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This Chapter questions whether there is a “doctrine” of proportionality. By “doctrine,” a way of dealing with problems across a range of problems. Using the country studies presented in this book, the chapter identifies a number of reasons for thinking that there is – and perhaps cannot be – such a doctrine. First, the components of proportionality are elements in any reasoned explanation for an outcome in a constitutional case; as a result, “hints” of proportionality analysis in cases not using its structured version may not in fact illustrate proportionality analysis at all. Second, courts allocate different analytic methods to different domains; as a result, proportionality analysis and categorical analysis co-exist in the system as a whole. Third, something like a categorical analysis is likely to appear at the “less restrictive alternatives” stage of proportionality analysis. Finally, even systems committed to proportionality analysis might find themselves eventually adopting some categorical rules as a means of achieving better results overall than proportionality would produce directly. The Chapter concludes with some observations about the role that structural, educational, and political contexts play in the choice between categorical and proportionality analysis.
The legal philosopher H. L. A. Hart wrote a widely cited article with the subtitle ‘The Nightmare and the Noble Dream’. For Hart the nightmare was American Legal Realism's claim that legal doctrine had no determinate content, that every judicial decision was ‘an uncontrolled act of lawmaking’, while the noble dream was Ronald Dworkin's hope that all serious legal questions had a single correct answer compatible with morality's dictates. Although Hart was not explicit, he hinted that, should jurisprudes wake from their sleep, they could have a view of the judicial process as neither a nightmare nor a noble dream, but as a realistic human enterprise suitable for workaday use.
In this brief chapter honouring the work of Upendra Baxi, I argue that the pursuit of judicially enforced social welfare and equality rights in the modern world is both a nightmare and a noble dream, that in contemporary circumstances the effort to enforce social welfare rights in the courts is bound to fail but must be pursued. I note at the outset that this chapter is not an exegesis of Baxi's work, nor a self-conscious effort to extend it. Rather, I offer my own reflections on some issues to which Baxi has paid attention.
I begin with social welfare rights even though they are typically described as ‘second generation’ rights with a more recent origin than equality rights. The reason is that the argument I develop to explain why judicial enforcement of social welfare rights is a nightmare transfers to the equality setting, but is more difficult to develop from the ground up in that context.
The Limits on Judicial Enforcement of Social Welfare Rights
The Mexican Constitution of 1917 was the first to include social welfare rights. It was assumed then and for several decades thereafter that these rights provided political guidance to legislators but were not judicially enforceable. That understanding was widespread but not, I think, deeply theorized. It seems to have arisen in part from a sense that the ways in which social welfare rights would be provided were highly various and subject to largely discretionary political choices: Social democrats had their policy proposals for realizing social welfare rights, liberals their own different proposals, and communists yet another set.
Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.
An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.
With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.
Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship