Objectivity, Proportionality, and Balancing

The relationship between proportionality in general and its most controversial and in practice most significant step balancing in particular and the separation of powers has received less attention than many other aspects of proportionality. This paper aims to show that the notion of theorization can elucidate the relationship between judicial balancing and the separation of powers. To this end, I locate the interface between the relatively open ended moral reasoning required by balancing and the restrictions on institutional capacity imposed by the separation of powers in the theorization that is required to resolve a case before the court. Further, the paper argues that conceptualizing of the relationship in this way on the one hand allows us to conceive of the level of theorization that is required and legitimate and illegitimate forms of deference on the other.

The paper presents results of a study examining the effect of personalizing the public image of legal decision-makers on the perceived objectivity of his institution. We find, in the context of the criminal prosecution of Israel‘s prime minister, Benjamin Netanyahu, that exposure to personal information about Israel‘s Attorney General decreased the perceived objectivity of his office, compared to no exposure to personal information, regardless of the type of information, decision salience, and respondents‘ political leanings. Our findings support the legitimating potential of non-personalization of decision-makers, and show that it pertains to people positioned as both ‘losers‘ and ‘winners‘ with regard the political impact of the decision. The study further reflects the capacity of non-abstract real-world, real-time, analyses to shed light on the drivers of public trust in legal decision-making in politically polarized contexts—an issue of pertinence in many contemporary democracies.

Proportionality lies at the heart of the contemporary constitutional rights paradigm. As such, it has attracted as many enthusiastic as critical reactions. The vast majority of criticism aims at the last step of proportionality, the balancing. Balancing is a relational concept. It expresses mutual relation between colliding principles in the light of the concrete case. Therefore, the outcome of the balancing exercise is always (at least to some extent) context-dependent. The critics take this fact as a basis for one of the most serious objections against the balancing. They argue that its contextual (ad hoc) character diminishes legal certainty: It prevents courts from erecting “stable and predictable standards of human rights protection“ and liberates them from treating like cases alike. This paper deflects the ad hoc objection by demonstrating that balancing can - in connection with the doctrine of precedent - build stable and predictable standards of human rights protection.

Proportionality is everywhere! But is it really? I claim that a closer look at many supposed instances of application of the proportionality test will yield the conclusion that proportionality was not applied at all. The fact that balancing is part of the proportionality test has led many to see instances of proportionality whenever decisions resort to balancing. But balancing performs different tasks in legal argumentation and its role within the proportionality test is only one of them, and not necessarily the most frequent. Even fiercely discussed examples of the use of proportionality, such as the Otto-Preminger-Institut decision of the ECtHR, turns out to be no instance of proportionality at all if we take the structure and the role of proportionality as a method seriously. Even if it is true that the proportionality test may differ in various countries, a basic common core must be presupposed, otherwise what is left for discussion is only a general (and potentially hollow) idea.