PROPORTIONALITY AND JUSTIFICATION

Article Review: Aharon Barak, Proportionality: Constitutional Rights and their Limitations (2012, Cambridge University Press).

Moshe Cohen-Eliya and Iddo Porat

INTRODUCTION

Few jurists around the world attract as much interest and attention as the former Chief Justice of the Israeli Supreme Court, Aharon Barak. When Barak came to Harvard Law School in 2002 for the Harvard Law Review Annual Supreme Court Forum,1 the then Dean of Harvard Law School, Elena Kagan, called him my hero, compared him to John Marshal, and mentioned that her colleague, Professor Alan Dershowitz, referred to him as the greatest living jurist.2 Barak entices criticism as well. Judge Posner described him in an article as a Legal Pirate and as an enlightened despot3 and Professor Bork wrote that results of his free-wheeling approach to adjudication are dangerous.4 Barak is well known not only in the United States. A recent study found that his judicial opinions as well as his many academic writings are cited by the Supreme Courts of eleven countries, making his impact truly global.5 Baraks recent book, titled, Proportionality: Constitutional Rights and their Limitations encapsulates much of what brought all this attention to Barak. It is a much anticipated contribution to constitutional law around the world, and would no doubt be admired by those who hold Barak in esteem and non the less criticized by his critics.

Aharon Barak, 'Foreword: Judge on Judging: The Role of a Supreme Court in a Democracy', (2002-2003) 116 Harv L Rev 19. 2 For the online video of the event see http://www.c-spanarchives.org/program/174324-1. 3 Richard A. Posner, 'Enlightened Despot', New Republic, 23 April 2007, at 53, available at http://www.tnr.com/article/enlightened-despot. 4 Robert H. Bork, 'Barak's Rule', (2007) 27 Azure 125. http://www.azure.org.il/download/magazine/1119AZ_27_bork_review.pdf. Also see Robert Bork, Coercing Virtue: The Worldwide Rule of Judges, 111 (American Enterprise Institute Press, 2003). 5 Daphne Barak-Erez, 'Judicial Conversations and Comparative Law: The Case of Non-Hegemonic Countries', Tulsa L.Rev. (forthcoming, 2013).

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Proportionality is the most influential doctrine of constitutional law outside the borders of the United States. Indeed it has become prevalent in so many countries, that it has been termed by scholars as the essence of generic constitutional law.6 It provides a simple and well structured template for the resolution of conflicts between rights and public interests. As described in the book, proportionality is the second and most central stage of a two-stage constitutional analysis. In the first stage, the claimant has to show that a constitutional right has been infringed, and in the second, the government needs to show that it pursues a proper purpose, and that the means chosen are proportionate to that purpose. The heart of this analysis is the requirement of proportionality, which is divided into three subtests: is there a rational connection between the means and the end (rational connection)? Are less restrictive means available (necessity)? And are the benefits greater than the costs (proportionality stricto sensu)?

The following seminal cases of the Israeli Supreme Court, which Barak summarizes in his book, are illustrative of the application of proportionality:

(a) A provision in legislation relating to the Security Fence in the West Bank ordered the seizure of land - while compensating the owners - for the erection of the fence. The purpose of the fences erection was national security. It was held that a rational connection exists between the erection of the fence and these national security considerations. Finally, it was held that no other means would have achieved this national-security-related goal with less restrictive effect. However, the Court held that the part of the fence at issue did not meet the proportionality stricto sensu test. As noted in my opinion, There is no proportional relation between the degree of harm to the local residents and the security-related benefits yield by the erection of the Security Fence in the precise location ordered by the military commander... Our approach is based on the notion that the location chosen by the military commander for the Security Fence - which would separate the local residents from the

David S. Law, 'Generic Constitutional Law', 89 Minn L Rev (2005) 652, 693-95; David M. Beatty, The Ultimate Rule of Law (Oxford University Press, 2004).

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farmlands - causes extensive harm to those local residents which violates their rights in accordance with International Humanitarian Law.7

(b) A provision in the Law of Citizenship and Entry into Israel (Temporary Order), 2003 sets a blanket restriction on the entry of spouses of Israeli citizens residing in the Occupied Territories (Gaza and the West Bank) into Israel. The reason behind this is national security. The Israeli Supreme Court ruled that the restriction satisfies the proper purpose, rational connection, and necessity components. Does the law satisfy the proportionality stricto sensu test? Five Justices (out of eleven) were of the opinion that the test was not met, since the law sets a disproportional relation between the measure of the additional security in comparison to the former arrangement, which is based on individual examination ... and the additional harm to the constitutionally protected right to human dignity that the new measure creates. Five of the remaining six Justices were of the opinion that the relation was proportional. The eleventh Justice held that the necessity test was not met.8 Baraks book is the most comprehensive account to date of this extremely influential doctrine, and would surely become a major focal point for academics as well as practitioners interested in proportionality. Its clarity of style as well as the unmatched expertise of Barak in the subject matter and the meticulous handling of all aspects of the doctrine, have already established it as a classic.

The structure of the book reflects the structure of proportionality itself. It is divided into four Parts: Part I: Constitutional Rights: Scope and Limitations, discusses the crucial question of the way we define rights, types of rights, whether we see them as absolute or relative, and the scope we assign them. In the book Barak opts for a broad definition of rights, according to which very few claims would be viewed as outside the protection of the right. .
7

Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) 341, citing HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [2004] IsrSC 58(5) 807, 850. Available in English at http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf. 8 Barak, id., citing HCJ 7052/03 Adalah The Legal Center for the Rights of the Arab Minority v. Minister of Interior (May 14, 2006, unpublished). Available in English at http://elyon1.court.gov.il/Files_ENG/03/520/070/a47/03070520.a47.pdf.

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Part II and III, move on to discuss the proportionality doctrine itself. Part II: Proportionality: Sources, Nature, Function outlines the origins of proportionality in 19th century Prussian administrative law, and documents the incredible spread of proportionality especially since the 1990s. Proportionality entered German constitutional law after WWII, and under its influence it gained access to the jurisprudence of the European Court of Human Rights, and to the European Court of Justice. Proportionality became central to Canadian constitutional law since its adoption by the Canadian Supreme Court in 1986. After the democratization processes of the 1990s it spread like wildfire all over the world including Eastern and Central Europe, Latin America, India, New Zealand, South Africa, Israel, South Korea, Singapore, and even, more recently, Great Britain which was for a long time resistant to the doctrine. The only major legal system still to fence-off the incredible pull of proportionality is the United States.9 Part III, The Components of Proportionality discusses in detail the doctrinal aspects of proportionality and the analytical relationship between its different subtests. Part IV: Proportionality Evaluated reviews the advantages of proportionality that include the advancement of structure, transparency, dialogue between the legislator and the courts, and democracy. Indeed, Barak argues that proportionality is derived from democracy and from the rule of law. He then addresses the different criticisms leveled against proportionality including claims of irrationality, excessive judicial discretion, insufficient protection of rights, and lack of judicial legitimacy.

Barak manages to demonstrate the complexity of the discussion on proportionality, and moves away from simplistic views that reject or adopt proportionality wholesale for one reason or another. He admits that proportionality has its limits, but convincingly shows that so do other alternatives, such as categorization. In particular, Barak argues that even categorical approaches must include balancing at the stage of setting the category, and, on the other hand, proportionality approaches could be effectively disciplined if they follow principled balancing
9

In District of Columbia v. Heller, 128 S. Ct. 2783, 2852 (2008) Justice Stephen Breyer, argued in his dissent that "[c]ontrary to the majoritys unsupported suggestion that this sort of proportionality approach is unprecedented, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases." See also Nixon v. Shrink Mo. Govt PAC, 528 U.S. 377, 402 (2000) (Rather, [the Court] has balanced interests. And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statutes salutary effects upon the others.).

rather than ad hoc balancing. All in all, Barak argues that if managed in the right way, and conducted carefully, proportionality provides a coherent, rational, and legitimate method for constitutional adjudication - indeed the best that currently exists.10

I.

BARAK AND THE CULTURE OF JUSTIFICATION

Proportionality has received many accounts over the years and a large literature has sprung around it, so that many approaches can be chosen to evaluate Baraks book. In this review article we would like to concentrate on one approach which has gained prominence in recent years and on which we have written also in the past: viewing proportionality as a requirement for justification. Our aim is twofold, first we would like to briefly show that viewing proportionally as a requirement for justification is indeed the best way to read Baraks book. Secondly and more importantly, our aim is to assess whether the idea of justification can provide a good defense and rationale for proportionality. In order to evaluate Baraks book and the doctrine of proportionality, it is important to conceive proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. In particular the three subtests of proportionality present a structured procedure through which government must formulate to itself, and present publicly: a. how its chosen means are rationally connected to its aims; b. how it is necessary to achieve them, and c. how the gain from those aims exceeds their costs in terms of protected rights.

Proportionality must be understood in the context of an entire culture that facilitates a robust requirement of justification -- a constitutional culture which we termed in an earlier article, following the late South African scholar Etienne Mureinik, the culture of justification.11 Mureinik presented this culture as an ideal for the new South African constitution and contrasted it with the "culture of authority" that had characterized the Apartheid regime:
10 11

Barak, supra note 7, at 479-480. Moshe Cohen-Eliya & Iddo Porat, 'Proportionality and the Culture of Justification', 59(2) Am J Com L 463 (2011). The first to have coined the term is Etienne Murenik, 'A Bridge to Where? Introducing the Interim Bill of Rights', 10 S Afr J Hum Rts 31 (1994).

If the new constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justificationa culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defense of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.12

In such a culture there exist in addition to proportionality several other features that add up to the totality of the requirements of justification. These include, among others: a broad conception of rights, such that would make many governmental actions raise constitutional concern; the obliteration of procedural barrier to judicial review, and therefore for justification, such as standing and justifiability, exemplified in the idea that there are no black holes in which government is not required to justify itself;13 and finally a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, since text, too, can be conceived as a barrier to a requirement for justification, as it might limit the set of possible rights and interests that can initiate a process of justification.

Barak himself is a major proponent of the ideas behind the culture of justification both in his judicial decisions and in his academic writings, and his book on proportionality is arguably the best and most comprehensive and coherent manifestation of this constitutional culture.

Barak has been crucially important in all the processes identified above as part of the culture of justification in Israeli jurisprudence. In his judicial decisions he has dramatically broadened existing conceptions of rights;14 practically obliterated the procedural barriers of justiciability and standing;15 and downplayed the importance of text and put instead a doctrine of purposive
12

Mureinik, id at 31. Also see article 33(2) of the South African Constitution, 1996, which provides: "Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons." 13 Aharon Barak, A Judge in a Democracy 194, 298 (Princeton University Press, 2006) (arguing that there are no black holes where there is judicial review). 14 See, e.g., HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (2005) (extending the right to human dignity to enumerated rights, such as equality, based on the value of autonomy). 15 See Barak's opinions in H.C. 852/85 Aloni v. Minister of Justice, 41(2) P.D. 1. (standing); HCJ 910/86 Ressler v. Minister of Defense, 42(2) P.D. 441 (justiciability).

interpretation which is based on the underlying values and principles behind the text.16 And, of course, Barak has also been the driving force behind the adoption and centrality of the doctrine of proportionality in Israeli conditional law, making it the most central doctrine in Israeli constitutional law to date.17

For Barak, therefore, proportionality is not just a doctrine, it is inseparable from his entire judicial and jurisprudential worldview, which we characterize as the culture of justification.

II.

JUSTIFYING JUSTIFICATION

The idea of justification not only clarifies the meaning and centrality of proportionality in Baraks book, it also provides a very appealing defense and rationale for it.

One of the main advantages of normative arguments in favor of proportionality that are based on the culture of justification is that they present a new perspective on the question that avoids the well rehearsed and somewhat deadlocked arguments based on rules versus standards, judicial activism, and judicial subjectivism. This would most likely be the approach that critics of Barak, such as Posner and Bork, would take if they were asked to review the book. They would, no doubt, take issue with Baraks assurances that proportionality can be controlled and made principled, and argue instead that by its open-ended and policy-oriented structure, proportionality provides an opportunity for judicial activism and power grabbing.18 On the other hand, proponents of balancing, such as Barak, would usually rely on a broader conception of the role of the judiciary, optimism with regard to the ability of judges to tackle complex situations without deteriorating to subjectivism, and the overly formal and restrictive nature of the alternative. The debate seems quite deadlocked

16 17

Aharon Barak, Purposive Interpretation in Law (Princeton University Press, 2008). CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Coop. Village [1995] IsrSC 49(4) 221, 404. This all sounds very much like standard-based activism, which we argued earlier is not a sufficient explanation for proportionality. We admit this point, but argue that our explanation adds an important angle to the discussion of these set of phenomena that are usually viewed only through the perspective of judicial activism. 18 See Posner, supra note 3 (describing Barak as a Legal Pirate and as an enlightened despot); Bork, supra note 4 (arguing that that the results of Barak free-wheeling approach to adjudication are dangerous.).

Approaches based on the culture of justification seem to avoid these arguments and present other arguments that may appeal to both sides of the debate.

The normative arguments in favor of proportionality as a requirement of justification were first promoted by Mattias Kumm. As he puts it: [p]roportionality based judicial review institutionalizes a right to justification that is connected to a particular conception of legitimate legal authority: that laws claim to legitimate authority is plausible only if the law is demonstratively justifiable to those burdened by it in terms that free and equals can accept.19As Kumm argues, proportionality is justified by a conception of legal legitimacy that is based on the ability of the state to demonstrate to its subjects the reasons and justifications for its actions - a process that Kumm terms Socratic Contestation. According to this conception, the courts, using proportionality, push the government to constantly provide a logical basis, and coherent reasons for its actions, which are crucial for the legitimacy of those actions.

Instead of attempting to make sense of authoritative legal materials the focus of courts engaged in proportionality analysis is the assessment whether a public action can be demonstratively justified by reasons that are appropriate in a liberal democracy. Call this the turn from legal interpretation to public reason oriented justification.20 Kumms idea of justifying proportionality ties to the even more general conceptions of Rawls' idea of public reason and the vast literature that has sprung out of it.21 According to the theory of public reason, the coercive power of the state is legitimate only insofar as the reasons of the state can be agreed upon, potentially at least, by every member of the society, and not such that are simply irrelevant to some (such as reasons deriving from divine authority, which are irrelevant to

19

Mattias Kumm, 'The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review', 4(2) L & Ethics of Hum Rts 141, 143 (2010). 20 Id, at 142. 21 John Rawls, A Theory of Justice (Harvard University Press, 1971). Public reason is a central theme in the literature on a deliberative conception of democracy. See, e.g., Amy Gutmann & Dennis Thompson, Democracy and Disagreement (Harvard University Press, 1996); Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans., MIT Press, 1996); James Bohman & William Rehg eds., Deliberative Democracy: Essays on Reason and Politics (MIT Press, 1997); Jon Elster ed., Deliberative Democracy (Cambridge University Press, 1998); Stephen Macedo ed., Deliberative Politics: Essays on Democracy and Disagreement (Oxford University Press, 1999); Amy Gutmann & Dennis Thompson, Why Deliberative Democracy? (Princeton University Press, 2004).

non-religious people). Public reason, following Kumm's idea, incurs finding out the reasons of government and making sure that they are the proper ones.

Another prominent scholar who gives a normative account of proportionality based on the idea of justification is David Dyzenhaus. Dyzenhaus ties justification with Fullers influential account of the Rule of Law. He argues that proportionality is inherent to the idea that government must account for the process by which it reached its decision, and the reasons and justifications for it, so that, to use Fullers terms, there is congruence between actual administration and the rules as announced.22 For Dyzenhaus and Fuller the process by which the government reaches its decisions is as essential to the legitimacy and authority of state action as the outcome, and indeed the two are inseparable. Dyzenhaus argues that: Fullers view of the process/substance distinction is central to an understanding of legal order as a culture of justification.... Proportionality, in this way, becomes integral to a culture of justification and the congruency principle.23

Recently Kai Mller has provided another important account of proportionality as justification, tying it to the duty to respect a persons autonomy and to a general right to liberty. According to Mller, the point of proportionality-based judicial review is:

to show a particular form of respect for persons by insisting that each and every state measure which affects a persons ability to live her life according to her self-conception must take her autonomy interests adequately into account Where one of th[e] conditions of proportionality, i.e., legitimate purpose, rationality, necessity and proportionality stricto senso is not met, the reasons for the limitation are not sufficiently strong; where all four conditions are cumulatively met, they are, and the policy is therefore constitutionally legitimate.24

22

David Dyzenhaus, 'Proportionality and Deference in a Culture of Justification' in Grant Huscroft, Brad Miller, and Gregoire Webber, eds., Proportionality (Cambridge University Press, forthcoming) (manuscript with the author). Dyzenhaus relies on Lon L. Fuller, The Morality of Law (1969, revised edition), 39, 46-91. 23 Dyzenhaus id at p. 2. 24 Kai Mller, 'Proportionality, Rights Inflation and the Right to Murder' (manuscript with the author) p. 12.

Mller furthermore ties proportionality to the idea of a broad conception of rights:

Under proportionality-based judicial review... the point of rights is not to single out certain especially important interests for heightened protection. Rather... the scope of freedom protected by rights must extend to everything which is in the interest of a persons autonomy.25

Mller therefore objects to approaches that protect only some particularly important libertyinterests by making only them into rights.26 Rather, all instances of burdening one's autonomy, even those that seem trivial, such as restricting pigeon feeding,27 or riding horses in the park28 (famous examples taken from the jurisprudence of the German Federal Constitutional Court) should bring about a need for justification and pass the test of proportionality. In this matter Mller joins Robert Alexy's influential writing which argues similarly that any restriction on the general right to liberty requires justification, and rejects the traditional approach of the common law which does not recognize the general right to liberty.29

As mentioned earlier, the idea of justification is central to Barak's judicial conception in general. Therefore, the argumentation in favor of proportionality based on the idea of justification appears also in Barak's book, and is one of his arguments:

Proportionality - and the act of balancing at its foundation - emphasizes the need to rationally justify a limitation of a constitutionally protected right. It also requires a constant examination of this justification's existence... [P]roportionality is aimed at a constant review of the existence of a rational justification for the

25 26

Id. at 11 (emphasis not in the original). See e.g., James Griffin that argues that rights can be distinguished from interests according to their importance and that the threshold for becoming a right can be derived from the idea of personhood. James Griffin On Human Rights, (Oxford University Press, 2008) 32-33. 27 BVerfGE 54, 143 (Pigeon-Feeding). See also Mattias Kumm, Whos Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law, (2006) 7 Ger. L. J. 341. 28 BVerfGE 80, 137 (Riding in the Woods) 29 Robert Alexy, A Theory of Constitutional Rights (Oxford University Press, 2010) (translated by Julian Rivers) at xlii. Also see T.R.S. Allan, Law, Liberty, and Justice (Oxford: Clanderon, 1993) 135-43.

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limitation imposed on the right, while taking into consideration each cases circumstances.30

III.

RIGHTS, REASONS AND VALUES

Justification-based accounts such as those of Barak, Kumm, Dyzenhaus, and Mller are very appealing. This part summarizes four main arguments that lie behind these accounts either explicitly or implicitly.

One can distinguish at least four strong rationales for the duty of the government to give justifications and provide reasons for its actions: it shows an attitude of respect towards the citizens affected by governmental actions; it is essential to the legitimacy of governmental authority; it facilitates democratic deliberation and participation, and it furthers governmental accountability and trust between the citizens and the government.

First, giving reasons for your actions reflects an attitude of respect to those who are affected by them. We expect those who make decisions that affect us to at least explain them and justify them to us, and we feel disrespect when they do not. A parent may answer his child because I say so whenever she decides, and a dictator may feel no need to provide justifications to his subjects, but an adult and a citizen in a democracy are owed an explanation. Eylon and Harel have a similar argument concentrating on the concepts of rights. They claim that the dignity of the person as reflected in the special authority she has over her rights is offended if those rights are infringed without justification or explanation: [R]ights demarcate the realm that should be respected the region in which one is master therefore [u]nilaterally infringing a right is wrong, not only because a right has been infringed, but also because the right-bearer is not treated as someone who has a say in the matter.31

30 31

Barak. Proportionality, supra note 7, at 458-9. Yuval Eylon, Alon Harel, 'The Right to Judicial Review', (2006) 92 Virginia L Rev 991, 1000.

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It follows that: The state must justify and, in appropriate cases, reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement.32

This entails, according to Eylon and Harel, that every individual has a right to a hearing before a court when her rights are being infringed.

Secondly, the legitimacy of state action is arguably dependant on the fact that it is properly justified. Stemming from the idea that the state is merely a trustee of the people, and acts as the peoples agent, the argument is that it must justify its actions to the people, and provide them with reasons and explanations. For liberal theorists even this is not enough, and in order for the reasons themselves to be legitimate they must be consented by the people, at least potentially. Justification itself, in order to be legitimate, must be rendered in terms that all those subject to the decision could agree to them. This is reflected in Rawlsian theories of public reason on which, as mentioned above, Kumm relies in his account.

Thirdly, an important rationale for giving reasons is that it invites a process of deliberation, discourse and active participation of the citizen in the democratic process. Without reasons and justification there is no basis for discourse and exchange. Authoritative, unexplained decisions, such as orders handed down by a commander to his soldiers, shut down a discussion and are meant to be followed regardless of their merits or justification, while the mere act of providing a reason, opens up the possibility for contestation, debate and re-consideration.

Two final interrelated rationales for justification and reason-giving are accountability and trust. The citizen-state relationship is often analogized to a principal-agent relationship. In such a relationship there must be accountability of the agent to the principal. Requiring justification is the method that ensures that the agent acts according to the interests of the principal, and not according to his own personal interests. Furthermore, justification promotes trust between the citizen and government as it provides accountability and transparency in the working of
32

Id, in the abstract.

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government. We are more prone to trust someone who acts transparently and is willing to give us the reasons for her actions, than someone whose reasons are unknown to us. Trust and accountability also secure more compliance by the citizens, enhancing legitimacy and reducing monitoring and compliance costs.33

Other than these strong rationales, a reason-giving, justification-based, account has also an important advantage over the alternative account of constitutional law, which we term the valuebased account. Value-based accounts typically ask whether a certain right is close enough to the core values of individual dignity, autonomy, and self-fulfillment in order to warrant protection, and grants more protection the more it promotes these values.34 On the other hand, the justification-based accounts, focus on the reasons for governmental action, and require good enough reasons for every liberty-infringing act, and thus do not concern themselves with evaluating the centrality and fundamental nature of any particular right.

Thus for example, rather than ask whether there is a right for homosexuals to engage in sodomy,35 and whether such right is fundamental or touches on some core notions of human dignity and autonomy, justification-based accounts would reverse the question and ask: are the reasons for limiting sexual liberty sufficiently strong and compatible with the principles of liberalism and personal autonomy. The government, through proportionality review, would have to show that its reasons for limiting this liberty are, according to Kumm, compatible with public reason, and, according to Mller, necessary and proportionate so as to show proper respect for autonomy. Such review would not require showing that homosexual sexual relations are a value of special social importance to warrant constitutional protection, and instead may set aside limitations on homosexual relations simply by showing that government did not have strong

33

Mathilde Cohen, 'Reasons for Reasons', in Approaches to Legal Rationality, Logic, Epistemology, and The Unity of Science Series, Vol. 20, Dov M. Gabbay et al., eds, Springer, 2010. The article is available in http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401707. 34 See Laurence .H. Tribe, American Constitutional Law (Foundation Press, 2nd. ed., 1988) 779; H.L.A. Hart, 'Between Utility and Rights' 79 Colum L Rev (1979) 828, 848. On Justice Brennan's heritage of a substantive and transformative democracy see Frank I. Michelman, Brennan and Democracy 130 (Princeton: Princeton University Press, 2005). 35 Bowers v. Hardwick, 478 U.S. 186 (1986) (the US constitution does not protect the right to engage in sodomy). This ruling was overturned in Lawrence v. Texas, 539 U.S. 558 (2003) (sodomy laws violate the US constitution).

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enough reasons to apply them and was motivated by an attempt to impose its moralistic views, which under most versions of liberalism would be illegitimate.36

Or take another example that presents some serious problems to value-based accounts pornography. Under the value-based account we need to ask whether watching pornography promotes certain important values for society and in particular those values that justify the protection of free speech: promoting democracy, truth and self fulfillment. Scholars strain in order to show that pornography indeed promotes such values, and should be warranted protection under the right to free speech,37 but as Frederick Schauer has shown, such attempts seem unusually weak and unconvincing.38 On the other hand, the justification-based account focuses on governmental reasons for limiting liberty, and would, again, easily show that it is hard to justify such limitations other than by illegitimate attempts of the government to impose its moralistic views. Justification-based accounts therefore avoid the need to fit constitutional claims into the straight jacket of particular rights, and touch instead on the basic liberal intuition that personal liberty cannot be infringed other than for the proper reasons.

IV.

WHY PROPORTIONALITY?

The idea that constitutional review should look into the reasons and justifications for governmental action is compelling and is supported by the above mentioned important rationales. Each of us has shown sympathy elsewhere to a reason-based account of judicial review and to its advantages over the value-based account.39 However, there is a crucial logical leap between arguing for a justification-based approach and arguing for proportionality. The argument, so it seems to us, is rushing through too quickly. Indeed it seems to us that all writers that we have cited as supporting the justification-based approach Kumm, Dyzenhaus, Mller
36 37

See Ronald Den Otter, Judicial Review in an Age of Moral Pluralism (Cambridge University Press, 2009). R. v. Butler, [1992] 1 S.C.R. 452. For an argument for constitutional protection to pornographic speech, see Ronald Dworkin, 'Liberty and pornography', (August 15, 1991) The New York Review of Books; Nadine Strossen, 'A feminist Critique of the Feminist Critique of Pornography' (1993) 179 Virginia L Rev 1099. 38 Frederick Schauer, 'Speech and "Speech" - Obscenity and "Obscenity"- An Exercise in the Interpretation of Constitutional Language', 67 GEO. L.J. 899 (1979) (arguing that pornography does not merit first amendment protection, and analogizing pornographic speech to sex aids).
39

Iddo Porat, 'The Dual Model Of Balancing', (2006) 27 Cardozo L Rev 1393; Moshe Cohen-Eliya, 'The Formal and The Substantive Meanings of Proportionality in The Supreme Court's Decision Regarding The Security Fence', (2005) 38 Isr L Rev 262.

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and Barak in his book on proportionality make this unnoticeable leap. They assume that proportionality follows logically, or necessarily, from the need to make government provide reasons for its action.

However, justification does not necessarily mean proportionality. Indeed, proportionality is only one way of looking into reasons, by way of examining the strength of the reasons in the individual case. An alternative method would be looking into the kinds of reasons, or categories of reasons, and identifying those categories which are impermissible, or incompatible with dignity, autonomy, and personhood. Indeed there is a long line of literature, starting with Razs important essay on exclusionary reasons, which adopts the idea of reasons as the core of rights and of judicial review, but ends up rejecting balancing-based methods such as proportionality.

Raz has famously argued that certain practical concepts, including orders, promises and rights, function as exclusionary reasons.40 They determine which reasons should be excluded from certain decision-making processes as irrelevant or incompatible with the particular type of decision. An order, for example, would exclude from a soldier any reasons for or against a course of action, other than the fact that a commander has given it to him. A promise similarly functions in a way that excludes otherwise relevant reasons for our action, by tying us to the course of action we had promised to take. A right, similarly ties the government to particular reasons, and forbids the government from basing its actions on other types of reasons which are impermissible or excluded. Several constitutional lawyers have taken up this idea to show how American constitutional law, in particular, exemplifies the idea of exclusionary reasons. The right to free speech for example makes reasons that have to do with the objection to the content of speech and its message excluded from governmental decision making, as government should not aim at curbing any speech because of its message. The right to equality is concerned with excluding discriminatory reasons; the right to the free exercise of religion excludes reasons having to do with singling out a certain religion for detrimental treatment, and so on.

Other writers, while not using the conceptual apparatus of exclusionary reasons, view the function of rights in constitutional law in very similar ways. John Hart Ely writes on malign
40

Joseph Raz, Practical Reasons and Norms (Oxford University Press, 2nd ed., 1999) pp. 35-44.

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preferences that are impermissible - such as an attempt to inhibit the political process, silencing, racism and so on. Ronald Dworkin writes about external preferences (a preference regarding what another person should or should not do) as types of preferences (or reasons) that should be excluded as illegitimate.41

All these important writers present in effect a justification-based account of constitutional law, one in which the government should submit its reasons for action, and those reasons should be reviewed by the courts, but the type of review would not be based on proportionality but rather on categorizing the kinds of reasons provided by government into permissible and impermissible reasons.

The idea of justification cannot support in and of itself the use of proportionality. We need to determine which of these methods proportionality or exclusionary reasons - better serves the rationales behind the idea of justification and compare the advantages and disadvantages of each method.

V.

EXCLUSIONARY REASONS OR PROPORTIONALITY?

The idea of justification cannot support in and of itself the use of proportionality. We need to determine which of these methods proportionality or exclusionary reasons better serves the rationales behind the idea of justification. We do not presume to resolve this question conclusively but wish instead to note some of the advantages and disadvantages of each method as an instrument for justification.

Proportionality has some obvious advantages as a method of justification over exclusionary reasons. Since these are relatively well rehearsed by advocates of proportionality we only mention them briefly. The most important advantage of proportionality is that it seems to provide
41

Ronald Dworkin, 'Defunis v. Sweatt' in Equality and Preferential Treatment (M. Cohen, T. Nagel, and T. Scanlon eds., Princeton University Press, 1977) 63 (external preferences); John H. Ely, 'Professor Dworkins external/personal preference distinction', 1983 DUKE L.J. 959 (malign preferences). Also see Richard .H. Pildes, 'Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law', (1994) 45 Hasting L.J. 711.

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a larger scope for justification than exclusionary reasons, as it extends over and beyond cases that involve illicit governmental motive, into cases where government acts out of legitimate reasons but pays too little attention to the protected right. To put it differently, proportionality review, and especially the third balancing test, requires justification regarding the merits of the decision and the cost-benefit calculation that applies to it, while exclusionary reasoning concentrates only on the outlines of the decision in terms of the legitimacy of the reasons behind it. It does not penetrate the merits of the decision itself once those reasons are legitimate. Secondly, proportionality, as a standard rather than a categorical rule, seems to be more case specific and individualized, and thus shows more respect to the person affected by the governmental action. Each persons claim for justification is reviewed according to the specific circumstances of the case rather than according to set categories of legitimate or illegitimate governmental reasons.

Despite these obvious advantages of proportionality, there are also important aspects in which exclusionary reasons better fit the idea of justification. We focus on four such aspects.

First, an exclusionary reasons review looks directly at the kinds of reasons given by the government for its actions. Since one of the rationales for the justification model is to make sure that government manifests the proper respect for the autonomy and personhood of the citizens, an exclusionary reasons review would be concerned directly with ruling out those types of governmental reasons, such as discriminatory reasons, that do not reflect the proper respect to autonomy and personhood. In this sense it seems to follow more naturally from the idea of justification than proportionality, which starts from the assumption that the reason is legitimate and proper and moves on to assess its strength and weight versus the conflicting right.

A related point is that the notion of respect which is again one of the rationales for the justification-based approach has a deontological character in looking at what is right or wrong, and in being categorical in nature. In this respect too it fits better with the exclusionary reasons approach, which is similarly categorical in nature and is concerned with permissible or impermissible reasons. Proportionality, on the other hand, is about degree and balancing which are less characteristic of deontological conceptions and more akin to a consequentialist approach.

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And to our third point: if, as mentioned earlier, one of the advantages of the justification basedapproach to constitutional law was that it shifted our focus from assessing rights to assessing the reasons for their infringement, and thus absolved us from the need to rank interests and rights, then proportionality would not be our ideal tool, and exclusionary reasons review would fare better. Indeed proportionality review, in particular the third balancing test, necessitates the assessment of the right in question in order to compare and balance it with the importance of achieving the governmental goal. On the other hand, an exclusionary reasons review would not have the same effect. A comparison between American and Canadian free speech jurisprudence illustrates this point. In the Canadian Keegstra case42 pertaining to hate speech, the Canadian Supreme Court applied the proportionality test and balanced between the right to free speech and the right to equality. The Court went into great detail explaining the rationales behind the right to free speech, and concluded that the right to engage in hate speech is not at the core of the right to free speech, and does not promote many of the rationales behind it. In the American R.A.V. case, also relating to hate speech, no such evaluation and assessment of the right to engage in hate speech was involved.43 R.A.V.s reasoning can be characterized as based on exclusionary reasons: the Court investigates the reasons for the governmental restriction of speech, and identifies them as illegitimate because they reflect viewpoint discrimination. Similarly, proportionality review in the Canadian Butler case44 brought with it an assessment of the importance and value of the right to engage in pornographic speech, while the corollary discussion in the American case of American Booksellers,45 did not delve into that question, but rather concentrated on the reasons for the restriction of pornographic speech and whether they can be squared with constitutional principles. Exclusionary reasons review therefore better fits the ideas behind justification since, unlike proportionality, it does not require the assessment of the importance and value of the right, which was one of the arguments for the justification-based approach in the first place.

42 43

R. v. Keegstra, [1990] 3 S.C.R. 697. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 44 R. v. Butler [1992] 1 S.C.R. 452. 45 American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

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The fourth and most telling point, to our mind, is that those writers and jurists that rely on justification to argue for proportionality use examples that are more rightly characterized as cases of exclusionary reasons in which we can discern the existence of actual bad motives that proportionality can help uncover.

Kumm, for example, uses as a central example in his justification-based account of proportionality the Lustig-Prean and Beckett v. United Kingdom case of the European Court of Human rights.46 In this case, the applicants complained that the investigations into their sexual orientation and their discharge from the Royal Navy on the sole ground that they are gay violated Article 8 ECHR. Article 8, as far as it is relevant, reads as follows: Everyone has the right to respect for his private life. Kumm argues that the kind of Socratic contestation that a proportionality review would initiate would flesh out the real reasons behind governmental action, which are in this case based on discriminatory motives and irrational biases. If for example there existed a less harmful alternative to achieve the governmental goal, the fact that the government did not choose it, is circumstantial evidence for the existence of another, illicit goal, which drives its decision. Kumm was therefore interested in the type of reason provided, and in the fact that it was not compatible with public reason, rather than with the strength of reasons or with proportionality. What proportionality actually does in Kumms example is help uncover the existence of an illicit or excluded governmental motive, and in that respect Kumms example can be used to support the exclusionary reasons model of justification rather than the proportionality model. Dyzenhauss leading example, (the British case concerning a refusal to accommodate wearing the veil in public schools) is similarly involving a suspicion for illicit motives, based on discrimination and prejudice against a religious and ethnic minority group.47 Baraks book is an excellent example of cases which involve proportionality and can be described as actually revolving on illicit and excluded motives. Two of the most central examples in Baraks book, mentioned earlier, the security fence and the family reunification cases are good points in mind. In both cases there was considerable suspicion that the motives of government were questionable, and proportionality could be interpreted as serving to uncover
46 47

Lustig-Prean and Beckett v. UK, App. Nos. 31417/96 and 32377/96, 29 Eur. H.R. Rep. 548 (1999). R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15.

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them. In the family reunification case, there were strong reasons to suspect that the motive was not security but governmental desire to maintain demographic balance between Jews and Arabs in Israel;48 and in the security fence too, there were reasons to suspect that the real motive behind the specific route of the fence was not national security but the desire to annex Palestinian territories to Israel.49

Exclusionary reasons can therefore be used to explain some of the decisions where the court intervenes using proportionality. It may also be helpful in explaining those decisions where the court does not intervene. Mllers examples show that when there is no suspicion of illegitimate motives, a proportionality review usually does not bring about judicial intervention. Two of the leading examples brought by Mller are actually examples of judicial deference and of a regulation that passes the proportionality test in cases which, according to our analysis, provide no reason to suspect that there was a bad motive behind the regulation. While the court recognized that there was an infringement of the general right to liberty when the government restricted pigeon-feeding in public squares, it showed deference to the governmental policy in its decision. The same applies to the case of a constitutional challenge to the restrictions on riding horses in the park.50

Two final notes are in order. First, it might be argued that a choice between proportionality and exclusionary reasoning is not necessary as they can both live side by side, or can be viewed as consecutive steps in a holistic review. Thus Barak, Kumm, Miller and Dyzenhaus may argue that they endorse exclusionary reasoning as a first step of the review, but wish to add proportionality as a second indispensable test. They may even view exclusionary reason within the purpose test, which some include in the proportionality test itself, so that it becomes the first step of proportionality. This is indeed a coherent view. However, these writers emphasize only proportionality as an outcome of their adoption of justification. Our point was to show that exclusionary reasons are just as much, or even more, a product of an emphasis on justification. Secondly, and more importantly, it is often the case that when proportionality is added to a preliminary test of illegitimate purpose or exclusionary reasons, it takes first place and
48 49 50

See the dissenting opinions of Justice Jubran and Justice Procaccia, at Adalah, supra note 8. Cohen-Eliya, supra note, at 276-9. Supra note 28.

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overshadows the first step. This is indeed the case in Germany where, according to Dietter Grimm, the purpose review prong of proportionality is practically unused by the courts. 51 The reason is that proportionality presents a much easier test for courts and one that leaves them much more discretion than purpose review. It is harder to devise and apply categories of excluded reasons than to balance costs and benefits or discuss necessity of means to ends.

Our second remark is that the discussion above does not review all possible arguments for adopting either proportionality review or exclusionary reasons review. We only concentrated on those aspect of the two modes of review that make them better candidates for a justificationbased approach. There are indeed many other aspects that are usually discussed in the debate over rules and standards, such as separation of power, democracy, efficiency, transparency and more. Our discussion therefore does not provide enough in terms of a general choice between the two approaches. However, it does, we hope, clarify that one cannot evade such considerations by shifting the debate over proportionality to the idea of justification. This is so, since justification can support just as much the opposite exclusionary reasons type of review.

CONCLUSION

Proportionality: Constitutional Rights and their Limitations is a seminal contribution to constitutional law and theory coming from one of the leading justices on the global scene the former President of the Israeli Supreme Court, Justice Aharon Barak. Baraks book is the most comprehensive and authoritative account of the vast literature on proportionality, and would be indispensable to anyone interested in the field. Barak evaluates in his book several justifications for the use of proportionality and several defenses of proportionality against its critics. In this review article we concentrated on one such defense, based on the idea of justification that seems to us both central to Baraks general jurisprudence and a new and promising approach that avoids some of the old and rehearsed arguments on judicial activism versus judicial restraint.

51

Dieter Grimm, 'Proportionality in Canadian and German Constitutional Law Jurisprudence', (2007) 57 Univ Toronto L J 383, 388 ("Cases in which the legislature pursues a constitutionally prohibited purpose (e.g., racial discrimination) are extremely rare.").

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We have identified several prominent recent writers and Barak among them that represent a shift in the literature on proportionality towards a justification-based approach. We have assessed the rationales behind the justification-based approach and pointed to its strength versus the alternative value-based approach. However, we claim, those rationales that support the justification approach do not necessarily support proportionality. Indeed, those writers who support the justification-based approach disregard the fact that proportionality is not the only method to promote justification nor even the best one. We argue that a more categorical approach, such as exclusionary reasons, follows just as much from the ideas underlying justification and may even fit better its rationales. Therefore, in order to be justified, proportionality needs another anchor than the justification-based approach, and attempts to save proportionality by relying on the idea of justification are problematic.

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