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Proper proportions of law : justifying democratic credentials of proportionality analysis in constitutional… Ponomarenko, Iryna 2013

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   PROPER PROPORTIONS OF LAW: JUSTIFYING DEMOCRATIC CREDENTIALS OF PROPORTIONALITY ANALYSIS IN CONSTITUTIONAL ADJUDICATION   by    Iryna Ponomarenko   A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF   Master of Laws   in   THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Law)    THE UNIVERSITY OF BRITISH COLUMBIA   (Vancouver)    October 2013            ? Iryna Ponomarenko, 2013        ii  ABSTRACT    When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation ? which it certainly is. Indeed, be it the Canadian Oakes test or European ?fair balance,? proportionality is deemed to be ?the best possible? discursive technique to achieve ?a positive partnership? between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal ? as well as legal and democratic ? justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas  ? and this last point is of particular significance ? very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other.           iii PREFACE  This thesis is original, unpublished, independent work by the author, Iryna Ponomarenko.                              iv TABLE OF CONTENTS Abstract................................................................................................................................ ii Preface ................................................................................................................................ iii Table of Contents................................................................................................................ iv List of Tables ....................................................................................................................... v List of Figures ..................................................................................................................... vi Acknowledgements ........................................................................................................... vii Introduction .........................................................................................................................1 Chapter 1: Proportionality Defined ........................................................................... 6 1.1 A Case for the Genealogical Reconstruction of Proportionality .................................... 7 1.2 Proportionality: Tracing the Historical Origins ........................................................... 15 1.3 The Nature of Proportionality: What's in a Name? .................................................... 29 1.4 Form and Substance: Deconstructing Proportionality into Its Basic Elements ........ 48 Chapter 2: Proportionality Debated ........................................................................ 57 2.1 Contested Nature of Proportionality: Frame of Reference ......................................... 57 2.2 Proportionality as a Rights Limitation Tool: A Trade of Rights for Results? ............ 67 2.3 Proportionality as a Weighing Exercise: A Fine Balance ........................................... 78 2.4 Proportionality as a Conceptualized Balancing Framework ...................................... 97 Chapter 3: Proportionality Defended .................................................................... 112 3.1 Is Proportionality Possible Here?: Principles for a New Proportionality Debate ..... 112 3.2. Are There Right Answers in Law?: Setting the Scene for a Discussion .................. 120 3.3. Anti-Archimedean Defense of Proportionality ........................................................ 124 Conclusions ..................................................................................................................... 139 References ....................................................................................................................... 145       v LIST OF TABLES  Table 1. The structure of the proportionality test in comparative perspective ................ 53                                      vi LIST OF FIGURES  Figure 1. Architectonic of the proportionality test............................................................ 41                                      vii ACKNOWLEDGEMENTS   Mastering the art of balance is a sine qua non of many human endeavors, be it making plans for family weekend, crafting governmental policies about controversial values, or finding the closing words that would strike at the emotional heart of a serious academic project. As I add the final touches to this research, I recall how on my first day of law school I went to the university bookstore and incidentally bought the Nicomachean Ethics by Aristotle ? it caught my eye while I was waiting at the checkout. In his seminal treatise, Aristotle argues that ethical virtues are achieved by striking a proportionate balance between the opposing states: the courage means holding a mean position in one's feelings of rash and fear; the virtue of generosity lies in between wastefulness and stinginess, and so forth. ?What a nonsense!? said 18-year-old I and closed a book with a slam. In those days, like every teenager, I wholeheartedly rejected the very idea of compromise.  It took me six long years to learn that life is not just black and white ? it contains shadows. It is fuzzy, unpredictable, and more often than not offers no ready answers. In life, there are no winners and losers, there are likewise no universal rules about how to live well ? finding the golden mean in any given situation requires weighing all relevant circumstances and exercising our unique capacity to reason. And so does law.  I am deeply indebted to my thesis supervisor at UBC, Professor Joel Bakan, who has encouraged me to undertake the project of exploring how law maintains a state of equilibrium between the opposing truths ? proportionality principle in constitutional adjudication. Professor Bakan is a person to whom I will never be       viii grateful enough for he gave me something more than benefit of his invaluable advice and feedback while writing this thesis ? he provided me with gentle guidance and wisdom that constantly fueled my love of discovery. I also owe my second reader, Professor Robin Elliot, a great debt for cultivating appreciation for linking theory and practice and Professor Mary Liston for encouraging clear thinking about the fuzzy issues.  Last and most certainly not least, deep gratitude is due to my family and friends for their patience, good humor, and love.                                     1 ... so a state, by adjusting the proportion between  the highest, lowest, and intermediate classes,  as if they were musical notes,  achieves harmony.1 Cicero, Republic  INTRODUCTION  When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation2 ? which it certainly is. Indeed, be it the Canadian Oakes test or European ?fair balance,? proportionality is deemed to be ?the best possible? discursive technique to achieve ?a positive partnership? between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as will be canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal ? as well as legal and democratic ? justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas  ? and this last point is of particular significance ? very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests.  In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing                                                         1 The remainder of the quote reads as follows: ?What, in the case of singing, musicians call harmony is, in the state, concord; it constitutes the tightest and most effective bond of security; and such concord cannot exist at all without justice.?  (In Marco Tulio Cicer?n, Niall Rudd & Jonathan Powell, The Republic and The Laws (Oxford University Press, 1998) at 58.) 2 Consider, for instance, an approach to defining proportionality adopted in recent treatise of Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012.)       2 private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other. I open Chapter 1 with the genealogical reconstruction of proportionality so as to suggest that the concept does have a history, and I trace that history to first accounts of the principle of justice. I then articulate and explore the contours of proportionality?s definitions in order to correct some of the most common misconceptions about it. An important step toward that end is to scrutinize proportionality under a microscope and elaborate on the submission that holds as follows: scratch beneath the surface of proportionality, and you see balancing. As such, it is important that the mainstream canon of proportionality be critically reviewed and a more profound account of the principle be taken: whether explicit (conceived as particularized ?weighing? of human rights against considerations that can justify their limitation) or in disguise (conceptualized as ?fit? between means and ends of the impugned legislation,) proportionality arguments inevitably boil down to balancing public and private constitutional interests and there is an inherent merit in this frank avowal. Pushed to its limits, this view suggests that no formal structure to value-laden argumentation can escape the balancing component which, as will be extensively covered in Chapter 2, is to be found in all proposed proportionality alternatives ? both categorization- and non-categorization-based. Proceeding on the assumption that at the core of proportionality lies balancing, and that balancing in rights adjudication is inevitable, I take a step further so as to introduce my next ? and probably most important ? inquiry: why do constitutional tribunals around the world, in assessing salutary and deleterious effects of impugned legislation, not address balancing explicitly and directly? Simply put, what is wrong ? formally, as well as substantially ? with abandoning the proportionality?s doctrinal matrix?  In some ways it is plausible to believe that only the substance of judicial reasoning matters. Underlying this notion would be the claim that balancing, if practiced openly, will       3 inevitably provide judges with the opportunity to find the ?right? answers to ?rights adjudication? questions. However, as counterintuitive as it may seem, this is not so. In Chapter 3 I offer an account of the ?right answer? theory to suggest that balancing, in whatever form it takes, is not a ?decision engineering that produces demonstrably correct answers by intelligible processes?. 3  This is particularly so because, to begin with, in constitutional adjudication, or any adjudication for that matter, judges operate on the assumptions premised on questionable, or highly contested, normative arguments and uncertain empirical propositions ? that is, they operate under the condition of epistemic uncertainty.  Another problem with the ?right answer? quest is that it often fails to take into account the peculiar nature of constitutional propositions: owing to the overly high level of generality and holistic nature of the Constitution, direct enforcement of its particular clauses does not necessarily embody the ?right? enforcement. Were the court to read the Constitution ?as it is,? the government, in crafting the rights-infringing legislation, could circumvent the constitutional imperatives through other means ? equally injurious to individual rights.4 In hard constitutional cases, therefore, in the absence of clear legal rules and empirical knowledge, judges are required to make decisions that go beyond the limit of technical rationality and engage their political and moral sensibilities. This being the case, the quest for right answers in law becomes noticeably nuanced: if the results pursued can never be strictly ?right,? at least under a conventional understanding of the term, the question, as Stephen Gottlieb so correctly puts it, should be approached not as psychological or procedural, but as jurisprudential: What ?improves? the results?5                                                          3 See Alexander T. Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96:5 The Yale Law Journal 943 at 976 ("To a large extent, the balancing takes place inside a black box.") 4 By way of illustration, consider the following scenario: were the court to ban only facial (formal) discrimination, the government could easily evade anti-discrimination rule by crafting the discriminatory law in neutral terms, but that would have the indirect effect of discrimination.  5 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 827.       4 Of all the possible solutions, one stands out in terms of the efficacy and legal rationale behind it. In refining and fixing constitutional principles, or what Mitchell Berman terms the ?constitutional operative propositions?, judges design decision rules and standards ? or, in modern constitutional parlance, formulae ? which render the operative proposition suitable to use in the resolution of the case before the court. Not only do these rules formalize legal reasoning and supplement other doctrines (designed as rules) to implement particular constitutional principles, but they also prevent predictable efforts by the government to skirt constitutional imperatives (for instance by formal compliance with decision rules)6 and to raise costs for officials of evasion or violation of those principles.  This then means that the government must provide ample justification for their actions.  Such anti-evasion doctrines, as Brannon Denning and Michael Kent term them,7 are almost ubiquitous in constitutional law. Proper purpose, rational connection, and necessity sub-tests in proportionality analysis are all illuminating examples of such doctrines. Once wrapped in the layers of these constitutional sub-tests, proportionality efficiently ?stresses the need to always justify limitations on human rights?.8 Moshe Cohen-Eliya and Iddo Porat characterize this requirement, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification.9 Reminiscent of such a perspective is the recent claim of Mattias Kumm who argues that proportionality is justified by a conception of legal legitimacy which is based on the ability of the state to demonstrate to its subjects the reasons and justifications for its actions ? a process which Kumm terms ?Socratic Contestation.? According to this conception, the courts, using proportionality, push the                                                         6  As a most emblematic example, consider the doctrinal frameworks for assessing formal and substantive equality. 7 Brannon Denning & Michael Kent, ?Anti-Evasion Doctrines in Constitutional Law? (2012) 4 Utah L Rev 1 at 61. 8 Aharon Barak, ?Proportionality and Principled Balancing? (2010) 4 Law & Ethics of Human Rights at 14. 9  Moshe Cohen-Eliya & Iddo Porat, ?Proportionality and the Culture of Justification? (2011) 59 American Journal of Comparative Law 463.       5 government to constantly provide a logical basis, and coherent reasons for its actions, which are crucial for the legitimacy of those actions.10 Proportionality boosts the legal credentials of the court by making the decision-making procedure transparent and intelligible to participating legal actors ? including those unsatisfied with the case outcome. While not camouflaging judicial lawmaking, properly employed, it requires courts to ?acknowledge and defend ?honestly and openly ? the policy choices that they make when they make constitutional choices?. 11  Although this judicial subjectivity is recognized,12 it is meant to achieve the proper solution determined according to objective considerations.13 As long as judges write opinions as though they believe that they are discovering answers in legal materials rather than simply filling gaps and resolving ambiguities, their answers are right in the sense that they are rationally (from an internal standpoint) justified. That belief itself, as Mike Dorf puts it, plays an important role in shaping and constraining what the positivist believes is the judges' discretion.14                                                                10 Mattias Kumm, ?The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review? (2010) 4:2 L & Ethics of Hum Rts 141 at 142. 11 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 801. 12 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 497 fn 95. 13 See Ronald Dworkin, ?Pragmatism, Right Answers, and True Banality,? in M Brint & W Weaver (eds), Pragmatism in Law and Society (1991) at 359; Aharon Barak, Purposive Interpretation in Law (Princeton University Press, 2005) at 202. 14  Mike Dorf, ?Is the Right Answers Thesis Superfluous??  Online at: < http://www.dorfonlaw.org/2010/08/is-right-answers-thesis-superfluous.html>       6 CHAPTER 1: PROPORTIONALITY DEFINED  In this Chapter, I aim to provide an account of the genesis and discourse of proportionality, raise theoretical and practical questions for its assessment, and illustrate the most intriguing research challenges and questions it raises (without claiming to provide comprehensive answers). I begin with a genealogical reconstruction of proportionality discourse, then briefly chart its adoption in a number of jurisdictions, and ultimately outline current understandings of it, while situating it within a comparative context.  The central concern of this chapter, therefore, will be to develop an adequate way of expressing proportionality?s meaning, regardless of the different cultural, historical, political, and legal settings in which it operates. In attempting to provide an all-embracing definition of proportionality, however, the challenge is to avoid Brian Tamanaha?s ?labeling test? ? specifically, that proportionality becomes whatever legal actors dealing with it attach the label ?proportionality? to. For, despite the global appraisal of proportionality as a universal template upon which different constitutional discourses are supposed to ultimately converge, proportionality can mean different things in different contexts at different times.15 This, together with a complex interplay of these differences, creates real challenges not only for defining proportionality, but for defending it as well.                                                           15 For a similar account, see, Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555.       7 1.1. A Case for Genealogical Reconstruction of Proportionality  The knowledge of an effect depends on,  and involves, the knowledge of its cause. Spinoza  As stated by Alec Stone Sweet and Jud Mathews, in many polities today, proportionality is treated as a taken-for-granted feature of constitutionalism.16 David Law, for his part, has posited that proportionality provides constitutionalism with a common grammar ? what he refers to as generic constitutional law.17 David Beatty has gone so far as to stipulate that proportionality may ultimately amount to a global rule of law, therefore putting an end to age-old controversies over constitutional interpretation.18 What quite often escapes such observations, however, is that even in the realm of drastic reduction of barriers to trans-border movement of constitutional ideas, 19  or, sensu Mark Tushnet, the ?inevitable globalization of constitutional law?,20 proportionality is not a necessity ? it is a deliberate choice.  Despite a seeming ?diffusion globally?,21 most legal orders still fail to embrace the discourse and practice of proportionality.22 Indeed, as a telling example, the                                                         16 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 76. 17 David S Law, ?Generic Constitutional Law? (2005) 89 Minn L Rev 652. 18 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006). 19 David S Law, ?Globalization and the Future of Constitutional Rights? (2008) 102 Northwestern U L Rev 1277. 20 Mark Tushnet, ?The Inevitable Globalization of Constitutional Law? (2009) 49 Va J Int L 985. For a similar account, see, e.g., Duncan Kennedy, ?Two Globalizations of Law & Legal Thought? (2003) 36 Suffolk U L Rev 631, who posits that the idea of ?balancing of conflicting considerations? is a defining characteristic of a ?globalization of law and legal thought? that has taken place since World War II.? 21 Proportionality is now reported to dominate the dockets of constitutional tribunals across the European continent, as well as in common law systems as diverse as Canada, South Africa, Israel, and the United Kingdom. 22 There is little to say, for instance, regarding the application of the proportionality framework in the Eastern Europe democracies. At the same time, proportionality is indeed reported to increasingly gain       8 United States, which in many respects is the driving force behind the global success of constitutional judicial review  ? is explicitly opposed to the idea of constitutional borrowing in general, and proportionality in particular.23 Furthermore, even in the legal orders where proportionality seems to permeate all aspects of constitutional legal discourse, courts may de facto deploy analytically and structurally different discursive techniques while still claiming, de jure, to operate under the ?proportionality? rubric. Stated otherwise, the mere fact that legal actors invoke the ?proportionality? language ? be it ?balancing,? ?weighing,? or ?means-ends analysis? ? does not necessarily signal the application of proportionality principles and process.   Moreover, on closer scrutiny it appears that different proportionality frameworks, as applied across different legal orders, may well be derived from almost identical constitutional provisions. This, in turn, challenges jurists to account for such differences by going beyond mere textual interpretation ? by noting the significance of non-legal contexts, such as historical and political discourse. An illuminating illustration of different judicial approaches to rights adjudication can be found in comparing   jurisprudence from each of the European Court of Human Rights and the Supreme Court of Canada. In both Strasbourg?s Convention24 and the Canadian Charter, 25  the guaranteed rights are qualified by limitation clauses                                                                                                                                                                                   weight in South America, following the infiltration of proportionality into Europe, in particular into Spain and Portugal. 23 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 206-208. 24 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 at 223, Eur TS 5 [ECHR] (commonly known as the European Convention on Human Rights). 25 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),  1982, c 11.       9 expressed in very similar terms. However,  the respective courts  actually engage in strikingly different reasoning processes. How do we account for these differences? It has become increasingly and regrettably common for commentators to identify similarities in how terms like ?balancing? and ?proportionality? are used without questioning the underlying parameters that provide these terms meaning. This is perhaps due to the fact that, as observed by the US Supreme Court Justice Breyer, ?[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances?. 26  Yet if we are to properly relate proportionality to some universal ?template?, as many posit we should, we cannot characterize it solely or mainly in terms of its  abstract features, but must account for the fact that it gains meaning  in specific legal landscapes and historical contexts. Nor, it should be noted, has proportionality remained unaltered from its original form (that is, copy-pasted) when subsequently migrating to other legal orders ? although it is plausible to assume that proportionality does ?travel well,? sensu Twining.27  It may be useful to sum up the arguments which necessitate the genealogical reconstruction of proportionality and its comparative treatment. To begin with, in some respects, the study of proportionality must be premised upon genealogical foundations, as is indeed the case with the study of any kind of legal concept. Borrowing Spinoza?s presupposition, to know proportionality adequately is to know it in its necessity, as it has been fully determined by its causes. In the second place, and perhaps even more importantly, a sense of history is vital to understanding                                                         26 Stephen Breyer, ?The Supreme Court And The New International Law? (2003) The American Society of International Law 97th Annual Meeting   27 William Twining, ?Have Concepts, Will Travel: Analytical Jurisprudence in a Global Context? (2005) 1:1 Int?l J of Law in Context 5 at 8.       10 proportionality because it tends to highlight its limitations. Indeed, certain scholars argue about the worldwide convergence upon proportionality as an advent of the ?ultimate rule of law?.28 However, Great Britain ? which is the birthplace of the rule of law doctrine in its literal sense ? these days shakes the European community by claiming to withdraw from the European Convention on Human Rights, primarily due to Strasbourg?s ?ludicrous abuses of justice carried out in the name of human rights?.29 There is a strongly held belief that this is due, in part, to a desire to circumvent the proportionality arguments that the European Court of Human Rights jurisprudence is based upon.30  At the same time - and this is the next argument in favor of genealogical reconstruction - being situated within its historical context, proportionality may be better defended against global criticism as this helps elucidate the centrality of proportionality to the constitutional nature of rights. I may exemplify this argument by referring to Gr?goire Webber?s assessment of proportionality and his proposed alternatives to it. 31  As put by Aharon Barak, ?[t]he accepted and proper view considers constitutional rights as a shield to protect individuals from the tyranny of                                                         28 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006). For a critique of Beatty?s approach, See Vicki C Jackson, ?Being Proportional about Proportionality? (2004) 21 Const Commentary 803. 29 Simon Walters, ?A great day for British justice: Theresa May vows to take UK out of the European Court of Human Rights? 2 March 2013, Daily Telegraph Online: <http://www.dailymail.co.uk/news/article-2287183/A-great-day-British-justice-Theresa-May-vows-UK-European-Court-Human-Rights.html> 30 For a further assessment, see, e.g., Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009); Jukka Viljanen, The European Court of Human Rights as a Developer of the General Doctrines of Human Rights Law - A Study of the Limitation Clauses of the European Convention on Human Rights (Tampere: Tampereen yliopisto, 2003); Mahoney, ?Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two sides of the Same Coin? (1990) 11 Human Rights Law Journal 57; Greer, ?Balancing? and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate? (2004) 63 Cambridge Law Journal 412. 31 See, e.g., Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009).       11 the majority, as reflected by the legislator?.32 Webber, a contrario, views the scope of constitutional rights as determined by the legislator ? the very same body that expresses that type of tyranny of the majority. Webber further proceeds on the assumption that, once the respectful boundaries are set (with the right?s proper interpretation and the limitation set by legislation), the rights become absolute. Implicit in such a perspective is that there is no need for proportionality ? or the balancing at its core ? which is the dominant motive of what Webber, ?somewhat polemically? as he himself admits, called ?the cult of constitutional rights scholarship?.33 Pushed to its limits this view suggests that ?the task of interpreting the scope of the right and setting its limits are provided to the legislator, and to the legislator alone?.34 This view is reminiscent of the approach of the United States Supreme Court35 and the jurisprudence of the authors brought forward by Webber in support of his criticism of proportionality ? namely Habermas, Nozick, and Dworkin36 ? but is not identical to theirs as it is more extreme.37 Yet, a legal system which would adopt such an approach, or any similar type, would risk undermining the constitutional nature of rights.                                                         32 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 494. 33  Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship?(2010) 23 C J L J 179 at 180. 34 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 494. 35 For a closer analysis of the categorization-based alternatives to proportionality as per American jurisprudence, as well as American strict scrutiny doctrine, see below, this chapter. 36 For a fuller account of the approach towards an absolute nature of constitutional rights , see, e.g., Ronald Dworkin, ?What Rights do We Have?? in Taking Rights Seriously (Oxford University Press, 1978) 266; Lorraine Weinrib, ??Limitations of the Rights? in a Constitutional Democracy? (1996) 6 Caribbean Law Review 428, in Joel Bakan et al, eds., 3rd ed, Canadian Constitutional Law, (2003), at 711 etc. 37 It is of note that there is also a connection between Webber?s and Jeremy Waldron?s approaches towards the judicial review. Waldron, for instance, argued that judicial review in Canada is not proper despite the existence of the limitation clause (Jeremy Waldron, ?The Core of the Case Against Judicial Review? (2006) 115 Yale L J 1346 at 1356.)       12 While there is room for disagreement here, it is important to bear in mind that the true purpose of every constitutional bill of rights is to limit the legislator38 ? and certainly not to grant it as wide a discretion as Webber advocates. In a similar vein, as per the extensive historical analysis recently offered by Moshe Cohen-Eliya & Iddo Porat, proportionality was created as part of an attempt to protect individual rights against a background of little textual support for such protection.39 The latter issue will be addressed more fully below. In the meantime, it is important to underscore that proportionality has also often been identified as the prime manifestation of the transition to a new age in legal argumentation in the course of the twentieth century40 ?  as in the absence of explicit protection of constitutional rights, many liberals resorted to the rhetoric of natural rights and anti-formalistic doctrines. With respect to balancing, which for the purposes of this analysis may be considered as analytically similar to the proportionality reasoning, Alexander Aleinikoff, in his famous study of the Age of Balancing in American constitutional law stated the following:  [B]alancing was a major break with the past, responding to the collapse of nineteenth century conceptualism and formalism as well as to half a century of intellectual and social change. ? Flying the flags of pragmatism, instrumentalism and science, balancing represented one attempt by the judiciary to demonstrate that it could reject mechanical jurisprudence without rejecting the notion of law.41                                                          38  See, e.g., Andras Sajo, Limiting Government: An Introduction to Constitutionalism (Central European University Press, 1999). 39 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8 Int'l J Const L 263 at 268. 40 Jacco Bomhoff, ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights 109 at 123. 41 Alexander T. Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96:5 The Yale Law Journal 943 at 949.       13   A wider understanding of proportionality, one that encompasses a genealogical account, may provide valuable insight into  underlying differences and similarities in constitutional discourses and attitudes. The language of proportionality does not only mean different things across jurisdictions but can vary as well ? to a significant degree ? within any given jurisdiction over a period of time.42 From the beginning of the 21st century, and within a relatively short time, discussion regarding comparative studies of proportionality has been revitalized through attention to history.43 The conclusions of this work   cast some   doubt on the generalizing claims of, for example, Duncan Kennedy  - who argues that the idea of ?balancing of conflicting considerations? is a defining characteristic of a ?globalization of law and legal thought? which has taken place since World War II44 -  and also Lorraine Weinrib, who posits that proportionality is an element of what she calls ?the Postwar Paradigm? of constitutional rights adjudication; a model for constitutional review which has had ?extensive reach and deep transformative power?.45  Recent scholarship, by offering a closer look at the phases in the development of proportionality analysis in different jurisdictions, challenges such general assumptions about the role of proportionality for global legal discourse  by focusing                                                         42 The jurisprudence of the European Court of Human Rights is an illuminating example. 43 See, e.g., Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum. J. Transnat?l L. 72; Thomas Poole, ?Proportionality in Perspective? (2010) 16 LSE Law, Society and Economy Working Papers at 2; Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2  Int J Constitutional Law 263; Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 181-189; Eric Allen Engle, ?The History of the General Principle of Proportionality: An Overview? (2012) 1-11 Dartmouth Law Journal 1; Dieter Grimm, ?Proportionality in Canadian and German Constitutional Jurisprudence? (2007) 57 U Toronto LJ 383. 44 Duncan Kennedy, ?Two Globalizations of Law & Legal Thought? (2003) 36 Suffolk U L Rev 63. 45 Lorraine E Weinrib, ?The Postwar Paradigm and American Exceptionalism? in The migration of Constitutional Ideas  (Sujit Choudhry ed., 2006) 84.       14 on the contrasts, similarities, and ? most importantly ? paradoxes which emerge when reflecting upon the historical origins and further diffusion of proportionality reasoning. As correctly observed by Jacco Bomhoff, the goals of finding a common ground for the purposes of the balancing discussion ? which he sees as canvassing the proportionality discourse as well ? are often elusive.46 Rephrasing his claim, proportionality references in the jurisprudence of constitutional tribunals across the world may manifest both a mix of different ideas expressed in very similar ways and similar ideas expressed in slightly ? but potentially significantly ? different ways. In Europe and Canada, for example, balancing is hardly ever mentioned without simultaneous reference to a ?principle of proportionality?, a term rarely used in U.S. legal discourse.47 Conversely, American judges and authors have often referred to balancing ?tests? while such designations are unfamiliar in Europe.48 Yet as Moshe Cohen-Eliya & Iddo Porat put it, ?[t]he two tests, balancing and proportionality, resemble each other in important aspects?49 and ?analytical differences between the two concepts are not substantial enough to account for the differences in attitudes towards them?.50  The work of British commentator Jacco Bomhoff also underlines the importance of situating proportionality within a historical and comparative context    On the face of it, he suggests,  balancing as an analytical process fits well within                                                           46 Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555 at 560. 47 Vicki C. Jackson, ?Being Proportional about Proportionality? (2004) 21 Const. Commentary 803. 48 Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555 at 560. 49 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2  Int J Constitutional Law 263 at 267. 50 Ibid at 268.       15 traditionally dominant functionalist approaches to comparative law,51 which posit that different legal systems  face similar sets of problems. Balancing and proportionality in constitutional adjudication, from this perspective, would provide universal solutions to the problems of limiting and adjusting constitutional rights protection. Yet were we to use the seemingly similar problems as the starting-point for a comparative inquiry into proportionality, Bomhoff suggests, we would soon be frustrated by a degree of isolation of legal orders and legal discourses that is considerably higher than conventionally understood.    1.2. Proportionality: Tracing the Historical Origins  Proportionality?s story has many chapters. As Aharon Barak observes, the notion of proportionality has inspired thinkers throughout the generations. 52 Drawing on recent scholarship, this section will seek to situate proportionality in its historical and political context: for whereas none of proportionality?s questions relate solely to genealogy or evolution, all of them, as will be argued and revealed throughout the thesis, have historical dimensions.  Another purpose of this section is to suggest that critical analysis of proportionality?s evolution as traced in different parts of the world ? together with key concepts of its rhetoric ? is an important task for an expanded concept of                                                         51 Jacco Bomhoff, ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights  109 at 117. 52 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 175. For a discussion of proportionality in Christianity, for instance, see G L Hallet, Greater Good: The Case for Proportionalism (Washington, DC: Georgetown University Press, 1995).       16 proportionality as a particular form of legal discourse, not only a formal argumentative structure or a skeleton doctrinal tool.53 To begin with, while the orthodox narrative traces proportionality?s origins to continental European sources, especially German administrative law, 54  the very notion of proportional balance is deeply embedded in classical conceptions of justice. ?An eye for eye and a tooth for a tooth,?55 a proportional notion, is historically the emblematic form of a measured response. 56  By the same token, the substantial contribution to the development of proportionality as a rational concept can be attributed to classical Greek notions of corrective justice (justitia vindicata) and distributive justice (justitia distributiva). 57  British commentator Thomas Poole argues that ?the conventional wisdom of proportionality, which if not strictly speaking incorrect is at best a very partial truth?.58 It is necessary, he says, to ?turn                                                         53 For a pertinent discussion, see especially Jacco Bomhoff, ?Genealogies of Balancing as Discourse" (2010) 4: 1 Law & Ethics of Human Rights 109. 54 Most commentators embrace the view that it is from German origins that proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also subsequently migrated to treaty-based regimes, including the EU, the ECHR, and the WTO (Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 72). For a similar account, see also Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2 International Journal of Constitutional Law 263; Dieter Grimm, ?Proportionality in Canadian and German Constitutional Jurisprudence? (2007) 57 UTLJ 383; Amir Attaran, ?A Wobbly Balance? The Comparison of Proportionality Testing in Canada, the United States, the European Union and World Trade Organization (2007) 56 University of New Brunswick Law Journal 260; Margaret de Merieux, ?Establishing the Democratic Credentials of Legislation: R. v. Oakes and the Section 4 of the Human Rights Act (1998) (UK)? (2001) 30 Comm. World L. Rev. 193. 55 See Exodus 21:23-25 (?But if any harm follow [when men strive together], then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.?) See also M Miller, Eye for Eye (Cambridge University Press, 2006). 56 M J Fish, ?An Eye for an Eye: Proportionality as a Moral Principle of Punishment? (2008) 28 OJLS 57. For a history of the concept of proportionality that focuses on penal law from Beccaria and Bentham, see A Ristroph, ?Proportionality as a Principle of Limited Government? (2005) 55 Duke Law Journal 263.  57 See E Weinrib, ?Corrective Justice? (1992) 77 Iowa L Rev 403; I Englard, Corrective and Distributive Justice: From Aristotle to Modern Times (Oxford University Press, 2009);  Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369. 58 Thomas Poole, ?Proportionality in Perspective? (2010) 16 LSE Law, Society and Economy Working Papers at  3.       17 first to Plato and then to Cicero, two defining writers on law and politics in the classical world, in order to uncover an older ancestry for proportionality than is generally recognised?.59 German scholar Eric Engle, for his part, suggests that the works of Aristotle should be referred to, not least his idea ?that the just is a ratio between two parties mediated by an abstract principle ? is still a part of contemporary law as shown by the general principle of proportionality?.60  Consider a characteristic example. At the centre of Plato?s dialogue Critias, in effect a political allegory, lies the recounting of a legend of the interaction between two ancient cities: one, (Old) Athens, embodies the excellence of equilibrium and lasting unity; the other, Atlantis, embodies the corruption that goes with unbalanced (imperial) growth. 61  ?The catastrophe of Atlantis, predictable ever since the description of the island, will be the physiological result of the pronounced imbalance62 of its constitution?.63  For Plato, thus, the city is a political living being. It is a particular place; it is also a particular population and a particular constitution. On Poole?s reading of Plato, the city, like the men who inhabit it, has intelligence, a soul.64 The ?individual and the city are identical objects, which differ only in scale and upon which the same letters are inscribed, those of the term ?justice??. 65 Justice in respect of the individual is the same as justice in respect of the city. For both, the end to which reason guides them is a harmonious internal order. The reason and harmony of the universe is                                                         59 Ibid. 60 Eric Allen Engle, ?The History of the General Principle of Proportionality: An Overview? (2012) 1 at 2. 61 Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369 at 375. 62 Emphasis added ? I.P. 63 J F Pradeau, Plato and the City (Exeter: University of Exeter Press, 2002) at 129. 64 Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369 at 375. 65 J F Pradeau, Plato and the City (Exeter: University of Exeter Press, 2002) at 44.       18 arranged geometrically and consists of (or is expressed by) sets of mathematical ratios.66 The proper means to achieve this order is law (nomos)67 ? the ?distribution of reason?68 ? in the sense that through it, reason determines modes of conduct, and also in the sense that reason effects a distribution69 (a sharing out of what is due to each individual in the city). 70  Proportionality, as Thomas Poole stipulates, is a pivotal concept within this vision of the city. Justice, for Plato, is ultimately a question of proportional equality.71 Justice is defined by Socrates72 in the Republic as a matter of ?rendering to each that which is fitting [for him]?.73    In a similar vein, the idea of justice as proportionality appears clearly in Aristotle's Nicomachean Ethics, Book V. In Aristotle, as Eric Engle argues, the                                                         66 Including the so-called Golden ratio or Golden mean, hugely influential among Renaissance artists and architects.  For a pertinent discussion, see Thomas Poole, ?Proportionality in Perspective? (2010) 16 LSE Law, Society and Economy Working Papers at 5. 67J F Pradeau, Plato and the City (Exeter: University of Exeter Press, 2002) at 142. 68 Ibid at 714a2. 69 Eric Engle (in ?The History of the General Principle of Proportionality: An Overview? (2012) 1 at 3) quotes Hans Hanau, Der Grundsatz der Verha?ltnisma?ssigkeit als Schranke privater Gestaltungsmacht: Zu Herleitung und Struktur einer Angemessenheitskontrolle von Verfassungswegen (2004). ?Proportionality as an element of Legal Concept [Rechtsidee; lit. idea of right]1. Iustitia distributiva as an ultimate form of justice. Distributive justice. The ancient [Ur] form of justice goes back to Aristotle, and later was called by the commentators distributive justice. The goal of distributive justice is relative relational equality in the treatment of different persons in measure to a pre-conditional differentiation criterion. The proportion which falls to individuals corresponds to the degree to which the differentiation criteria are fulfilled, in connection with the comparator group. This principle then determines entire categories of compensatory interests. Distributive Justice appears in various forms which can all be traced back to this principle. The exemplary case of distributive justice is the judgment of the comportment of a judicial instance which decides the allocation to third parties. In this case of (at least) three persons' relationship, the judging instance is superior to the receivers. The judgment meets the right measure of the demands of distributive justice only when the (at least four) elements are taken into account by the judgment (i.e., A will perform C and B will perform D) in a determined (according to Aristotle) geometric proportion. If, for example, money should be distributed according to the different needs of the addresses of rights, the different degrees of necessity of A and B must correspond to the different levels of the distributed contribution (the paid-out contributions of C and D must relate to each other to the degree of the needs of A to B; A:B::C:D).? 70 J F Pradeau, Plato and the City (Exeter: University of Exeter Press, 2002) at 142. 71 Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369 at 378. 72 Compare with Mattias Kumm, ?The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review? (2010) 4:2 L & Ethics of Hum Rts 141. 73 Plato, Laws (in T.R. Saunders (ed), London: Penguin, 2004) at 332c.        19 proportionality inquiry goes to justice as the right ratio ? the relationship between a distributive principle and the shares apportioned thereby.74 He then goes a step further by positing that the idea of proportionality as a specific rule of law emerged obliquely from Aristotle's thought as a vague and general but increasingly concrete and definite proposition of the law of self-defense 75  in Cicero, 76  Justinian, 77 Augustine,78 and Aquinas.79 While drawing extensively on Aristotle, Cicero?s theory of justice is also grounded in cosmological and theological roots broadly similar to those of Plato?s. As Thomas Poole describes it, Cicero assumes that there is a deep connection between cosmic order and political rule.80 Although mathematics and geometry are absent in his works, being unsuited to a Roman audience, much of the language used to express overarching political goals ? ?balance,? ?harmony,? and so on ? remains the same. In his famous Republic, Cicero stipulates the following:    Just as with string instruments or pipes or in singers? voices a certain harmony of different sounds must be maintained [...] and as that harmony, though arising from the management of very different notes, produces a                                                         74 Eric Allen Engle, ?The History of the General Principle of Proportionality: An Overview? (2012) 1 at 4. 75 Ibid at 6. 76 Marcus Tullius Cicero, Treatise on the Commonwealth in Francis Barham, Esq., The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws, translated from the original, with Dissertations and Notes in Two Volumes, Vol. 1 (London: Edmund Spettigue, 1841) 77 Digest of Justinian 43.16.3.9, 291 (Alan Watson ed. 1985). ?Those who do damage because they cannot otherwise defend themselves are blameless... It is permitted only to use force against an attacker and even then only so far as is necessary for self-defense.? 78  See Augustine, The City of God, chapter 7, http://www.newadvent.org/fathers/120119.htm. Augustine discusses just war theory but does not use the term proportionality (between force and threat). He does however use the term ?just war?. This seems to be the first use of the signifier ?just war? (certainly it is one of the earliest).  79 Thomas Aquinas, Summa Theologica, Treatise on Law 81-82 (1965). Generally, Questions 90- 97 esp. 95/3, 96/1 (Hereinafter ST), http://www.ccel.org/a/aquinas/summa/FS.html. 80 Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369 at 380.       20 pleasing and agreeable sound, so a state, by adjusting the proportions between the highest, lowest, and intermediate classes, as if they were musical notes, achieves harmony. What, in the case of singing, musicians call harmony is, in the state, concord.81      On another occasion, Cicero describes law as the recta ratio naturae congruens82 ? meaning the right ratio, the proper proportion. This concretization is further refined by Aquinas in the law of self-defense of states.83  Aquinas presents the first reconstruction of Aristotle's concept into the now known multi-step proportionality procedure.84 It resembles the modern account of proportionality?s argumentation framework so strikingly, that I intend to provide his thesis in full, as summed up by Eric Engle:85  In the law of self-defense, there are conditions that must exist for the use of force to be just; force must be necessary, and force, when used, must not be excessive ? it must be proportional - it must be exercised by the sovereign according to rules.   Aquinas's theory on proportional self-defense, in turn, came to be seen as a general principle of law by Grotius.86 The principle would apply not just to states in their mutual relations, but also to individuals in their mutual relations. Grotius thus                                                         81 N Wood, Cicero?s Social and Political Thought (Berkeley: University of California Press, 1988) at 69. 82 Cicero, De Republica         83 Thomas Aquinas, Summa Theologica, Second Part of the Second Part Q. 40 (Benziger Bros. ed. 1947), http://www.ccel.org/a/aquinas/summa/SS.html. 84 That is, that the reviewing court must consider: (1) whether the measure was suitable to achieve the desired objective; (2) whether the measure was necessary for achieving the desired objective; and (3) whether, even so, the measure imposed excessive burdens on the individual it affected. 85 Eric Allen Engle, ?The History of the General Principle of Proportionality: An Overview? (2012) 1 at 5. 86 Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations, translated from the Original Latin of Grotius, with Notes and Illustrations from Political and Legal Writers, by A.C. Campbell, A.M. with an Introduction by David J. Hill, Introduction, ? 62 (1901)., http://oll.libertyfund.org/title/553/90737/2052898 on 2009-03-08. ?The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon consent.?       21 transitions the concept into modernity and links the idea of justice as proportion (ratio) to the idea of interest balancing as a method for dispute resolution.87  As Aharon Barak describes it, the development of the concept of proportionality is also inexorably linked to the Enlightenment of the eighteenth century and the notion of social contract.88 Shifting paradigms in understanding the relationship between citizens and their rulers manifest a new societal development - the notion that it was citizens who provided their rulers with powers ? limited powers ? and that those powers were granted, and legitimately deployed, only used for the people?s, not the rulers. Such ideas were embodied in the notion of the liberal state, the proponents of which espoused a wide array of views but generally supported ideas of free and fair elections, civil rights, freedom of the press, freedom of religion, free trade, and private property.89 At the core of the liberal state theory, though, is the notion that not every purpose which serves the public interest is justified when it also limits fundamental human rights.90 A product of interpretation of Platonic and Cicerian theory, the modern articulation of the proportionality concept (Verh?ltnism??igkeit) was first applied in mid-18th century Prussia, as the law was codified on Rechtsstaat (a state ?governed by law?) lines, and refined by the German courts in the 19th Century.91 According to most German commentators today, it was Carl Gottlieb Svarez (1746-1798) who,                                                         87 Eric Allen Engle, ?The History of the General Principle of Proportionality: An Overview? (2012) 1 at 5. 88 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 176. 89 See, e.g., Kathleen G. Donohue, Freedom from Want: American Liberalism and the Idea of the Consumer (New Studies in American Intellectual and Cultural History) (Johns Hopkins University Press, 2007). 90 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 177. 91 Theo Barclay, ?The proportionality test in UK Administrative Law - a new ground of review, or a fading exception?? http://www.sjol.co.uk/issue-3/proportionality.       22 more than anyone else, contributed to the development of proportionality.92 Svarez notes, as per the principal tenets of the Enlightenment, that the state may only deprive the liberty of one subject in order to guarantee the freedom and safety of another or others. Alec Stone Sweet and Jud Mathews provide the translation of  his treatise, Lectures on the State and Law, where Svarez not only describes the balancing exercise, but also insists that it should proceed with a thumb on the scale in favor of rights:   Only the achievement of a weightier good for the whole can justify the state in demanding from an individual the sacrifice of a less substantial good. So long as the difference in weights is not obvious, the natural freedom must prevail. . . . The [social] hardship, which is to be averted through the restriction of the freedom of the individual, has to be more substantial by a wide margin than the disadvantage to the individual or the whole that results from the infringement.93  As opposed to Svarez? ideal social notion, as a positive legal concept proportionality may be traced to Prussian administrative law of the second half of the 19th century.94 Alec Stone Sweet and Jud Mathews observe that throughout the nineteenth century, scholars continued to reiterate and refine proportionality-based standards for the exercise of police power, and these ideas were finally given agency with the establishments of administrative courts.95 Under Friedrich Wilhelm III,                                                         92 For an overview of the pertinent literature, see Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 177.  93 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 91; quoting Carl Gottlieb Svarez, Vortra?ge ?ber Recht und Staat (Hermann Conrad & Gerd Kleinheyer eds., Westdeutscher Verlag 1960) at 40. 94 Mahendra P Singh, German Administrative Law - In Common Law Perspective (Berlin, Springer, 2001). 95 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 91. As the scholarly discussion of proportionality appears to well anticipate its doctrinal articulation it is worth quoting the following passage from the above piece,       23 successor of enlightened rule of Friedrich the Great, the law was codified to include a provision that ?the police [are] to take only the necessary measures for the maintenance of public peace, security, and order ?.?96 To be more specific, Article 10(2) of the Allgemeines Landrecht of 1794 authorized the government to exercise police powers in order to ensure public peace. However, at the same time, it also limited those powers to such measures which were essential for achieving that goal.97 As Moshe Cohen-Eliya and Iddo Porat put it:           It is clear, both from the language of this provision and from its underlying logic, that this was a reversal of the default rule by which state action was legitimized under German public law. If in the past state action had been held to be valid, even when it was not explicitly permitted under the law, henceforth the validity of such action depended on explicit textual authorization.98            An explicitly articulated concept of proportionality was first endorsed by Prussia's Oberverwaltungsgericht, or Higher Administrative Court, which began operating in 1875. In a long line of cases, the court ruled that police conduct was illegal because it was disproportional.99 Interestingly enough, there appear to be two different, and indeed contradictory, lines of reasoning which seek to account for the                                                                                                                                                                                   where the authors offer an alternative account of proportionality?s German roots: ?Perhaps the most significant figure in the mid-nineteenth century was Robert von Mohl, whose concepts of ?objective disproportionality? and ?subjective proportionality? anticipated proportionality in the narrow sense  95and the necessity principle, respectively. While von Mohl built on the work of earlier jurists, he grounded proportionality not in natural rights theory, as Suarez had done, but in rule of law concepts.? 96 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 100, cited in Allgemeines Landrecht f?r die Preu?ischen Staaten [ALR] Feb 5, 1794, ? 10 II 17. 97 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2 International Journal of Constitutional Law 263 at 271. 98 Ibid at  99 More accurately, though, the Court was employing the ?necessary measures? clause of the Article 10(2) of the Allgemeines Landrecht of 1794 (cited above) to annul police measures on least restrictive means grounds.        24 invocation of such proportionality. Per the first explanation, the tendency of Prussian administrative courts to focus on proportionality was in line with formalistic German legal science which was deeply imbedded in the legal tradition. On an account offered by Moshe Cohen-Eliya and Iddo Porat, the German law scholars of the time, headed by Savigny, often borrowed from the natural sciences in order to exemplify the logic of the law and the systematic way in which legal rules are created and function. For example, in the same way that one can derive the length of one side of a triangle from the lengths of its two other sides, one can also derive (so they claim) any missing rules from the existing rules of law.100 Proportionality, thus, unlike ad hoc, intuitive, and highly partisan balancing, ?was a prerequisite for improving the administration and making it more effective, and this improvement could be achieved by focusing on the means-ends nexus?.101  Odd as it may sound, in parallel with this formalistic discourse, the development of the concept of proportionality was also seen as a counter-formalistic movement, 102  that is, the move from the jurisprudence of concepts to the jurisprudence of interests. The proponents of the latter, notably von Jhering, viewed law as a domain whose purpose is to settle conflicts between competing interests by way of balancing; he further viewed judging as a creative activity  heavily influenced by judges' personalities. 103  Addressing the American jurisprudence of the time, Alexander Aleinikoff  likewise draws a parallel between predisposition of courts to                                                         100 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2 International Journal of Constitutional Law 263 at 283. 101 Ibid. 102 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 177. 103 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2 International Journal of Constitutional Law 263 at 284.        25 balancing ? which is at the core of proportionality ? with the tendency to move away from judicial formalism:  [B]alancing was a major break with the past, responding to the collapse of nineteenth century conceptualism and formalism as well as to half a century of intellectual and social change. ... Flying the flags of pragmatism, instrumentalism and science, balancing represented one attempt by the judiciary to demonstrate that it could reject mechanical jurisprudence without rejecting the notion of law.104  Despite the uncertainty of its true origins, the development of proportionality in 20th century Germany, as Aharon Barak points out, continued well into the beginning of the 1930s. It continued throughout the Weimar Republic, and ended with the rise to power of the Nazi party when ?[l]abeling a state measure ?political? was usually enough to shield it from judicial review?.105 Following the tendency to subject a state?s actions to judicial review after the Holocaust, however, proportionality was finally constitutionalized by the mid-20th century. The German Basic Law of 1949 established the Federal Republic ? a new constitutional order grounded in a commitment to human rights enforceable as higher law106 ? and created a constitutional court, upon which was conferred jurisdiction to defend those rights. Immediately, jurists began arguing for the recognition of proportionality as a constitutional principle. 107  By the late 1950s, proportionality had assumed its                                                         104 Alexander T. Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96:5 The Yale Law Journal 943 at 949. 105 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 103-104, citing Michael Stolleis, The Law Under the Swastika, translated by Thomas Dunlap (Chicago: The University of Chicago Press, 1998) at 134. 106 Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 94. 107 It is of important note that the Basic Law for the Federal Republic of Germany does not contain any explicit provisions relating to proportionality.       26 present four-stage form and by 1963, the court declared that it would be applied to all cases.108 Thus, in sum, the concept of proportionality evolved from a prohibition of disproportionality (Uebermassverbot) (the state must not act too broadly) toward a more clearly defined and restrictive principle that the state must use proportional means to legitimate ends (Verhaeltnismaessigkeit) in the post-war era. 109   The principle took further hold in continental Europe and was then taken up by the European Court of Human Rights upon its founding in 1959, and later by the fledgling European Community as a conceptual ?meta principle of judicial governance? by a number of other states and by various international regimes, most notably the European Convention on Human Rights, the European Community, and the World Trade Organization.110 In English law, the impetus behind the adoption of the proportionality test came directly from European sources, predominantly the jurisprudence of the European Court of Justice and the European Court of Human Rights (ECtHR). Elsewhere in the common law world, the importation of the principle from continental European sources is less direct but just as clear. In New Zealand?s case, for instance, the principle was imported from Canada. Be that as it may, proportionality has been absorbed into Commonwealth systems (Canada, South Africa, New Zealand,) and, via European law, the U.K. Indeed, it is also presently making inroads into Central and South America. As argued by Stone Sweet &                                                         108 Mark Zion, ?Effecting Balance: Oakes Analysis Restaged? (forthcoming in the Ottawa Law Review, on file with author) at 4. 109 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8:2 International Journal of Constitutional Law 263. 110 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum. J. Transnat?l L. 72 at 112.       27 Mathews, by the end of the 1990s, virtually every effective system of constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets of proportionality analysis.111 In 1999, the principle of proportionality was incorporated into the EU Amsterdam Treaty. Article 3 of the EU Amsterdam Treaty states: ?Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.? In addition, this is also explicitly referred to in Protocol (30) on the application of the principles of subsidiarity and proportionality annexed to the Treaty on the European Union and to the Treaty establishing the European Community: Each EU institution shall also ensure compliance with the principle of proportionality, according to which any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty. At this point it is logical to ask the question, ?what are the reasons for proportionality to spread across jurisdictions?? As Vlad Perju puts it, the range of available accounts spans the entire spectrum, from cold realism to an idealism of sorts.112 For Mattias Kumm, proportionality is justified by a conception of legal legitimacy which 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.113                                                         111 Ibid at 74. 112 Vlad Perju, "Proportionality and Freedom: An Essay on Method in Constitutional Law" (2012) 1:2 Journal of Global Constitutionalism 1 at 2. 113 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). at 142.       28 Similar to such a perspective is a submission by Moshe Cohen-Eliya and Iddo Porat, who have recently argued that proportionality:      is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality.114                   Frederick Schauer , in seeking to account for the widespread acceptance of proportionality around the globe, stresses that, with the exception of the United States, constitutional systems with judicial review are relatively recent creations, the product of post-WWII developments. As a result, he argues, constitutional jurisprudence in such systems is still developing, and the amount of doctrine and case law is relatively light. In these early stages of legal development, standard-based doctrines such as proportionality are more appropriate than categorical ones, as they allow for the doctrine to develop naturally, and avoid constraining it in advance.115  It is worth noting that, later in his text, Schauer goes a step further and provocatively argues that, as European constitutional law matures over time, it will develop the same rule-like structure which characterizes the more mature American constitutional system116 (the latter will be examined in more detail in the second                                                         114 Moshe Cohen-Eliya & Iddo Porat, ?Proportionality and the Culture of Justification? (2011) 59 Am J Comp L 463. 115 Ibid. 116 Frederick Schauer, ?Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005) at 68.       29 chapter of the thesis.) That being said, the thorough historical and cross-border assessment of proportionality reveals that what we are witnessing is not a convergence, but ?a much more complex set of phenomena encompassing both fundamental similarities and profound differences?.117     1.3. The Nature of Proportionality: What's in a Name?  It is safe to assume that, although proportionality means different things in different contexts at different times, a general explanation of its nature would presuppose that all or at least most of these different concepts of proportionality   have something in common ? that there is a concept of proportionality. A first clue might lie with the fact that term ?proportionality? is derived from the Latin phrase pro portio, in equal shares, thus indicating a concern with the distribution of some kind of equal weight to various interests.118  Moving to the constitutional context, proportionality is typically defined as a set of rules determining the necessary and sufficient conditions for a limitation of a constitutionally protected right by a law to be constitutionally permissible. At its foundation is the requirement of the existence of proper relations between the benefit gained by the limiting law and the harm caused by it.119 Proportionality thus provides a legal standard against which individual or state measures can be                                                         117 Jacco Bomhoff, ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights 109  at 113. 118 Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 29. 119 The current literature states that the simplest formula to explain proportionality is that ?one should not use a steam hammer to crack a nut, if a nutcracker would do? (R v Goldstein (1983) 1 WLR 151 at 155 (UKHL).       30 reviewed. 120  It also provides a ?relatively systematic, transparent, and trans-substantive doctrinal structure for balancing?.121 Moreover, proportionality equally denotes a ?legal technique?, ?legal construction,? and ?methodological and interpretive tool?.122 As Mads Andenas & Stefan Zleptnig observe, in ECHR law, for instance, proportionality is applied to at least three different contexts: first, as a benchmark to establish the legality of derogations; second, with the aim of establishing the legality of interferences by states with Convention rights; and, third, to determine the scope of application when it comes to certain rights established by the Convention. 123  It is worth noting that there is also a distinction between proportionality as a standard for decisions (directed at the requirements placed on the original decision-maker) and proportionality as a standard of review (directed at the role of the reviewing court).124 For the purposes of the present study I will use proportionality in the above senses interchangeably, although once again I shall reiterate that proportionality is a protean and mercurial concept which has many facets and may denote different things in different contexts at different times.125 By the same token, the very core of proportionality ? proportionality stricto sensu ? is not without problems of its own. Indeed, in order to show that ?proportional? relationships exist between means and ends of the impugned                                                         120 Malcolm Ross, ?Behind Proportionality: The Cultural and Constitutional Context? in English Public Law and the Common Law of Europe  (Mads Andenas ed, 1998) 83 at 91.  121 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 797. 122 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 131. 123 Mads Andenas & Stefan Zleptnig, ?Proportionality: WTO Law: in Comparative Perspective? (2006-2007) 42 Tex Int'l L J 371 at 383. 124 Aaron Baker, ?Proportionality? in Judicial review, 4th ed (London: LexisNexis, 2010) 241 at 245. 125 For a similar account, see, Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555.       31 legislation, one would inevitably have to recourse to the concept of ?proportional?, which is not easily defined. As such, traditional definitions of proportionality simply tell us that the concept we do not understand (?proportionality?) is defined by another value-laden concept (?proportional?) which cannot be defined.   Having said that, at the level of general propositions, as distinct from precise wordings and formulations, most mainstream accounts of proportionality appear to be premised upon one of two different notions. The first one, which seems to dominate modern discourse, conceptualizes proportionality as relating to the  ?fit ? between means and ends, treating it as a technical judicial inquiry: ?is there a sufficiently tight fit between the means and the end?? 126 A second conception of proportionality is a particularized ?weighing? of human rights against collective goals that might justify their limitation: ?there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right?.127 Underlying the latter notion is the idea of ?weigh[ing] the competing interests? or the requirement that ?[a] balance between the two competing concerns must be found?.128 On the one end of the spectrum, then, we see the ?appearance of legalistic constraint? 129  informed by the orthodox assumption that proportionality, once                                                         126 Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J 123 at 165. 127 Egan v Canada 2 SCR 513 at 605. The notion of proportionality is articulated in a different way by McLachlin J (as she then was) in RJR-MacDonald:  ?Proportionality between the effects of the legislation and the objective,? as she puts it, presupposes ?balancing the negative effects of the infringement of rights against the positive benefits associated with the legislative goal? (RJR-MacDonald v Canada [1995] 3 SCR 199 at para 175.) 128 R v Jones, [1986] 2 SCR 284. 129 Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J 123 at 163.       32 translated into the stringent means/ends analysis, provides for greater certainty as to the outcome of a constitutional dispute. Michael Fordham and Tom de la Mare articulate this notion as involving the assessment of costs and benefits: ?So, if prevention of rape is a permissible aim (legitimacy), which can (suitability) and can only (necessity) be furthered by forced castration, the question is then one of overall cost and benefit (means/ends fit)?.130 On the other end of the spectrum is a commitment to the somewhat ambiguous language of ?balancing? (most emphatically propounded by German commentator Robert Alexy)131 and open admission ? regretfully, more and more inconvenient to say out loud in academic milieus132 ? that human rights adjudication necessarily involves normative judgments and some sort of weighing individual constitutional interests against public concerns. Regarding this ?inconvenience,? proportionality appears to be a victim of its own success. Inasmuch as its theoretical treatment is currently inundated with large metaphors and loud statements ? proportionality is acclaimed as, among other things, a ?universal criterion of                                                         130 Michael Fordham & Thomas de la Mare, ?Identifying the principles of Proportionality?, in Jeffrey Lionel Jowell & Jonathan Cooper (eds) Understanding Human Rights Principles (Oxford, 2001) at 28. 131 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002).  132  Consider, for the sake of an example, the following passage from George Letsas? account of proportionality:  132It is wrong to think that the limitation clauses of the ECHR open the door to an abstract balancing exercise between the various conflicting interests that are involved.  The point of the limitation clauses is to invite the court to identify which principle justifies the right in question and to examine whether that principle applies to the applicant?s case. For example, the value of democracy requires that we are free to express ideas and to try and convince others about their plausibility. This freedom is a necessary condition for the legitimacy of imposing the outcome ofelections on individuals.  This principle applies to relsigious speech as much as it does to political speech. It is therefore unprincipled to protect the expression of political ideas that shock or off end but censor speech which off ends religious beliefs (George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP: Oxford, 2007) at 14.)       33 constitutionality? and ?the ultimate rule of law?133 ? any account that recognizes its inherent normativity, and thus fall shorts of portraying it as ensuring technical and scientific objectivity, tends to be excluded from the domain of orthodox jurisprudence. The foregoing objectivity, however, is illusory. 134   Robert Alexy holds that, in constitutional adjudication, balancing is unavoidable because ?there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right?. 135  Elaborating on the balancing metaphor, Raz uses the language of weight to impart intelligibility to the difficult and abstract concept of acting on the balance of reasons.136 Illustrative in this respect is the decision of the European Court of Human Rights in Cossey v UK involving transsexual applicants. In the words of the ECtHR:137  The applicant also prayed in aid Article 14 (art. 14) of the Convention, which prohibits discrimination in the enjoyment of the rights and freedoms guaranteed. However, the Court does not consider that this provision assists her. She appears to have relied on it not so much in order to challenge a difference of treatment between persons placed in analogous situations (see, amongst various authorities, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 26, para. 60) but rather as a means of introducing into her submissions the notion of proportionality between a measure or a restriction and the aim which it seeks to achieve. Yet that notion is already encompassed within that of the fair balance that has to be struck between the general interest of the community and the interests of the individual.                                                          133 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006) at 162. 134 Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J 123 at  135 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002) at 74. 136 George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP: Oxford, 2007) at 14.) 137 Cossey v United Kingdom (1990) 13 EHRR 622.       34 Admittedly, both approaches to articulating proportionality get a lot right. Joel Bakan, by situating the arguments in the context of the debate over the formal grounds for the legitimacy of judicial interference with legislative decisions, posits that the ?means/ends fit? notion is ultimately grounded in the theory of constitutional truth as a legitimizing source of judicial review (underlying this thesis is the idea that proportionality, and particularly its ?rational connection? and ?necessity? steps, constrains judges and allow them to identify ?true? answers to hard constitutional questions),138 whereas the ?balancing? notion, which contrasts sharply with the means/ends analysis and openly acknowledges that judges, like other policy-makers, must balance competing interests and consider the probable consequences of deciding one way or the other, correlates with the so-called ?trust? thesis. As per the latter, judicial review is considered legitimate on the ground that judges can be trusted to balance competing interests impartially and reasonably because of their personal qualities and institutional role.139 A useful starting point to getting the distinction between ?means/ends fit? and ?balancing? arguments conceptually and analytically correct, in my opinion, is to consider how both proportionality?s representations treat judicial considerations that do not fit the traditional legalistic account of law. Can proportionality reasoning                                                         138 In more elaborated form, the thesis maintains that ?judges are constrained by the constitution to reach legally correct answers to particular constitutional questions. They do not, therefore, substitute their policy choices and preferences for those of elected officials. Such arguments acknowledge that when judges make decisions under the constitution, they exercise power - they use the power of the court, and therefore the state, to condone or rearrange existing social and legal relations - but they portray the exercise of such power as legitimate because it is required by the constitution? (Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J at 124). 139 Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J at 125.       35 eschew value laden judgments? Can it allow judges to ascertain the answers to legal questions by an essentially mechanical process, that is, by linking together legal and empirical considerations so that they necessarily ?fit??  David Beatty emphatically argues that it can. Sympathetic to the notion of the means/ends ?fit,? he places great faith in the power of facts underlying particular constitutional disputes. Elaborating on this thesis in  The Ultimate Rule of Law,140 he maintains that proportionality can guarantee judicial objectivity so long as the focus of review is on the means and effects of the law, rather than on ?balancing.?  Is the law under- or over-inclusive? Are there less restrictive means available to pursue the objective? By turning such legal questions ? which invite wide judicial discretion ? into factual questions, as Beatty describes it, the proportionality inquiry becomes, he argues, ?an empirical one of establishing whether there are better policy alternatives than the law the government chose to enact?.141 Others have echoed Beatty?s point by stressing that the means/ends analysis in proportionality reasoning in an attempt to eschew the ?balancing? component of the test altogether.142 Peter Hogg used to argue,143 for example, that once the assessment of harm and benefit caused to the rights in question has been carried out within the components of proportionality that deal with the means/ends relations of the impugned law,144 weighing of individual rights and corresponding public interests is                                                         140 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006). For a penetrating overview of Beatty?s approach, see Vicki C Jackson, ?Being Proportional about Proportionality? (2004) 21 Const Commentary 803. 141 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006) at 92. 142 See section 1.4 for a wider account of the components of proportionality test.  143 It is of note that he has subsequently reconsidered his approach. 144 The inquiry in question is mostly completed within the first three stages of proportionality test, namely, proper purpose, rational connection, and necessity.       36 no longer required. That is likely why Hogg argued the ?balancing step of proportionality analysis has become irrelevant? in the jurisprudence.145 He stated that:  If the objective is sufficiently important, and the objective is pursued by the least drastic means, then it must follow that the effects of the law are an acceptable price to pay for the benefit of the law. I conclude, therefore, that an affirmative answer to the first step?sufficiently important objective?will always yield an affirmative answer to the fourth step? proportionate effect.146  Martin Luteran makes the case for avoiding the terminology of balancing and portraying proportionality as the proportion between means and ends, whilst adopting the interest-based theories of rights propounded by Raz and Finnis. 147 Luteran argues that the language of balancing should be abandoned, since it gives rise to a prevalent and unhelpful understanding of proportionality as a cost-benefit analysis when instead the courts are assessing the proportion between ends and means of state action.148 On the face of it, the notion of proportionality as a technical means/ends ?fit? is easy to subscribe to, for it is ubiquitously embodied in the parlance of most constitutional tribunals. The Supreme Court of Canada, as an emblematic example, readily employs the language of ?the degree of required fit between means and ends?.149 Yet another appeal of the notion comes from the fact that, as has been stated                                                         145 Peter Hogg, Constitutional Law of Canada, Student Ed (Carswell, 2012). 146 Peter Hogg, Constitutional Law of Canada, 5th edn., vol II (Toronto: Thomson Carswell, 2007) at 153. 147  Martin Luteran, Some Issues Relating to Proportionality in Law and Ethics, with Special Reference to European Human Rights Law (DPhil, Oxford University, 2009) at 260. 148 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press, 2012) at 382. 149 RJR-MacDonald v Canada [1995] 3 SCR 199 at para 96.       37 above, it creates an appearance of scientific objectivity in human rights reasoning and provides a relatively incontestable legal foundation for judicial review. Notwithstanding these signs of acceptance, however, it is undeniable that something is amiss with the ?means/ends fit? argument, especially when we attempt to reconcile it with the normative considerations that necessarily underlie every constitutional dispute. Consider the following example. In Handyside v United Kingdom, in one of the most famous quotes from its case law, the European Court of Human Rights posits that freedom of expression is:  [A]pplicable not only to ?information? or ?ideas? that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.150 Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ?democratic society?.151  While most commentators tend to scrutinize ? and praise ? this passage in isolation, it is instructive to notice that further in the same judgment the court added that freedom of expression ?is subject to paragraph 2 of Article 10? which means that ?every ?formality?, ?condition?, ?restriction? or ?penalty? imposed in this sphere must be proportionate to the legitimate aim pursued?. 152  Among the aims established in paragraph 2 is ?protection of public morals.? In Otto-Preminger-Institut v Austria the European Court has interpreted this to include the right ?not to be insulted in [one?s] religious feelings by the public expression of views of other persons?, 153 moving on to apply a test of proportionality. As George Letsas rightly inquires, is this                                                         150 Emphasis added - I.P. 151 Handyside v United Kingdom (1979?80) 1 EHRR 737 at para 49. 152 Ibid. 153 Otto-Preminger-Institut v Austria (1995) 19 EHRR 34 at para 48.       38 interpretation compatible with the demands of pluralism, tolerance, and broadmindedness, without which there is no ?democratic society??154 How can one be said to have the right to offend, shock, or disturb when this right is subject to the rights of others not to be offended, shocked, or disturbed? Or is it that we have a right to shock and offend others, so long as we do not offend too much or we do not offend too many?155 On this interpretation, it seems implausible to assume that the said constitutional dispute can be framed in the limited terms of a means/ends analysis ? the considerations involved are clearly of a value laden nature. The problem with the rhetoric of ?means/ends fit? in the context of proportionality, therefore, is that it can obscure the normative considerations at the heart of human rights issues and thus, as Andrew Legg describes it, ?deprive [?] society of a moral discourse that is indispensable?.156 A further difficulty with avoiding the balancing stage of the proportionality test in constitutional reasoning is that it may lead to failure to get the issue at hand right. Imagine the law allows the police to shoot a person to death if this is the only means of preventing a perpetrator from destroying property.   Protection of property certainly is a lawful, even an important, purpose. Shooting a perpetrator to death is a suitable means of preventing him from destroying property. Since the shooting is allowed only if no other means are available, the necessity test of the second step is also passed. If one had to stop here, the balance between life and property could not                                                         154 George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP: Oxford, 2007) at 14. 155 Ibid. 156 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press, 2012) at 383.       39 be made. The law would be regarded as constitutional, and life would not get the protection it deserves.157 As Julian Rivers rightly observed:   It is vital to realise that the test of balance has a totally different function from the test of necessity. The test of necessity rules out inefficient human rights limitations. It filters out cases in which the same level of realisation of a legitimate aim could be achieved at less cost to rights. By contrast, the test of balance is strongly evaluative. It asks whether the combination of certain levels of rights-enjoyment combined with the achievement of other interests is good or acceptable.158  Espousing the same thesis, in Canada (Attorney General) v JTI-Macdonald Corp, the Supreme Court of Canada took pains to repudiate the view that the proportionality test can be done without the balancing stage, confirming that it considered balancing to be essential to rights review under the Charter:  Although cases are most often resolved on the issue of minimal impairment, the final inquiry into proportionality of effects is essential. It is the only place where the attainment of the objective may be weighed against the impact on the right. If rational connection and minimal impairment were to be met and the analysis were to end there, the result might be to uphold a severe impairment on a right in the face of a less important objective.159  Likewise, in Alberta v Hutterian Brethren of Wilson Colony, McLachlin CJ suggested that ?rather than reading down the government?s objective within the minimal impairment analysis, the court should acknowledge that no less drastic means are available and proceed to the final stage of Oakes? and Abella J stated that                                                         157 Dieter Grimm, ?Proportionality in Canadian and German Constitutional Jurisprudence? (2007) 57 U Toronto LJ 383 at 396. See also Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 342-343. 158  Julian Rivers, ?Proportionality and Variable Intensity of Review? (2006) 65:1 Cambridge L J 174 at 200. 159 Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30 para 46.       40 ?most of the heavy conceptual lifting and balancing ought to be done at the final step?.160   To sum up, the present section has looked at two ways of articulating what is applied by the constitutional tribunals worldwide as the proportionality principle: proportionality as a ?means/ends fit? and proportionality as a principled ?weighing? of all relevant considerations. The difference between these arguments, in my submission, is not simply terminological; it is of practical, as well as philosophical, significance. It demonstrates the impotence of all theories of proportionality that treat it as a mere means/ends fit and thus avoid the inevitable normative judgments in adjudicating human rights. Whilst designed as a constraint-based argument,161 the ?means/ends fit? approach to human rights reasoning easily becomes a Procrustean bed, as it jettisons all considerations that do not fit under the rubric of ?law? or ?facts.? The balancing element of proportionality, on the other hand, being openly normative, allows judges to take into account all relevant considerations ? including those of a value laden nature ? and appropriately demands that less important governmental objectives not outweigh severe impairments of constitutional rights.  Limiting proportionality to means/ends fit is self-deceptive at best and misleading at worst. Whatever headings we attribute to the proportionality concept, it makes little to no impact upon the substance of the test ? proportionality cannot do without balancing. By way of illustration, consider the following diagram where I seek to demonstrate that in conducting a proportionality analysis, there is positively no way around balancing, that is, explicit weighing of individual rights and public                                                         160 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Wilson Colony] at para 149. 161  Joel Bakan, "Constitutional Argument: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27:1 Osgoode Hall L J 123 at 126.       41 interests. The measures chosen ? as well as their deleterious and salutary effects ? are not only examined in relation to the purpose they seek to achieve; they are also assessed in relation to constitutional rights:162    Figure 1. Architectonic of the proportionality test  Before proceeding further, I should, however, rehearse again the caveat that, as Jacco Bomhoff so aptly observes, it is not clear what, ?from a comparative legal studies perspective, the relative significance is of a finding of similarity in references to balancing and proportionality between legal discourses, as compared to                                                         162 The formula also demonstrates that the only proportionality sub-test that can be ?abandoned? without encroaching upon the logic of the structured analysis is ?minimum impairment? test. As has been suggested above, some constitutional tribunals indeed conduct proportionality analysis avoiding entering this limb of the test.       42 surrounding findings of difference?.163 Indeed, Thomas Poole echoes this point by stating that ?to talk about proportionality is to presuppose a jurisdiction in which it is to operate. Proportionality reaches out, demanding a defined political space in which the balancing is to take place?. 164  For example, where a court in one jurisdiction speaks of a principle of proportionality (Germany) and a court in another setting of a proportionality test (U.S.), there is a distinct possibility that the difference between principle and test says more about these two legal systems than the two invocations of an idea of proportionality. Similarly, in the German context, and in references to Interessenabwa ?gung (balancing of interests) and Wertabwa ?gung or ?Gu ?terabwa ?gung (balancing of values) the differences in the chosen parameters ? values vs. interests  ? may be more significant than the invocation of balancing.165  Alongside the difficulty in generalizing about proportionality across legal cultures and traditions (the horizontal dimension,) we should be mindful of the many pitfalls in generalizing about proportionality in the vertical dimension ? as it develops and transforms over time. This latter phenomenon is particularly traceable in jurisdictions where proportionality has an extensive history of dominating constitutional review; the Canadian example in this respect is incontrovertible.166                                                          163 Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555 at 565. 164 Thomas Poole, ?Proportionality in Perspective? (2010) 16 LSE Law, Society and Economy Working Papers 1 at 18. 165 Jacco Bomhoff, ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights 109 at 115-116. 166 On the discussion of the evolution of the proportionality doctrine in Canadian jurisprudence, see, e.g.,  Robin M Elliot, ?The Supreme Court of Canada and Section 1 ? the Erosion of the Common Front? (1987) 12 Queen?s L J 277; Christopher M Dassios & Clifton P Prophet, ?Charter Section 1: The Decline of Grand Unified Theory and the Trend towards Deference in the Supreme Court of Canada (Canadian Charter of Rights and Freedoms)? (1993) 15 Advoc. Q. 289 1993; Lorraine Weinrib, ?Canada?s Charter of Rights: Paradigm Lost?? (2002) 6 Rev. Const. Stud. 119; Sujit Choudhry,?So What is the Real Legacy       43 Although it is not clear what has animated the Supreme Court of Canada?s retreat from Oakes ? some invoke the argument about the lack of "institutional competence and expertise" in a number of issues, 167  while others muse about an inevitable transition to a ?rigid bureaucratic rationality? anticipated by Max Weber168  ? beyond dispute is the fact that generalizing about the proportionality test in Canadian legal discourse is problematic. Back in 1987, Robin Elliot espoused a view which still rings true:?[t]he prospect that we will see a single, uniform approach to s. 1 emerging from the Court in the foreseeable future is dim indeed?.169 One might be tempted to object that it is an axiom of our times that as our world is rapidly changing ? so does law. However, as Sujit Choudhry rightly observes, whilst Oakes stated that ?the nature of the proportionality test will vary depending on the circumstances?, 170 the test in Oakes itself was framed in abstract terms ?which did not invite courts to differentiate its application in future appeals that might differ radically from Oakes itself, either with respect to the rights at play or the policy context?. 171 Underlying this latter argument is a concern that, as Peter McCormick admonishes, the variations in the judicial interpretation with a strong emphasis on contextualism and policy                                                                                                                                                                                   of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1? (2006) 34:2 Supreme Court L Rev 501; Charney & Green, "Prophets of Doom, Seers of Fortune: 20 Years of Expert Evidence Under the Oakes Test" (2006) 34 SCLR (2d) 479; Sara Weinrib, ?The Emergence of the Third Step of the Oakes Test in Alberta v. Hutterian Brethren of Wilson Colony? (2010) 68:2 U T Fac L Rev 77;  167 Christopher M Dassios & Clifton P Prophet, ?Charter Section 1: The Decline of Grand Unified Theory and the Trend towards Deference in the Supreme Court of Canada (Canadian Charter of Rights and Freedoms)? (1993) 15 Advoc. Q. 289 at 290. 168 David Schneiderman, ?Judging in Secular Times: Max Weber and the Rise of Proportionality? (2013), forthcoming in Supreme Court Law Review (2d), currently available at < SSRN: http://ssrn.com/abstract=2313822>) at 10. 169 Robin M Elliot, ?The Supreme Court of Canada and Section 1 ? the Erosion of the Common Front? (1987) 12 Queen?s L J 277 at 340. 170 R v Oakes [1986] 1 SCR 103 at 139.  171 Sujit Choudhry,?So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1? (2006) 34:2 Supreme Court L Rev 501 at 506.       44 implications sometimes look as if ?the Court is holding legislation valid or invalid on the basis of standards which it is making up as it goes along?.172 Yet another possibility of doctrinal diversity in application of the proportionality test relates to what Daniel Solove has succinctly termed ?the darkest domain?173 ? intersection of proportionality and deference and (what amounts to the reverse side of the same coin) variable intensity of review.174 Notwithstanding the fact that there is no accepted legal definition of the term deference175 ? more than that, a growing number of proportionality advocates question the very fact that the term is appropriate in the human rights context176 ? the debate in this area of constitutional law remains vibrant. The doctrinal embrace of proportionality on a worldwide scale raises the question of whether the judiciary is the body to be entrusted with the tasks associated with value-laden judgments. Against this backdrop, the invocation of the doctrine of deference appears to be a logical ? even inevitable ? response to the counter-majoritarian anxiety.177  As Mark Elliott observes, there are two ways in which deference operates across jurisdictions178 (though, in my submission, one may assume the possibility of two approaches to be applied in the same jurisdiction concurrently.) One option is                                                         172 Peter McCormick, Supreme at Last: The Evolution of the Supreme Court of Canada (James Lorimer & Company, 2000) at 173. 173 Solove, Daniel J. ?The Darkest Domain: Deference, Judicial Review, and the Bill of Rights? (1999) 84 Iowa L Rev 941. 174 Julian Rivers, ?Proportionality and Variable Intensity of Review? (2006) 65 Cambridge L J 174. 175 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 398.  176 Aharon Barak, for instance, espouses a view that ?[t]he approach that a judge should defer to legislative or executive branches does not fit a constitutional democracy? ( Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 399). See also the dictum of  Lord Hoffmann in R (ProlifeAlliance) v British Broadcasting Corporation [2003] UKHL 23. 177  Some claim, however, that the precondition for the invocation of deference is the lack of institutional ability of the courts (on the relevant analysis, see section 3.1 of this thesis.) 178 Elliott, Mark. ?Proportionality and Deference: The Importance of a Structured Approach? (2013) 32 University of Cambridge Faculty of Law Research Paper 1 at 5.       45 that the questions the court asks of the decision-maker are rendered less demanding.179 Alternatively, the court might pose the questions in their most rigorous form, but may make it easier for the decision-maker to satisfy the court that the answers are such as to render the measure lawful.180  The application of deference by the rights-protecting courts has stimulated a number of criticisms. At the forefront of the debate is the claim that deference is not warranted by any constitutional instrument; it is asserted that, on the contrary, it stands in sharp contrast to the notion of the separation of powers. Furthermore, the attempts of the courts to calibrate the degree of deference according to the context of each and every case trigger another concern, namely, how to account for the absence of any meaningful ? and, most importantly, consistent ? doctrinal anchor for the invocation of deference. As the rights-protecting courts often do not follow their own precedents, most distinctions and explanations suggested by commentators are quickly rendered unsustainable. With respect to the application of deference by the Supreme Court of Canada, Sujit Choudhry puts it as follows: 181  in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories.                                                         179 Consider how in Edwards Books (R v Edwards Books & Art Ltd, [1986] 2 S.C.R. 713) the Supreme Court of Canada has mitigated the Oakes standard, stipulating that the challenged measure need only impair Charter rights ?as little as is reasonably possible? and asking ?whether there is some reasonable alternative scheme,? as opposed to whether the measure chosen was the least restrictive mean. 180  For the sake of example, consider how the Supreme Court of Canada address the empirical questions arising out of Charter claims. 181  Sujit Choudhry,?So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1? (2006) 34:2 Supreme Court L Rev 501 at 503.        46 Returning to the discussion on the ?proportionality language,? it is important to note that judges in a particular jurisdiction may very well be engaging in a thought process that, if asked, they would themselves describe as balancing or proportionality when deciding cases, without ever using any of these terms in official judicial discourse.182 They might also invoke alternative terminology, such as ?means/ends rationality,? a ?least restrictive means test,? or approaches based on Optimierung ? optimization ? or praktische Konkordanz ? practical concordance.183 It is likewise important to bear in mind that the European Court of Human Rights typically exercises the proportionality test under the heading ?fair balance?.184 Against this background, the following conceptual indicia of proportionality may be discerned:   ? Proportionality analysis can be understood as a conceptual framework, an analytical methodology and a legal construction that defines the relationship between human rights and those considerations that may justify their limitations in democratic settings.185  ? Wherever the proportionality test has been introduced, it has the same basic two-stage structure. The first stage is to establish that a right has been infringed by                                                         182 Or even extra-judicially. The tradition of judges giving extra-judicial accounts of their work, while not exclusively an Anglo-American phenomenon (see, e.g., the work of judge, and professor, Aharon Barak), is certainly not prevalent everywhere.  183 Jacco Bomhoff, ?Genealogies of Balancing as Discourse" (2010) 4: 1 Law & Ethics of Human Rights 109 at 114. 184 Nicholas Emiliou, The Principle of Proportionality in European Law: a Comparative Study (Kluwer Law International, 1996) at8. 185 Duncan Kennedy, ?Three Globalizations of Law and Legal Thought: 1950-200? in The New Law and Economic Development: A Critical. Appraisal, (Cambridge University Press, 2006) at 66.       47 governmental action. In the second stage the government needs to show that it pursued a legitimate end and that the infringement was proportional.   ? Proportionality, as many commentators submit, is a technique of last resort. Should there be ways to avoid the constitutional conflict by means of, for instance, constitutional or statutory interpretation, that is preferable.  ? The proportionality principle is not expressly contained or referenced anywhere in the text of a constitution ? s36 of the South African Constitution perhaps comes the closest ? but has been established by courts as the proper methodology for applying textual limitations clauses.186  ? Proportionality constitutes a doctrinal underpinning for the global expansion of judicial power. Although there is significant variation in how it is used, judges do adopt the proportionality position themselves to exercise dominance over policymaking and constitutional development.187   ? Proportionality at its core has a balancing framework, with private interests lying at one end of the spectrum, and public interests lying at the other.188                                                         186 Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8 Int'l J Const L 263 at 270. 187 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum. J. Transnat?l L. 72. 188 This is but one articulation of the essence of balancing exercise.  As a paradigmatic example, the European Court of Human Rights makes standard references to the need to ?balance? individual rights and public interests (see, e.g., Sunday Times v. The United Kingdom (1979) App. No. 6538/74, 30 Eur. Ct. H.R. (ser. A) at para 6.) Interestingly enough, the Supreme Court of Canada maintains that public interests may occasionally appear at both ends of the scale: ?[O]ne should not balance a private       48  ? Proportionality deals only with those interests which are derivable from the body of relevant legal materials, as either being enshrined as constitutional rights or being inferable from the constitutional limitation provisions (which, notably, may establish a higher threshold for a public interest to qualify as legally protected, for instance, the ability to be ?demonstrably justified in a free and democratic society?.)   ? There are many formulations of the proportionality test, as well as variations in the way in which it is applied across time and space. As such, a holistic model of conceptualizing proportionality should recognize the fact that its doctrinal contours may adopt different forms ? and therefore be prepared to accommodate an array of differences in constitutional architectures and attitudes that lies beneath the surface of linguistic similarities.   1.4. Form and Substance: Decomposing Proportionality into Its Basic Elements  It is important to observe that proportionality as a standard for review is often conflated, or interchangeably used, with proportionality as a legal construction ? that is, a formal structured argument.                                                                                                                                                                                    interest, i.e. litigant x's interest in his privacy against a public one, the public's interest in an open court process. [?] Both interests must be seen as public interests, in this case the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process.? (Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326, the reasons delivered by Wilson J.).       49 While not without digressions, in its fully developed form 189  the analysis involves four inquiries:190  Q1 Legitimacy. Is the measure adopted to pursue a legitimate aim? Q2 Suitability. Can it serve to further that aim? Q3 Necessity. Is it the least restrictive way of doing so? Q4 Balancing. Viewed overall, do the ends outweigh the means?  As I go on to explain, these components render the otherwise abstract notion of proportionality into what Aharon Barak calls a ?usable concept?191 which stabilizes and sanctions a normative frame 192  for rights disputes. Yet, another important observation is that this aggregate approach ? which requires all four components in each case that a constitutional right is limited ? has not been adopted by all legal systems which make use of proportionality.193  There are two facets to this observation. The first is somewhat technical and revolves around nomenclature: by some constitutional tribunals, the ?true proportionality test? is understood to include only the last three strands of analysis; the proper purpose component of the test is considered to be a standard on its own. This terminological issue, while not misleading or deceptive in the traditional sense, conveys an erroneous impression of leaving out the ?legitimacy stage? of the analysis.   I find it safe to assume that this is exactly what happened to the otherwise very                                                         189 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 73. However, compared with Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009), where the author speaks of ?[t]he traditional three tiered proportionality test? (at 33). 190 Michael Fordham & Thomas de la Mare, ?Identifying the principles of Proportionality?, in Jeffrey Lionel Jowell & Jonathan Cooper (eds) Understanding Human Rights Principles (Oxford, 2001) at 28. 191 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 132. 192 Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369 at 380. 193 On the historical development of proportionality?s adoption in different jurisdictions, see Section 1.2 of this thesis.       50 meticulous analysis by Alec Stone Sweet and Jud Mathews where the authors claim that ?[s]ome courts ? including those of the EU, the ECHR, and the WTO, normally use only a three-part test, leaving out the ?legitimate purpose? stage. The analysis is thus entirely focused on the relationship between means and ends?.194 This is, of course, not a fully accurate observation. The need to pursue a ?legitimate goal? is an important ? and indispensable ? component of proportionality analysis in the respective courts.195 Similarly, in the touchstone of proportionality analysis under Canadian Charter ? the Oakes test ? what has been initially set out as a ?proportionality analysis? included only the last three limbs of the orthodox formula.196 The original nomenclature, is, once again, misleading, however, as is made clear in the following excerpt from RJR-MacDonald v Canada:  This Court in Oakes set out a test of proportionality that mirrors the elements of this idea of proportionality ? first, the law must serve an important purpose, [emphasis added I.P.] and second, the means it uses to attain this purpose must be proportionate. Proportionality in turn involves rational connection between the means and the objective, minimal impairment and proportionality of effects.197   However, there are other, and more substantial, ways in which proportionality   frameworks differ across different jurisdictions. These go beyond terminological issues and are concerned with what might best be described as the intensity of                                                         194 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 73, fn 8. 195 See, e.g., Tom Hickman, ?Proportionality: Comparative Law Lessons? (2007) JR 31 at 34; Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) and many others. 196 R v Oakes [1986] 1 SCR 103 at para 138-139. 197 RJR-MacDonald v Canada [1995] 3 SCR 199 at para 36.       51 proportionality review. Some legal systems, for example, adopt a so-called ?softer? approach to proportionality and emphasize only three of the four components  ? such as proper purpose, rational connection, and a proper relation between the fulfillment of the purpose and the damage to constitutional rights.198 Others  consider a pre-set, three stage proportionality test to be only a recommendation rather than a constitutionally mandated requirement and adopt a looser approach. The European Court of Human Rights, for example,  applies the test in a ?holistic? way,199 looking at the elements together,200 and, as Tom Hickman puts it, has never ?clearly structured what it means by ?proportionate??. 201  Similarly, the South African Constitutional Court which, despite relying heavily on the structured practice of the Supreme Court of Canada202 ? as well as on, to a lesser extent, German constitutional law 203 ? does not necessarily adhere to the vertical proportionality formula.204 Article 36(1) of the                                                         198 As Aharon Barak has observed, this was the approach adopted in France. See Decision No 2007-555DC (August 16, 2007). Lately, however, it seems that the French Constitutional Court (The Constitutional Council) has adopted a new approach, requiring the necessary means test as well. See Decision No 2008-562 (February 21, 2008); Decision No 2009-580 (June 10, 2009). 199 See, for example, Silver v United Kingdom (1983) 5 EHRR 347. 200 Compare with the passage of the dissenting judge in Alberta v Hutterian Brethren of Wilson Colony: ?The stages of the Oakes test are not watertight compartments: the principle of proportionality guides the analysis at each step. This ensures that at every stage, the importance of the objective and the harm to the right are weighed? (Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, Abella J). 201 Tom Hickman, ?Proportionality: Comparative Law Lessons? (2007) JR 31 at 34. 202 See, e.g., S Woolman & H Botha, ?Limitations? in S Woolman, M Bishop & J Brickhill (eds), Constitutional Law of South Africa, 2nd ed (Cape Town: Juta Law Publishers, looseleaf 2002-), where the authors, in Chapter 34 (at 13) analyze the similarities between two systems? limitation clauses: ?Limitations analysis under the Charter and our Bill of Rights possesses such common features as [...] proportionality assessment which demands, at a minimum, that a rational connection exists between the means employed and the objective thought, that the means employed impair the right as ?little as possible,? and that the burdens imposed on those whose rights are impaired do not outweigh the benefits to society that flow from the limitation.?   203  See Loammi Blaauw-Wolf, ?The ?Balancing of Interests? with Reference to the Principle of Proportionality and the Doctrine of Guterabwagung - A Comparative Analysis? (1999) 14 SAPL 178; J de Waal, ?A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights? (1995) 11 SAJHR. 204 As Jonas Christoffersen puts it (in Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 35): ?The principle of suitability [...] plays a less dominant role and the principle of necessity is reduced from the status as an       52 Constitution of South Africa stipulates constitutional review must ?take[] into account all relevant factors?, 205  including the proportionality test. 206  This, by implication, means granting more discretion to the legislator.   Looser approaches to proportionality tests align with skepticism of structured analysis in constitutional adjudication, such as Jeremy Waldron?s. ?The ability of judges,? Waldron writes, ?to reason about rights is exaggerated when so much of the ordinary discipline of judging distracts their attention from direct consideration of moral arguments?.207 He then appears to go a step further claiming that ?doctrines and precedents [can become] a distorting filter on the rights-based reasoning [?]?.208                                                                                                                                                                                   independent legal criterion to a factor alongside other relevant factors.? As the Supreme Court of South Africa observed in S v Mamabolo (ETV, Business Day and the Freedom of Expression Institute Intervening,) a case concerning freedom of expression:  ?Where section 36(1)(e) speaks of less restrictive means it does not postulate an unattainable norm of perfection. The standard is reasonableness. And in any event, in theory less restrictive means can almost invariably be imagined without necessarily precluding a finding of justification under the section. It is but one of the enumerated considerations which have to be weighed in conjunction with one another, and with any others that may be relevant?. (S v Mamabolo (ETV, Business Day and the Freedom of Expression Institute Intervening) (11 April 2001, No CCT/44/00) at 70-71)In S v T Makwanyane and M Mchunu, a case concerning the death penalty, the Supreme Court stated:  ?The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of section 33 (1). The fact that different rights have different implications for democracy, and in the case of our Constitution, for ?an open and democratic society based on freedom and equality?, means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests?. (S v T Makwanyane and M Mchunu (6 June 1995, No CCT/3/94) at para 104). 205 The full text of the general limitation clause in Section 36 ? 1 (former Section 33) stipulates the following: ?The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose? (Constitution of the Republic of South Africa, Act 108 of 1996). 206 It is important to note that, as Canadian commentator Guy Regimbald observes, one might of course doubt whether there are any differences in practice between the two overall tests; the Canadian strictness being likely in practice to resemble more the South African flexibility than vice versa (Guy Regimbald,  ?Correctness, Reasonableness and Proportionality: A New Standard of Judicial Review? (2005) 31 Manitoba Law Journal 239 at 267-269 and 274-267). 207 Jeremy Waldron, ?The Core of the Case Against Judicial Review? (2006) 115:4 Yale LJ 1346 at 1359. 208 Ibid.       53 Yet another justification of the relaxed and undisciplined approach to proportionality   ? at least with respect to Strasbourg jurisprudence ? is suggested by Danish commentator Jonas Christoffersen. As he writes:   It is highly doubtful whether any pre-set proportionality-test could ever be developed. The principle of proportionality guides the interpretation and application of international and national law in vast fields of highly diverse and tremendously complex areas and it is counterintuitive to think that [...] rights adjudication can be reduced to a simple formula that can be applied to solve each and every dispute.209     Despite differences in rigour, style, and terminology, however, all proportionality formulas, as articulated by constitutional tribunals in different jurisdictions, actually have much in common.  Comparative analysis reveals that in most jurisdictions, proportionality tests are similar content-based discursive 4-limb frames for norm-based argumentation, which differ primarily in terms of the intensity of review, and the level of scrutiny set out by each particular proportionality sub-test. Consider the following aggregated overview of proportionality frameworks across the most emblematic jurisdictions:  Table 1: The structure of the proportionality test in comparative perspective.  Germany Canada The ECtHR Israel South Africa Zimbabwe Sub-step 1: Proper purpose  Pressing and  substantial governmental objective: of sufficient The need to pursue a ?legitimate aim?211  Purpose that is reasonable and necessary in a  A legislative objective which is sufficiently                                                         209 Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 33. 211 The list of ?legitimate aims,? as set out in the European Convention on Human Rights, is exhaustive.       54 importance to warrant overriding a constitutionally protected right and freedom210 democratic society important to justify the limiting of a fundamental right212 Sub-step 2: Rational connection ?Suitability?       The measures adopted must be rationally connected to the objective An interference must ?correspond to a pressing social need? 213 Rational connection: the law must be rationally connected to the objective 214 The relation between the limitation and its purpose A rational connection found between the measures and the legislative objective Sub-test 3: Least restrictive means ?Necessity? The measure should impair the rights ?as little as possible  Least drastic means: the law must impair the right no more than is necessary to accomplish the objective   Less restrictive means to achieve the  purpose  The impairment of the right or freedom is no more than necessary to accomplish the                                                         210 The criteria which must be satisfied for a government to pass the proportionality test are laid down in R V Oakes [1986] 1 SCR 103, with the Court being unanimous on the issue. It is important to note, however, that the factors to be considered in applying the Oakes test have frequently been reviewed, for instance in RJR-MacDonald v Canada [1995] 3 SCR 199, where both the majority and minority agreed that an approach involving a ?formalistic 'test' uniformly applicable in all circumstances" must be eschewed. Rather, the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. 212 Nyambirai v National Social Security Authority [1996] 1 LRC 168, 1995 (9) BCLR 1221 (ZS)).   213 See, e.g., Silver v United Kingdom (1983) 5 EHRR 347 at para 97.  214 In Israel, yet another ?poster child? for the development of proportionality, the most important analysis and articulation of the principle of proportionality has been given in two recent cases relating to the legality of the security ?fence? constructed in the occupied territories: HCJ 2056/04 Beit Sourik Village Council v Government of Israel and HCJ 7957/04 Mara?abe v Prime Minister of Israel. These are the two most important of a number of petitions by Palestinian communities and landowners against orders for the seizure of land in the occupied territories made to enable Israel to build the fence. On the submission advocating Oakes reform in Canada with attention to proportionality jurisprudence of Israel, see Sara Weinrib, ?The Emergence of the Third Step of the Oakes Test in Alberta v. Hutterian Brethren of Wilson Colony? (2010) 68:2 U T Fac L Rev 77; Sara Weinrib, ?An exemption for sincere believers: the challenge of Alberta v. Hutterian Brethren of Wilson Colony? (2011) 56:2 McGill L J 719 at 734; Mark Zion, ?Effecting Balance: Oakes Analysis Restaged? (forthcoming in the Ottawa Law Review, on file with author).       55 objective Sub-test 4: Overall balancing ?Proportionality?/ ?appropriateness? (and synonyms)  There must be a proportionality between the effect of the measures which are responsible for limiting rights and the governmental objective The interference must be ?proportionate to the aim pursued?  Proportionality strictu sensu: the law must not have a disproportionately severe effect on the persons to whom it applies  Weighing up of competing values, and ultimately an assessment  based on proportionality.     Notwithstanding my previous point regarding the danger of overemphasizing proportionality differences across jurisdictions, it is at least equally dangerous to  underemphasize the differences. British commentator Tom Hickman posits that the doctrine of proportionality refers to a process of analysis which, unlike the meaning of substantive rights, is not greatly influenced by local moral or political beliefs. ?There is only need for particular caution,? as he puts it, ?where a particular proportionality analysis is closely tied to features of the right under consideration?.215 Such universalism deserves a skeptical response, especially because of its seeming attraction for so many scholars. Proportionality is a standard of review which is deeply rooted in Constitutions and Constitutions, as Ran Hirschl so rightly submits, ?neither originate nor operate in a vacuum?.216 Similarly, as   Beverley McLachlin explains, the Charter (and by implication proportionality) ?offers a principled                                                         215 Tom Hickman, ?Proportionality: Comparative Law Lessons? (2007) JR 31 at 31. 216  Ran Hirschl, ?Editorial: From Comparative Constitutional Law to Comparative Constitutional Studies? (2013) 11:1 Int J C L 1 at 2.       56 framework? for addressing Canadian challenges ?in a singularly Canadian way (emphasis added)?.217 The general argument toward which I?m steering is that proportionality is a skeleton construction that allows for a rigorous, universal requirement on state action infringing rights, while at the same time creating an adaptable test which can be calibrated to different circumstances. Proportionality bridges the domain of law and the domain of interest-based conflict;218 and again, I believe that the solution, when faced with the possibility of differences, is to strike a proportional balance between the need to contextualize and the need to unify ? between the form and substance ? with the four-prong proportionality frame being the best available option for doing so.                                                                      217 Gerald-A Beaudoin & Errol Mendes, Canadian Charter of Rights and Freedoms, 4th ed (LexisNexis, 2005) at v. 218 It is worth noting that at its core, the proportionality framework is about resolving conflicts of constitutional interests, while at one end of the spectrum are private interests (which enjoy the protection of constitutional rights with an empirical trigger)# and at the other end are public interests (which enjoy the constitutional protection by virtue of a limitation clause set out in the constitution); the respectful resolution takes place at the balancing stage of the particularized test.  218       57 CHAPTER 2: PROPORTIONALITY DEBATED 2.1. Contested Nature of Proportionality: Frame of Reference  While proportionality debates do not have a rich heritage ? it is only recently indeed that some opposition to the principle has begun to form219 ? the literature on the subject is now abundant. The arguments advanced by critics run the gamut from pinpoint strikes targeted at particular deficits ? such as lack of rationality, 220 incommensurability,221  and structural redundancy,222  to name but a few ? to a complete negation of its soundness. 223  Evidently, to claim that proportionality critique is en vogue224 is no exaggeration.  As such, a growing number of commentators turn proportionality into a central feature of their work, claiming that current scholarly discourse is inarticulate or reticent about, for example, deontological constraints in proportional reasoning,225 practical reasoning arguments in protecting rights226 or, conversely,                                                         219 Kai M?ller, ?Proportionality: Challenging the Critique? (2012) Int?l L Const L 10:3 709 at 709.  220 See, e.g., Bernardo Pulido, ?The Rationality of Balancing? (2007) 29 Archiv fur Rechts und Sozial Philosophie 195; E Feteris, ?The Rational Reconstruction of Weighing and Balancing on the Basis of Teleological-Evaluative Considerations in the Justification of Judicial Decisions? (2008) 21:4 Ratio Juris 481; Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int'l & Comp L Rev 555. 221 On strong and weak incommensurability, for instance, see, generally, Jeremy Waldron, ?Fake Incommensurability: A Response to Professor Schauer? (1993-4) 45 Hastings L J 813; F D?Agostino, Incommensurability and Commensuration: The Common Denominator (Aldershot: Ashgate Publishing, 2003); P Veel, ?Incommensurability, Proportionality, and Rational Decision-Making? (2010) 4 Law and Ethics Hum Rts 176.  222 Peter Hogg, Constitutional Law of Canada, Student Ed (Carswell, 2012) at 38-34. On the relevant discussion, see also Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 337-339; G Davidov, ?Separating Minimal Impairment from Balancing: A Comment on R v Sharpe? (2000) 5 Rev Const Stud 195. 223  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468. 224 Ulf Linderfalk, ?Proportionality: On the Significance of the Usage of Conceptual Terms for the Formation of International Law and the Development of International Special Regimes? (2011) 56 CJICL. 225 Moshe Cohen-Eliya & Gila Stopler, ?Probability Thresholds as Deontological Constraints in Global Constitutionalism? (2011) 49 Columbia J Transnat'l L 102.       58 disadvantages of conventional wisdom in proportionality considerations.227  Indeed, whether as a framing device or as a target for critique on its own, proportionality is the Klondike for scholars seeking to bring novelty into their works and broaden the focus of their research ? not only geographically, but also in respect of the range of conceptual frameworks and discourses they may consider. It comes as no surprise, consequently, that with the proliferation of academic literature, and with proportionality?s rapid worldwide diffusion, there seem to have developed two major camps ? proportionalityphiles228 and proportionalityphobes ? in whose scholarly works proportionality is being celebrated, 229  denigrated, 230  and everything in between. To confine myself to modern examples, The International Journal of Constitutional Law has recently staged an exciting debate on the merits and detriments of proportionality, with Stavros Tsakyrakis attempting to unmask                                                                                                                                                                                   226 Denise Meyerson, ?Why Courts Should Not Balance Rights Against the Public Interest? (2007) 31 Melb U L Rev 837; see also Joseph William Singer, ?Normative Methods for Lawyers? (2009) 56 UCLA Law Review 899. 227 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 534-537. 228 See, Tom Hickman, ?Problems for Proportionality? (2010) N Z L Rev 303 at 306. 229  Among the distinguished devoted supporters of proportionality, ?a principle of constitutional justice that deserves universal acceptance? is, undoubtedly, David Beatty, who argues that proportionality guarantees judicial objectivity and provides the main justification for the exercise of judicial review (See, David Beatty, The Ultimate Rule of Law (Oxford University Press, 2005). For a penetrating review of Beatty?s book, see Vicki C. Jackson, ?Being Proportional about Proportionality? (2004) 21 Const. Commentary 803. For a vigorous critique, see, generally, Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009); Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72; Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 476 - 480. 230  See, generally, Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009); Iddo Porat, ?The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law? (2006) 27 Cardozo L Rev 1393;  Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 481 -492; Kai M?ller, ?Proportionality: Challenging the Critics? (2012) 10:3 Int J Constitutional Law 709; Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72.       59 proportionality as ?an assault on human rights?, 231  and Madhav Khosla 232 maintaining that Tsakyrakis has failed to demonstrate any defect in the proportionality test.233    Some commentators have read this revival as signaling a positive paradigm shift within the discourse, with constitutional scholarship embracing a more nuanced understanding of proportionality virtues234 ? or, as so often is the case, lack thereof. 235  With that said however, we should not be too quick to form conclusions. While there may be some merit to the argument that the quantity of critical submissions contributes to the quality of the debate, it is worth noting that the plethora of contributions further complicates the task of seeing the whole picture. An even greater challenge for scholars is to navigate themselves through the existing stock of concepts and ideas ? especially those which are deeply contradictory per se? without diluting their understandings of the properties, uses, and limitations of proportionality. I shall not enter the full debate here; suffice it to say that even a brisk survey reveals that, notwithstanding a large body of scholarly literature which has probed the subject, a typical repertoire of proportionality criticism relates to the restricted number of signature publications in the field, while missing much of what can be found on the margins. As a curious reader myself, I have likewise always wondered why only a very small number of publications refer to important earlier articles in                                                         231 Stavros Tsakyrakis, Proportionality: An Assault on Human Rights? (2010) 7 Int J Constitutional Law 468  232  Madhav Khosla, ?Proportionality: An assault on human rights??A reply? (2010) 8  Int J Constitutional Law 298 233 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687 at 687. 234 Ibid. 235 Kai M?ller, ?Proportionality: Challenging the Critique? (2012) Int?l L Const L 10:3 709 at 709.       60 the field236 (70s and 80s,)237 let alone, for instance, classical Greek literature238 or that of the Enlightenment.239  Indeed, the current state of the proportionality debate is rather confusing and puzzling, a real problem as proportionality language and concepts expand their domain across jurisdictions.240   It is important, I believe, that the debate be critically assessed, and expanded, where necessary, to take better account of  notions of democracy, 241  rule of law, 242  modern discourses of legal convergence and legal transplantation,243 certain deontological considerations,244 and so on.                                                         236 Regarding the concerns about reinventing old theories in proportionality discourse, especially those already articulated in American literature, see, Stavros Tsakyrakis, Proportionality: An Assault on Human Rights? (2010) 7 Int J Constitutional Law 468 at 469. 237 See, e.g., L Henkin, ?Infallibility under Law: Constitutional Balancing? (1978) 78 Colum L Rev 1022; Mark Tushnet, ?Anti-Formalism in Recent Constitutional Theory? (1985) 83 Mich L Rev 1502. 238  For instance, Greek doctrines of corrective justice (justitia vindicata) and distributive justice (justitia distributiva) have also contributed to the formation of proportionality as a rational concept, not to mention extensive considerations offered by Plato, Aristotle, and ancient philosophers. For the relevant overview of the literature, see generally E Weinrib, ?Corrective Justice? (1992) 77 Iowa L Rev 403; I Englard, Corrective and Distributive Justice: From Aristotle to Modern Times (Oxford University Press, 2009);  Thomas Poole, ?Proportionality in Perspective? (2010) New Zealand L Rev 369. 239 It should be noted that the development of the concept of proportionality is inextricably linked to the Enlightenment of the eighteenth century and the notion of the social contract. 240 Bernard Hovius, ?The Limitation Clauses of the European Convention on Human Rights: A Guide for the Application of Section 1 of the Charter?? (1985) 17 Ottawa L Rev 213; Dieter Grimm, ?Proportionality in Canadian and German Constitutional Jurisprudence? (2007) 57 UTLJ 383; Amir Attaran, ?A Wobbly Balance? The Comparison of Proportionality Testing in Canada, the United States, the European Union and World Trade Organization (2007) 56 University of New Brunswick Law Journal 260; Margaret de Merieux, ?Establishing the Democratic Credentials of Legislation: R. v. Oakes and the Section 4 of the Human Rights Act (1998) (UK)? (2001) 30 Comm. World L. Rev. 193. 241 See, e.g., Lorraine Weinrib, ?The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Role of Law and Fundamental Rights under Canada?s Constitution? (2001) 80 Can Bar Rev 699; T Roux ?Democracy? in S Woolman et al (eds), Constitutional law of South Africa (2 edition, Cape Town: Juta law Publishers, looseleaf 2002-); Aharon Barak, The Judge in a Democracy (Princeton University Press, 2006);  David Mullan, ?The Role for Underlying Constitutional Principles in a Bill of Rights World? (2004) New Zealand L Rev 9. 242 Richard Mullender, ?Theorizing the Third Way: Qualified Consequentialism, the Proportionality Principle, and the New Social Democracy? (2000) 27:4 J L & Soc?y 493; Mattias Kumm, ?Political liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement? in G Pavlakos (ed), Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy (Portland, OR: Hart Publishing, 2007). 243  See, e.g., David S Law, ?Globalization and the Future of Constitutional Rights? (2008) 102 Northwestern U L Rev 1277; Mark Tushnet, ?The Inevitable Globalization of Constitutional Law?       61 With that in mind, the purpose of this chapter is to present a coherent vision of the current state of the proportionality debate, particularly in response to some common misconceptions. The chapter also seeks to provide proportionality discourse with a clear and comprehensive taxonomy. It will question assumptions about  proportionality?s limitations, and also clarify and concretize an agenda for further  theorizing by elucidating the arguments pro et contra proportionality.   Admittedly, mine is not the first attempt to taxonomize pro et contra arguments about proportionality. A characteristic example, in this respect, is a classification suggested by Aharon Barak, who, drawing heavily on the signature essay of Alexander Aleinikoff,245 posits that ?the criticism can be divided into two main categories?.246 Per Barak?s account, the first is internal critique, examining proportionality from within.  The second is external criticism, examining proportionality from a larger legal context. The former mostly focuses on the limitations of the balancing act ? proportionality stricto sensu ? arguing that it is nothing but a manifestation of intuition and improvisation. 247  However, the latter takes a closer look at the allegedly too wide ? and therefore potentially damaging ? judicial discretion which proportionality allegedly licences judges to exercise.248                                                                                                                                                                                   (2009) 49 VA J Int?l L 985 at 987; Sujit Choudhry, Migration of Constitutional Ideas (Cambridge University Press, 2006). 244  See, e.g., Richard Mullender, ?Theorizing the Third Way: Qualified Consequentialism, the Proportionality Principle, and the New Social Democracy? (2000) 27:4 Journal of Law and Society 493.  245 See,  Alexander T. Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96:5 The Yale Law Journal 943. 246 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 481. 247 See, e.g., Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 850. 248 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 487.       62 Another interesting account may be found in the works of Kai M?ller who posits that there are two distinct ways in which to criticize proportionality. In his submission, the first argues that the special normative force held by rights lends them an absolute or near-absolute priority over competing considerations, which effectively renders any talk of balancing, at the very least, misleading. The second line of criticism leaves open the question regarding the normative force of rights, but argues that the principle ?has other deficits which make it unsuitable for the resolution of rights issues?.249 The approach I suggest below attempts to transcend these limitations and dichotomies in the debate about proportionality by adopting a wider conception of the concept,  one that goes beyond horizontal classification of different components and instead seeks to  put them in hierarchical order. At the core of my analysis will lie the idea of network representation of knowledge250 ? with a particular emphasis on subsumption-based taxonomy. These will be the bases of my  conceptual account of proportionality . The seeds for this idea were sown when, twisting my way through the range of anti-proportionality arguments, I came to realize that they left me more and more confused.  These are complex issues which require sustained investigation and analysis, and as such I was constantly shifting the arguments around like a Rubik's Cube, trying to get all the points aligned. Which left me with the questions ?                                                         249 Kai M?ller, ?Proportionality: Challenging the Critique? (2012) Int?l L Const L 10:3 709 at 711. 250  See, e.g., William A Woods, Understanding Subsumption and Taxonomy: A Framework for Progress (Harvard University, Center for Research in Computing Technology, Aiken Computation Laboratory, 1990).       63 Can proportionality be reconstructed in the language of visible schemas? Can it fit into a coherent normative framework of decision-making? I believe both questions can be answered in the affirmative.   As one might expect, proportionality ? which is in and of itself a judicial formula ? does prove far more likely to fit into an analytic scheme designed as a graphic and vivid pyramid, rather than a flowing unorganized narrative ? which most accounts of proportionality, unfortunately, are. As such, a structured account of proportionality should consist of asking questions and challenging conventional assumptions. However, that is not what makes it structured; it is what lies behind the questions ? a set of categories and a scheme of classification. A robust interpretation of the aforementioned scheme can be summarized as follows:251 It deconstructs proportionality into its underlying premises in a ?top-down? fashion, with the process of reasoning moving from one general statement ? that proportionality is a means of limitation of constitutional rights ? to more discrete particularities, all of which will be addressed  in turn. This deductive reasoning not only gives rise to some general questions about proportionality as we travel through premises arranged in an ascending order, but it also takes account of all existing submissions and arguments in debates about proportionality, and thus provides a clear and comprehensive subsumption-based taxonomy. To exemplify what I mean, the critical claim that proportionality fails to provide sufficient protection to constitutional rights is fundamentally different than the critique that some components of the proportionality test are redundant. The latter argument, at                                                         251 This is my interpretation; but it is quite plausible to assume that it may involve ideas expressed elsewhere.       64 the very least, implies that rights are not absolute and that they can be subject to limitation, whereas the former does not necessarily accept this. Failure to recognize this distinction is a common source of misunderstanding when it comes to proportionality critiques.  The scheme of classification I propose arranges the three main dimensions of proportionality ? as a tool for rights limitation, a balancing exercise, and a judicial formula ? in ascending order, having regard to the specific functions each typically performs. I place proportionality as a tool for rights limitation at the bottom of the scale. Each of the higher levels is higher because it possesses the characteristics of the level below and, in addition, has certain distinctive characteristics which the level below does not have: 1. The doctrinal properties of rights? limitation tool subsume the doctrinal properties of balancing. 2. The doctrinal properties of balancing subsume the doctrinal properties of the standard-like proportionality test. The remainder of this chapter will   examine proportionality from a variety of perspectives, but most importantly, it will examine all of its different facets ? and, respectively, limitations attributed to them ? at different levels of generalization.252  My line of reasoning should, consequently, look as follows: proportionality is subject to critique as  (i) a doctrinal tool to manage constitutional conflicts                                                         252 Compare with: ?Levels of abstraction are teleological, or goal oriented. Thus, when observing a building, which level of abstraction one should adopt?architectural, emotional, financial, historical, legal, and so forth?depends on the goal of the analysis. There is not a ?right level of abstraction independently of the purpose for which it is adopted, in the same sense in which there is no right tool independently of the job that needs to be done? (L Floridi,  The philosophy of information (Oxford: Oxford University, 2011a) at 75). 252       65 (keyword: limitation of constitutional right); (ii) a doctrinal tool to limit constitutional rights through the assessment of their relative marginal weight (keyword: balancing); (iii) a doctrinal tool to balance individual constitutional rights and public interests via a rigid procedural test which consists of 4 threshold components, which are dependent upon fulfillment of one component after the other (keyword: 4-component formalized test.)  4-prong vertical test ? balancing ? limitation  Each of the three dimensions is provided with an opposite ? that is, proposed alternative to proportionality253 ? and a correlated set of underlying ?big? questions which are supposed to lead us to the heart of proportionality technique. As Robert Alexy effectively puts it: ?Asking for the nature of something is more than asking for interesting and important properties 254 )?. 255  According to his view, questions regarding the nature of legal phenomena are questions about their necessary properties. Thus, key questions, pursued through this avenue, include: Is there anything absolute in law? Is it possible to avoid balancing in rights adjudication ?                                                         253  I discuss the proposed alternatives to proportionality ? both categorization- and non-categorization-based  ? later in this Chapter. On the idea of alternatives in law, see, generally, Jaap Hage, ?Comparing Alternatives in the law? (2004) 12:3  Artificial Intelligence and Law  181. 254 Emphasis added ? I.P. 255 Robert Alexy, ?The Nature of Legal Philosophy? (2004) 17:2 Ratio Juris, 2004 156 at 162.       66 either explicit or implicit? Is it possible to create a purely mechanical legal formula? Are there right answers to legal questions? Is law capable of apprehending and regulating all constitutional conflicts? Is it possible to avoid value-laden judgments in rights adjudication? Can we ascribe a truth-value to the content of legal norms? Do neutrality and impartiality in law exist, in any sense of those concepts? Last but not least, is there merit in the assertion that the proportionality test is symptomatic of a less mature constitutional law system, and is limited to playing a transitional role   towards a more mature constitutional law?256  In addition to gaining an understanding of these questions, the ultimate aim of this Chapter is to shed more light on the tension between the ?triumphant success of proportionality? and the severity of its criticism. Despite the latter, however, there is much evidence to support the theory that proportionality, being a structured approach to balancing fundamental rights with public interests, does so ?in the best possible way?.257 As such, it entails structural, rational, and logical rules that limit the uncertainty of the outcome of a case258 and heighten standards for rights protection.  One may think that proportionality, so interpreted and deconstructed, is a conditio sine qua non in rights adjudication and that it would consistently focus us on the right answers ? which is the case. Proportionality creates a discursive frame for norm-based argumentation: a unique, unparalleled and ? in a fashion ? ultimate principle. But when something goes wrong, and a mistake occurs, it is only                                                         256 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687 at 688. 257 Julian Rivers, ?Proportionality and Variable Intensity of Review? (2006) 65 Cambridge L J 174 at 176. 258 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687 at 701.       67 proportionality which is to blame, and whose bankruptcy is signified, and which is reported to be ?unsuitable for the resolution of rights issues,? 259  according to critiques ? and, in a manner, they are right. For, as the saying goes: ?If you think you can do a thing or you think you can?t do a thing, you are right?.260   2.2. Proportionality as a Rights Limitation Tool  Nothing seems to me less outdated than the classical emancipatory ideal. Jacques Derrida, Force of Law261  There is a considerable appeal to the thesis that, once granted, 262  rights should not be taken away. This thesis reflects centuries-long struggles for human rights and fundamental freedoms; it manifests itself in a rich scholarly discourse. For Rawls: ?Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override?.263 For Nozick: ?Individuals have rights, and there are things no person or group may do to them (without violating their rights)?.264 Such accounts plausibly reflect most people?s self-conception and reflect their intuitive perceptions of rights.                                                         259 Kai M?ller, ?Proportionality: Challenging the Critique? (2012) Int?l L Const L 10:3 709 at 711. 260 This quote is typically attributed to Henry Ford.  261 Jacques Derrida, ?Force de loi: Le ?fondement mystique de l?autorit?? (1990) 11 Cardozo L Rev 919 at 971. 262 It is of note, however, that the very idea of the authority that ?grants the rights? ? be it a man or God ? is not without controversy. Many legal theories posit that human rights belong to individuals since birth. According to natural rights theory, natural rights, or any rights for that matter, are inherent due to our very humanity; it ensues that, for instance, right to life and liberty can never be bestowed by men. Such conceptual difference is not, however, a primary focus of the present paper. 263 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971) at 3. 264 Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) at ix.       68 ?Protection of rights? is not, however, an easy pursuit for a state to adhere to. It is made even more challenging when the words ?protection of public interests? are considered to be of roughly equal importance. As more often than not these two arenas produce ?moments of challenge?,265 the state consistently finds itself in need of negotiating compromises between   issues that appear absolute. Opportunely, to achieve what the Supreme Court of Canada Chief Justice McLachlin ? so very rightly ? calls ?a positive partnership between individual and public interests,? numerous resources and strategies are available. It is these legal strategies ? some relatively straightforward, others borderline and difficult ? which are the focus of this research. It is a central premise of my argument that, despite a powerful opposition to the idea, we must accept that permitting limitations on rights is inevitable in constitutional adjudication ? whichever form it may take. As Peter Hogg describes it, ?In any event, there is merit in the frank avowal that the guaranteed rights are not absolutes, and in the establishment of procedural and substantive rules defining the requirements of justification?.266 In amplifying this point, I will inevitably grapple with other underlying questions: Is there something in law that can be deemed absolute? Can a right be defeated by a powerful utilitarian justification? What is the basis ? both formal and substantive ? of rights limitation?267 If human dignity is inviolable, and rights are grounded in human dignity, must they not provide for very strong, perhaps even                                                         265  Beverley McLachlin, ?Defining Moments: The Canadian Constitution: Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada? (2013) Online at <http://www.scc-csc.gc.ca/court-cour/judges-juges/spe-dis/bm-2013-02-05-eng.aspx> 266 Peter Hogg, Constitutional Law of Canada, Student Ed (Carswell, 2012) at 38-3. 267 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012 at 131.       69 absolute, constraints on what governments may impose?268 If the most plausible justification for the encroachment on rights is pursuing the public good, what is this good? In a similar vein, what are public interests? As Stephen Gottlieb rightly points out, ?while the pedigree of asserted rights has been carefully screened in accord with reigning theories of interpretation, interests have floated into opinions with little analytical rigor?.269  The objective of examining the foundations of limitation of rights ? as well as overriding public interests ? is to provide a retort to the critique of proportionality as ?undermin[ing] the very idea of rights? 270  or even ?the very idea of constitution?.271 Another purpose of this study is to underscore two truths. First, we should be skeptical of any extreme account of law, the jurisprudence of absolute rights being the most emblematic example, as legal reasoning is not a mechanical process. Second, it is a fallacy to claim that proportionality is responsible for rights violation ? quite the contrary. Through judicial review the individual?s right is protected vis-?-vis the majority?s power272  whilst proportionality constitutes the most developed doctrinal underpinning for such a review.273  These arguments rest                                                         268  Mattias Kumm & Alec D Walen, ?Human Dignity and Proportionality: Deontic Pluralism in Balancing? (January 2, 2013). Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming; NYU School of Law, Public Law Research Paper No. 13-03. Online at <http://ssrn.com/abstract=219566> 269 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 833-834. 270  Mattias Kumm & Alec D Walen, ?Human Dignity and Proportionality: Deontic Pluralism in Balancing? (January 2, 2013). Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming; NYU School of Law, Public Law Research Paper No. 13-03. Online at <http://ssrn.com/abstract=219566> 271 Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009) at 101. 272 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012 at 476. 273 It is important to note that in Canada, the proportionality test developed in R v Oakes is recognized to perform a few functions, of which the primary interests for this research constitute safeguarding the       70 on the assumption that, whichever form it may take, the de facto limitation of human rights is inevitable. As such, it is not unreasonable to make it open and properly justified.  The methodological and theoretical toolkit for the present section will constitute traditional accounts of law, but also legal recognition of the fuzziness of legal concepts.274 As Alec Stone Sweet & Jud Mathews so rightly mention:  [R]ights provisions are relatively open-ended norms, that is, they are both indeterminate and in danger of being construed in an inflexible and partisan manner. As discussed, judges have good reasons to formalize a balancing procedure, and to impose this on litigating parties. PA represents such a formalization.275  The solid strand of the discussion should be informed by the idea of dialectic in law: Heraclitus puts forth the proposition that something can be right and wrong concurrently; Plato was the first philosopher to indicate the grey area between right and wrong. Later philosophers, especially Hegel, endorsed and developed Plato?s thoughts; and most recently, Mattias Kumm & Alec D Walen argued that the framework for reconciling these kinds of tensions ? that is, balancing ? ought to be understood as thoroughly deontological and morally-grounded.276 For Kant, morals,                                                                                                                                                                                   primacy of rights and freedoms set out in the Charter by means of establishing a ?stringent standard of justification.? 274 Some examples of explicit acknowledgement of such fuzziness: H.L.A. Hart's distinction in the Concept of Law between cores and penumbras of legal concepts; Edward Levi in Introduction to Legal Reasoning (1949); the vast literature arguing that many or most legal rules, at least at their edges, do not have a plain or indubitable meaning. For a simplified account of fuzzy logic, see also Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (Hyperion, 1994). 275 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 90. 276  Mattias Kumm & Alec D Walen, ?Human Dignity and Proportionality: Deontic Pluralism in Balancing? (January 2, 2013). Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming; NYU School of Law, Public Law Research Paper No. 13-03. Online at <http://ssrn.com/abstract=219566>       71 analytics and dialectics taken together constitute metaphysics, which is philosophy, and the highest achievement of human reason. 277  I believe that such a holistic approach is necessary, in opposition to many accounts of proportionality, to avoid overly-technical and fragmented approaches that can only lead to the atrophy of value-laden grounds of constitutional adjudication. 278  Offering a defense of metaphysics against the fragmentation of science, Heidegger states at the end of his famous lecture that:  Only if science exists on the base of metaphysics can it advance further in its essential task, which is not to amass and classify bits of knowledge but to disclose in ever-renewed fashion the entire region of truth in nature and history.279  To begin with, many commentators, reflecting different opinions, have criticized proportionality for not providing enough protection to human rights. It is claimed, for example,  that an understanding of rights which makes their existence  dependent on applying a proportionality test undermines the very idea of rights. Otherwise stated, if a right can be limited, what is its value?280 In the liberal tradition, rights are widely imagined as ?trumps,? which prevail over policy relating to public interest.281 They are claimed to have priority over ?the public good? in some strong                                                         277 Howard  Caygill,  A Kant Dictionary (Wiley-Blackwell, 1995) at 292. 278 As Klatt & Meister rightly endorse, ?[o]nly a very na?ve approach would arrive at the conclusion that any legal reasoning could be value free and deprived of any moral considerations? (Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law  687 at 692). See also, Virg?lio Afonso da Silva, ?Comparing the Incommensurable? (20110 31 Ox J L egal Stud 273 at 288. As an example for an overly simplistic view on the matter, he refers to David Beatty?s treatise. 279 Martin Heidegger, ?What Is Metaphysics?? (1929) The basic text of Heidegger's inaugural lecture at the U. of Freiburg in 1929 280 Peter Hogg, Constitutional Law of Canada, Student Ed (Carswell, 2012) at 38-4. 281 Ronald Dworkin, ?What Rights do We Have?? in Taking Rights Seriously (Oxford University Press, 1978) 266. For an analysis of this approach, see B Friedman, ?Trumping Rights? (1992) 27 Ga L Rev 435; D T Coenen, ?Rights as Trumps? (1992) 27 Ga L Rev 463; J Waldron, ?Pildes on Dworkin?s Theory       72 sense.282 Habermas considers rights as ?firewalls,? which provide strong protection against demands made by the political community.283 Indeed, they are thought to be grounded in human dignity,284 which in turn is held to be inviolable.285 Proportionality, with its insistence that rights can be limited, is therefore potentially at odds with the radical individualism of some forms of liberalism.  In his interpretation of Dworkin, for instance, Webber makes it seem as if Dworkin is endorsing the notion that ?rights are absolute?. 286  Such an account, without reservations, would close the door for any proportionality considerations. My argument, in this connection, is that most of such ?readings? are too simplistic per se. Upon closer examination, it becomes clear that in practice very few rights theories uphold the absolute character of constitutional rights. In a similar vein, modern liberal theories may posit that individual rights are principally superior to public interests, but they do not speak of an uncompromising superiority of rights.287 A                                                                                                                                                                                   of Rights? (2000) 29 J Legal Studies 301; R Pildes, ?Dworkin?s Two Conceptions of Rights? (2000) 29 J Legal Studies 309. 282 John Rawls, Political Liberalism (1993) at 173-211. 283  Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge MA: The MIT Press, 1996). 284 See Art. 1 of the Universal Declaration of Human Rights: ?All men are born free and equal in dignity and rights?; Art. 1 of the German Basic Law declares: ?Human Dignity is inviolable. To respect and protect it is the duty of all public authority?, Art. 1 of the European Charter of Fundamental Rights states: ?Human dignity is inviolable. It must be respected and protected.? Art. 1 of the Constitution of South Africa: ?The Republic of South Africa is one, sovereign, democratic state founded on the following values: a. Human dignity, the achievement of equality and the advancement of human rights and freedoms.? 285 Kant, for instance, insists that while everything that has a value has a price, that which has dignity is above all price and thus, presumably, above competing values. For a respectful debate, see Mattias Kumm & Alec D Walen, ?Human Dignity and Proportionality: Deontic Pluralism in Balancing? (January 2, 2013). Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming; NYU School of Law, Public Law Research Paper No. 13-03. Online at <http://ssrn.com/abstract=219566> 286 Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009)  287 It is important to note that almost all constitutional theories recognize a number of fundamental rights as absolute ? or unqualified, as termed by Aileen Kavanagh (Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) at 257). A paradigmatic example of an absolute right that cannot be diminished by a competing public interest, or even other       73 telling example, in this respect, is Mattias Kumm?s statement that although ?liberal political rights are widely perceived as having special weight when competing with policy goals,? ?nothing in the account of rights as principles prioritizes right?.288 Having offered a respectful overview of Rawls, Dworkin, and Habermas, he then appears to go a step further by positing that ?[r]ights and policies compete on the same plane within the context of proportionality analysis?.289 Interestingly enough, Aharon Barak argues that the ?side constraints? 290 theory of rights may peacefully coexist with the methodology of balancing: ?Indeed, the component of proportionality stricto sensu may well incorporate the notions of ?rights as trumps,? or ?rights as firewalls?.291 As stated by Matthias Klatt and Moritz                                                                                                                                                                                   right, is a widely accepted prohibition of slavery (see, e.g., Art. 4 of the Universal Declaration of Human Rights.) Another example of an absolute right is a prohibition of torture (Art.3 of the European Convention on Human Rights stipulates as follows: ?No one shall be subjected to torture or to inhumane or degrading treatment or punishment.?) Interestingly enough, the German Basic Law (Grundgesetz) provides an uncompromising superiority to human dignity. Article 1(1) of the German Constitution reads thus: ?Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.? In the decisions of the Federal Constitutional Court of Germany, human dignity operates as an absolute barrier to governmental encroachment upon individual rights; more importantly, though, human dignity is considered to be of higher importance than human life (Consider BVerfGE, February 15, 2006, BVerfGE 115.) The foregoing theory of unqualified rights, however, is not without problems of its own. For the growing security concerns across the globe pose questions that still await their answers: Do terrorists have an absolute constitutional right not to be tortured? What if the investigation that has recourse to force may lead to many lives being saved? These challenges add an additional layer of complexity to the doctrine of unqualified rights. 288 Mattias Kumm, ?Political liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement? in G Pavlakos (ed), Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy (Portland, OR: Hart Publishing, 2007) at 141. 289 Ibid at 142. 290 Robert Nozick, Anarchy, State and Utopia (1974) 28?33. 291 Barak at 490. It is important to note, that such an acknowledgement is not without criticism. Tsakyrakis, for instance, posits that ??by definition, any treaty for the protection of human rights gives priority to rights.? However, he does not present any particulars as to how rights can trump other considerations. He simply argues that a concept of rights as trumps was incompatible with balancing: ?in . . . balancing, there cannot be any concept of fundamental rights having priority over other considerations.?  This view is similar to Beatty?s argument that, in proportionality, rights ?have no special force as trumps,? but are ?just rhetorical flourish.? Likewise, da Silva argues that trumping is defined by the complete absence of balancing. As Klatt & Meister rightly observe, these authors understand the concept of a ?trump card? as a categorical concept, rather than a classifying concept: It defeats other cards irrespective of their weight (Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law  687.)       74 Meister in their recent article, proportionality and trumping are compatible by means of two conditions:   first, by requiring that the legitimate aim is of constitutional status; and, second, by assigning higher abstract weights to rights than to other considerations. Tsakyrakis? and da Silva?s assumption that balancing and trumping were incompatible is thus incorrect.292  Another problem with declaring rights as absolute ? or the notion that one right must always prevail over other constitutional values, including other rights provisions, therefore creating a hierarchy of rights ? is articulated in an interesting account by Alec Stone Sweet & Jud Mathews. As they submit, in so doing, the court would ?in effect, constitutionalize winners and losers. Further, we know of no defensible procedure for doing so other than freezing in place a prior act of balancing: insofar as judges gave reasons for having conferred a higher status on one value relative to another, they have in fact balanced?.293 Having grappled with the contested underpinnings of the jurisprudence of absolute rights, it is now that I proceed to the next limb of inquiry: If the rights are deemed relative, then we limit them in favor of what? The most plausible ? although highly contested ? explanation stems from the protected interests theory (later was mostly propounded by the Jurisprudence of interests school.)  As noted by Horacio Spector, in its early formulation as the ?benefit theory,? the protected interest theory was first suggested by prominent English philosopher                                                         292 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law  687 at 691. See the full discussion at 688-692. 293 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 87-88.       75 and jurist Jeremy Bentham.294 In his view, A?s having a right to X against B means that A is the beneficiary of B?s duty to do X.295 The German legal scholar Rudolf von Jhering proposes a clearly recognizable form of the interest theory when he changed his jurisprudential position from legal formalism to legal instrumentalism. Von Jhering famously defines a legal right as a ?legally protected interest?.296 In its most plausible version, propounded by Joseph Raz, the interest theory holds that A?s having a right to X against B means that an interest of A?s, or an aspect of his well being, is a sufficient reason for holding B under a duty.297   In terms of intellectual history, the Jurisprudence of interests developed in the late nineteenth century against a backdrop of the formalistic Jurisprudence of concepts failing to accommodate various normative concerns and policy considerations. It was the scholars? understanding of law as dealing with a number of conflicting private and social interests that forcefully suggested a depiction of the judge?s task as involving a balancing of these interests.298 As Jacco Bomhoff observes, the interests-based alternative was developed by Fran?ois G?ny and other juristes inqui?ts in France,299  Philipp Heck and his fellow members of the school of Interessenjurisprudenz (Jurisprudence of interests) in Germany, 300  and Roscoe Pound and other                                                         294  Horacio Spector, ?Value Pluralism and the Two Concepts of Rights? (2009) RMM Vol. 0, Perspectives in Moral Science, ed. by M. Baurmann & B. Lahno 355 at 359. 295 Jeremy Bentham, Of Laws in General, ed. H. L. A. Hart (London: The Athlone Press, 1970). 296 The protected interest theory has also been defended by Neil MacCormick (1982), and D. N. MacCormick (1977). 297 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 298 Jacco Bomhoff, ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights 109 at 124. 299 On other participants, see generally Marie-Claire Belleau, ?The ?Juristes Inqui?ts?: Legal Classicism and Criticism in Early Twentieth-Century France ?(1997) Utah L Rev 379. 300 For an account in English, see Albert A. Ehrenzweig, ?Book Reviews? (1948) 36 Cal L Rev 502.       76 ?sociological jurisprudes? in the United States.301 The foregoing insight ? law as a mechanism for dealing with ?social weighing? and ?colliding interests? ? has to be situated as an extension of Jhering?s emphasis on teleology in legal method and his account of ?rights as protected interests.? Interestingly enough, in his 1936 article, 302 Philipp Heck suggested that he had always seen individual interests as worthy of protection only because of the fact that they were simultaneously social interests.303 In the U.S., at the beginning of the twentieth century, there were likewise conscious efforts to replace Lochner?s formalism with the balancing of interests doctrine. The latter was well suited for dealing with problems that lie at the intersection of legal method and politics and was propagated by the socially progressive sociological jurisprudence.304  Roscoe Pound, the main early advocate of the balancing of interests in America, marshaled a conception of ?judicial decision-making as part of [a] larger project of social engineering.?305 This historical evaluation allows seeing the modern American jurisprudence on balancing in a slightly different light and may account                                                         301  On sociological jurisprudence, see Edward White, ?From Sociological Jurisprudence to Legal Realism: Jurisprudence and Social Change in Early Twentieth Century America? (1972) 58 V L Rev 999. For a more recent account, see Moshe Cohen-Eliya & Iddo Porat, ?American Balancing and German Proportionality: The Historical Origins? (2010) 8 Int'l J Const L 263.  As the authors write in their paper, a key phase in the development of balancing in the U.S. was the work of the ?Sociological Jurisprudence? in the early decades of the twentieth century, in particular of Dean Roscoe Pound of the Harvard Law School. 302  Philipp Heck, ?Die Interessenjurisprudenz und ihre neuen Gegner ? (1936) Archiv Fur Die Civilistische Praxis 129 at 175 (translated from German by Jacco Bomhoff, in ?Genealogies of Balancing as Discourse? (2010) 4:1 Law & Ethics of Human Rights 109 at 128.) 303 Compare with the reason delivered by Wilson J in Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326. 304 Some claim that American sociological jurisprudence is nothing short of reappraising of German jurisprudence of interests. 305  Edward White, ?From Sociological Jurisprudence to Legal Realism: Jurisprudence and Social Change in Early Twentieth Century America? (1972) 58 V L Rev 999 at 1010.       77 for the frequent invocation of ?balancing language? in the Supreme Court?s reasoning. Consider the following passage:  Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved.306  To conclude, the explanation of theoretical underpinning of proportionality ? as a rights? limitation factor, with a justification framework behind it ? should necessary blend legal, political, philosophical factors and logic, theorized in a particular way. In a nutshell, beneath the surface of everything alluded to above, lies the catalog of what, in figurative words of the Ontario Human Rights Commission, ?not to do? in a competing rights scenario: (1) treating any right as absolute; (2) regarding any right as inherently superior to another; (3) accepting a hierarchy of rights; and (4) approaching rights in an abstract or in a factual vacuum.307 In rights adjudication, there is no room for the rule of the excluded middle (either A or not-A.) As such, A and not-A together may productively coexist as the very nature of multi-faceted democracy presupposes what T Roux calls the ?constructive tension?308 between competing interests and values.                                                            306  307 ?The shadow of the law: Surveying the case law dealing with competing rights claims?: Ontario Human Rights Comission at fn4 - http://www.ohrc.on.ca/en/shadow-law-surveying-case-law-dealing-competing-rights-claims 308 T Roux ?Democracy? in S Woolman et al (eds), Constitutional law of South Africa (2 edition, Cape Town: Juta law Publishers, looseleaf 2002-) at 65.       78 2.3. A Fine Balance: Proportionality as a Weighing Exercise   He [Hegel] did not know to what extent he was right. George Bataille309  As covered in more detail in the next section, human rights adjudication might or might not manifest itself through proportionality. However, in reconciling individual rights with public interests, there is positively no way around balancing, an adjudicative technique which can coexist with other regulative ideas310 or operate on its own. Whether articulated or in disguise, balancing permeates all levels of analysis and of generality in value-laden judgments. This section investigates that elusive je ne sais quoi of balancing: the cluster of special qualities which makes balancing ?an inseparable part of legal interpretation and reasoning?311 which is ?inherently embedded in constitutional language?.312 While almost omnipresent,313 balancing is, nevertheless, highly contested. As the former President of the Supreme Court of Israel Aharon Barak observes,  proportionality criticism tends to be ?aimed at the component of proportionality stricto sensu?, 314  by which he means balancing between conflicting principles. Calling it ?doctrinally destructive nihilism,? for example, a member of the US Supreme Court has asserted that balancing is but a ?convenient umbrella under which a majority that cannot agree on a genuine rationale can conceal its                                                         309 George Bataille, Le Coupable, in Jacques Derrida, Writing and Difference (Routledge, 1978) at 317. 310 Balancing is at the core of the last stage of proportionality analysis ? proportionality stricto sensu. 311 Marko Novak, ?Three Models of Balancing (in Constitutional Review)? (2010) 23:1  Ratio Juris 101 at 101. 312 Richard H Fallon, Jr, ?Individual Rights and the Powers of Government? (1993) 27 GA L Rev 343, 313 German scholar Robert Alexy maintains that balancing ?is ubiquitous in law? (See, Robert Alexy, ?On Balancing and Subsumption? 314 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 457.       79 differences?.315 Others have similarly criticized proportionality as nothing short of the Trojan horse camouflaging judicial policy-making.316 In the remainder of the section, my aim is to challenge these, and similar, criticisms and, along with amplifying my point about the inescapable character of balancing in rights adjudications, to chart the arguments on balancing?s shortcomings so as to create a coherent, clear, and, hopefully, exhaustive road map. I do not attempt to restrict my discussion regarding balancing to a specific legal theory. Rather, my argument is premised on consistent applications of a variety of legal theories and modern proportionality discourse. To begin with, what is balancing? As Kai M?ller rightly observes, ?[i]t is not obvious what the reference to ?balancing? means, and this vagueness is indeed part of the challenge posed by  critics of proportionality?.317 Not far from the truth is a submission by Stephen Gottlieb who claims that balancing ?is a term for a process in an opaque box that is undefined and undefinable?.318 Even if individuals can balance for themselves, as Alexander Aleinikoff describes it, the process is so indeterminate that ?we have no good way to share a definition, or to reach determinate results?.319 Underlying these considerations is a growing concern that, if we cannot define balancing, ?we cannot show people how to do it, and thus, we cannot use it?.320 This is a powerful thesis. However, there is still a crucial distinction between balancing                                                         315 New Jersey v TLo (1985) 469 US 325 at 369-71 (Brennan J). 316Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 73. 317 Kai M?ller, ?Proportionality: Challenging the Critique? (2012) Int?l L Const L 10:3 709 at 715. 318 Stephen E Gottlieb, ?The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825  at 842. 319   Alexander Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96 Yale LJ 943 at 973. 320 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 837.       80 and mere intuition and gut-feeling, and understanding that distinction is the basis for defending the concept.  According to Massimo Durante,321 when thinking of balancing, we typically confront ourselves with four distinct questions, which together constitute the core of a structural analysis of balancing:  (1) what are we to balance between?;  (2) what does it mean ?to balance??  (3) what types of balancing do we have recourse to? and finally,  (4) what are the characters of a balancing activity? The word ?balancing? brings to mind an image of scales, as we are all familiar with mechanical weighing. What is heavier: this apple or that orange? This rock or that brick? However, mechanical weighing is not the only domain of balancing; our private life considerations are also susceptible to balancing, as is thinking more generally. As many commentators posit, balancing reflects life experience and careful reasoning.322 It is also an expression of rational thinking.323As Stavros Tsakirakis submits, the balancing metaphor includes ?a great variety of reasons and human actions?:  Should I go to the movies tonight or not? In order to make up my mind and act accordingly, I will probably have to do some kind of reasoning. One way to describe this reasoning is to say that I balance the pros and the cons of going to                                                         321 Massimo Durante, ?Dealing with Legal Conflicts in the Information Society. An Informational Understanding of Balancing Competing Interests? (2013) Philosophy & Technology (accepted papers series) at 7-8. 322 E M Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge University Press, 2005) at 337. 323 See Joseph Raz, Practical Reasons and Norms, 2nd edn, (Oxford University Press, 1999) at 95.       81 the movies, and if the former outweigh the latter I will go, if not I will stay home.324  In a nutshell, the balancing process distilled to its essence ? in law, as in life ? may be summarized thus: ?When faced with choice, pick the better?.325 Before I get started with the legal analysis, though, a caveat is in order. Those subscribing to constitutional theories which endorse balancing often make it seem as if balancing relates to some kind of decision engineering which produces demonstrably correct answers by a weighing processes. Yet, as Aharon Barak rightly admonishes, ?[t]he discussion regarding balancing, followed by the discussion regarding the weight, is a metaphor?. 326  The scales do not actually exist. 327  The consideration regarding balancing is normative in nature:328   The solution is not to provide a permanent label of ?weight? to each conflicting principle, but rather through shaping legal rules ? the rules of balancing ? that determine under which circumstances we may fulfill one principle while limiting another.329                                                          324  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468. 325 Stephen E Gottlieb, ?The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at  842. 326 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 436. 327 Regarding balancing as a metaphor, see also P Kann, ?The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell? 91987) 97 Yale L J 1; F M Coffin, ?Judicial Balancing: The Protean Scales of Justice? (1988) 63 N Y U L Rev 16 at 19; for the pros and cons of the balancing metaphor, see W Winslade, ?Adjudication and the Balancing Metaphor?, in H Hubien (ed), Legal Reasoning (Brussels: Emile Bruylant, 1971) at 403; D E Curtis & J Resnik, ?images of Justice? (1987) 96 Yale L J 1727; Iddo Porat, ?The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law (2006) 27 Cardozo L Rev 1393 at 1398; with respect to the metaphorical discussion in general, see G Lakoff & M johnson, Metaphors We Live By (University of Chicago Press, 1980) 328 On value-laden judgements in balancing ? and proportionality, for that matter reasoning see later in this chapter.  329 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 347.       82 As observed in the previous chapter, once a court has reached the balancing stage in proportionality analysis, it has necessarily established that there is an inherent conflict between the right and public interest, which cannot be resolved in any less restrictive way. At the balancing stage, therefore, the question arises as to whether the interference with the right is justified in light of the gain in the protection for the competing right or interest. To this end, the two values must be ?balanced? against each other. Massimo Durante, drawing on Giorgio Pino, defines balancing as an argumentative technique, employed to decide a case which could be subsumed under two or more norms.330 The process springs from a conflict between contrasting rights (principles, values or interests) which cannot be solved as a normal conflict between norms, since the rights are all potentially applicable.331 As previously mentioned in this thesis, in a democratic society, there is pluralism or ?the proper relationship between the interests of society and human rights?,332 which asks the judiciary to strike a balance between those interests (or principles, according to Robert Alexy).333 As Aharon Barak describes it, the basic rule of balancing provides normative content to the balancing at the heart of proportionality stricto sensu. It operates at the highest level of abstraction and therefore requires a concrete application on a case-by-case basis. This application is done through specific (or ad hoc) balancing.                                                         330 Massimo Durante, ?Dealing with Legal Conflicts in the Information Society. An Informational Understanding of Balancing Competing Interests? (2013) Philosophy & Technology (accepted papers series) at 6. See, also, Pino, G. (2006). Conflitto e bilanciamento tra diritti fondamentali. Una mappa dei problemi. Etica & Politica, 1, 1?57. Http://www.units.it/etica/2006_1/PINO.htm 331 Massimo Durante, ?Dealing with Legal Conflicts in the Information Society. An Informational Understanding of Balancing Competing Interests? (2013) Philosophy & Technology (accepted papers series) at 6. 332 Aharon Barak, ?Proportionality and Principled Balancing ? (2010) 4:1.2 Law and Ethics of Human Rights 1 at 4. 333 Robert Alexy et al, ?The construction of constitutional rights? (2010) 4:1.2 Law and Ethics of Human Rights 20?32.       83 Yet balancing is under constant attack. Gr?goire Webber points out on many occasions that ?[d]espite the pervasiveness of balancing and proportionality in constitutional reasoning, it is not clear that recourse to these regulative ideas is at all helpful in resolving the difficult questions involved in struggling with right-claims?.334 More than that, ?[w]hen it comes to constitutional adjudication, balancing can never be dissociated from lawmaking: it requires judges to behave as legislators do, or to sit in judgment of a prior act of balancing performed by elected officials?.335 Matthias Klatt & Moritz Meister in The Constitutional Structure of Proportionality, 336  distinguish between eight kinds of balancing criticism: that balancing tends to go together with a broad definition of rights, that its indeterminacy undermines the rule of law, that morality is not about balancing, that balancing gives a false impression of calculability, that the idea of balancing is incompatible with a core of inviolable rights, that balancing gives up the standard of correctness in favor of a weaker standard of appropriateness or adequacy, and that balancing tends to swallow up other prongs of the proportionality test.  A particularly strong line of criticism argues that balancing is often, if not always, confronted by values, goods, or interests which are incommensurable.337 To Tsakyrakis, the argument regarding incommensurability is frequently considered to                                                         334  Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship?(2010) 23 C J L J 179 at 179; See also Gr?goire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009). 335 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 87. 336 Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press, 2012) at 45-71. 337 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687 at 695-699. See also Stephen E Gottlieb, ?The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825  at 842.       84 constitute ?the most effective critique of balancing?.338 It proceeds on the assumption that in order to balance between competing principles they should be based on a common denominator.339 As Matthew D. Adler and Eric A. Posner posit in relation to such cases, speaking of balancing ?is particularly troublesome since weighing presupposes a common scale which in the case of incommensurable values does not exist?.340 Others espouse a view that the metaphor of weighing in and of itself ?says nothing about how various interests are to be weighed, and this silence tends to conceal the impossibility of measuring incommensurable values?. 341   As Virgilio Alfonso Da Silva articulates it:  At the core of the proportionality test is the balancing stage, where the right is balanced against a competing right or public interest. ?Balancing? suggests the image of scales, however, and scales serve their purpose only when the two things to be compared can be measured with the same unit (for example, grams). In the domain of constitutional rights, the question thus arises whether it is really possible to ?balance,? for example, the right to freedom of the press against a person?s interest in privacy. It seems that unless there is a common scale on which the two conflicting goods, values, or interests can be compared, such balancing is impossible. In that case, one might have to conclude that the two are incommensurable.342  Matthias Klatt and Moritz Meister suggest considering the argument on incommensurability as coming in two variants: The first points to the fact that ?our moral universe includes ideas not amenable to quantification.? The second                                                         338  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468 at 471. 339 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 482. 340 Matthew D. Adler & Eric A. Posner, ?Rethinking Cost-Benefit Analysis? 109 YALE. L.J. 165 (1999) 341  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468 at 471. 342   Kai M?ller, "Proportionality: Challenging the Critics" (2012) 10:3 International Journal of Constitutional Law 709.       85 challenges the assumption that interests are ?ultimately reducible to some shared metric? and that, ?once translated into this common standard, they can be measured against each other?.343 In contrast, some scholars believe that it is always possible to carry out a rational judgment of proportionality, by reasoning with numerical magnitudes,344 non-numerical magnitudes,345 or by ?comparing the incommensurable?: ?Just as it is possible to compare apples and oranges relative to a given covering value (vitamin content, for instance),? according to Alfonso di Silva, ?it is also possible to compare and balance constitutional rights relative to a given covering value: their degrees of satisfaction and non-satisfaction?.346  Making a strong case in defense of balancing, Stephen Gottlieb argues that many anti-balancing arguments are simply ?irrelevant?:   The open texture or indeterminacy of balancing is illegitimate from positivist and liberal perspectives because balancing appears political. Open texture is assumed by realist and critical scholarship that treats all law as political. In the end, however, the choices actually available have little to do with decision-making procedure or whether balancing is too imprecise. Like the arguments about interpretation, the arguments about balancing are significant primarily as arguments about what gets scrutinized and what gets assumed without examination. The useful question is not psychological or procedural, but political and jurisprudential. The useful question asks: What ?improves? the results?347                                                          343 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687 at 695. 344 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002). 345 Giovanni Sartor. In Jordi Ferrer Beltr?n & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press (2012) 346 Virg?lio Afonso da Silva, ?Comparing the Incommensurable? (2011) 31 Ox J L egal Stud 273 at 301. 347 Stephen E Gottlieb, ?The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 827.       86 Paradoxical as it may seem, another strand of the balancing debate refers to two different ? indeed antinomical ? claims: the first posits that proportionality opens gates to imposition of the moral preferences of judges upon society in which they operate (what in metaphorical words of Kai Moller may be called the ?moral infection?348 of balancing); the second submits that the balancing exercise is too formalistic and does not allow societal values to come upon the stage.  Without going into much detail here, my point is that both approaches distort two truths: that balancing ? and proportionality for that matter ? has never pretended to be a morally neutral analysis;349 and that no judicial reasoning can be totally extraneous to value-laden judgments. Indeed, it is occasionally argued that proportionality analysis is, or claims to be, morally neutral. Stavros Tsakyrakis writes: ?[The principle of proportionality] pretends to be objective, neutral, and totally extraneous to any moral reasoning?. 350  By the same token, Gr?goire Webber states: ?The structure of proportionality analysis itself does not purport (at least explicitly) to struggle with the moral correctness, goodness or rightness of a claim but only with its technical weight, cost or benefit. The principle of proportionality?being formal or empty?itself makes no claim to correctness in any morally significant way?.351 All above considerations notwithstanding, an obvious way to criticize any procedural phenomenon ? balancing being no exception ? is to give an example of a legal technique which overall performs better. The paradigmatic illustration of this                                                         348  Kai M?ller, "Proportionality: Challenging the Critics" (2012) 10:3 International Journal of Constitutional Law 10:3 709. 349 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law 687. 350  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468 at 474. 351 GR?goire Webber, The Negotiable Constitution: On the Limitation of Rights (2009) at 90.       87 approach in respect to balancing comes from the jurisprudence of the United States   Recently, for example, Frederick Schauer provocatively argued that as European constitutional law matures over time, it will develop the same rule-like structure which characterizes the more ?mature? American constitutional system.352 As Alec Stone Sweet and Jud Mathews emphasize, American rights doctrines are a tangle of different tests, some requiring the court to ?balance? or ?weight? factors, and some taking the form of categorical constitutional rules. 353  It is categorization which is of primary interest in what follows. Most rights enumerated in the Bill of Rights are expressed in absolute terms and each right constitutes its own category. The similarities between the enumerated rights have enabled the development of three categories, to which most rights may be attributed354 and, accordingly, three tiers of review.  Canonically, the tiers are strict scrutiny, intermediate scrutiny, and rational basis review. The picture is complicated somewhat by less well-established gradations (e.g., ?rational basis with bite?). Moreover, the US Supreme Court does not always use these three labels. Some commentators point out that tests for a number of constitutional claims, from privileges and immunities issues to public-forum speech regulations, amount to intermediate scrutiny, even when the Court does not apply such a label.355                                                         352 Frederick Schauer, ?Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005) at 68. 353 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 2. 354 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 509. 355 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797       88 As Stephen Gottlieb observes, ?[t]here is an extensive literature about whether balancing or categorization is preferable?. 356  There are important distinctions between ad hoc balancing for each individual case and balancing to derive rules (categorization).357 There are also important common features. Both involve a ?weighing? or ?judgment? among conflicting values, and most of pro and con arguments apply to both, albeit in varying degrees. As Stephen Gottlieb succinctly puts it, ?[t]he pro and con positions themselves are largely categoric?.358 Aharon Barak opines that, methodologically speaking, thinking in legal categories stands in sharp contrast to legal thinking based upon specific, or ad hoc balancing.359 From the outset, the focus on categories was meant, among others, to prevent ad hoc balancing. It is important to note that legal categorization indeed accepts the notion of principled balancing but does so only at the interpretive level where determination of the scope of the categories in question takes place.360 Yet, as Alec Stone Sweet and Jud Mathews rightly observe, at the core of each legal category is the interpretive balance which precedes its creation.361                                                         356 See, e.g., T. Alexander Aleinikoff, ?Constitutional Law in the Age of Balancing? (1987) 96 Yale LJ 943; Frank M. Coffin, ?Judicial Balancing: The Protean Scales of Justice? (1988)  63 N.Y.U. L. Rev 16; Laura A. Lundquist, ?Weighing the Factors of Drug Testing for Fourth Amendment Balancing? 60 GEO. WASH. L. REv. 1151 (1992); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. REv. 1091, 1101-08 (1986); Melissa Taylor, ?The VMI Decision: A Look at the Balancing Process in Equal Protection Cases,? (1991) 60 UMKC L. REv. 393 at 396-97. 357 L Henkin, ?Infallibility under Law: Constitutional Balancing? (1978) 78 Colum L Rev 1022 at 1046-49. 358  Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 837. 359 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 508. On basic and specific balancing, see also Barak at 367-369. 360 See M Nimmer, ?The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy? (1968) 56 Cal L Rev 935; Richard Fallon, ?Individual Rights and the Power of Government? (1993) 27 Ga L Rev 343. 361 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797. See also E Chemerinsky, Constitutional Law: Principles and Policies, 3rd edn (new York: Aspen Publishers, 2006) at 539.       89 Below I will venture to affirm, by means of a hypothetical argument, that proportionality ? with balancing at its core ? and American strict scrutiny are indeed similar answers to similar questions which are, nonetheless, presented under different headings. In so doing, I am going to adopt  Kai Moller?s notion that making a step aside from conventional academic approaches to explaining legal concepts can contribute to articulating and clarifying their contours. As he puts it in respect to his own iconoclastic approach:  Even though this account will present some of the features of proportionality in a way which may not be the standard textbook approach, it does so in the hope of clarifying the respective points rather than bringing in controversial claims through the back door.362  Imagine again a hypothetical case, wherein a pleaded constitutional right comes into conflict with a pressing societal objective. To complicate matters, this is the first case in the particular jurisdiction to deal with such a dilemma, and as such no precedential analytical framework for such a quandary exists.  More specifically, imagine the case involves a claimant whose right to freedom of expression has been breached by a law prohibiting speech advocating the forcible overthrow of government. A judge hearing this case would likely be sympathetic to the supremacy of the constitutional provision granting a right (and, should he be dissatisfied with the current government, possibly with the claimant?s cause as well). However,  common sense, and a basic instinct for self-preservation ? he is, after all, a part of the governmental machine as well ? tells him that he cannot                                                         362   Kai M?ller, "Proportionality: Challenging the Critics" (2012) International Journal of Constitutional Law 10:3 at 710.       90 uphold the claim. But nor can he explicitly breach the Constitution. He is cornered; what does he do? Of all the possible solutions, two stand out in terms of their distinctive features and prevalence in different jurisdictions. One position, perhaps the most obvious on the face of it, is to, through interpretation of the relevant provision, take the rebellious speech out of the ambit of the right to freedom of expression. If the claimant enjoys no constitutional right, the situation consequently involves no conflict. The constitutional right is not breached, the public peace and order are protected, the judge maintains an appearance of the mechanical applicator of law and does not explicitly trespass on the legislator?s territory. It is win-win for everyone, except, of course, for the claimant. A contrary approach, is for the judge to acknowledge that the rebellious speech does make up a part of the right to freedom of expression but, due to its tenuous marginal value, it is outweighed by the pressing societal objective ? preservation of public peace and order. Otherwise stated, an amount of deleterious effects on the right arguably fall at the low end of the spectrum of free expression. Such an approach forces the judge to engage in extensive consideration of whether the societal objective is really pressing (which it obviously is), whether it is connected to the rebellious speech ban (what else but this?) and whether it may, in the calm of the courtroom, be possible to imagine a solution which impairs the right at stake less than the solution Parliament has adopted, provided alternatives would be equally effective. Similar to the solution outlined above, the judge pretends to mechanically bind the factual and legal matrix up to the last step of his inquiry ? that of balancing. Such a framework, accordingly, allows a judge to attend to the       91 context of the particular case and force a government to make an effective case for their defense, which calls for adducing evidential support and providing strong argument in rebuttal. On the face of it, the first solution keeps one?s hands clean of engaging in the cost-benefit analysis which will inevitably arise at the balancing stage should you opt for the second option. Upon careful reflection, however, we come to realize that the judge?s interpretation of the scope of the right, as per the first solution, is but a cost-benefit analysis in disguise. In order to find out whether the rebellious speech makes up a part of the protected freedom of speech, the judge has to establish from the outset that the state?s objective of preserving public order and the government?s immunity deserves to be awarded more weight than the deleterious consequences for the ?call to rebellion? speech. The example helps illustrate the difference between the framework of  American strict scrutiny363 and a classical four-component proportionality analysis .   Stephen Siegel suggests, however, that the difference may not be as great as it first appears. The roots of strict scrutiny analysis, he points out, found in First Amendment cases from the 1950s and early 1960s, suggest the approach was meant to be less rigid than it has become.364 Strict scrutiny was originally quite flexible, he argues. ?In looking [at its origins],? he says, ?we find that strict scrutiny started life not as a blunt hammer for striking down legislation, but a flexible instrument that combined new and old doctrinal elements to balance the benefits and costs of rights                                                         363 For a further reflection, compare with Dennis v United States, 341 US 494, where the court also engaged into the explicit balancing. 364 Stephen A. Siegel, ?Origin of the Compelling State Interest Test and Strict Scrutiny? (2006) 48 AM.J.LEGAL HIST 355 at 361.       92 infringing legislation?.365  The dispute over categorization and balancing is therefore miscast, he continues, and for several reasons:  First, the methods are not often determinative. Second, the methods can often be translated into one another.366 Third, as explored below, the dispute is miscast because the decision between balancing and not balancing is illusory. The only "real" decisions are when intuitive judgments, whether described as balancing or otherwise, should be allowed to enter the analysis, which assumptions should be articulated, and which should be left inchoate.  It is important to note that judges themselves sometimes acknowledge that  they are effectively engaging in balancing  competing privately-held rights and public interests. In one US Supreme Court decision, for example, it was stated that ?[t]he demands of free speech in a democratic society as well as the interests in national security are better served by candid and informed weighing of competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidean problems to be solved?.367 Similarly, in another case, the following was said: ?Where First Amendment rights are asserted to bar governmental interrogation[,] resolution of the issue always involves a balancing by the courts of the competing private and public interests368 at stake in the particular circumstances?.369 Indeed, it likely makes a difference, and in some cases a considerable difference, which procedural approach to balancing ? open acknowledgement or                                                         365 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797. 366 Frank I Michelman, ?Discretionary Interests-Takings, Motives, and Unconstitutional Conditions: Commentary on Radin and Sullivan? (1992) 55 Alb L Rev 619 at 619-20 (1992) (stating that balancing and categorizing really reflect underlying governmental interest judgments)  367 Dennis v United States, 341 US 494, 524 ? 525 (1951) 368 Emphasis added ? I.P. 369 Barenblatt v United States, 360 US 109, 126 (1959).       93 histrionic abdication ? a court decides to employ.  In their recent article, Alec Stone Sweet and Jud Mathews illustrate this point by looking at cases where  courts on both sides of the Atlantic ? the Supreme Court of the United States and the German Federal Constitutional Court ? elaborate on standards of review in an attempt to establish the role of balancing in human rights adjudication. The authors begin with the well-known 1955 US Supreme Court decision Williamson v Lee Optical of Oklahoma, In,370 which involved an Oklahoma statute that forbade opticians (who grind and duplicate lenses, and fit them to frames and faces) from selling their services and products without prior authorization of either an ophthalmologist (a medical doctor specializing in eye care) or an optometrist (a licensed professional who diagnoses but does not treat eye disease, and who writes prescriptions for lenses).371 By way of summary, ?[t]he inevitable result of the enforcement of the provisions,? in the words of one district court judge, ?will be to literally put said plaintiffs out of business. . . .?372 Oklahoma claimed that the statute was designed to promote better eye care, not least by increasing the frequency of eye exams.373 Using rational basis review, the Supreme Court found that the Oklahoma State Legislature had a legitimate interest in requiring a prescription from a licensed optometrist or ophthalmologist:  The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and                                                         370 Williamson v Lee Optical of Oklahoma, Inc (1955) 348 US 483 [Lee Optical]. 371 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 838. 372 The ruling of the District Court as quoted in Williamson v Lee Optical of Oklahoma, Inc (1955) 348 US 483. 373 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 839.       94 disadvantages of the new requirement. . . . It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. We emphasize again what Chief Justice Waite said in Munn v Illinois, ?For protection against abuses by legislatures the people must resort to the polls, not to the courts?.374   However, such a demonstrative abdication of judicial balancing may be a case of ?protest[ing] too much.? Upon closer examination it becomes clear that what the court attempts to portray as avoiding balancing is in effect nothing short of balancing in disguise. Put another way, the rational basis review is a convenient cover for the court to determine, through balancing, that the right can never outweigh any reasonable public purpose legitimately pursued by the government.375  Consider, by way of contrast, one of the earliest balancing cases of the German Federal Constitutional Courts, Apothekenurteil,376 which was decided at roughly the same time as Lee Optical. In this case, a druggist challenged a Bavarian law regulating drugstores on the ground that it violated Article 12(1) of the German Basic Law, 377  which provides for occupational freedom. The law authorized the licensing of new pharmacies only when ?in the public interest? and only when new                                                         374 Williamson v. Lee Optical of Okla., Inc (1955) 348 US 483 at 497 (citations omitted) (quoting  374Munn v Illinois, (1877) 94 US 113 at 134. 375 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797 at 838. 376 Apothekenurteil (1958) [BVerfG] Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 377 (Ger.). 377 Article 12(1) stipulates, ?All Germans shall have the right freely to choose their occupation or profession,  377their place of work and their place of training. The practice of an occupation or profession may be regulated  377by or pursuant to a law.?       95 stores would not destabilize the market by threatening the viability of existing pharmacies. In framing its analysis, the GFCC squarely confronted the tension between individual rights and public goals, which led it to embrace balancing:  The constitutional right should protect the freedom of the individual; the professional regulation should ensure sufficient protection of societal interests. The individual?s claim to freedom has a stronger effect . . . the more his right to free choice of a profession is put into question; the protection of the public becomes more urgent, the greater the disadvantages are, that come from the free practicing of professions. When one seeks to maximize both . . . equally legitimate . . . demands in the most effective way, then the solution can only lie in a careful balancing of the meaning of the two opposed and perhaps conflicting interests.  In a comprehensive decision, the court then articulated an inchoate version of proportionality reasoning, tailored to the specifics of Article 12(1), 219 and annulled the law on necessity grounds. Unlike its American counterpart, the German constitutional tribunal eschewed rigidity and absolutism, as well as the temptation to advise claimants to ?go to the polls, not the courts.? To the contrary, in assuming responsibility for judicial review, it has addressed balancing squarely and openly and therefore, in words of Alec Stone Sweet and Jud Mathews, made it clear:  (a) that each party is pleading a constitutionally-legitimate norm or value; (b) that, a priori, the court holds each of these interests in equally high esteem; (c) that determining which value shall prevail in any given case is not a mechanical exercise, but is a difficult judicial task involving complex policy considerations; and (d) that future cases pitting the same two legal interests against one another may well be decided differently, depending on the facts.378                                                         378 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 88.       96  To sum up, as Stephen E Gottlieb describes it, nothing speaks against the thesis that rights, interests, and values can be weighed at many different ?levels? of analysis and of generality.379. They may be described differently at each level380 and efficiently take into account necessary deontological considerations. As Gottlieb powerfully states:  Nevertheless, for all their insight, the global all-or-nothing arguments against balancing that we have been considering will turn out to be irrelevant if everything is balancing, nothing is balancing, or if the useful question about balancing is contextual so that balancing is sometimes good and sometimes not, even in constitutional law.381  In fact, everything is balancing. Admittedly, this is not a theory which we, as lawyers, are most comfortable with. We are at liberty either to deny382 or to welcome it. However, whatever path we choose, it does scant justice to plain and simple truth: balancing is inevitable. This frank avowal, in my submission, is more benevolent to safeguarding rights than the kind of mischievous partisan rhetoric that claims: ?Balancing is inadmissible, but our truth far outweighs yours.?                                                            379 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 828. 380 See Craig R Ducat, Modes of Constitutional Interpretation (1978) at 181-83. 381 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 843. 382 A distinctly interesting account of denial of reality as the evolutionary power and the secret of humanity?s success is presented in a recent book by Ajit Varki & Danny Brower, Denial: Self-Deception, False Beliefs, and the Origins of the Human Mind (Twelve, 2013)       97 2.4. Proportionality as a Conceptualized Balancing Framework  The previous section has established that balancing, despite the controversies it routinely occasions among judges, practitioners, and academics, is an inevitable component of legal reasoning. It is now that I shift the focus to proportionality ? a balancing doctrine conceptualized in a particular way.383  Celebrated and castigated in equal measure, proportionality has nonetheless successfully travelled   the globe.384 As Alec Stone Sweet and Jud Mathews put it, ?[i]n many polities today, proportionality is treated as a taken-for-granted feature of constitutionalism?. 385  Jud Mathews has stated that ?judges have raised proportionality to the rank of a fundamental, constitutional principle, which they deploy to manage rights claims, including conflicts between constitutional rights?.386 Yet as Gr?goire Webber effectively observes, ?[w]ith few exceptions, State constitutions and international conventions do not make any reference to the principle of proportionality or to balancing?.387 Be it the European Convention on Human Rights,388 the Canadian Charter,389 the Israeli Basic Laws,390 or any other                                                         383 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 75. 384 As has been previously mentioned, by the end of the 1990s, the vast majority of effective systems of constitutional justice in the world, with the exception of the United States, had adopted proportionality reasoning in constitutional adjudication. 385 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 76. 386 Jud Mathews, ?All Things in Proportion? American Rights Review and the Problem of Balancing? (2011) 60:4 Emory Law Journal. 387 Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship? (2010) 23 C J L J 179 at 201. 388 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 at 223, Eur TS 5 [ECHR] (commonly known as the European Convention on Human Rights). The Strasbourg Convention does not contain a general limitations clause. The rights and freedoms set out in it can been loosely divided up into three categories: those without any express qualifications (such as the prohibition of torture); those which are subject to a number of specific limitations (such as the right to liberty and security of the person); and those which are subject to more broadly framed       98 constitutional bill of rights, none contains the plausible textual ?pegs? for invocation of the ?proportionality? principle.  Nor do they specify the direct authority for the subsequent introduction of proportionality into judicial reasoning. Indeed, per Jonas Christoffersen, ?[i]n a European context, express references to proportionality were not made at the time of drafting of the ECHR in the late 1940?s and the principle of proportionality was codified by the EC Treaty as late as 1993?.391  In a similar vein, the application of the principle of proportionality under the Canadian Charter is based on the SCC?s interpretation since its landmark decision in Oakes392 in 1986 ? despite the fact that no explicit references to proportionality can be found in constitutional provisions. As Joel Bakan puts it, ?it is not clear why the four criteria in the Oakes (1986) test constitute a uniquely correct interpretation of Section 1. The words ?reasonable limit? and ?demonstrably justified in a free and democratic society? do not necessarily, or even obviously, translate into the Court?s four-step test?.393 Alec Stone Sweet and Jud Mathews point out that ?reasonable limits ... as can be demonstrably justified in a free and democratic society? could be interpreted to mean ?proportional limits,? but that reading is not compelled by the                                                                                                                                                                                   limitation clauses. The last of these include rights such as freedom of expression and the right to private life and, although formulated in a different way, the right to property. It is the qualifying clauses in this last category that most closely resemble Section 1 of the Charter, both in conception and wording. 389 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),  1982, c 11. The Charter contains one general limitation clause which applies to all the rights and freedoms secured by it. Section 1 provides as follows: ?The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.? 390 Basic Law: Human Dignity and Liberty of 1992 (as amended in 1994). 391 Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 43.  392 R v Oakes [1986] 1 SCR 103. 393 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 28.       99 text. The language of Section 1 seems equally open to a more relaxed ?reasonableness" or ?rational basis? standard?.394 These are just some examples; indeed, there are many others. The argument toward which I am steering is that proportionality ? despite consistently being taken for granted ? is in need of legal and democratic justification. The proportionality framework is not the only tool designed to provide solutions to conflicts between constitutional rights and public interests. Other legal tools also seek to provide solutions to challenges such as these. 395  Why, then, is it proportionality that supposedly provides the best ?systematic, transparent, and trans-substantive doctrinal structure for balancing??396 What is the criterion for a proper balance between the two facets of democracy, constitutional rights and collective interests?397 Stavros Tsakyrakis recently opined that ?the term ?balancing? has come tantamount to the principle of proportionality?.398  Are the two frameworks indeed different? If the things are ?in balance,? can they still be unproportional, and vice versa?  In a nutshell, if there is one inquiry running through the remainder of this chapter, it is this: Why, if the court indulges in balancing in reconciling conflicting constitutional interests ? given that balancing is inescapable either way?should it do so in a particularly conceptualized fashion? Simply put, why does balancing                                                         394 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 115. 395 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012 at 493. 396 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797. 397 Etienne Mureinik, ?A Bridge to Where? Introducing the Interim Bill of Rights? (1994) 10 S Afr. J. Hum Rts 31. 398 Stavros Tsakyrakis, Proportionality: An Assault on Human Rights? (2010) 7 Int J Constitutional Law 468 at 474.       100 perform better if exercised through proportionality versus other doctrinal frameworks, such as, for instance, reasonableness or categorization?399  Before I proceed, however, yet another caveat is in order. As Joel Bakan describes it, ?[t]he means/ends proportionality creates an impression of technicality and scientific objectivity?. 400  That impression, he suggests, is, nevertheless, illusory.401 To argue that algorithmic-like formulas are infallible modes of decision-making in constitutional adjudication would be a mistake; indeed, I am not making that argument. Nor am I endorsing a notion of the scientific accuracy of proportionality 402  ? on the contrary. I cannot but agree with the fierce proportionality opponent Gregoir Webber that ?[a]rguments about constitutional rights cannot be transformed into management and mathematical measurement?.403 Rather, I am arguing that the dichotomy should be re-framed in terms of   ?structured argumentation framework? (proportionality) versus ?intuitive and improvised reasoning?, given that balancing can lie at the core of both. This conclusion is reinforced by the debate over the virtues of structured and particularized reasoning discussed below. For taxonomic purposes, the term ?legal formula? (or ?formulaic reasoning,? ?algorithmic procedure,? and ?argumentation framework? which will be used interchangeably) is ?rational? and ?computerizable? [maybe use ?mechanical? or ?schematic? or ?rigorous?] insofar as it denotes intelligible step-by-step frameworks                                                         399 On the discussion on proportionality?s alternatives, see Sections 2.3 and 2.4. 400 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 28. 401 Ibid. 402 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 482, 486. 403 Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship? (2010) 23 C J L J 179 at 191.       101 for generating answers to legal questions. However, these frameworks are not, as mentioned above, purely objective and scientific. According to Sartor, such frameworks embody series of inference steps, represented by statements justified by reasons (or inference rules) which lead to conclusions.404 Stone Sweet & Mathews define the ?argumentation framework? as a discursive structure which organizes (a) how litigants plead their interests, and how they engage their opponent's arguments, and (b) how courts frame their decisions.  The remainder of this chapter provides retorts to the critique of proportionality from a variety of perspectives, two of which are of particular interest.   The first facet of the discussion focuses on legal arguments and submissions; the second considers the proportionality argumentative framework in relation to the psychology of decision-making. On closer examination, it will become clear that these two perspectives are, in fact, different aspects of the same argument. My claim, which has both legal and psychological dimensions, is that the value-laden balancing act at the core of proportionality is more efficiently conducted through a standard-like discursive framework, rather than through more flexible, intuitive, and improvising decision-making technique.  All things being equal, I argue, under conditions of uncertainty and unpredictability, the accuracy of decision-making by means of an algorithmic procedure ? specifically, the proportionality formula ? will always outperform relaxed and undisciplined balancing. Strictly speaking, it is all about the dichotomy between intuition and procedural constraints and hence, as is so often the case in law, tertium non datur.                                                          404 Giovanni Sartor,? A Formal Model of Legal Argumentation? (1994) 7 Ratio Juris 177.       102 Making the case, however, is not without its problems.   As I elaborated earlier, it is not clear what proportionality?s sources of modern articulation are and how its four-prong discursive frame can be (legally and epistemologically?) accounted for. Since the most notable feature of proportionality is that it is based on the notion of structured and formalized discretion,405 one logical starting point would be proportionality?s formalized nature. Positions in the current debate  might therefore usefully be divided into three strands, according to which the proportionality framework is:  (1) over-formalized; (2) under-formalized; (3) fallaciously formalized. The ?over-formalized? strand of criticism deals with issues partially canvassed earlier. If balancing is inherently embedded in rights adjudication, and   justified on that basis,406 why is proportionality needed? Is there any doctrinal or theoretical  reason or need to turn a relaxed and intuitive balancing exercise into a discursive, vertically-structured 4-prong proportionality formula? As Gr?goire Webber puts it, ?there is nothing intrinsic to rights that would direct one to associate the ideas of proportionality? with ?the process of practical reasoning?. 407  Another line of criticism rests on the assumption that proportionality is too stringent a frame for                                                         405 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 460. See also P Craig, ?Unreasonableness and Proportionality in UK Law? in Evelin Ellis (ed) The Principle of Proportionality in the Laws of Europe )Oxford: Hart Publishing, 1999) at 85; David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006). 406 See T Roux ?Democracy? in S Woolman et al (eds), Constitutional law of South Africa (2 edition, Cape Town: Juta law Publishers, looseleaf 2002-) at 65: Aharon Barak, ?Proportionality and Principled Balancing? (2010) 4 Law & Ethics of Human Rights. 407  Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship?(2010) 23 C J L J 179 at 179.       103 balancing and, consequently, does not allow for sufficient flexibility in rights adjudication, proper attention to context, or evaluation of all necessary moral considerations.  In short, if one understands ?balancing? in the sense of ?balancing all the relevant considerations?,408 and if proportionality does not itself provide any moral content, but merely creates a discursive frame to assist judges in developing   their own, ?then why use proportionality at all, and why not just let judges focus on the important moral questions squarely??409 Indeed, notwithstanding the fact that proportionality has become common currency in the rhetoric of human rights law around the world, its introduction ? or rather justification for its introduction ? continues to confound commentators and practitioners alike. Of valuable assistance in the present context is the reasoning of other constitutional tribunals which face the challenge of justifying the invocation of ?proportionality? language in their jurisprudence. The Federal Constitutional Court of Germany, for example, which some commentators consider as a source of inspiration for the Canadian Oakes test, 410  has derived the principle of proportionality from the ?essence of the fundamental rights themselves?.411 Likewise, the European Court of Justice approaches proportionality as a general principle of law which, together with the other general principles of law412 has the purpose of                                                         408  Kai M?ller, "Proportionality: Challenging the Critics" (2012) 10:3 International Journal of Constitutional Law 10:3 709 at 724. 409  Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2010) 7:3  Int J Constitutional Law 468 at 493. 410 Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 34. 411 J?rgen Schwarze, European Administrative Law (London: Sweet & Maxwell, 1992) at 688. 412 Apostol D Tofan, Discretionary power and the excess of power of public authorities (Bucharest: All Beck, Studii Juridice Collection, 1999) at 29.       104 controlling the EU community actions where there are express regulations in the specific field at European level.413 According to this account, it seems plausible to assume that proportionality might be inherent to human rights adjudication ? something which provides it with common grammar all around the world ? and therefore makes up a part of what David Law calls generic constitutional law.414 Jonas Christoffersen, speaking about the introduction of proportionality to the Strasbourg limitation clause jurisprudence, maintains that ?the application of the principle felt so natural to the members of the Court that no thorough reasoning was thought to be required?. 415  In a similar vein, David Beatty suggests that proportionality is an "essential, unavoidable part of every constitutional text".416 Robert Alexy, for his part, holds that, in the case of constitutional rights, proportionality is unavoidable because ?there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right?.417  The most powerful argument, in my opinion, comes from the notion that proportionality ?stresses the need to always justify limitation[s] on human rights?.418                                                         413 F G Jacobs, ?Recent developments in the Principle of Proportionality in European Community  413Law? in Evelyn Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999) at 3. 414 David S Law, ?Generic Constitutional Law? (2005) 89 Minn L Rev 652. 415 Jonas Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (BRILL, 2009) at 43.  416 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006) at 162. 417 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002) at 74. 418 Aharon Barak, ?Proportionality and Principled Balancing? (2010) 4 Law & Ethics of Human Rights at 14. See also Jeremy Kirk, ?Constitutional Guarantees, Characterisation and the Concept of Proportionality? (1997) 21 Melb U L Rev 20. 418On the Place and Limits of the Proportionality Requirement? in Law, Rights and Discourse: The Legal Philosophy of Robert alexy (George Pavlakos ed., 2007) at 131; Etienne Mureinik, ?A Bridge to Where? Introducing the Interim Bill of Rights? (1994) 10 S Afr. J. Hum Rts 31; David Dyzenhaus, ?Law as Justification: Etienne Mureinik?s Conception of Legal Culture? (1998) 14 S Afr J Hum Rts 11 at 27; 418Andrew Butler, ?Limiting Rights? (2002) 33 Victoria U Wellington L Rev 113 at 116; Jeffrey Jowell, 418?Judicial Deference and Human Rights: A Question of Competence? in Law and Administration in Europe: Essays in Honour of Carol Harlow (Paul P. Craig & Richard Rawlings eds., 2003) at 67; Michael Taggart, ?Proportionality, Deference, Wednesbury? (2007) Judicial Rev 23 at 48.       105 In their recent article ?Proportionality and the Culture of Justification,? Moshe Cohen-Eliya and Iddo Porat state the following;   Proportionality, we believe, is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality.419  As argued by Kumm, proportionality is justified by a conception of legal legitimacy which is based on the ability of the state to demonstrate to its subjects the reasons and justifications for its actions - a process which 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.420 Proportionality, further, boosts the legal credentials of the court by making the decision-making procedure transparent and intelligible to participating legal actors ? including those unsatisfied with the case?s outcome. In the metaphorical words of Alec Stone Sweet and Jud Mathews, ?In situations where the judges cannot avoid declaring a winner, they can at least make a series of ritual bows to the losing party?.421                                                         419 Moshe Cohen-Eliya & Iddo Porat, ?Proportionality and the Culture of Justification? (2011) 59 American Journal of Comparative Law 463. 420 Mattias Kumm, ?The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review? (2010) 4:2 L & Ethics of Hum Rts 141 at 142. 421 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 89.       106 Aharon Barak succinctly opines that proportionality ?fulfills a dual function: On the one hand, it allows the limitation of human rights by law, and on the other hand, it subjects these limitations to certain conditions; namely?those stemming from proportionality?.422 Proportionality ?expresses the idea that human rights are not absolute, but at the same time it makes it clear that the limitations themselves have limits?.423 Creating a discursive frame for norm-based argumentation is thus meant to allow for transparency, predictability, and public appreciation of reasons for decisions in constitutional adjudication. In hard cases, and in the absence of clear legal rules, judges must make decisions which go beyond the limit of technical rationality and engage their political and moral sensibilities. They further typically do so on a case-by-case basis, which undermines the very idea of predictability in rights adjudication. The rationale for proportionality is therefore that it both presupposes, and creates a sense of, coherence. As Joel Bakan submits with respect to Canadian constitutional adjudication: 424 [t]he translation by the Court of section 1?s ambiguous and general language into a neat, four-step test was clearly an attempt to avoid case-by-case evaluation of legislation under vague standards such as ?reasonable? and ?demonstrably justified in a free and democratic society,? which unavoidably would appear to require questioning the wisdom and political desirability of particular laws.  According to Alec Stone Sweet and Jud Mathews, ?[u]nder conditions of supremacy (given a steady caseload), fidelity on the part of the court to a particular                                                         422 Aharon Barak, ?Proportionality and Principled Balancing? (2010) 4 Law & Ethics of Human Rights at 6. 423 Ibid. 424 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 27.       107 framework will entrench that mode of argumentation as constitutional doctrine. To the extent that arguing outside of the framework is ineffective, skilled legal actors will use the framework, thereby reproducing and legitimizing it?.425 Here it is fitting to ask the question, what are the alternatives to a structured 4-prong argumentation framework of proportionality? The most plausible example comes from the jurisprudence of the European Court of Human Rights, which deploys the ?fair balance test,? often referred to in the literature as ?proportionality.? While most constitutional tribunals adhere to the strict-vertical, rigorous 4-component proportionality template, the ECtHR, unlike its counterparts, replaces the usual   hierarchically ordered test with a flexible horizontal test. It does not, consequently, make proportionality dependent on fulfillment of one legal requirement after the other.   It does not even require all four traditional sub-tests of proportionality ? proper purpose, rational connection, minimum impairment, and proportionality stricto sensu  ? to be applied in a particular case. A characteristic example is the minimum impairment test which is often deprived by the ECtHR of the status of an independent legal criterion of proportionality. Similarly, more often than not the ECtHR?s ?proportionality test? does not contain the requirement that, in order for there to be a rational connection between the means and the ends of the impugned legislation, the statute at issue should pass a strict ? premised on the evidence ? constitutional master, that is, supported with facts.   It may plausibly be argued that what affects the ECtHR?s approach to weighing the evidence ? and to, in many cases, dismissing the need for evidence426 ? is the                                                         425 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 88.       108 margin of appreciation doctrine, as this is often interpreted to require deference to national legislatures. Yet, as Jeremy McBride rightly observes, ?the danger that faces the Court, particularly if it allows the margin of appreciation to weaken the test of proportionality without at least articulating more fully the rationale for the differential approaches pursued, is that its own ruling might be seen less as principled evaluation and more as its own arbitrary preference for the balance to be achieved between different rights and interests?.427  Yet another analogue to proportionality today is the set of standards that make up ?reasonableness.? Proportionality and reasonableness share certain core elements and, as Aharon Barak points out, ?in many common law countries, reasonableness was recognized long before proportionality?.428 In the metaphoric words of Michael Taggart, when proportionality ?knocked at the door? of those legal systems, it was met by the concept of reasonableness.429 Yet proportionality has clear advantages. It has been more than forty years since Professor Stone noted that reasonableness belongs to ?categories of illusory reference?.430 Further amplifying this point, Aharon Barak posits that we can ?advance the discussion regarding reasonableness ... by acknowledgement that reasonableness is not a physical or metaphorical concept. Rather, reasonableness is a normative concept.... Reasonableness is not bound by deductive logic. It is determined by the identification of the relevant considerations and their balancing in accordance with                                                                                                                                                                                   426 See., e.g., Karlheinz Schmidt v Germany (No 13580/88) 1994 ECHR A 291 B. 427 Jeremy McBride, ?Proportionality and the European Court of Human Rights? in Evelyn Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999) at 35. 428  Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 371. 429  Michael Taggart, ?Proportionality, Deference, Wednesbury? (2008) New Zealand Law Review 423. 430 J Stone, Legal System and Lawyers' Reasonings (Stanford University Press, 1968) at 263.       109 their weight?.431 While it may be argued that reasonableness, distilled to its essence, is really just a balancing exercise,432 that view is belied by the fact in some cases, such as the Wednesbury version of reasonableness, 433   balancing is neither recognized or mentioned.434 In other cases, reasonableness is indistinguishable from the rational component of proportionality. 435  When reasonableness and proportionality are understood as similar, it is inevitably because each is conceived in terms of balancing. 436  In the latter case proportionality is preferable to reasonableness. As I indicate throughout this chapter, its stringent standard-like reasoning, conceptualized as a 4-prong legal test, provides for greater transparency, predictability, and protection of human rights.  Inasmuch as alternatives to proportionality are concerned, another plausible parallel may be drawn to American jurisprudence, specifically American balancing (not to be confused with American categorization.) As noted by Moshe Cohen-Eliya & Iddo Porat in their recent article ?American balancing and German proportionality?, the two tests, balancing and proportionality, resemble each other in important aspects which are often discussed in tandem.437 However, balancing has never attained the status of an established doctrine in American constitutional law in                                                         431 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 374.  432 D Feldman, ?Proportionality and the Human Rights Act 1998? in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart, 1999) at 127. 433  In the United Kingdom, the courts developed the Wednesbury test to resolve conflicts in administrative law ( See Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 373) 434 Jason Varuhas, ?Keeping Things in Proportion: The Judiciary, Executive Action and Human Rights? (2006) 22:2 New Zealand Universities Law Review 300. 435 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 376.  436 Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press 2009) at 243. 437 Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of Justification (2011) 59. American Journal of Comparative Law 463 at        110 the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. From the 1950s onward, balancing has been at the center of a heated debated in the Supreme Court. As Richard Fallon recently described it: ?balancing applications frequently draw outraged protests from dissenting Justices who contend that the Court has betrayed the staunch commitment to preserve individual rights?.438 Thus, in sum, proportionality has clear advantages if compared to all proposed alternatives. It gives some measure of coherence to adjudication by developing stable procedures for arriving at decisions; it allows for judicial transparency, predictability, and public appreciation. All in all, it articulates reasoning as an interplay of ideas and reality, abstract and concrete, form and substance, and, as Joel Bakan succinctly puts it, serves to make proportionality inquiry ?look legal rather than political?.439 In concluding their joint article, Alec Stone Sweet and Jud Mathews endorse that: Though we believe that PA, as a doctrinal framework for adjudicating rights claims, performs better overall than any known competitor, we do not argue that it solves all of the legitimacy dilemmas faced by courts, including the problem of judicial lawmaking. As we wrote: ??The key to the political success of PA, its social logic, is that it provides a set of relatively stable, off-the-shelf, solutions to a set of generic dilemmas faced by the constitutional judge. If PA mitigates certain legitimacy problems, it also creates, or at least spotlights, an intractable, second-order, problem. PA does not camouflage judicial lawmaking. Properly employed, it requires courts to acknowledge and defend                                                         438 Richard Fallon, ?Strict Judicial Scrutiny? (2007) 54 UCLA LRev 1267 at 1307. 439 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 27.       111 honestly and openly the policy choices that they make when they make constitutional choices?.440  My central claim in this chapter, therefore, is that the best way to understand the misunderstanding between the proponents and opponents of proportionality is in terms of ?proportionality deconstruction.? According to this account, all pro and con arguments about proportionality relate to different, and indeed separate, judicial techniques for reconciling conflicts between constitutional rights: explicit limitation of rights; balancing; and the proportionality doctrinal framework. In order to make a convincing case against proportionality, the mainstream canon of criticism should embrace two truths: that the concept of democracy presupposes not only rights, but also the possibility of their limitation; and that ?balancing cannot be categorically banished from the temple of justice?. 441  As such, exercising balancing via the structured argumentative framework ? of which proportionality is the most developed form ? is more desirable than unconstrained   judicial intuition,442 which inevitably indulges in unprincipled balancing.                                                                440 Alec Stone Sweet & Jud Mathews, "All Things in Proportion? American Rights Doctrine and the Problem of Balancing"  (2011) 60 Emory Law Journal 797. 441 Stephen E Gottlieb, ? The Paradox of Balancing Significant Interests (1994) 45 Hastings L J 825 at 842 at 857. 442 Ibid at 842.       112 CHAPTER 3: PROPORTIONALITY DEFENDED 3.1. Is Proportionality Possible Here?: Principles for a New Proportionality Debate  In the previous chapter, I proceeded on the assumption that the criticism of proportionality as a particular argumentative framework presupposes three basic claims: (i) that proportionality is an over-formalized normative frame for balancing; (ii) that proportionality is a fallaciously formalized framework; and, last but not least, (iii) that proportionality is an under-formalized doctrinal framework which provides too much room for judicial discretion. As I have already addressed the first two lines of critique in the previous section as well as highlighting deficiencies with proportionality competitors443  it is now that I turn to the last strand of analysis. In the understanding that balancing is inevitable, is proportionality indeed too low a standard for structuring normative considerations? If the answer is in the negative, then the question must be asked; how can we account for proportionality?s fallible performance? Indeed, how is it possible to provide a retort to the criticism that proportionality is but an ?unmanageable license for judicial activism,?444 one that provides judges an illegitimately wide judicial discretion445 and, due to its ad hoc approach, undermines judicial certainty? 446  All in all, speaking figuratively, if                                                         443  That is, correctness, reasonableness, and flexible horizontal proportionality framework (?fair balance?). Also, earlier in the text were addressed relaxed variations of absolute concept of rights and American tired review. 444  Balancing and Proportionality in Constitutional Review [synopsis of the workshop], online: <http://www.enelsyn.gr/en/workshops/workshop15(en).htm> 445 On the pertinent discussion, see Iddo Porat, ?The Dual Model of Balancing? (2006) 27 Cardozo L Rev 1393. 446 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 487. See also, e.g., L B Frantz, ?The First Amendment in the Balance? (1962) 71 Yale L J 1424, 1441.       113 proportionality is not a hermetically sealed vessel, and indeed invites personal preferences of decision-makers whilst also lowering judicial certainty, where, then, is the leak, and how do we ?fix it?? Even more importantly, to what extent, if at all, are we equipped to carry out these repairs?   This section is the beginning of Chapter III of the thesis, the last chapter, where I push the proportionality debate to its limit and suggest that, whether relaxed or robust, proportionality, just like any other judicial technique, cannot escape normative considerations and arbitrary judgments. I go on to explain why this is so and how the theory of epistemic unreliability in law may render valuable service in helping to understand it. I further introduce a new avenue for making a positive case for proportionality, and establish a framework for progress.  The remainder of this section will be organized as follows. In order to shed more light on the nature of proportionality and its shortcomings, I will begin by addressing the key arguments about proportionality?s under-formalization, which include, but are not restricted to, proportionality?s alleged unpredictable nature, its inability to restrain judicial discretion, its overall inability to provide for effective protection of constitutional rights and, taking up the figurative language of Matthias Klatt and Moritz Meister, ?the moral infection of proportionality.?447 Among other things, the discussion regarding these proportionality shortcomings  (which, although somewhat exaggerated, tend to ring true) will be informed by Alexy?s account of epistemic uncertainty in law,448 recently augmented and refined by Matthias Klatt                                                         447 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law  687 at 692. 448 See, e.g., Robert Alexy, ?On Balancing and Subsumption? (2003) 16 Ratio Juris 433 ; Robert Alexy, ?Constitutional Rights, Balancing, and Rationality? (2003) 16 Ratio Juris 131; Robert Alexy, ?The Weight Formula? in Studies in the Philosophy of Law: Frontiers of the Economic Analysis of Law       114 and Johannes Schmidt. 449  I will subsequently make a case for strengthening proportionality?s methodology which, in order to reveal all proportionality?s benefits to the protection of rights, should move towards a greater reliance on rigidity and formalization of legal reason. Having examined the criticisms of proportionality, the benefits will be addressed. Blending legal, philosophical, sociological, and psychological arguments, as well as logic, theorized in a particular way, my ultimate conclusion will rest on the proposition that, while beneficial in many ways, proportionality is still flawed. This, together with the reconsidered canon of proportionality?s criticism, will pave the way for a fruitful discussion in the final sections of this thesis.   To begin with, the heavy criticism of proportionality revolves around the theory that the principle presents itself as (or at least creates a facade of having) scientific accuracy; it is in fact, actually based on judicial subjectivity.450 As Stavros Tsakyrakis succinctly puts it, ?[t]he metaphor also suggests precision?,451 while the truth is that the test, being far from precise, indeed presupposes judicial uncertainty and unpredictability.  Reminiscent of such a perspective, as Matthias Klatt and Moritz Meister submit, is a famous objection to the proportionality test that it would abandon the standard of correctness in human rights cases in favor of standards like adequateness                                                                                                                                                                                   (Jerzy Stelmach, Bartosz Brozek, & Wojciech Zaluski eds., 2007); Robert Alexy, ?The Construction of Constitutional Rights? (2010) 4:1 Law & Ethics of Human Rights 19. 449 Matthias Klatt & Johannes Schmidt, ?Epistemic Discretion in Constitutional Law? (2012) 10:1 Int J Constitutional Law 69. 450 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 486. See also Lorenzo Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights In Europe and the USA (Oxford University Press, 2007). 451 Stavros Tsakyrakis, ?Proportionality: An assault on human rights?? (2010) 7:3  Int J Constitutional Law 468 at 469.       115 or appropriateness. 452  This objection has been put forward against Alexy by Habermas,453 whereas Stavros Tsakyrakis also subscribes to it.454  Indeed, it might be said that proportionality, by damaging judicial certainty, provides for insufficient protection of constitutional rights. It is, however, but a tip of the iceberg. An increasing number of commentators criticize proportionality ? and, in particular, the balancing conducted within proportionality stricto sensu ? for providing judges with too wide a discretion.455 Central to such a submission is the argument that proportionality, by operating under a rubric of structured and seemingly intelligible procedure, camouflages much of the courts? thinking and preferences underlying rights.  This takes me to yet another anti-proportionality argument, namely that proportionality, in the absence of a single and all-encompassing standard, allows for the imposition of moral arguments by judges upon societies in which they operate. Interestingly enough, Canadian commentator Barbara Billingsley recently presented an empirical survey of the history of the Oakes test where she submits that ?in both Social Policy Cases and Criminal Cases, the Court most often divided on ? a combination of two or more of the proportionality factors ?. [And that] the Oakes Test led to less consensus of result in Social Policy than in Criminal Policy Cases.? Billingsley attributes this to the fact that competing values are at play in the former, and different judges likely appraise them differently. She notes, for example, that ?in                                                         452 Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press, 2012) at 68-69. 453 J?rgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (translated by William Rehg (Cambridge, Mass: The MIT Press, 1996) at 256-259. 454 Stavros Tsakyrakis, ?Proportionality: An assault on human rights?? (2010) 7:3  Int J Constitutional Law 468 at 487. 455 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 487.       116 six of [eight divided policy cases between 1995 and 2003] either the majority or dissenting justices cast doubt on the definition, accuracy, or importance of the purported legislative objective(s)?.456  The problem is that, at some point, unconstrained judicial discretion may turn into judicial law-making, and, consequently, judicial governance. For the political scientist Alec Stone Sweet, for instance, ?proportionality balancing? has emerged as a ?master technique of judicial governance in the EU?.457 Ran Hirschl comes close to adopting this position when he suggests that the introduction of the Charter into the Canadian constitutional dimension has been a result of the processes which lie beyond what can be encompassed by legal arguments. Specifically, he suggests in Towards Juristocracy,458 that judicial empowerment through constitutionalization in many ?new constitutionalism? countries results from self-interested actions taken by hegemonic, yet threatened, sociopolitical groups fearful of losing their grip on political power. ?Judicial empowerment through the constitutionalization of rights,? as Hirschl puts it, ?is often not a reflection of a genuinely progressive revolution in a polity; rather it is evidence that the rhetoric of rights and judicial review has been appropriated by certain groups to bolster their own position in the polity?. 459  My concern here is not to elaborate on all lines of criticism which claim that the proportionality argumentative framework ?leaks,? but merely to point out that all present argument, if not entirely untrue, still tell only a partial truth. For none of                                                         456 Barbara Billingsley, ?Oakes at 100: A Snapshot of the Supreme Court?s Application of the Oakes test in Social Policy v. Criminal Policy Cases? (2006) 35 SCLR (2d) 347 at 366-67. 457 Alec Stone Sweet, The Judicial Construction of Europe (2004) at 243-244. 458 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004). 459 Ran Hirschl, ?The Question of Case Selection in Comparative Constitutional Law? (2005) 53:1 A J C L 125 at 149.       117 them takes into account the very nature of judicial review and that in constitutional adjudication ? or any adjudication for that matter ? judges operate on the assumptions premised on questionable, and more often than not highly contested, normative arguments and uncertain empirical propositions. Otherwise stated, judges operate under the condition of epistemic uncertainty, therefore being required to exercise epistemic discretion by virtue of the very nature of their task.  Indeed, the problem of epistemic discretion arises within the wider context of proportionality analysis. It is an often undertheorized answer to two kinds of questions which are raised by the ubiquitous nature of the proportionality test: First, because proportionality requires engagement with highly contested empirical and normative issues, how should decision-makers address those uncertainties, given their duty to respect rights? 460  Second, there are questions relating to judges? competencies to second-guess other actors, and particularly legislators, when assessing contested empirical and normative claims. When is it appropriate for a court to mistrust the facts established by state authorities?461 To begin with, in considering policy ramifications, which are by default the matter of ?future?462 ? that is considerations ex ante ? the court always acts under the condition of factual uncertainty. In Canada, Justice La Forest offers an observation in McKinney463  which rings true: ?[d]ecisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society?. Future events cannot                                                         460 Ibid at 70. 461 Ibid. 462 See, e.g., Charney & Green, "Prophets of Doom, Seers of Fortune: 20 Years of Expert Evidence Under the Oakes Test" (2006) 34 SCLR (2d) 479. 463 McKinney v The University of Guelph [1990] 3 SCR 229.       118 be ?proved? or ?disproved? in the conventional sense that facts relating to past events can be. As a theoretical experiment, take, for example, the potential impact of fully funding all private religious schools in a particular region. Some evidence is optimistic about the effectssuch an initiative, whilst some is not. However, the truth is, that such predictions cannot be proven in court; the only way to actually determine the impact of fully funding all private religious schools would be to fully fund all private religious schools, wait 30 or 40 years, and conduct a retrospective study. But public policy is made prospectively, not retrospectively, and in such matters educated guess-work is inevitable. In the second place, in proportionality cases, the court often deals with polycentric problems ? those which ?involve a large number of interlocking and interacting interests and considerations?.464 Judicial fact-finding is deficient in this respect when compared with governmental fact-finding, which may allow for a more systematic assessment of polycentric issues through statistical and economic evidence, stakeholder input, and long-term financial and demographic planning. More than that, judicial assessment of policy issues tends to suffer from what Greschner and Lewis call ?telescopic vision?: litigation is focused on a single aspect of a particular statute or government program, while missing the whole picture, or, if you will, failing to tell the whole story. In the words of Canada?s Supreme Court, a ?particular legislative regime may have a number of goals and impairing a right minimally in the furtherance of one goal may inhibit achieving another goal?.465 All in all, an overview of the pertinent considerations demonstrate that proportionality is                                                         464 Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SC 982 at para 36. 465 JTI-Macdonald (Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30) at para 43.       119 not a cure-for-all doctrinal tool because of the constitutional settings ? both normative and empirical ? in which judges operate, but not because of its internal shortcomings. By the same token, nothing in proportionality methodology speaks of the attenuation of rights ? to the contrary. It is possible, in my submission, to conduct proportionality reasoning in a way which both enhances the protection of rights466 and maximizes the predictability and objectivity of judicial review. To this end, there is a need to grapple with the structure of the proportionality test in a rigorous, robust, and reflective way.467 Though not a cure-all solution for challenges faced by constitutional courts, proportionality can be understood as performing a number of important functions:468 (1) proportionality as a concept identifies a logical template of questions to be addressed; (2) proportionality involves placing upon public authority an important onus, of satisfying itself and the Court that there are proper answers; (3) proportionality provides for an intensive review by the courts as to the way in which all necessary questions are to be asked and answered.                                                         466 Note that in Section 1.2 of this thesis, I canvassed the historical development of proportionality that clearly demonstrates the principle?s invocation as an attempt to transit from unlimited state power to the so-called ?culture of justification,? which, in turn, requires that governments to provide substantive justification for all their actions (in terms of the rationality, reasonableness, and proportionality), especially in face of danger to constitutional rights. See. e.g., Moshe Cohen-Eliya & Iddo Porat, ?Proportionality and the Culture of Justification? (2011) 59 American Journal of Comparative Law 463; Mattias Kumm, ?The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review? (2010) 4:2 L & Ethics of Hum Rts 141. 467 On the profound ? and remarkably vivid ? discussion on the advantages of formulaic, step-by-step, reasoning over mere intuition, see Daniel Kahneman, Thinking, Fast and Slow (Anchor Canada, 2013) at 222-233. 468  I am drawing here on the indicias presented in Michael Fordham & Thomas de la Mare, ?Identifying the principles of Proportionality?, in Jeffrey Lionel Jowell & Jonathan Cooper (eds) Understanding Human Rights Principles (Oxford, 2001) 27 at 27.       120 Further, the principle of proportionality ?embodies fundamental standards of rationality? 469  and has been described correctly as ?a very powerful rational instrument.?470Properly employed, it requires courts to acknowledge and defend ? honestly and openly ? the policy choices that they make, when they make constitutional choices. 471  Otherwise stated, proportionality requires judges to explicitly address ?inconvenient arguments? and provide the reasoning behind their decision. Yet, insofar as the decision itself is concerned, a central question is: is it safe to equate justification and justice? If underpinned by profound proportionality reasoning, does the case outcome automatically render a right outcome? Does proportionality, as many claim, provide the infallible argumentation framework for the purposes of locating this right answer? Indeed, my question should really be reformulated thus: are there right answers?   3.2. Are There Right Answers in Law?: Setting the Scene for a Discussion  When in 1800, Napoleon Bonaparte appointed a commission to prepare a draft of a uniform civil code for France, he entrusted it with a task which was both ambitious and straightforward: to aspire to declare everything. The ultimate goal,                                                         469 Martin Borowski, ?Limiting Clauses? (2007) 1 Legisprudence 197 at 210. 470 Ibid at 232. 471 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47:1 Colum J Transnat?l L 72 at 76.       121 distilled to its essence, was to create an all-encompassing legal compendium which judges, whenever necessary, could consult so as to always find the right answers to their questions.  Indeed, the new Republican government sought to institute, among other reforms, a new legal system which would put an end to the long conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law. This is reflected in the Napoleonic Code?s prohibition on judges deciding cases by way of introducing general rules472 (Article 5),473 since the creation of general rules is an exercise of legislative rather than judicial power.  Even among drafters, however, the idea of all-encompassing law was viewed with skepticism. Some commissioners believed, for example, that ?[t]he function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject.  It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications?.474 It has been said that the drafters were ?disciples not prophets?.475  Arguably, this discussion among Civilians anticipates, by almost 170 years, what has been known in Anglo-American legal philosophy as the ?Dworkin-Hart? debate. And yet, the                                                         472 Compare with Dworkin?s account of legal principles. 473 French Civil Code [English Translation of the Original Text], online: <http://www.napoleon-series.org/research/government/code/book1/c_preliminary.html> 474  Tom Holmberg, ?The Civil Code: an Overview?, online: <http://www.napoleon-series.org/research/government/code/c_code2.html> 475 Compare with the points raised in Charney & Green, "Prophets of Doom, Seers of Fortune: 20 Years of Expert Evidence Under the Oakes Test" (2006) 34 S.C.L.R. (2d) 479.       122 discussion ? wherever and whenever it takes place ? is nowhere near its conclusion. 476 The questions remain: Is it possible to create a legal framework that would dictate judges what steps to undertake in order to reach the correct ? and the only possible ? answer? Do ?right answers? even exist? Kai M?ller has recently argued, taking up a point made by Madhav Khosla,477 that the risk in criticizing proportionality is that critics too easily confuse the flawed performance of a proportionality exercise ? in other words, the simple miscarriage of justice ? with  proportionality?s normative framework per se, which is indeed neutral and capable of producing the right answers:478  the risk [...] is that a critic confuses author A?s theory or court C?s approach (or worse, court C?s one decision D) with the principle of proportionality itself. The fact that A?s theory, C?s doctrine, or decision D are wrong shows only this?that a mistake happened. It does not show that proportionality itself is an unattractive doctrine. It would never occur to anyone to argue that because Robert Nozick?s theory of justice is unconvincing, we should abandon the concept of justice.   To set the scene for a discussion, consider a theoretical experiment. Assume there is a hard constitutional case. Assume again, that there is a nonpartisan constitutional tribunal which, in determining the validity of a statute, applies both law and procedural standards in the most neutral fashion possible; in a similar vein, normative and empirical uncertainty of the case tends towards zero. The hypothetical                                                         476 Ronald Dworkin?s seminal critique of H. L. A. Hart?s theory of legal positivism, ?The Model of Rules I,? appeared in 1967. 477  Madhav Khosla, ?Proportionality: An assault on human rights??A reply? (2010) 8  Int J Constitutional Law 298. 478 Reminiscent in such perspective is argument by Madhav Khosla that ?[W]hile proportionality can do much regarding unjust laws, it can ultimately do very little about poor judging.? (In Madhav Khosla, ?Proportionality: An assault on human rights??A reply? (2010) 8  Int J Constitutional Law 298 at 304).       123 may also assume that judicial review, as well as intrinsic proportionality analysis, is performed by Dworkinian superhuman jurist Hercules who never indulges in arbitrariness and, likewise, never makes mistakes.479 Is it safe to assume that the above would necessarily presuppose a proportionality outcome which is just, not value-laden, and, in the highest consideration, ?the only solution possible??  Slightly reformulated, the M?ller argument suggests that, in order to get a ?right? proportionality answer, our primary concern should be with asking the right question ? not just any question under the proportionality heading. All in all, we must not argue, as Dworkin once cautioned, that ?because judges will often, by misadventure, produce unjust decisions they should make no effort to produce just ones?.480  Taking Dworkin?s argument as a starting point for my inquiry, I  ask the question: can judges balance competing interests in an objective and impartial fashion? Can proportionality indeed be a tool for producing just decisions? Underlying this question is yet another concern: what is a just decision per se? Is it necessarily the only solution possible ? or does there exist an array of correct solutions, just like concurrently existing parallel universes? In hard cases, is the law always the law? More particularly, ?Are there right answers to proportionality questions?? a question that, in turn, requires we ask more generally ?Are there right answers in hard cases??  The quest for right answers in law may be based, as in Dworkin?s work, on an account of law as integrity and on certain working principles ? of which                                                         479 According to Ronald Dworkin, all judges are by necessity philosophers, and no judge is a better philosopher than Hercules. Hercules and Herbert are introduced in Ronald Dworkin, ?What Rights do We Have?? in Taking Rights Seriously (Oxford University Press, 1978) 266.     480 Ibid.       124 proportionality is the most emblematic example. Yet, at the end of the day, it is nearer to art than science. This quest requires case sensitivity, imagination,481 value-laden judgments, and careful application of normative and empirical knowledge which, as I have canvassed in the previous section, is always unreliable ? although to varying degrees.482  This epistemic unreliability necessarily presupposes room for judicial latitude ? that is, a freedom of choice. The arguments marshaled in the next section revolve around the possibility of this margin of freedom being justified, primarily within the theoretical framework of the ?right answers? thesis and its implications for the discourse of proportionality.  3.3. Anti-Archimedean Defense of Proportionality  The purpose of earlier sections was to provide idealistic and skeptical accounts of proportionality. I have analyzed the merits and detriments of proportionality and established that ? given that balancing in rights adjudication is inevitable ? proportionality is an unequalled doctrinal underpinning for making balancing disciplined, transparent, and, in a sense, coherent.                                                          481 Consider, for instance, the following passage from Illinois Elections Bd. v. Socialist Workers Party 440 US 173 at 188-189 per Blackmun: ?[a] judge would be unimaginative indeed if he could not come up with something a little less "drastic" or a little less "restrictive" in almost any situation, and thereby enable himself to vote to strike legislation down.? In a similar vein, the Supreme Court of Canada has posited on numerous accounts that common sense considerations may serve as a valuable substitution to empirical backup of the case: See, e.g., RJR-MacDonald v Canada [1995] 3 SCR 199 where McLachlin J (as she then was) noted, at para 154, that in some cases, the relationship between the infringement of the rights and the benefit sought to be achieved may not be ?scientifically measurable.? In such cases, she continued, ?this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective.? Similarly, see, Canadian Broadcasting Corporation v New Brunswick (AG), [1996] 3 SCR 480; R v Sharpe, 2001 SCC 2, Harper v Canada (Attorney General), 2004 SCC 33. 482 For a pertinent discussion, see my observation of epistemic unreliability in the previous section.       125 Now, as my line of analysis draws to a close, I will be concerned with proportionality?s realistic dimension. As established in Section 3.1, however robust and stringent it may be, proportionality, like any other judicial technique, is unable to escape normative considerations and value-laden judgments. Does this mean proportionality is invalid as an adjudicative technique? If proportionality?s analytical matrix allows for flexibility and leaves room for judicial discretion, may the final outcome still be called ?right? and ?correct?? These are notorious puzzles about proportionality?s legal and democratic credentials ? both with regard to the suitable articulation of the problem and in framing an agenda for a valid proportionality justification. I will not pretend to have made any philosophical news here; the fundamental problems about the ?right answers? theory are well known and their implications well understood.483 The suggestion I would like to make concerns the ways in which these                                                         483 To take nobody but Dworkin, the literature on his ?right answers? theory is immense. The most emblematic accounts of this thesis may be found in Ronald Dworkin, ?No Right Answer?? in Law, Morality and Society: Essays in Honour of HLA Hart  (Peter M.S. Hacker & Joseph Raz eds. , 1977) 76; Ronald Dworkin,  A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), and Ronald Dworkin, ?Hard Cases? in Taking Rights Seriously 107-110. Furthermore, it may be said to permeate, as a methodological assumption, all strands of his discussions about law. But compare this with Dworkin?s submission in ?The Right answer Farrago? (in Ronald Dworkin, Justice in Robes (Harvard University Press, 2006) at 41): 483 483My theory about the right answer in hard cases is [...] a very weak and commonsensical legal claim. It is a claim made within legal practice rather than at some supposedly removed, external, philosophical level. I ask whether, in the ordinary sense in which lawyers might say this, it is ever sound or correct or accurate to say, about some hard case, that the law, properly interpreted, is for  the plaintiff (or for the defendant). I answer that, yes, some statements of that kind are sound or correct or accurate about some hard cases. (In fact, I say that some such statements are characteristically or generally sound in hard cases. But we can ignore that more ambitious statement in this discussion about the kind of claim I am making). [...]   483    483Legal theorists have an apparently irresistible impulse [...] to insist that the one-right-answer theory must mean something more than is captured in the ordinary opinion that one side had the better argument in Cruzan. They think I must be saying not just that there are right answers in some ordinary way, as an unselfconscious lawyer might say, but that there are really right answers, or really real right answers, or right answers out there, or something else up the ladder of verbal inflation. Their mistake is just Rorty?s mistake: Thinking that they can add or change the sense of the position they want to       126 theoretical observations may shed light on proportionality?s underlying concerns. What I will attempt to show is that the critics of proportionality are getting the discussion wrong: for not only the possibility of judicial discretion under proportionality enables judges to adopt a context-sensitive approach to resolving competing rights claims ? and, hence, to protect the rights better ? but it is the discursive proportionality frame that prevents judges from going in their interpretation ?too far? and that ensures the feasibility of reaching the ?right answers? to rights adjudication questions. In what follows, I make the case for proportionality. After highlighting the most contentious issues within the ?right answers thesis? debate I  demonstrate that the best way to defend proportionality as a doctrinal framework is through a conception of law as a system.   Every system is prima facie rational, and rationality is in need of a common metric. I argue as a first step towards finding a foundation for legal and democratic justifications of proportionality as a standard of review. To that end, I will distinguish between two approaches to justify proportionality: one from the standpoint of formal (external, Archimedean484) rationality, and the other from                                                                                                                                                                                   attack by inserting these redundancies or metaphors in it. There is no perspective from which these inflated and decorated claims can have a sense different from their uninflated and undecorated sense, and that is the sense they have in ordinary legal life. So there is nothing in what I have said for them to deny except what most of them would think is perverse to deny.  483If the skeptical no-right-answer theory has any practical importance at all, therefore, it must be treated as itself, not a metaphysical but a legal claim. It claims that, contrary to ordinary lawyers? opinion, it is a legal mistake to think there are right answers in hard cases. So understood it stands or falls by legal argument. Philosophy and morality are certainly, and in many ways, pertinent to that legal argument. Legal positivists, for example, have argued that the one-right-answer thesis must be wrong, in law, as a matter of logic or semantic [...] Members of the Critical Legal Studies movement point to what they take to be pervasive internal contradictions in legal doctrine that, if they exist, would rule out right answers. [...] Moral skeptics, including John Mackie, defend a kind of internal moral skepticism that, if sound, would also defeat the possibility of right answers. No doubt other arguments with legal bite can and will be deployed in favor of the internally skeptical view. But these are legal arguments; if successful they call for reform, and if successful they can be made without the crutch of inexplicable metaphor.  484 I elaborate upon the respective concepts below.       127 the viewpoint of rationality which may be called substantive (and therefore internal, non-Archimedean.) I will argue that the latter ? which focuses on personal considerations of judges rather than adherence to a particular procedure ? may serve as a genuine and natural justification for proportionality.  That point made, the anti-Archimedean justification for proportionality may be provided from different theoretical standpoints. In a sense, even   legal positivism ? with Kelsen?s pure theory of law being its most emblematic example485 ? is of substantial help here. Recall that the problem of the hierarchy of legal norms ? where the ?higher? legal norm authorizes the enactment of the lower legal norm, and thus confers a legal validity upon it ? reaches a dead-end in a fashion strikingly similar to the counter-majoritarian difficulty.  At some point the chain of authorization comes to an end. There is no higher legal norm which authorizes the enactment of Constitution, which is deemed to confer legal validity upon all legal material in the relevant legal system. At this point, Kelsen famously argues that one must presuppose the legal validity of the Constitution. As Kelsen sees it, there is simply no alternative. More precisely, any alternative would violate David Hume's injunction against deriving an ?ought? from an ?is?.486 The issue observed is not unrelated to the proportionality quandary because the chain of proportionality?s justifications inevitably reaches an end. In the previous chapter, I have presented my line of reasoning as follows:                                                          485 Hart?s theoretical account of the hierarchy of norms resembles that of Kelsen in many respects. 486 Andrei Marmor, ?The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), online: <http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/>       128 (1) the legal validity of proportionality as a doctrinal tool for rights limitation is justified by the very nature of each and every legal system and the relative, as opposed to absolute, nature of rights; (2) the legal validity of balancing is justified by the nature of rights adjudication; (3) the legal validity of proportionality as a particular balancing framework, that is, the introduction of the proportionality test into the relevant legal system, is justified by the requirements of the respectful system to make legal reasoning transparent and predictable. Yet again, at some point, the chain of authorization comes to an end. For, as has been canvassed above,487  proportionality does not escape judicial discretion, which is dictated by the very nature of rights adjudication, namely, epistemic unreliability of assumptions upon which all arguments in a case at bar are premised. An all-encompassing Napoleonic Code was but the Utopia, and so is every attempt to create an argumentation framework which would declare all steps judges are supposed to undertake in reaching a final decision. Proportionality is not a hermetically sealed vessel, and its leakiness ? the invasion of its ?moral infection?488 ? however small, is inevitable. This discretion, hence, is in need of justification. But how can it be accounted for? What is the condition of proportionality?s validity? My answer in this connection is very similar to that of Kelsen. While by no means do I endorse the main theses of his jurisprudence, I agree with him that to validate a legal framework, in this case proportionality ? and the inevitable judicial                                                         487 See, especially Section 3.1 of this thesis. 488 Matthias Klatt & Moritz Meister, ?Proportionality?a benefit to human rights? Remarks on the I?CON controversy? (2012) 10:3 Int J Constitutional Law  687 at 692.       129 discretion it entails ? we need to presuppose.   Kelsen himself noted that legal norms necessarily come in systems. There are no free-floating legal norms. 489  This systematic unity is what is meant to be captured by the following two postulates: 1. Every two norms that ultimately derive their validity from one basic norm belong to the same legal system. 2. All legal norms of a given legal system ultimately derive their validity from one basic norm. Whether these two postulates are actually true is a contentious issue. Joseph Raz argues that they are both inaccurate, at best. Two norms can derive their validity from the same basic norm, but fail to belong to the same system as, for example, in case of an orderly secession whereby a new legal system is created by the legal authorization of another. Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm.490 As Andrei Marmor submits, however, even if Kelsen errs about the details of the unity of legal systems, his main insight remains true, and quite important. It is true that law is essentially systematic, and it is also true that the idea of legal validity and law's systematic nature are very closely linked.491 This view is echoed in Dworkin?s ?law as integrity? theory. Though he and Kelsen stand on different methodological footings, and also capture the components of the so-called ?system? in different manners, at the core of each of their theories is the                                                         489 Andrei Marmor, ?The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), online: <http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/> 490 Joseph Raz, ?Kelsen's Theory of the Basic Norm? in Raz, The Authority of Law (Oxford: Oxford University Press, 1979) 122?145 at127-129. 491 Andrei Marmor, ?The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), online: <http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/>       130 view that   legal phenomena, to successfully operate, must assume harmony, integrity, and an underlying system.492 Which raises the question - What underlies a system? Clearly, its most prominent features are rationality and reason.493 Rationality, in turn, is in need of a common metric. As Vlad Perju describes it, an objective common metric can be located in the structure of a constitutional system in a number of ways. It can be described as necessary for the existence of secondary rules494 which solve conflicts of norms within any constitutional structure. It would be impossible for courts to adjudicate the validity of myriad governmental limitations on rights without such a common metric.495 As David Beatty puts it: ?A constitution without some principle to resolve cases of conflicting rights would be incoherent: it just wouldn?t make any sense.?496 With respect to rationality, there are different accounts of the concept, some of which are deeply contested. For my purposes, to create a sense of orientation in the remainder of the section, I will draw on Weberian famous taxonomy and focus on formal (meta-, or external) and substantive (internal) rationality. The proponents of the former purport to take on a morally neutral,497 Archimedean point of view498 on                                                         492 A closer look at a theoretical and philosophical account of the unity and systematic nature of the legal system is to be found in Section 2.1 of this thesis. 493  Max Weber, for instance, has argued that rational-legal forms of authority such as the contemporary legal and judicial systems are examples of formal rationality. 494 Compare with Hart?s and Kelsen?s accounts of ?rules of recognition.? 495 Vlad Perju, ?Positional Objectivity the Case for Proportionality Analysis" (2009) Comparative Law Work-in-Progress Workshop (Princeton). 496 David Beatty, The Ultimate Rule of Law (Oxford University Press, 2005). 497  See, e.g., the submission of Arthur Ripstein who asserts that ?[f]rom Plato to Habermas, philosophers have sought to find some standpoint outside of the human practices which puzzled them from which to evaluate those practices? or ?Plato and Habermas [...] promise to provide a secure point that will enable us to stand above the fray of normative argument and resolve the disputes that animate it? (Arthur Ripstein, ?Introduction: Anti-Archimedeanism? in Arthur Ripstein (ed.) Ronald Dworkin (Cambridge: Cambridge University Press, 2007) 1-21 at 1, 6, 7). 498 Put simply, an Archimedean point in philosophy represents a vantage point which lies outside of the observer. The idea, distilled to its pith, is to "remove oneself" from the object of study so that one       131 textual analysis and interpretation, therefore providing justification to legal reasoning from a procedural standpoint and within a discourse of formal validity.499 However, the latter approach adopts the internal (anti-Archimedean) insight,500 which relies on the value content of all assumptions upon which particular reasoning is premised.501 Pushed to its limits, the distinction between the two approaches may be boiled down to a simple question: Do we adopt a standpoint outside or inside of our cognitive act? In other words, where are the answers to legal questions to be found: within the formal fabric of law or within the inner perspective of a particular decision-maker? To begin with, one of the most prominent external justifications of proportionality?s objectivity may be found in the works of Robert Alexy. The claim of the correctness-argument is a central part of Alexy?s theory of legal argumentation.502 The German commentator famously claims that ?morality cannot be justified by morality, because such a justification would necessarily become circular?.503 Alexy, hence, defends the rationality of the claim to correctness in law on the basis of the                                                                                                                                                                                   can see it in relation to all other things, but remain independent of them. Such an approach supposedly offers a ?neutral?, ?objective? and ?true? look on the totality of meaning. The concept is generally traced back to different authors, who describe Archimedes? famous remark ?give me a place to stand and I will move the earth.? 499 For a brisk account of the formal-procedural concept of general (instead of particularly legal) rationality, consider the passage from Habermas: ?[t]he unity of rationality in the multiplicity of value spheres rationalized according to their inner logics is secured precisely at the formal level of the argumentative redemption of validity claims. [...] [A]rgument or reasons have at least this in common, that they, and only they, can develop the force of rational motivation under the communicative conditions of a cooperative testing of hypothetical validity claims? (Jurgen Habermas, The Theory of Communicative Action. I. Reason and the Rationalisation of Society (trans. T. McCarthy; Cambridge: Polity Press) at 249). 500 According to Dworkin, the necessity of taking an internal point of view does not preclude the possibility of truth or objectivity. Quite to the contrary ? this anti-Archimedeanism, as he calls it (see Ronald Dworkin, Justice in Robes) allows for taking into consideration all normative presuppositions inherent in moral reason. In so stipulating, he proceeds on the account that judicial reasoning is inevitably value-laden, and there exists an ultimate unity of values (see Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011). 501 This presupposes, in turn, that all descriptions always assume evaluation; and evaluation cannot be morally neutral and extraneous to the agent who makes a decision. 502 See, e.g., Robert Alexy, ?Law and Correctness? (1998) 51:1 Current Legal Problems 205. 503 Robert Alexy, ?Discourse Theory and Human Rights? (1996) 9 Ratio Juris  209 at 212.        132 possible rationality of morality itself504 and, by proceeding on this assumption,505 endeavors to provide a justification to proportionality by means of focusing on its procedural aspects, specifically on careful assessment of all its underlying presuppositions with respect to the context of each particular case. For these purposes, and undoubtedly in line with the rationalistic foundations of the external approach I have outlined above, Alexy has recently mathematized his famous weight formula.506 It concerns the crux of the proportionality inquiry ? the balancing test, which entails balancing the concrete ? as opposed to abstract ? weight of the individual right (in the numerator) and competing public interest (in the denominator). The components of Alexy?s formula are as follows:  ?? =??1   ?  ?1 ?  ?1 ??2  ?  ?2  ?  ?2  W (c) stands for the concrete weight of individual right and competing public interest, respectively. The right part of the formula comprises three variables. The first? W (a) ? stands for the abstract weight of the individual right or public interest. Variable I stands for the intensity of interference with the right and public interest (governmental objective). The formula considers the intensity of interference with each principle on a triadic scale ranging from ?slight? to ?moderate? to ?severe;? each degree of interference becomes geometrically more difficult to justify.                                                          504 Robert Alexy, ?The Dual Nature of Law? (2009) in 24th  IVR World Congress (Global Harmony and Rule of Law0 Papers Plenary Sessions 257 at 262 ff.  505 ?Although [...] principles cannot determine an answer in every case governed by them, they may be complemented by a theory of legal argumentation revealing a single correct decision?, Joaqu?n R.-Toubes Mun ?iz, ?Legal Principles and Legal Theory? (1997) 10 Ratio Juris 267 at 271-7).  506 Robert Alexy, ?The Construction of Constitutional Rights? (2010) 4:1 Law & Ethics of Human Rights 19 at 30.       133 Finally, the formula comprises the variable R, which stands for the empiric reliability of the premises underlying proportionality considerations. The concept of epistemic reliability was addressed in Section 3.1 in a wealth of detail. Having elucidated Alexy?s  approach to rationalizing proportionality, it is now that I turn to an interesting and, in a sense, unparalleled approach to locating an Archimedean point in proportionality?s justification. For Canadian scholar David Beatty, the standpoint which allows decision-makers to ?remove themselves? from the object of consideration is adherence to facts. Should a judge remain detached from ?the substantive values? at stake in a case and look to the evidence? Beatty argues that ?the right answer is usually pretty clear?.507 The right answer is less clear and mistakes occur, as he submits, when one allows one?s own evaluation of the significance of a law to influence the analysis.  As Gregoir Webber observes, by emphasizing empirical evidence and the parties? own understandings of the significance of the law for them, Beatty?s account of proportionality seemingly renders proportionality factual; it is therefore objective in the sense that it does not, according to Beatty, require evaluation. The facts speak for themselves.508 Beatty espouses a view that this process is possible; that if a judge lets the facts and the parties speak for themselves, the judge will ?know just by looking, just by sight? which answer is correct. Yet, as Gregoire Webber has ironically observed, in reading The Ultimate Rule of Law, one quickly comes to the conclusion that ?facts speak to Beatty more clearly than they [do] to [his] readers?.509                                                         507 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006) at 162. 508  Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship?(2010) 23 C J L J 179 at 188. 509 Ibid.       134 Both scholars, Alexy and Beatty, as we have seen, endeavor to take a step back from value- and policy-laden proportionality considerations. They further claim to provide a defense to proportionality which would be extraneous to its normative underlying assumptions and, therefore, neutral. Yet these approaches are unsustainable; and for the following reason.  Proportionality provides a set of workable standards, which can also serve as constraints for judicial deliberation. Yet these external standards ? just like everything external ? are limited in their efficiency; what can really be of assistance in this respect are internal constraints ? which judges impose upon themselves. Proportionality helps judges manage disputes which take a particular form; it does not dictate correct answers to legal problems, at least under a conventional understanding of the term. Contrary to many popular accounts, Dworkinian theory has never set out to provide one right answer to any given case, but instead asserts that one right answer is possible, on moral grounds. Whether there is a right answer ?depends, plainly, on complex, highly theoretical issues of substantive morality?,510 and Dworkin defends on moral grounds, premising his assumptions on his conception of law as integrity, that there is in fact one right answer.511  Dworkin endorses a theory that, as long as judges write opinions as though they believe that they are discovering answers in legal materials rather than simply filling gaps and resolving ambiguities, their answers are right in a sense that they are rationally (from an internal standpoint) justified. That belief itself, as Mike Dorf puts                                                         510 Ronald Dworkin, ?Objectivity and Truth: You?d Better Believe It? (1996) 25 Phil & Pub Aff 87 at 135. 511 Ibid at 137       135 it, probably plays an important role in shaping and constraining what the positivist believes is the judge?s discretion.512 So, in terms of a common metric, it would be the attitude of the particular judge that may justify their reasoning, however un-ideal that reasoning might be from some methodological standpoints. Thus, as Aharon Barak states, even when discretion is used, in hard cases, subjectively, this subjectivity is meant to achieve the proper balance and not to advance one?s personal worldview. Although this judicial subjectivity513 is recognized, it is meant to achieve the proper solution determined according to objective considerations. 514  Thus complete objectivity can never be achieved within the framework of proportionality, although the same is true for any of the proportionality alternatives.515 In Shavit v Rishon Letzion Jewish Burial Society, Aharon Barak, then President of the Supreme Court of Israel, has espoused a view so clear and sound, that I am going to provide his citation in full:  My colleague, Justice Englard, complained that using balancing to measure the degree of harm to sensibilities is subjective for every judge. He dismisses the consideration and evaluation of the different sensibilities because of their personal and subjective nature and because the dispute at hand is a matter of ?personal ideology.? I do not argue with the conclusion that, at a certain stage, subjective perspectives become considerations. [...] I do not ignore the personal nature of the decision. Nevertheless, it is important to remember that only a small proportion of the considerations are subjective. The principal                                                         512  Mike Dorf, ?Is the Right Answers Thesis Superfluous??, online: <http://www.dorfonlaw.org/2010/08/is-right-answers-thesis-superfluous.html> 513 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 497 fn 95. 514 See Ronald Dworkin, ?Pragmatism, Right Answers, and True Banality,? in M Brint & W Weaver (eds), Pragmatism in Law and Society (1991) at 359; Aharon Barak, Purposive Interpretation in Law (Princeton University Press, 2005) at 202. 515 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 480.       136 work of a judge is dictated by a stratified system of objective considerations. These are required by the foundation documents; these were used in previous judgments; these are shared by each and every judge. In truth, a ruling is always value-based, but this does not mean that it is subjective. Most value-based judgments are objective, and are mandated by the values of the system. A competent judge is able to implement this system by differentiating between objective considerations and his or her personal, subjective views. That is how it has always been done. The many difficulties bound up with the personal perspective versus the occasional need for a subjective decision do not diminish the standing of legal values and principles and the need to balance them at the point of friction. We do not want to regress to a jurisprudence of concepts (Begriffsjurisprudenz) in which the conclusion supposedly arises, as if on its own, from objective considerations. We prefer the jurisprudence of interests (Interessenjurisprudenz) and the jurisprudence of values (Wertungsjuerisprudenze) in which an ?ideological? decision is required. We prefer substance over form. All these allow us to arrive at an objective decision, which is not personal to each and every judge, even if it is based in ?ideology.? In any case, this needs to be the model, while at the same time we acknowledge that sometimes there is no avoiding a subjective ruling. This is the ?price? ? it is worthwhile to pay it in order to ensure justice.516  To conclude, I shall reiterate the question that has underpinned my line of analysis throughout the last few sections: are there ?right answers? to proportionality questions? On the face of it, the ?right answers? theory is either true or false. My argument in this connection is that it is true, but in a nuanced rather than absolute way. Proportionality does create an unparalleled formal structure to judicial argument and ensures just and, in a sense, correct outcomes by providing 1) a conceptualized normative frame for debating contentious value- and policy-laden issues; and 2) a direct link to the contextual factors in a constitutional dispute, thus                                                         516 Shavit v Rishon Letzion Jewish Burial Society [1999] CA 6024/97 IsrSC 53(3) 600 [internal references omitted I.P]. See also Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 497; Ronald Dworkin, ?Objectivity and Truth: You?d Better Believe It? (1996) 25 Phil & Pub Aff 87 at 135.       137 bridging the domain of abstract principles and  concrete contexts; 3) some flexibility in respect of how these principles and contexts are to be interpreted and applied.  This possibility of leeway, like a coin, has two sides to it. For while it allows judges to successfully operate under conditions of epistemic unreliability and serves as machinery for furthering the common good, it may also be a rhetorical cover for judicial law-making. In the chain of norms? legitimization, there are simply no reviewing bodies above constitutional tribunals.517 The only solution possible, then, is to presuppose that a judge, as a rational agent of producing the right answer by means of proportionality decision engineering, does so in a way which best coheres with both societal beliefs of his community and standards imposed by proportionality framework. This is not to assert that the foregoing societal beliefs are vectors pointing in the same direction  ? to the contrary. It has always been and always will be the case that society may disagree on the core ethical and moral values because, as Duncan Kennedy posits, ?all normative concepts are infected with an unresolvable conflict?.518 However, these facets of the normative universe do not grow or develop at the expense of each other ? but alongside each other. The contradiction between them, according to Hegel, is the source of all motion or vitality ? as is any contradiction in general. The judge in a democracy, hence, performs a task of balancing these normative considerations in order to find an equilibrium point ? this plays an indispensable role in forming the virtues upon which liberal democracy is premised.519 Although a decision rendered will always to be, in a sense, ?ideological,?                                                         517 Here, I leave aside what in Canadian scholarly discourse is known as a dialogue principle. 518 Kennedy, Duncan. ?The Structure of Blackstone's Commentaries? (1979) 28 Buffalo L Rev 205 at 209. 519 On democratic preconditions of balancing, see also Stephen Gardbaum ?A Democratic Defense of Constitutional Balancing? (2010)  4:1 Law & Ethics of Hum Rts 77.       138 my chief argument in this connection is very simple and that is that the legal validity of the case outcome is easier to presuppose ? for judges themselves, but also for the parties in the dispute ? if the open texture of balancing which underlies judicial considerations520 is constrained by a conceptualized and well structured template of proportionality; one that depends on the fulfillment of one legal requirement after the other. Regardless, as I have already canvassed in Section 2.2, the legal universe has more to it than categorical answers; there are no A and -A dichotomies, nor is there black and white, or absolute right or wrong. Everything depends on the perspective of the beholder and their attitude. Attitude, in turn, depends on rationalization and justification.  Dworkin?s ?right answers? theory, in this respect, is no exception. Proportionality, by introducing value- and policy-laden judgments, does not jeopardize the objectivity of the final decision. Quite the contrary ? by means of creating a normative frame for right-based considerations it ensures transparency and coherence in judicial reasoning. Norms and values are inherent parts of the law. Law is integrity. Law is a novel or play.521 At the risk of seeming too poetic, law, better yet, is a musical piece; proportionality, then, is sheet music ? each performer will play it differently. However, as long as judges believe that what they are doing is not expressing their own beliefs, but those of society as a whole, proportionality allows for achieving societal harmony ? true and objective.522 Contrary to many popular accounts, judges are not a threat to this harmony ? but are instead its guardians.                                                          520 As discussed in Section 2.3 of this thesis, in constitutional adjudication, balancing is inevitable either way. 521 See Ronald Dworkin, Law?s Empire (1986) at 228-238. 522  On objective harmony of interests in society, see Francis Bradley, Ethical Studies, (Oxford: Clarendon Press, 1988).       139 CONCLUSION   The aim of this thesis was to inquire into, critically explore, and justify the conceptual foundation of proportionality ? a discursive judicial technique for adjudicating disputes concerning measures intruding on protected rights and the deleterious effects of those intrusions. Notwithstanding some signs of triumph ?proportionality was hailed, inter alia, as ?the overarching principle? in constitutional law  and ?the universal criterion of constitutionality?523 ? a growing number of commentators sympathetic to strong theories of human rights have argued that it is not clear how to account for proportionality?s invocation into judicial reasoning and whether recourse to its regulative ideas ?is at all helpful in resolving the difficult questions involved in struggling with rights-claims?. 524 Against these concerns I have pressed three linked arguments: first, that the mainstream canon of proportionality criticism has failed to get the matters conceptually and analytically correct so that, paraphrasing Dworkin, people who praise or disparage proportionality may not actually agree about what they are praising or disparaging525; second, that proportionality, while not a cure-all for challenges faced by constitutional tribunals, indeed allows for objective and impartial protection of human rights through disciplined and focused reasoning process and, in doing so, performs better than all existing doctrinal alternatives; and, third, that proportionality is overall normatively and institutionally                                                         523 David M Beatty, The Ultimate Rule of Law (New York: Oxford University Press, 2006) at 162. 524 See, e.g., Gr?goire Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship?(2010) 23 C J L J 179 at 179. 525 Ronald Dworkin, Sovereign Virtue. The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000) at 2.       140 defensible. It is also my position ? which has been demonstrated in the course of this thesis rather than argued for as a separate point ? that recourse to proportionality as a formal structure to argument is not a whimsical perpetration of constitutional judges but rather a comprehensive adjudicative phenomenon that has been historically, doctrinally, and institutionally predetermined. Drawing on Max Weber?s theory of formal and substantive rationality,526 I have provided justification for proportionality on two levels. From the standpoint of formal rationality, as has been extensively canvassed in Chapters 1 and 2, I argued that judicial functions are better served under procedural constrains of the multi-pronged proportionality?s analytical frame that allows for transparency, predictability, and public appreciation of reasons for judicial decisions. And that is precisely why, when the moral and political stakes are high, as in constitutional adjudication, the courts worldwide tend to embrace the rigid skeleton of proportionality that pushes governmental actors to constantly demonstrate527  to                                                         526 It is of important note that a growing number of constitutional commentators appear to make a case for linking proportionality?s domain and famous Weberian typology of rationality. For instance, in his recent article David Schneiderman emphatically argues that the mainstream account of proportionality ? and especially the reasons for proportionality analysis to spread across jurisdictions ? should be reconsidered in the light of Weber?s sociology of law (David Schneiderman, ?Judging in Secular Times: Max Weber and the Rise of Proportionality? (2013), forthcoming in Supreme Court Law Review (2d), currently available at < SSRN: http://ssrn.com/abstract=2313822>) Jacko Bomhoff, for his part, posits as follows:: ?one of the most important debates on balancing in Europe turns, to a large extent, on the ?formal rationality? ? in the Weberian sense ? of balancing as legal argument. Discussions of this dimension, in turn, seem to be lacking from the voluminous American literature on balancing. [The European debate] has taken place between J?rgen Habermas and Robert Alexy. [?] Although Alexy does not label his argument as such, it is clear that his defense proceeds on the basis of a ?formal? conception of rationality, in accordance with Max Weber?s famous typology? (Jacco Bomhoff, ?Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law? (2008) 31 Hastings Int & Comp L Rev 555 at 574-75) 527 Moshe Cohen-Eliya and Iddo Porat have argued in their recent treatise that Weber considered formal rationality as almost the ?twin brother of liberty,? since it prevents the government from       141 public the reasons and justifications for their actions. On the level of substantive rationality ? and this is the crux of my argument in Chapter 3 ? I has provided proportionality with a so-called anti-Archimedean type of justification which is premised upon the idea that rationality exists as a manifestation of man's internal capacity for value-rational action ? and cannot be satisfactorily captured by external or procedural arguments alone. Following up with Dworkin?s ?right answer? thesis, I used it to juxtapose proportionality and judicial ambitions for objectivity in a new theoretical light. To set the scene for discussion, I began with genealogical reconstruction of proportionality, then inquired into its conceptual preconditions and established that, whether explicitly or in disguise, proportionality reasoning is premised upon a balancing process. From the outset, I specifically rejected arguments to the contrary arguing that, whether conceptualized as a weighing exercise or rhetorically framed as a ?means/ends? analysis, proportionality cannot escape balancing because, as Robert Alexy strongly asserts, ?there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right?.528 Indeed, whilst there is something attractive about banning balancing ?from the temple of justice,? upon closer examination it becomes clear that no formal structure to value-laden argument can eschew it. Against this background, the issue appears in clearer focus. Given that at the core of proportionality lies balancing and that balancing in rights adjudication is inevitable, why rights-protecting courts around the world do not address it openly and explicitly? Put                                                                                                                                                                                   taking arbitrary actions (Moshe Cohen-Eliya & Iddo Porat, Proportionality and Constitutional Culture (Cambridge University Press, 2013) at 31). 528 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002) at 74.       142 differently, the question at the forefront of this research is: what is so appealing about the proportionality framework, especially in the face of criticism it has stimulated? As I strived to provide a detailed description of the foregoing critique and sought to demonstrate that most streams of criticism suffer from severe limitations, three of proportionality?s dimensions framed the discussion. Specifically, I have focused on critical exposition of proportionality as a ?rights limitation tool,? as a ?balancing exercise,? and, finally, as a ?multi-pronged analytical test.? As I went on to explain in Chapter 3, it is this latter discursive multi-pronged frame that invests proportionality with doctrinal appeal too hard to resist.  Whilst, strictly speaking, constitutional adjudication cannot be exercised as a mechanical process 529 (Weber, for instance, argues that we shouldn?t conceive of the ?modern judge as an automaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom, along with reasons, read mechanically from codified paragraphs?,530) this is not to say that the conflicts between constitutional values and interests can never, from a theoretical perspective, be properly reconciled. Nor does it mean that the answers to all proportionality inquiries blatantly reflect the individual preferences of judges, although under different ?headings.? Elaborating on Dworkin?s presupposition on the unity of values531 and law as integrity,532 I believe there is an                                                         529 The arguments about the non-mechanical nature of human rights reasoning revolve around two major problems: (1) epistemic unreliability of premises upon which proportionality reasoning is based, which is in tension with the ?cool matter of factness? of formal legal reasoning; (2) the fact that constitutional rights are drafted in an open-ended manner fashion that grants judges too much power to interpret their meaning.  530 Max Weber, Economy and Society: An Outline of Interpretative Sociology, ed by Gunther Roth & Claus Wittich (Berkeley: University of California Press, 1978) at 979. 531 See, eg, Ronald Dworkin, Justice for Hedgehogs (Belknap Press of Harvard University Press, 2011). 532 See, Ronald Dworkin, Law?s Empire (1986).       143 ultimate unity of interests in the state, and that the judiciary is the body entrusted to locate where within the constitutional dimension all interests equilibrate.533  Thus, it may be the case ? and indeed it is quite plausible to assume ? that the very nature of multi-faceted democracy presupposes what T Roux calls a ?constructive tension?534 between competing interests and values. Enabled to harmoniously co-exist through the balancing process, these facets of democracy ?develop alongside the other facets, not in their place?.535 More fundamentally, perhaps, my argument is  informed by Plato?s understanding of the unity of virtues, and an account of proportionality that flows through all aspects of his work. Proportion inheres in the soul and in the city and in the universe; it is built into the very structure of the cosmos ? and by extension of the city and the soul, according to Plato. 536  The need for symmetry, balance, and proportional relationships lies deep within the human psyche,537 even while proportionality means too little or too much when viewed in the abstract, on its own. In addressing the aforementioned issues, as I went through my line of analysis, I also strove to shed more light on the tension between the ?triumphant success of proportionality? and the severity of its criticism. Furthermore, key questions, pursued through the thesis, included: Is it possible to create a mechanical legal formula? Can we ascribe a truth-value to the content of legal norms? Can a right be defeated by a powerful utilitarian justification? Are neutrality and impartiality in law possible? Are there right answers to legal questions?                                                         533 Food for thought: Does the judiciary really balance, or is it supposed to check out the balancing performance of the legislator? 534 T Roux ?Democracy? in S Woolman et al (eds), Constitutional law of South Africa (2 edition, Cape Town: Juta law Publishers, looseleaf 2002-) at 65. 535  Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) at 221. For a fuller account of democracy and balancing, see also Stephen Gardbaum, ?A Democratic Defense of Constitutional Balancing? (2010)  4:1 Law & Ethics of Hum Rts 77. 536 Thomas Poole, ?Proportionality in Perspective? (2010) 16 LSE Law, Society and Economy Working Papers at 9. 537 See, e.g., R. Wittkower, ?The Changing Concept of Proportion? (1960) 89 Daedalus 199; B. Lepetit, ?Architecture, g?ographie, histoire: usages de l??chelle? (1993) 13 Gen?ses 118.       144 In the end, raising and illustrating these problems, even without claiming to provide comprehensive answers, puts us slightly ahead of where we were initially. Indeed, the explanatory gap in proportionality discourse remains, but it does not demonstrate a gap in law ? but a gap in our understanding of law. 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