This chapter discusses the interpretation and application of the complex notions of necessity and proportionality, a cornerstone for any human rights adjudication and rights balancing exercise. Through an original and comprehensive analysis of the practice of the human rights bodies, this chapter shows the reader how these bodies managed to reach convergence on the interpretation and application of necessity and proportionality, despite all the impending factors.

Compared to figures like Hermann Heller or Carl Schmitt, Rudolf Smend´s heritage in German constitutional law seems to be at the same time more evident and more obscure. More evident because powerful constitutional lawyers like Konrad Hesse, Horst Ehmke and Peter Häberle were heavily influenced by Smend and because, last but not least, the German Federal Constitutional Court took up several parts of Smend´s doctrine in its judgements – mostly in the area of fundamental rights. More obscure because it is highly debatable not only whether Smend´s legal thought is actually still alive in dominant constitutional doctrines like the proportionality test, the balancing of constitutional goods, cooperative federalism or even fundamentals of immigration and citizenship law – but also whether Smend´s influence on Germany´s material constitution has been, on the whole, advantageous for post-war legal development. Beyond that, it is worthwhile looking at how Smend´s ideas were assimilated, but also transformed in important ways in highly influential casebooks and monographs such as Konrad Hesse´s Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland.

This chapter aims to analyze one aspect of the proportionality test in the case law of the Brazilian Supreme Court: its use as a tool for deciding cases involving socioeconomic rights. If these rights are one of the core elements of a transformative constitution, using the proportionality test to decide these cases raises the question of its transformative potential. We argue that there are several reasons for concluding that proportionality does not play a transformative role in Brazil. Some of these reasons are related to the general debate on the transformative potential of litigation; others are related to how the Brazilian Supreme Court uses the proportionality test, which could be summarized as follows: First, the Court has often used the proportionality test as a rhetorical device only; second, due to peculiarities of the decision-making process of the Court, proportionality has never been employed by the majority of its judges; third, in the realm of socioeconomic rights, the role of proportionality has been frequently undermined by other types of reasoning.

Experts increasingly play a more central role at all levels of public governance. As holders of expert knowledge, they are considered trustworthy providers of certainty and answers in the face of increased complexity, interdependence and the fast-changing pace of life. The authoritative certainty to which they lay claim causes them to be frequently called upon and consulted by policy-makers. Their importance has increased as policy-making has become more complex and intense.

The essay discusses the character of transnational legal expertise as a practice of making and unmaking of conceptual distinctions and moving between principles that reflect different institutionally embedded legal projects. At the same time, lawyers are trained also to carry out rhetorical performances that create the impression that these countervailing legalities may be stabilized through techniques of balancing. As a consequence, the transnational legal space appears both as a field of struggle and professional solidarity. Even as lawyers regard this as nothing other than a natural feature of the casuistry of the law itself, it alienates lay audiences that have drawn from lawyers’ constant disagreement the conclusion that legal expertise is just a species of elite opinion.

This study has pursued a balance between bondholder protection and respect for sovereign debt restructuring at various stages of litigation and arbitration proceedings. An appropriate balance inevitably depends on the context and circumstances of specific cases and cannot, by its nature, be articulated in a precise manner. Instead, the present study has pursued a framework within which an appropriate balance may be explored and attained in specific cases. Such a framework is constructed by applicable contract, statutory and treaty provisions to be interpreted in a manner that certain deference is paid to debtor sovereigns’ policy decision-making during debt restructuring and that the chance of checks and balances by courts or tribunals is ensured.

Chapter 8 concludes the analysis of the most important substantive investment treaty clauses by examining the fair and equitable treatment standard. It argues that armed conflict does not put into question certain guarantees of fair decision-making and adjudication, whereas it proposes a balanced relativisation of the protection of investor expectations in the context of armed conflict. The determination of whether treatment is fair and equitable can only be made in the light of the individual circumstances of conflict. When balancing the interests of investors in a stable regulatory framework against the state’s regulatory interests, the urgency and severity of these public interests in armed conflict should be accorded particular weight. Under the proposed reading, the fair and equitable treatment standard is flexible enough to consider the circumstances of an armed conflict in a balanced and nuanced way. Well aware of existing controversies and opposing lines of jurisprudence, the chapter suggests ways to embrace the standard’s flexible nature and counteract tendencies in arbitral practice that arguably overemphasise investor interests.

Complex sentences stand at the edge of discourse: they represent conventionalized forms of discourse cohesion. Coordination and adverbial subordination express the same types of semantic relations between events. Coordination packages the related events in a symmetrical, complex figure construal; adverbial subordination packages them in an asymmetrical, figure--ground construal between a matrix clause and a dependent clause. Referents and other concepts may be coordinated as well. Both coordination and adverbial subordination share the same strategies. Both may use conjunctions to express the relation between events, although the semantic categories expressed by coordinating conjunctions differ from those expressed by adverbializers. Both may use either a balanced or deranked strategy for the form of the predicates expressing the events. Crosslinguistically, one can distinguish two types of deranked predicate forms: converbs (for adverbial subordination) and action nominals. Conjunctions typically originate from discourse markers. Deranked coordination appears to originate in deranked subordination; in some languages, both are expressed identically.

Judicial review is central to the Constitution-in-practice, and in the American system of vertical precedent this necessarily gives the Supreme Court, because it is the final voice in the primary American process of articulating constitutional law, the most important role in solving constitutional problems. It does not follow, however, that all constitutional questions are to be answered by the Supreme Court or that all constitutional answers are the ones that a majority of the justices think are correct in the abstract. The practice of constitutional law involves a web of principles, doctrines, and practices that make the perspective from which one is addressing a question a significant factor, much of the time, in the reasoning the constitutional lawyer should employ.

This chapter considers how we determine the final obligations of a corporation where its actions or policies infringe upon fundamental rights. Since there are competing factors, there is a need to balance different interests. I argue that the proportionality test can be applied successfully to balance the fundamental interests of individuals against the interests of the corporation and thus can provide a structured process of reasoning for determining the final negative obligations of corporations. In making this case, I consider the justification for and challenges to applying the proportionality test to conflicts between non-state actors and individuals with a specific focus upon the corporation. I then consider how each stage of the proportionality analysis – purpose, suitability, necessity and balancing - can apply to corporations and the complexities involved in doing so. In doing so, I will show where each factor – identified in the last chapter - fits into the overall analysis.

In this chapter, Cooley and Nexon argue that instead of operating with a continuum from “revisionist” to “status quo” powers, we should rather focus on the broader strategic environment in which power political maneuvers take place. This is an international goods ecology, comprising types of goods and their distribution. The key advantage of studying power politics as operating within such an asset ecology is how order itself then becomes something different from polarity or hegemony. This makes it possible to distinguish between challenges to the power position of the hegemon and challenges to the architecture of the international order itself. Cooley and Nexon therefore develop an alternate typology of how international orders are challenged to show how acts of substitution are themselves potentially order transforming. They argue that US-led hegemonic order may be undermined before any overt challenge to the power position of the United States emerges. The main benefit of studying the logic of asset substitution is that it gives us a tool to assess how seemingly unimportant acts of substitution, bit by bit and regardless of a lack of revisionist intent, can shape and transform the international order.

Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead, they use a combination of balancing and tiers-of-rights analyses. We offer two reasons why Philippine courts do not use the proportionality test. First, Philippine courts regard US constitutional law as more persuasive authority than other foreign jurisprudence, and the proportionality test is also absent from the U.S. Reports. Second, Philippine constitutionalism is originalist, and proportionality is not part of the original meaning of the Philippine Constitution. The Philippine Data Privacy Act of 2012 can be interpreted as the legislative empowerment of courts to use the proportionality test for the adjudication of data privacy rights. We argue that Philippine Congress has the power to mandate the use of the test with respect to constitutional rights that are subject to Legislative Delimitation Provisos, which give Congress the power to determine, by statute, the limits or boundaries of certain constitutional rights, including the right to informational privacy. We propose a two-step process in adjudicating informational privacy cases which would retain the judicial use of legal categories while concurrently introducing proportionality stricto sensu. This will offer a structured, transparent approach to the constitutional adjudication of data privacy rights.

The chapter argues that conscientious exemptions should not be granted to providers of commercial goods and services from the prohibition of sexual orientation discrimination on the basis that LGB people would thereby be treated by the law as second-class citizens. The chapter rejects the charge that the right to non-discrimination would consequently be prioritized over general right and that those that oppose homosexuality would be treated as second-class citizens. The majority of the chapter is devoted to showing that several fundamental rights (i.e. non-discrimination, association and expression) prohibit the state from treating those that oppose homosexuality as second-class citizens. Consequently, given the balancing of rights and harms involved, the right to non-discrimination on the ground of sexual orientation will prevail in certain circumstances while the general right to conscientious exemption will prevail in others.

This chapter complements part 4 of Chapter 1 by engaging with and refuting several objections which may be mounted to the arguments advanced there. Those objections are considered in this chapter while making the case for an attractive interpretative theory of how conscientious exemptions should be regulated in a liberal state. A liberal state is here understood to be one committed to individual freedom and state neutrality between different conceptions of the good life. This chapter calls the interpretative theory the Liberal Model of Conscientious Exemptions. This theory has the following four defining propositions:A. The liberal state should grant a general right to conscientious exemption.B. The liberal state should refrain from passing moral judgement on the content of the beliefs which give rise to a claim for conscientious exemption.C. The liberal state should neither privilege nor disadvantage religious beliefs over non-religious ones when considering whether to grant a conscientious exemption.D. The liberal state should grant conscientious exemptions to claimants who sincerely hold a conscientious objection which would not disproportionately impact the rights of others or the public interest.The chapter defends each of the propositions in turn.

The chapter develops a Kantian account of constitutional justice: the explication of those structural features of a legal system whose purpose is to optimize a polity’s capacity to achieve a Rightful condition. The People, in enacting a rights-based constitution, have placed their freedom in trust. Rights ground a system of reciprocal freedom among individuals, while conferring on officials the authority to make and enforce law, subject to constraints laid down by the Universal Principle of Right (UPR). A constitutional court, the trustee of the regime, supervises the rights-regarding acts of all other officials, assesses the reasons officials give when they make decisions that burden rights, and invalidates those acts when reasons given to justify such burdens fail to meet the demands of the UPR. Although some rights will be expressed in absolute terms, most will be qualified by a limitation clause. In adjudicating qualified rights, the court can do no better than to adopt the proportionality principle. The UPR, operationalized through proportionality analysis, lays down a basic criterion for the legitimacy of all law.

The right to justification (RTJ) is borrowed from moral and political theory to offer normative guidance in the concrete and localized circumstances of the proportionality test. Based on the seminal work of Rainer Forst, Mattias Kumm has illustrated in various pieces how the RTJ operates in the proportionality context by identifying “excluded reasons” for limiting rights. However, Kumm does not clearly explain if the test also helps identify what the RTJ positively requires. This chapter aims to remedy this deficit in three steps: (1) present the core features of Forst’s account of the RTJ and emphasize the right that best demarcates the RTJ from rival accounts of human rights, namely the right to democratic participation; (2) reconstruct the precise role that the RTJ should play in proportionality analysis as suggested by Kumm, which the author insists on the common thread between Forst and Kumm, namely how the principle of mutual justifiability should inform the evaluative part of the proportionality test; and (3) show how the RTJ can help to balance two equally protected rights, expression and privacy, by reference to the practice of the European Court of Human Rights.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the Israeli Supreme Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings expose that, contrary to the common conception, it is overwhelmingly common for measures to fail the analysis prior to the final stage, including the suitability stage and especially the necessity stage. The justification of the invalidation of measures is typically made up of a combination of disproportional harm relative to benefit together with additional flaws in the policy, as reflected by the other subtests of the doctrine. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the German Federal Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings reinforce the existing perception that strict proportionality is the central stage of the proportionality analysis: it is the stage responsible for the vast majority of failures, and even in the rare cases of failure at the worthy purpose, suitability, or necessity stages, half of those cases continue to the final stage. The findings do demonstrate several forms of deviations in practice from the standard sequential model of proportionality. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the South African Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The data reveals that although the failure rates at the worthy purpose, suitability, and necessity stages are surprisingly high, the court generally continues its analysis to also consider the balance between values. These findings lead to a nuanced understanding of the South African court’s global application of proportionality, in which the court utilizes all elements of the analysis in each case to evaluate whether allowing a particular limitation or striking it down advances constitutional values more faithfully. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.