THE RULE OF LAW SOLD SHORT.

• Author: Stacey, Richard
• Position: A CRITIQUE OF PROPORTIONALITY AND BALANCING, by Francisco J. Urbina - Book review

A CRITIQUE OF PROPORTIONALITY AND BALANCING. By Francisco J. Urbina. (1) New York: Cambridge University Press, 2017. Pp. xii + 267. $110.00 (cloth).

INTRODUCTION

In his latest contribution to the theoretical literature on rights adjudication and the rule of law, Professor Francisco Urbina adds to the chorus of criticism levelled against the principle of proportionality and methods of judicial decision-making that rely on the balancing of constitutional rights and competing interests. To those unfamiliar with the background of this long-running jurisprudential debate, the principle of proportionality offers a heuristic for judges and lawmakers to determine whether the statutory limitation of a constitutionally protected right is justified by the benefits the rights-limiting measure produces. A court should uphold rights-limiting legislation if the extent to which the measure limits the affected right is proportionate to the good it produces, or, in other words, if the good achieved by limiting the right outweighs the harm it causes.

In A Critique of Proportionality and Balancing, Urbina argues that the principle of proportionality is fatally susceptible to a conspectus of objections, and that public law should accordingly abandon proportionality analysis altogether. Instead, we should conceive of constitutional rights as narrowly specified and absolute legal categories that a government is never justified in limiting. For Urbina, upholding rights and the interests they protect is a categorical imperative. In this respect he departs from the constitutional orthodoxy represented by the limitations clauses of post-war constitutional documents in Canada, Germany, Israel, South Africa and in the European Convention on Human Rights, for example, and prefers a model of rights adjudication more in line with the position in the United States.

Urbina devotes the majority of the book, Parts I and II, to surfacing proportionality's purportedly fatal flaw: either proportionality analysis is blind to the moral imperatives of human rights, or it can accommodate these important moral considerations only by compromising the rule-of-law values of predictability and certainty (p. 2). The principle of proportionality is thus caught on the horns of an irresoluble dilemma. Although Urbina leaves enough space in the final chapter of the book only to sketch the outlines of his alternative approach, it is a novel solution to the proportionality debate that moves it beyond arguments about which version of the proportionality test would be best to adopt, all things considered, and towards a more direct consideration of how a political community might best protect the rights to which it is constitutionally committed. The book is a valuable and thought-provoking contribution to the literature for this reason.

I have two concerns about Urbina's argument, however. First, his critique of proportionality analysis relies on a conception of the rule of law that ignores its connections to the deep normative principles of a legal system, selling the rule of law short by focusing only on the value of holding officials to the provisions of formal legal rules. (3) Second, the alternative model of absolute rights that Urbina proposes seems to rely as much on proportionality and balancing as the limitations models he criticises. I present these concerns more fully below, following a careful summary of the core of Urbina's argument.

THE ASSAULT ON PROPORTIONALITY

In the opening pages of the book, Urbina sets out the standard analytical model through which courts and lawmakers assess the proportionality of rights-limiting statutory measures (pp. 4-9). This four-stage inquiry asks, first, whether the purposes for which a statutory measure limits a right is a legitimate or valuable one for a government to pursue; second, whether the measure is rationally connected to, or likely to achieve that objective; third, whether the means adopted to achieve the objective impair the affected rights as little as possible (the least restrictive means or minimal impairment test); and fourth, whether the balance between the good achieved by limiting a right and the harm caused by doing so is proportional "in the strict sense."

A major element of the book's architecture is the distinction Urbina draws between two conceptions of the principle of proportionality, and the alternate versions of the proportionality test that follow. One group of approaches adopts what he calls the "maximisation account of proportionality," in terms of which a judge or lawmaker faced with a choice between upholding a right against limitation or allowing its limitation in pursuit of some competing interest is mandated to prefer the option that produces the most good. Any losses occasioned by either striking down or allowing a rights limitation must be compensated by the gains achieved by doing so. Maximization in this sense involves a quantitative comparison of the good each option would produce in order to come to a conclusion about where the greater good lies (pp. 18-21). Urbina offers the work of Robert Alexy, David Beatty and Aharon Barak as examples of the maximisation account of proportionality (chapter 2). (4)

The second conception of proportionality, which Urbina calls "unconstrained moral reasoning," does not demand the application of one specific decision-making mechanism for determining the proportionality of a rights limitation. Rather, judges will engage directly with the reasons given by the parties and assess them through "practical reasoning unconstrained by a particular legal method or other legal categories. The idea of justification," Urbina goes on, "is at the centre of the main theories of proportionality as unconstrained moral reasoning" (p. 126). While maximization accounts of proportionality rely on utilitarian calculations of public good to generate a preference for the limitation of a right or the striking down of rights-limiting legislation, this alternative group of approaches requires government to balance all the relevant moral considerations and demonstrate that there are sufficiently strong reasons that justify the restriction of constitutional rights or the striking down of legislation passed by a democratically elected legislature. At the base of this requirement is a commitment to moral autonomy, both in the sense that any interference with the autonomy inherent in constitutional rights must be justified and in the sense that making moral arguments in support of one or other outcome recognises and responds to the human capacity for rationality and reason (pp. 126-31). Theorists in this camp, whose work espouses this "culture of justification," include Mattias Kumm, Kai Moller, and Etienne Mureinik. (5)

As a small matter of jurisprudential taxonomy, I am not sure I agree with Urbina that the version of proportionality analysis described by Aharon Barak should be seen as a "maximisation account" rather than an account centred on moral reasoning. Barak's view is that the outcome of the proportionality test should depend on whether upholding a right on one hand or allowing its limitation on the other is more "socially important" to the political community affected. (6) It is, of course, true that preferring the option that is more socially important involves the maximization of social importance, but the morally rich question of how much socially important stuff each option delivers has to be answered before any morally neutral maximization can take place. Robert Alexy's proposal for a "triadic" scale on which the benefits and disadvantages of a rights limitation may be compared also relies on an exercise in moral reasoning to work out whether the extent of the infringement is serious, moderate, or minor, and whether the importance of the public good sought to be...