong to prevail necessarily refers to the dimension of weight and, hence, to a balancing procedure. The determination of whether values are sufficiently strong to prevail requires balancing. Balancing, however, implies the optimization model, rather than the priority of rights model. The core characteristic of the priority of rights model is precisely that it attempts to avoid any balancing by means of establishing strict priorities between colliding interests. 18 This attempt cannot be successful. 19 What matters in the present context is that Tremblay does not take seriously the idea of rights as trumps and firewalls inherent in the priority of rights model, as developed by Habermas, Dworkin, Nozick, and others. 20 Instead, he identifies the priority of rights model with what Meister and I have called the medium trump model. The medium trump model, however, is not the best and most coherent representation of a priority of rights model. 21 Therefore, I find it 14 It should be granted, however, that Tremblay makes clear that he constructs the models as ideal types and does not claim to reconstruct any particular theory, cf. Tremblay, supra note 1, at 865 6. 15 Id. at 868 (emphasis in original). 16 Id. at 870. 17 Id. at 866. 18 Cf. Habermas, supra note 5, at 254 9; Dworkin, supra note 5, at 34. Cf. Schauer, supra note 5, at 423; Alexy, supra note 5, at 388 389. 19 For my discussion of this strong trump model see Klatt & Meister, supra note 2, at 16 22. 20 Habermas, supra note 5, at 258; Ronald Dworkin, Introduction, in Taking Rights Seriously, at vii, xi (Ronald Dworkin ed., 1977); Robert Nozick, Anarchy, State, and Utopia 28 35 (1974). Tremblay cites these authors, supra note 1, at 866 n. 3. 21 For a criticism of the weak trump model, see Klatt & Meister, supra note 2, at 22 3.

An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay 895 rather confusing that it should be included in a project of defining two antagonistic ideal-type models of rights constitutionalism. The real counterpart of the optimization model is the strong trump model. Furthermore, I cannot entirely follow Tremblay s description of the optimization model in this respect. According to him, in the optimization model there is no absolute or quasi-absolute right and no inviolable core, since a right can always be limited by a competing value. 22 This is actually a point frequently raised against the optimization model. 23 Tsakyrakis argued that the notions of absolute rights and balancing were mutually exclusive. 24 Webber criticized that not giving rights strict priority would amount to doing violence to the idea of a constitution. 25 However, the elaborate version developed in principles theory by Alexy and his followers has demonstrated that it is possible to reconstruct these elements within the optimization model. This can be achieved by a combination of three different mechanisms. They bring about a sort of weak trumping effect within the optimization model that well deserves the label firewall. This leads to an integration of trumping, as an element of the priority of rights model, into balancing. That this integration is possible within the optimization model is often overlooked, even by supporters of proportionality analysis. Beatty, for example, holds that in proportionality, rights have no special force as trumps. 26 And Afonso da Silva insists that in balancing, trumping or similar relations cannot play a role. 27 In order to demonstrate that this view is mistaken, I would like to briefly explain the three different mechanisms of combining, balancing and trumping. The first mechanism has already been mentioned above. According to the hierarchy of norms, only constitutional values can be balanced against a constitutional right. This means that rights are given strict priority over every other value or interest unless that value has likewise constitutional status. Constitutional rights always trump all interests that lack constitutional status. This trumping effect is actualized prior to and, hence, independent of balancing. Meister and I have labeled this phenomenon the first law of trumping. 28 Modern constitutions tend to protect all sorts of values and interests, and hence the discriminate power of the first law of trumping must not be overrated. But the elaborate optimization model has more to offer. The second mechanism stems from Alexy s law of balancing: The greater the degree of non-satisfaction of, or detriment to, one principle (the right), the greater must be the importance of satisfying the other principle (the public interest). 29 It follows from this law of balancing that in the optimization model rights must be given the weight they deserve to prevail over the public 22 Tremblay, supra note 1, at 868. 23 Cf. Klatt & Meister, supra note 2, at 24 25. 24 Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, 7 Int l J. Const. L. 468, 471 (2009). 25 Grégoire Charles N. Webber, The Negotiable Constitution: On the Limitation of Rights 101 (2009). 26 David M. Beatty, The Ultimate Rule of Law 171 (2004). 27 Virgílio Afonso da Silva, Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision, 31 Oxford J. Legal Stud. 273, 282 (2011). 28 Klatt & Meister, supra note 2, at 23, 25, and 27. 29 Id. at 10; A Theory of Constitutional Rights, supra note 5, at 47.

896 I CON 12 (2014), 891 899 interest, if necessary. Thus, the optimization model ensures that the importance of a right is properly taken into account in very single case. 30 Kumm has put this point quite convincingly: The fact that proportionality analysis does not prioritise individual rights over collective goods on the structural level, then, does not mean that such a priority cannot be given adequate expression within that structure. 31 If the right in the circumstances of the concrete case does indeed carry a higher weight than the colliding interest, it will prevail. If, on the other hand, the colliding public interest carries a higher weight in a specific situation how on earth could we justify rationally not prioritizing it over the right? The third mechanism bringing about a trumping effect within the optimization model is assigning a higher abstract weight to a right, or to all rights, than to the colliding public interests. 32 The optimization model can give priority to certain principles by assigning a higher abstract weight to them. To be sure, the trumping effect caused by higher abstract weights is not a definite one, since it does not determine the outcome of balancing. The balancing result will still depend upon other variables, such as the concrete weights of the colliding principles and epistemic reliabilities. 33 Still, higher abstract weights establish a sort of prima facie trumping. The right can enter the balancing test with some sort of winning margin. Meister and I have put this mechanism into the second law of trumping: The higher the abstract weight of a right, the more likely it will trump competing considerations. 34 Abstract weights are also the key to reconstructing absolute rights within the optimization model. 35 Again, this possibility is often overlooked. It is a widely held view that proportionality and balancing were unable to account for absolute rights. 36 However, it is well possible to assign a much higher abstract weight to human dignity than to any other principle. 37 As Meister and I have demonstrated, with the help of the European Court of Human Right s decision in Chahal, this mechanism can bring about exactly the same result as the priority of rights model. 38 To be sure, this would 30 Cf. Klatt & Meister, supra note 2, at 25. 31 Mattias Kumm, Political Liberalism and the Structures of Rights. On the Place and Limits of the Proportionality Requirement, in Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy 131, 149 (George Pavlakos ed., 2007). 32 Cf. Klatt & Meister, supra note 2, at 26 9. 33 On these other variables in balancing, see id. at 10 3. 34 Id. at 29. 35 Id. at 29 42. 36 Alan Gewirth, Are There Any Absolute Rights?, 31 Philosoph. Quart. 1, 2 (1981); Kai Möller, The Right to Life Between Absolute and Proportional Protection, LSE Law, Society and Economy Working Papers, 1 (2010); Grégoire C. N. Webber, Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship, 23 Can. J. L. Jurisprudence 179, 199 200 (2010); Kai Möller, Balancing and the Structure of Constitutional Rights, 5 Int l J. Const. L., 466 (2007); Kumm, supra note 31, at 153. 37 Nils Teifke, Human Dignity as an Absolute Principle?, in On the Nature of Legal Principles 93, 100 102 (Martin Borowski ed., 2010). 38 Klatt & Meister, supra note 2, at 32 8. See also Chahal v. The United Kingdom, Appl. No. 22414/93, Eur. Ct. H.R., 15 November 1996, 23 EHRR 413.

An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay 897 not establish the kind of absoluteness most scholars have in mind when talking about absolute rights. It would not create an unconditional preference relation between the absolute right and other principles. 39 Still, a right with a predominant abstract weight will enter the balancing process with a winning margin. This effect can be reinforced by increasing the abstract weight even more and more. As a result, any colliding interest will have increasing difficulty in prevailing over the absolute right. This effect is, precisely, what causes the impression of the absoluteness of that right. That impression arises from the fact that there are numerous conditions under which we can say with a high degree of certainty that the human dignity principle takes precedence over colliding principles. 40 The possibility of reconstructing absolute rights within the optimization model clearly contradicts Tremblay s second constitutive proposition. I would like to add, but will not deal with in detail here that the same is true as far as the concept of inviolable core content is concerned. 41 4. Internal and external justification Arguably, the most important criticism I would like to raise against Tremblay s account is his reference to a purported moral neutrality of the proportionality test. This concerns his third constitutive proposition of the optimization model. Tremblay argues that under this model for the purposes of judicial review, the judges do not need to postulate the validity or truth of one substantive theory... and do not need to use the process of constitutional interpretation to this end. 42 This is contrasted with the priority of rights model which, according to Tremblay, required extensive use of constitutional interpretation by means of a substantive theory of rights. 43 In a nutshell, Tremblay s normative defense of proportionality-based balancing boils down to a relief thesis. The optimization model, in his view, offers judges relief from the need to engage in far-reaching normative assumptions: The judges can avoid almost all difficult epistemological and normative questions... and the courts are not compelled to impose certain controversial, moral, political or philosophical substantive views. 44 Tremblay s argument seems to rest on a commonly held misunderstanding of the proportionality test and balancing, which claims that both were purely formal. 45 Usually, this purported characteristic is held to count against balancing, rather than in favor of it. Tsakyrakis argued that proportionality pretended to be objective, 39 Klatt & Meister, supra note 2, at 32. 40 A Theory of Constitutional Rights, supra note 5, at 64. 41 For a reconstruction of a (relative) core content of rights within the optimization model, see Klatt & Meister, supra note 2, at 66 68. 42 Tremblay, supra note 1, at 869. 43 Id. at 866. 44 Id. at 887. 45 For a detailed discussion of the impact of morals on balancing, see Klatt & Meister, supra note 2, at 51 56.

898 I CON 12 (2014), 891 899 neutral, and totally extraneous to any moral reasoning. 46 In the same line of thought, Webber claimed that proportionality would depoliticize rights by purporting to turn the moral and political evaluations involved in delimiting a right into technical questions of weight and balance. 47 In sharp contrast to these voices, the original point of Tremblay s account is that what Tsakyrakis and Webber see as a shortcoming, he foregrounds as a strength of proportionality-based balancing. By using balancing judges could, so Tremblay hopes, escape the slippery slope of substantial, politically contested moral argument they would inevitably be faced with under the priority of rights model. However, proportionality and balancing are not as detached from substantial, contested reasoning as Tremblay assumes. Any rights theory must be embedded in a general theory of legal argumentation. In the case of the optimization model held by Alexy and his followers, proportionality analysis and balancing are supplemented by a Habermasian, discursive theory of legal argumentation. 48 This actually matches quite well Tremblay s claim for an impartial process of practical deliberation. 49 The application of rights is an argumentative exercise and always requires substantial argument. 50 According to the special case thesis, legal discourse is a special case of general practical discourse. 51 Hence, balancing is an instance of moral reasoning. 52 When determining the degrees of satisfaction and non-satisfaction of the colliding principles, in accordance with the law of balancing, judges will nearly always have to engage in contested moral and political considerations. 53 Furthermore, the important distinction between the internal and the external justification of rights reasoning may help to clarify Tremblay s point. 54 Proportionality and balancing are formal and substantially neutral as far as their formal structure is concerned, just as the legal syllogism is formal and neutral. A rights decision that follows from that formal structure is internally justified. Formal rationality, however, is not enough. 55 The decision must also be externally justified by the judges. Judges must justify externally that, for instance, the intensity of an interference with a right 46 Tsakyrakis, supra note 24, at 474. For a response to that argument, see Klatt & Meister, supra note 2, at 694 695. 47 Webber, supra note 36, at 191. 48 Cf. Matthias Klatt, Robert Alexy s Philosophy of Law as System, in Institutionalized Reason: The Jurisprudence of Robert Alexy 1 (Matthias Klatt ed., 2012). 49 Tremblay, supra note 1, at 872. 50 Cf. Afonso da Silva, supra note 27, at 288. 51 Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification 212 220 (1989). For a critical discussion of the special case thesis see Habermas, supra note 5, at 204, 206, 233 ff; Klaus Günther, Critical Remarks on Robert Alexy s Special Case thesis, 6 Ratio Juris 143 (1993). For Alexy s replies, see Robert Alexy, The Special Case Thesis, 12 Ratio Juris 374 (1999); Robert Alexy, Justification and Application of Norms, 6 Ratio Juris 157 (1993). See also George Pavlakos, The Special Case Thesis. An Assessment of R. Alexy s Discursive Theory of Law, 11 Ratio Juris 126 (1998); Ingrid Dwars, Application Discourse and Special Case Thesis, 5 Ratio Juris (1992). 52 Klatt & Meister, supra note 2, at 53. 53 Afonso da Silva, supra note 27, at 288. 54 On this distinction in the context of balancing, see Matthias Klatt & Johannes Schmidt, Epistemic Discretion in Constitutional Law, 10 Int l J. Const. L. 69, 74 (2012). 55 Cf. Dimitrios Kyritsis, Whatever Works: Proportionality as a Constitutional Doctrine, 34 Oxford J. Legal Stud. 395, 414 (2014) ( Formal rationality will not do ).

An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay 899 was serious or that the weight of a competing principle was light. The external justification of such evaluations requires theoretically informed practical reasoning. 56 Proportionality-based balancing is hence neutral as far as its internal, formal structure is concerned. As such, it is a universal criterion of constitutionality. 57 But the application of this universal structure requires moral reasoning. 58 Tremblay argues against this integration of moral discourse as defended by Meister and me that balancing would thereby turn into a microcosm of all the disagreements found within contemporary political philosophy. 59 I agree to that description, but I cannot see that this would be a detriment, nor at any rate that it could be avoided. Judges cannot confine themselves to some purely formal egalitarian handling of rights conflicts, as Tremblay suggests when he claims that no court should read a constitution in terms that take side on fundamental controversial substantive issues. 60 After all, when deciding rights cases, judges inevitably take sides. They establish a conditional relation of preference between the colliding interests by stating which principle prevails in the concrete case. Balancing can be characterized by a relation of inheritance between the premises and the conclusion. The balancing result will inherit all the unreliability and all the imponderabilia of those substantial, political, moral, and contested propositions which are used as normative premises in applying the law of balancing. It is precisely this relation of inheritance that contradicts Tremblay s relief thesis. This leaves us with the question whether Tremblay s normative defense of proportionality collapses. I do not think so. For the formal structure still effectively supports and enables an egalitarian handling of rights conflicts. Tremblay rightfully characterizes this as a form of procedural equality. 61 It allows for more transparency of balancing by making explicit the implicit normative premises that require external justification. 62 The formal structure of proportionality-based balancing lays open the moral and substantial discourse in rights reasoning. It facilitates greater rationality in the application of rights. This is not as much as demonstrating that the application of proportionality was neutral in the sense of a complete independence from moral reasoning, as Tremblay s relief thesis suggests. But it is still more than submitting the rationality and the egalitarian practice of rights reasoning to a far-reaching skepticism. The core of Tremblay s normative defense of proportionality-based balancing, then, is true but in quite a different way than he suggests. It is true because, as a formal structure, balancing enables an impartial and egalitarian reasoning across a great variety of cases. It is true in a different way, though, because, as a formal structure, it depends essentially on theoretically informed practical reasoning provided from outside. In law, we do not have the relief of being detached from moral discourse for better or for worse. 56 Cf. Kumm, supra note 31, at 148 9; Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 Int l J. Const. L. 574, 575 (2004). 57 Beatty, supra note 26, at 162. 58 Cf. A Theory of Constitutional Rights, supra note 5, at 105 and 109; Robert Alexy, Thirteen Replies, in Law, Rights and Discourse, supra note 31,333, at 344 (George Pavlakos ed., 2007). 59 Tremblay, supra note 1, at 880. 60 Id. at 882. 61 Id. at 884. 62 Klatt & Meister, supra note 2, at 55. See also Kyritsis, supra note 55, at 413.